Mediocre Medicine – Attorney Jonathan Emord

By Attorney Jonathan Emord

Beginning January 1, 2014, the currently beleaguered system for the provision of medical care in America will become much worse. Within a decade we will witness the destruction of quality in every area of medical practice. Obamacare will kill medical innovation and exceptionalism, providing everyone with a one-size-fits-all set of options and leaving many to wait long periods or be denied access to needed care.

Medical practice depends on innovation, at the physician level and above. Disease has a peculiar way of morphing and new diseases have a peculiar way of cropping up year after year. To perform well in this changing landscape requires instantaneous adaptation and the tailoring of care. To the extent that care becomes more routine, void of exceptionalism and innovation by physicians, disease prevails and the quality of care diminishes.

For decades before the passage of the Patient Protection and Affordable Care Act, Americans across the nation complained bitterly of the fact that health insurance plans denied them coverage for what they and their doctors deemed necessary treatments. The essential problem arose form insurance industry control over the practice of medicine, a system of distant second-guessing of the attending physician’s judgment. To be reimbursed for care of the insured, physicians have had to toe the line with insurance agents and avoid providing any level, degree, or quality of care that the insurer deems exceptional or unnecessary. Insurers rely on profiling of patients and medical practices to come up with routine standards of care. When a physician deviates from a standard, he or she risks being audited and required to reimburse the insurance company for all monies paid by the company to the physician. That sometimes lethal threat to a medical practice keeps physicians in check and risk managers employed at an enormous cost. Physicians and hospitals would much rather avoid the extraordinary cost of defending themselves against a charge of improper billing by avoiding the provision of care insurers may deem exceptional or unnecessary (even if that means denying patients a level, degree, or quality of care they think most likely to result in cure or cessation of symptoms) than to risk an audit by providing exceptional care.

With Obamacare, that already bad, even horrific system becomes far worse. The present system of government sponsored medical care is Medicare. Under Medicare, participating physicians must live within bureaucratically defined limits to the provision of care. A physician must make sure that he chooses the right code to define the care he is giving a patient, and if a code does not exist for what he wants to do, he is best put at avoiding the provision of that care. Private insurance companies selected by the Center for Medicare and Medicaid Services are regional Medicare providers under contract with the federal government. They monitor physician billing and dole out payments. They also perform audits of physician practices and punish the wayward by demanding reimbursement.

Under this bureaucracy, physicians may only provide care that Medicare and its proxy the insurance company deem “medically reasonable and necessary.” The insurance company performs complex evaluations (that are kept secret even against FOIA requests) of all physician billings in a particular service area. That yields graphs which show what typical billings look like. When a physician bills in an atypical way regardless of the justification for the billing, the insurance companies computers identify the physician as an outlier and an audit is recommended.

When a Medicare audit is performed, a physician is required to turn over a random sampling of patient charts for assessment. Those charts are then extrapolated to the entire universe of Medicare patients seen by the physician (making any errors found in the select sample applicable to the entire universe, thereby multiplying manifold the amounts of the reimbursement demand). The charts are then painstakingly reviewed. Any failure to provide what a reviewer subjectively deigns a full justification for a diagnosis and treatment yields a determination that the physician was unjustified in providing the required treatment (even if in fact he did provide it and even if in fact the treatment worked). The written record becomes the entire universe of proof. It is an adage among physicians that no amount of detail in a record can survive an audit because auditors exercise enormous subjective discretion. Insurance auditors can challenge a record for a discrete omission of fact. Physicians can be challenged for overbilling, for underbilling, for upcoding, for using the wrong code, and for the provision of care not deemed medically reasonable and necessary because it is more care than should have been provided, less care than should have been provided, or the wrong kind of care in the mind of the insurance examiners. There are so many hooks available to catch the physician that the mere casting of the line ensures no reasonable escape.

This system has an in terrorem effect on physicians and the risk managers that advise them. When a Medicare beneficiary is before them, they maintain an unspoken fear throughout. They follow a pat regimen to avoid second guessing by the insurer. They make sure that the kind of examination given fits within the profile and coding deemed typical by the insurer who they know will be second guessing their every move. Even if a physician thinks the patient would benefit from a particular kind of nutritional therapy, exercise regimen, alternative to drug regimen, etc., he or she knows that the insurance company will second guess that decision and deem the provision of the care improper unless strictly within historically accepted limits. So, the safest thing for physicians to do is to provide that kind of care which is routinely given. Moreover, because of the fee caps governing what they can charge, physicians try to spend as little time with their insured patients as possible. More patients means more in the way of fees. Indeed, survival in medicine depends on seeing the largest number of patients in a single day that can be accommodated without incurring too high a risk of malpractice.

That wretched system will now be writ large thanks to the President and Congress’s decision to give the health insurance industry a monopoly over the provision of medical care. Under Obamacare, the Secretary of HHS will determine which health insurers qualify under the program to receive patients mandated for coverage. Those insurers will live within a Medicare-type regime, where only that care deemed medically reasonable and necessary will be reimbursable. Medicare, in effect, will reach not only those 65 and older but every American citizen.

For A perfect storm is heading to the medical community. There is an existing shortage of qualified physicians in most areas of practice. Bright young minds contemplating a career in medicine now realize that the kind of financial constraints that Medicare imposes on physicians will become universal with Obamacare. They will head for other, more lucrative professions that suffer far less constraint on the exercise of professional judgment. That will exacerbate the shortage of physicians. Physicians who choose to remain in the system rather than retire or look for other means of employment will be constrained in the exercise of their professional judgment as never before.

In the end, the quality of medical care in the United States will drop. There will be shortages of available care and there may be rationing of care. Medicine in the United States will become far less innovative. New discoveries may be found but translating them into practice will be far more difficult. Practitioners will experience the greatest disincentives. They cannot innovate or provide tailored patient specific care without risking attack from insurers and the federal government. They will become more and more like automatons, dispensing a one-size fits all standard of care that leaves those with unusual cases out of luck. Because disease is evolutionary, over time that will mean that a majority of patients will routinely receive substandard care.

© 2012 Jonathan W. Emord – All Rights Reserved

Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable eight times, six on First Amendment grounds, and is the author of Amazon bestsellers The Rise of Tyranny, Global Censorship of Health Information, and Restore the Republic. He is also the American Justice columnist for U.S.A. Today Magazine.

Website: E-Mail: