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Teaching Hospital Update - November 30-December 4, 2009


Email Alert

By Clinton Mikel*

December 4, 2009

Doctors' Groups Break Ranks to Oppose Senate Healthcare Overhaul

The California Medical Association (CMA)--which represents more than 35,000 doctors--will announce its opposition to the Senate version of the healthcare overhaul bill later this week. The group's leaders voted to oppose the bill last week, joining several other states' physician associations, including Florida and Texas. A chief worry for doctors is that the Senate bill would create a Medicare commission that may assume some power for setting rates for the program. They anticipate that it would lower Medicare reimbursements by 40% in coming years. The American Medical Association has taken no position on the Senate bill but did back a House version last month. The CMA remained silent then.

A 240,000-strong coalition of surgeons, including the American College of Surgeons and eighteen other groups, indicated Wednesday that they would also oppose the Senate bill. They stressed that they could not support the bill since it inadequately addressed Medicare's doctor payment system, included an overly powerful Medicare payment-setting commission, and created an unfair cosmetic surgery excise tax. In a letter, the surgeons reminded Senate Majority Leader Harry Reid (D-NV) that they had outlined those concerns in an earlier correspondence. Because those concerns have not been adequately addressed, the group feels that it must oppose the legislation as currently written.

Kaiser Daily Health Policy Report, Doctors' Groups Break Ranks To Oppose Senate Healthcare Overhaul, Henry J. Kaiser Fam. Fdn. (Dec. 3, 2009).

Reid Still Seeks Common Ground on Public Option

Senate Democrats have marketed a new "opt-out" public option in recent weeks, and another proposal is expected next week. The proposals have fended off Republican calls for the elimination of the government-run healthcare plan. But it remains to be seen how much life is left in the public option, because no variation has attracted the backing of sixty senators. Senate Majority Leader Harry Reid (D-NV) is working to unite liberals who demand a government-run program with centrists who continue to resist.

Most Americans would like to see a "public option" in health insurance reform but doubt anything Congress does will lower costs or improve care in the short term, according to a poll released on Thursday. A survey by Thomson Reuters Corporation shows a public skeptical about the cost, quality, and accessibility of medical care. Just under 60% of those surveyed said they would like a public option as part of any final healthcare reform legislation.

The end of the Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidy for some people is contributing to the debate on the public option. The possibility that people will drop their COBRA plan and join tens of millions of uninsured Americans is especially poignant as Congress debates healthcare reform, which may include government-funded health insurance in the form of a public option.

Kaiser Daily Health Policy Report, Reid Still Seeks Common Ground On Public Option, Henry J. Kaiser Fam. Fdn. (Dec. 3, 2009).

Nonprofits' Moves to Preserve Cash Are Noted

Nonprofit hospitals and health systems that received credit upgrades in the past thirteen months from one New York ratings agency had all moved to preserve cash during the prior year's credit and economic turmoil.

In a newly released report, Moody's Investors Service noted many of the twenty healthcare borrowers upgraded by the ratings agency since October 2008 saw operations and balance sheets improve. Increased outpatient volume, cost-cutting and billing, and collection efforts contributed to gains, as did cuts to capital spending. Moody's downgraded seventy-six hospitals and health systems during the same period, though downgrades have slowed each quarter since the final three months of 2008, when twenty-seven healthcare borrowers saw ratings drop.

Hospitals and health systems with more than $250 million in net patient revenue were more likely to be upgraded and one out of four with improved credit reported more than $1 billion in net patient revenue. Two healthcare borrowers were upgraded into investment grade from speculative grade. Six saw their ratings adjusted upward to mid-investment grade from the bottom tier of investment grade. None were upgraded to high investment grade. Several healthcare borrowers with upgrades also finished capital projects without overrunning budgets and expanded existing or new services, according to the report. Moody's analysts also credited good governance and management for the gains.

Melanie Evans, Nonprofits' Moves to Preserve Cash Are Noted, Modern Healthcare's Daily Dose (Dec. 1, 2009) (note: registration is required to view this content).

Hospital Did Not Have Duty to Patient Killed After Discharge, Indiana Court Says

A hospital that treated a domestic violence victim did not breach any duty that it may have owed to the patient who was killed by her ex-husband shortly after she was discharged, the Indiana Supreme Court ruled on November 30, 2009 (McSwane v. Bloomington Hospital and Healthcare System, Ind., No. 53S04-0808-CV-00420, 11/30/09).

The Indiana high court said Bloomington Hospital and Healthcare System did not have a duty to safeguard Malia Vandeneede from the dangers allegedly posed by its decision to discharge her into the custody of the person who allegedly inflicted the injuries that necessitated the hospitalization and who subsequently murdered her off-premises.

Even if the hospital owed such a duty, it did not breach that duty because it did everything within its power to keep her at the hospital and prevent her from leaving with her ex-husband Monty Vandeneede. The court found that the hospital's efforts--calling police about the situation, giving her an opportunity apart from him in which to report abuse, informing Malia that she did not have to go with Monty--satisfied the duty of care it owed to Malia.

The court also found that there was a sufficient basis for concluding that Malia was contributorily negligent in insisting on leaving with Monty over the objections of her mother and after rejecting offers of help by hospital staff. In Indiana, a plaintiff who contributes to her injury, even in part, may not recover on a negligence claim against other parties, the court noted.

The decision affirmed a state trial court decision that granted summary judgment in favor of the hospital based on the absence of any duty on the part of the hospital and because of Malia's contributory negligence. The supreme court did not address an intervening state appeals court decision that, in March 2008, had reversed the trial court. The appeals court ruled at that time that the hospital did have a duty to safeguard Malia against the foreseeable risks of allowing her to leave the hospital with her alleged assailant (17 HLR 423, 3/20/08).

The appeals court also noted that Malia and Monty were at one time married, that they continued living together for some time after their divorce, and that it was Monty who took Malia to the hospital in November 2002 for treatment of lacerations, puncture wounds, and arm and wrist pain. The appeals court said that, even though Malia told hospital personnel that the injuries resulted from her falling off a horse, hospital staff quickly became suspicious that Malia had been a victim of domestic abuse. In addition, when Malia's mother, Ava McSwane, arrived at the hospital while Malia was being treated, she told a nurse that Monty had beaten Malia with a fireplace poker.

Despite being told that she could stay at the hospital and that she did not have to leave with her ex-husband, Malia chose to leave with him. Soon after they left, Monty killed Malia and then committed suicide. McSwane brought a medical malpractice action against the hospital and the surgeon who treated Malia. The surgeon and hospital moved for and were granted summary judgment by the trial court. The appeals court upheld the dismissal of the claims against the surgeon but reversed as to the hospital. The case was thereafter transferred to the supreme court for direct review.

In affirming the trial court's decision, the supreme court began by finding that, whether or not a hospital has a duty to patients injured off-premises or whether Bloomington Hospital "assumed" such a duty, the real question was whether the hospital had demonstrated that there had been no breach of those duties.

"It is straightforward enough to say that a hospital's duty of care to a patient who presents observable signs of domestic abuse includes some reasonable measures to address the patient's risk," the court said. "The hospital in this instance took several such actions, including direct suggestions that abuse might be the cause, providing a chance to so indicate outside the earshot of the abuser, security examinations of the suspected abuser, facilitating telephone calls to law enforcement, and declarations that Malia need not leave the hospital with him," the court continued.

"While counsel [for McSwane] does not suggest that the hospital should have physically restrained Malia from leaving the building, it appears plain that little short of that would have kept her from leaving with Monty. Holding that the hospital's duty encompassed such measures obviously bumps right up against patient autonomy and informed consent, two touchstones of medical malpractice law," the court added.

"Considered as whether the hospital's duty extended to off-premises activities or as whether it breached its duty by assenting to Malia's insistence on departing, the trial court was correct to grant judgment for the hospital," it said.

The court also agreed that there was sufficient evidence presented to support the contributory negligence finding. "The trial court found that Malia's insistence on leaving with Monty in the face of offers by hospital staff and pleas by her own mother was negligence that contributed to her injury. This was not error," the court concluded.

Hospital Did Not Have Duty to Patient Killed After Discharge, Indiana Court Says, BNA'S HEALTH L. REP. (Dec. 3, 2009) (note: registration is required to view this content).

