First, We Sue All the EHRs

There appears to be a new tactic in medical malpractice suits: blame the EHR.  Oh, great; something else we can try to make their fault.

Evidence for this trend is, at this point, more directional than statistically significant.  An analysis by The Doctors Company, a large medical malpractice insurer, found that EHRs were a contributing factor in less than 1% of suits from 2007 - 1H 2014, but that the rate had doubled in the last few months of the study.

Experts suggest that the percentages are still small because EHR adoption did not really pick up until after HITECH passed in 2009, and that malpractice cases usually take several years to work themselves through the legal system.  So what we're seeing now may be the tip of the iceberg.

Other research is mixed.  A 2015 review of the literature by RTI International for HHS on health IT's impact on patient safety concluded that it most definitely can help, including lowering the risk for malpractice claims.  A study by CRICO, another malpractice insurer, found that EHRs offer new types of risks -- some user error, some system-based.   Half of the cases they found resulted in "severe injury."  Incorrect information accounted for 20% of errors, although a variety of system failures were responsible for even more.

Fair enough to say that if EHRs work as intended, and if they are are used properly, then they can help reduce risks and improve patient outcomes...but both those "ifs" are not certainties by any means.  Thus the risk for malpractice and other legal risks.

The issue became visible last fall during the U.S Ebola scare, when the hospital with patient zero initially blamed its EHR for missing key information that would have helped them spot the proper diagnosis earlier, only to be firmly rebutted by Epic, the EHR vendor.  The facts appear to be that the problem was not the EHR itself but the workflow and how information in the EHR got viewed by whom (e.g., nurses notes were not readily visible to doctors).

I'll bet Epic felt it dodged a bullet, but they shouldn't be too complacent.  EHR vendors represent deeper pockets than most providers, which makes them a tempting target for lawsuits.  As Computerworld put it in an article last month, Lawyers smell blood in electronic medical records.

The article cited Keith Klein, a professor of medicine at UCLA, as describing four cases where the judgments were over $7.5 million because the data in the EHR couldn't be trusted.  Dr. Klein told Computerworld: "There are attorneys now looking for a clean case to sue the vendor.  This is reality. It is not theoretical."

Deep pockets, here we come.

In a related post, Dr. Jeffrey Guterman, another professor at UCLA, criticizes the push for meaningful use, suggesting that "meaningful users" are more important.  Dr. Guterman believes that once HITECH passed, EHR vendors made a land grab for market share, with the unintended consequence of diverting resources devoted to R&D and technology advancement.

Dr. Guterman further says that most EHR systems were built from billing platforms and/or use database structures that are well over thirty years old.  These lead directly to the interoperability issues that I've written about before, and which helps explain the EHR vendors' thirst for market share: once they get a customer, they know how difficult it will be for them to ever leave.

"Information blocking" is the new term being used for this intentional desire to confine patient information to a specific EHR platform.  ONC recently released a requested report on the topic to Congress, acknowledging that the practice is happening.  ONC also detailed the actions that it is already taking, or proposing to take, to address the practice, while noting that "many types of information blocking are beyond the reach of current federal law and programs to address."

A Health Affairs blog post by Julia Adler-Milstein notes both that "ONC makes plain that this behavior will no longer be tolerated," and that the criteria used to define what constitutes information blocking will be very difficult to prove, as the conduct has to be "objectively unreasonable in light of public policy."  As she says, "There is no question that the CEO of a large electronic health record vendor would have quite a different definition of “reasonable” than would our National Coordinator for Health IT."  Or a hospital CEO.

While ONC, many providers, and even some EHR vendors see a problem, Epic continues to deny there is one.  An Epic vice-president told The New York Times, "We do not participate in any activities that could be described as information blocking. To our knowledge, these activities are very rare, if they exist at all."

I'll bet he even said it with a straight face.

Congress inadvertently created the problem, and it can (in theory) pass all the laws ONC suggests to address it, but the truth is that information blocking is likely to continue until information sharing is a financial advantage to providers.  That may end up being true within an ACO (although many health systems are trying to accomplish this by making affiliated providers get on their EHR platform), but otherwise there is not much incentive to share.

As Dr. Adler-Milstein concluded, "When the C-suite truly believes that they can be most successful by competing on the basis of sharing and using data, rather than hoarding and controlling data, we will know that we have succeeded."  It's just hard to think of too many industries where companies compete by sharing their data.

I keep thinking of a recent Fortune article by Kentaro Toyama,   Professor Toyama throws cold water on the hope that technology will help control health costs.  His "Law of Amplification" asserts that:

Technology’s primary effect is to amplify, not necessarily to improve upon, underlying human inclinations.

That makes me think about those built-on-billing-systems EHRs that Dr. Guterman warned about, and suddenly the issues with EHRs are all too easy to understand.  They're not about the patients -- or, at least, not primarily for their benefit -- and their main focus is not assuring better care.  The vendors and even their customers would probably disagree with both assertions, but providers are buying the EHRs more to get the federal incentives and to help protect their revenue stream than to improve care.  And that is the problem.

Many readers probably recognized that my title referenced Shakespeare's "The first thing we do, let's kill all the lawyers" from Henry VI.  I have to admit that, until I looked it up, I assumed it was referring to venial or corrupt lawyers.  In fact, it means the opposite: it was spoken by a character trying to overthrow the government and the rule of law.

So it is with EHRs.  We shouldn't get caught up in blaming them for their perceived shortcomings and hamstringing their development with more rules.  Instead, we should do a better job of creating the appropriate environment for them to rapidly evolve to help improve care.

For previous thoughts on how to do that, try here, here, here, and here.

Not One Penny More

If you've been to a doctor's office or seen some other health care provider, chances are you've had to sign a patient consent form that, among other things, makes you promise that whatever they end up doing to you, and however much they choose to charge you for it, you're responsible for paying.  If your health plan happens to get you a negotiated rate and perhaps covers some of the expenses, that's great, but the provider is still looking to you for payment.

Maybe you shouldn't be so quick to sign.

I don't know which is worse: that providers don't think they should tell you in advance what they plan to do to you, or that they don't want to admit how much they will try to charge for it.  Either way, it'd be a great reality show to watch practice administrators trying to defend the vagueness of their promise versus the expected specificity of yours.

Honestly, why do we keep falling for this?

I thought about this when reading Kaiser Health News' Radical Approach to Huge Hospital Bills: Set Your Own Price.  It profiles benefits consulting company ELAP Services, which goes beyond traditional services like benefits design, direct contracting, and medical bill reviews by also vowing to go to court if necessary to support their customers in disputes over medical bills.

The problem is well documented.  Charges are out of control.  There is often no meaningful connection between providers' "charges" and the negotiated prices they've agreed to with third party payors.  As long as you have insurance and stay in-network, you don't usually care, because you get the benefit of those negotiated rates.  But if you don't have insurance or use -- knowingly or unknowingly -- out-of-network providers, those charges become very important, since you end up being responsible for all or most of them.

A number of states, including New York, have already taken legislative action on the problem, while others, such as New Jersey, are considering doing the same.  Still, between their lobbyists and billing experts, I fear that providers will figure out ways around such legislative efforts.  That's why I'm intrigued by ELAP's in-your-face approach.

The KHN article cited the example where an employee of one of ELAP's clients had back surgery and was billed $600,000 by the hospital.  ELAP analyzed the hospital's Medicare's cost reports, and advised the client to pay a much lower amount.  "We wrote a check to the hospital for $28,900 and we never heard from them again," said the client's CFO.

ELAP CEO Steve Kelly says "overwhelmingly, the providers just accept the payment."  ELAP has clients write their process for determining reimbursements into benefit plan documents to give greater legal weight.  They already have a federal court ruling in support of their process.  The contract requires them to defend patients from any collections efforts, in return for a percentage of the savings.

I'd love to know how many times ELAP has had to go to court, and what their success rate has been.  But, boy, I'd hate to be the lawyer who has to defend some of the outlandish charges that patients may be billed.

Most health plans base their out-of-network payments on "reasonable charges," which is how most health insurance plans worked prior to the advent of network plans like PPOs, when negotiated payment rates became the norm.  Many health plans, such as Aetna and United Healthcare use a service called Fair Inc. to set their "reasonable" limits.  Fair was created as part of a settlement with the New York Attorney General, who believed health plans were artificially understating what they used as their reasonable charges (which, of course, meant their members ended up on the hook for more of the costs).

Whether it has worked as intended is not entirely clear, but what is clear is that providers can come after patients for amounts not paid out-of-network by the health plans, all the way up to billed charges, not just to the "reasonable charges."

What I want to know is, if health plans truly believe their limits on charges are reasonable, why don't more of them act like ELAP when providers' charges exceed them?   I.e., why aren't they volunteering to stand with the patient -- their customer -- and fight balance billing by providers, in court, if necessary?

ELAP makes it clear whose side they are on; health plans, not so much.

Of course, doing so would give providers yet one more reason for them to distrust health plans, but it's not like there's much trust now.  The recent ReviveHealth National Payor & Trust Survey pegged average provider trust of payors at 51.8 out of 100, with a high of 62.7 (Cigna) and a low of 40.5 (UHC), with all three of those results down from last year.

Both payors and providers should be focusing on earning the trust of their customers rather than each other.  Health plans have long received low trust marks from consumers, but health care providers are not immune either.  Research suggests that U.S. patients' trust in the medical profession has "plummeted" in recent years, and that the U.S. has one of the lowest public trust levels for doctors.  Concern about doctors' motivations was cited as a reason for this lack of trust, and I have to blame this at least in part on this problem with excessive charges.

I view the charge structure of most providers as a pernicious symptom of much of what is wrong with our health care system.  They rarely have much to do with either actual costs or market forces, and they reflect an arrogant attitude that consumers are there to be gouged as much as possible.  Or, more charitably, if not arrogance, then a certain benign neglect to patients' financial well-being.  The attitude leads to the incomprehensible bills that patients often received -- what do they care if patients understand them?  

Then again, if we didn't have provider networks at all, we might be more able to force providers to compete on price and quality, and to give consumers more and better options.  Then we wouldn't have this problem.

I'd love to see a health plan whose EOBs not only detailed how much they were paying and how much of the remaining balance the consumer had to pay, but also said, "by the way, we think $X is the most your provider should charge you for this service, and we don't think you should pay a penny more.  If they try to charge you more, let us know and we'll help you fight it."

Now that would be a health plan that consumers would think more of, one that is truly on their side.  Oscar, are you listening?

Just Along for the Ride

Admit it: when it comes to our health, most of us want something done to/for us.  Give us a pill, a procedure, a test.  We don't expect to leave a doctor's office with something we're supposed to do (like eat better or get more exercise), or, if we do, all-too-often we end up ignoring it.

If managing our health was like driving a car, most of us would be in the passenger's seat, maybe even the back seat.

I was reminded of this analogy when I read Atul Gawande's latest provocative piece -- Overkill -- in The New Yorker.  In it, he describes the "avalanche" of unnecessary care that our health system generates.  Nothing he talks about should come as a surprise to anyone who only even mildly follows health care, but yet the problem remains.

At least we're talking about it (including, I'm pleased to remind readers, a post I did last month).  

Dr. Gawande recaps some of the recent research on how much unnecessary care there is, which always tend to end up in the ballpark of about a third.  He did a sample of eight of his own patients' histories, and found that seven of them had, at some point, received what he believed was clearly unnecessary and/or inappropriate care.  It might have been a small, non-random study, but the point is that eventually we're all likely to be subject to such care.  Most times no real harm comes of it, but it only takes one bad outcome to severely impact our health.

He cites the examples of the hundreds of millions of scans and billions of lab tests, noting that: "Often these are fishing expeditions, and since no one is perfectly normal you tend to find a lot of fish."  That can lead to more testing and possibly procedures, and sometimes to damage from them (e.g., radiation exposure from excess CT scans).

I also liked Dr. Gawande's discussion of our we treat cancer.  He refers to H. Gilbert Welsh's Less Medicine, More Health,  Welsh believes that we treat cancers as rabbits, which we want to catch quickly, when in fact many are more like turtles.  They're not going anywhere, at least not in any hurry.  With our vastly increased testing we're finding more cancers at an early stage, and both patients and providers tend to want to take action.

Early detection is not always better.  Dr. Gawande points out the example of thyroid cancers.  We've tripled the detection and removal of them in the past two decades, but haven't impacted the death rate at all.  Maybe those patients' quality of life has improved, but many of them faced anxiety and procedures that weren't necessary -- and that may have caused harm.

The reasons for the over-treatment is no surprise.  As Dr. Gawande says, as a physician, he's more worried about doing too little than too much, since it is the things he should have done that come back to haunt him.  Plus, of course, most of our providers still get paid for doing more, not less.

And we just allow this overkill to happen to us.

I was further reminded of the passenger metaphor when I recently read Missing Microbes, by Martin Blaser, M.D.   Dr, Blaser makes the case that many of our "modern plagues" -- obesity, diabetes, allergies, asthma, and many others -- may be attributable to the disruption in our microbiomes caused by overuse of antibiotics.

For anyone in need of a quick refresher, scientists have found that our bodies are thoroughly colonized by hosts of bacteria.  Indeed, it is estimated that 99% of the unique genes in our bodies actually belong to "them," and only 1% to "us."   Our guts are a particularly rich area of concentration for bacteria, but virtually every part of our bodies has some.

Since we began using antibiotics in the middle of the 20th century, we've increasingly become exposed to them, allowing us to beat back infections that once would have killed millions.  They've been a blessing, but may also be a curse in disguise.

The problem of antibiotic resistance, in which continued exposure to antibiotics creates strains of bacteria resistant to them (e.g., most recently typhoid) is now well known, but Dr. Blaser believes an even more important but less obvious problem is how we're disrupting the ecological balance bacteria and our bodies had achieved throughout our mutual evolution.

The book documents some of the evidence for the association between changes in the microbiome and the various "lifestyle" epidemics that we are experiencing.

If it sounds crazy, remember that until a generation or so ago it was "known" that ulcers were caused by stress, and were treated by trying to reduce stress, change to bland diets and sometimes surgery.  In the 1980's evidence began to accumulate that a bacteria called H. Pylori was actually the culprit most of the time, so we started treating ulcers by attacking it.

Just to show how complicated the balance is, though, it appears that reducing H. Pylori may help mitigate ulcers but that may then impact stomach cancer or esophageal diseases like GERD.

Dr. Blaser was a pioneer in stressing the importance of our microbiome, and his views are not yet conventional wisdom by any means, but others are joining the band wagon.  Just this week researchers at the University of Minnesota confirmed a link between antibiotic use in infants, changes in gut bacteria, and disease later in life.  They aren't the first researchers to support Dr Blaser's views, and I suspect they won't be the last.

So when I describe us as passengers in our health, it's not even clear who "us" is.  Much of what we think of as our health may rely on the health of millions of bacteria in our microbiome, which modern medicine has long been treating as dangerous interlopers.

Dr. Blaser's work suggests that we may need a new paradigm about what produces good health and how to best achieve it.  Last fall I speculated on a health care system without doctors, or at least with less reliance on them, and treatments centered around the microbiome was a prime example.

Dr. Gawande sees a health system much like our current one, but with a more judicious use of care.  If Dr. Blaser is right, the health care system of the future might look and act very differently.   In either event, when it comes to our health, we need to be more than along for the ride.

Bad Bills

Kudos again to Elisabeth Rosenthal of The New York Times.   Over the past few years she has written several enlightening articles about the high costs (and prices) of our health care system.  In a recent analysis, she turned her attention to the bills themselves.

Ms. Rosenthal notes that, through her prior work, she's learned a lot about what medical bills mean, yet she admits that she has trouble understanding some of the bills she runs across.  Moreover, as she says, "I continue to be baffled by how we’ve come to tolerate the Kafkaesque stream of nonexplanations that follow health encounters."