RSNA: Radiologists Lambaste USPSTF Guidelines

Radiologists at the Radiological Society of North America have rejected revised mammography guidelines from the U.S. Preventive Services Task Force (USPSTF), arguing that they are not backed by scientific evidence and will lead to unnecessary deaths. Under the revised guidelines, "screening will begin too late and its effects will be too little," said Stephen A. Feig, MD, of the University of California-Irvine and president-elect of the American Society of Breast Disease. "We will save money but lose lives."

The USPSTF recommended an end to routine mammograms for women in their forties and suggested that women in their fifties be screened every two years, instead of every year. The recommendations drew a storm of criticism from politicians, women's rights advocates, and many doctors. Critics said the guidelines represent a major setback to progress derived from increased breast cancer screening over the last decades.

Daniel B. Kopans, MD, of Massachusetts General Hospital, said screening has resulted in a 30% decrease in breast cancer deaths since the early 1990s, when mammography began gaining popularity. "Current American Cancer Society guidelines [recommending annual mammography for women starting at age forty] have been shown to save lives," Kopans said. "The Task Force, by its own admission, said women will lose their lives. That doesn't seem to be much of a choice."

Feig said substantial evidence supports the use of mammography in women ages forty to forty-nine, citing several U.S. and international studies that have found significant benefit for the screening tool. He said the U.S. Preventive Services Task Force relied on studies with significant methodology flaws that underestimated the benefits of mammography. Task Force panelists "don't know those studies underestimated the benefits," Kopans said. "It's a very subtle distinction." There was no breast cancer screening expert on the Task Force's panel.

Radiologists also took issue with the age of fifty being the starting point for screening mammography. Kopans said no data support the use of age fifty as a threshold. "The numbers don't change there," he said. "Nothing happens at 50, there's no biological or scientific reason for this recommendation."

Evans noted that several groups, including the American Cancer Society, American College of Obstetricians and Gynecologists, Mayo Clinic, American Society of Breast Disease, and the American College of Radiology oppose the new guidelines. Only two organizations--the National Breast Cancer Coalition and the Dr. Susan Love Research Fund--are in favor of them.

Radiologists say they aren't clear on the motivation of the Task Force recommendations, but they may have something to do with cost. A lack of education about screening efficacy likely played a role as well, Kopans said. "The panelists had good intentions," he said. "But they don't understand mammography screening."

Kristina Fiore, RSNA: Radiologists Lambaste USPSTF Guidelines, MedPage Today (Dec. 2, 2009).

Premiums Would Rise, Says Blues Analysis

Incentives and penalties in the Senate healthcare reform bill are insufficient to bring healthy young people into the individual and small-group insurance market and would thereby drive up premiums, according to an analysis released by the Blue Cross and Blue Shield Association.

"Overall, we expect average premiums after reform to increase significantly," said Jason Grau, an associate partner with Oliver Wyman. Premiums for people purchasing new policies on the individual market would be $4,561 for single coverage and $9,669 for family coverage in today's dollars--representing premium increases of $1,576 and $3,341, respectively, according to the analysis.

Average annual medical claims in the Senate bill's reformed individual market will be 54% higher than today by 2019, according to the analysis conducted by Oliver Wyman, a consulting firm. Another factor that would drive up costs is that today's uninsured, once covered, will have medical claims about 20% higher than current enrollees in the individual market, according to the report. Today, people in the individual market are healthier than the uninsured because in most states, insurers can refuse coverage to people with pre-existing conditions, according to Oliver Wyman.

Premiums for the youngest 30% of the population, who typically have low medical costs, would jump by 35% after enactment of the Senate's Patient Protection and Affordable Care Act, according to the analysis. Earlier this week, federal actuaries said the overhaul bill would result in higher health insurance premiums for many but that increased costs for others would be defrayed by subsidies.

Rebecca Vesely, Premiums Would Rise, Says Blues Analysis, Modern Healthcare's Daily Dose (Dec. 3, 2009) (note: registration is required to view this content).

*We would like to thank Clinton R. Mikel, Esquire (Hall Render Killian Heath & Lyman PLLC, Troy, MI), for providing this week's update.

AHLA Teaching Hospital Updates are intended to provide quick summaries of cutting-edge issues of interest to teaching hospitals and their counsel. Additional information and more in-depth coverage on these topics may be available from AHLA Health Lawyers Weekly and appropriate AHLA Practice Groups.

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