She quotes the executive director of the American Medical Billing Association:

"There are no industry standards with regards to what information a patient should receive regarding their bill.  The software industry has pretty much decided what information patients should receive, and to my knowledge, they have not had any stakeholder input. That would certainly be a worthwhile project for our industry."

Think so?

The problem, of course, is that patient bills have been the afterthought.  Since health care providers get most of their revenue from third party payors, billing systems have been designed to meet their needs, not patients'.  That has resulted in a medical billing arms race, so to speak.  The payors, concerned with over-utilization and potential fraud, insisted on ever-more detail, while the providers increasingly used fancy billing software to squeeze every potential dollar out of each patient encounter.

As long as insurance was paying virtually all of the bill, patients didn't much care; either they didn't get a bill, or the resulting bill showed little or no remaining liability.  Now, though, we're in a world of high deductible plans, coinsurance, and unexpected out-of-network charges (a recent Kaiser Health poll found preventing such charges the third highest priority, and some states are already starting to act, such as New York).

If consumers didn't care about those pesky bills before, they do now.

A 2014 report from the Consumer Financial Protection Bureau concluded: "Medical bills can be a cause of confusion and uncertainty and can result in collections tradelines for consumers who are uncertain about what they owe, to whom, when, or for what."

The CFPB says that slightly more half of collection efforts on credit reports are from health care providers.  Medical bills are much more likely to be sources of complaints than non-medical bills.  No wonder: a fifth of those with "collection tradelines" have only medical bills -- and 50% of those have otherwise clean credit reports.  In many cases, the CFPB found, consumers with outstanding medical bills aren't even aware they are in collection.

The ironic thing is that, for all their supposed sophistication, medical bills are often wrong.  Estimates of how incorrect they are range from 49% to 90%.  It shouldn't be surprising that, in addition to those armies of provider and payor billing specialists, there is a growing industry of medical billing advocates to help consumers deal with their medical bills.  These aren't people to help you get better care, mind you; their role is simply to try to level the billing playing field with the providers and/or payors.

It's crazy.

I've come to realize that health care suffers from Stockholm syndrome.   We've been held hostage by our consumer-unfriendly billing processes for so long that we've come to accept them, whereas the plain truth is: it should be easier.

In a new report, PwC calls current health care billing an "inefficient antique," or, even more colorfully, "A horse-and-buggy in a world contemplating driverless cars."  They conclude: "The system needs more than patches, bolt-ons and retrofits: It needs structural change."

They're right.

I am not a billing expert.  CPTs, HCPCS, DRGs, RBRVS, ICD-9/ICD-10; it's all just jargon to me.  I know only enough about the various coding schemes to know that I don't have much desire to know more.  More importantly, I shouldn't have to.

We're not going to scrap the massive investments in billing and claim processing systems overnight, but we can do better for patients.  Here are a few suggestions on how to start:

Change Charges: The era of fee schedules and negotiated rates has made provider charges largely irrelevant.  Many providers have allowed their charges to get wildly out of relation to either their costs or to their negotiated rates, which mean they can reap windfalls when they can find suckers who actually have to pay them.  

My first suggestion: make charges more realistic.  Providers, throw away your inflated charge structures and replace them with price lists you wouldn't be embarrassed to disclose.  Which leads me to my next point... 

Disclosure: Medicare and many states have mandated disclosure of charges for common services.  Of course, few consumers actually look at those, and even if they did, the charges bear so little resemblance to what they will end up being charged that they are often more misleading them helpful.   

So let's make it a rule: at time of service, providers have to disclose their charge for that service.   

Providers have been hesitant to do this, complaining that they don't usually know what the patient's insurance plan will allow or what the remaining patient obligation will be.  Fair enough.  But providers should know their own charges.  If they are way out of line with the insurance allowance, well, shame on them. Providers should act as though the patient is buying direct and tell the patient how much they think their service is worth.  It would be interesting to see how often patients agree.

Oh, and if the services in question come in part from other providers, their charges need to be disclosed at the same time.  If it happens in your office or your facility, you're responsible.  

Simplify: Yes, I know there are tens of thousand of codes that can be used in delivering health care services, and ICD-10 is about to explode that number.  More clinical detail may be helpful in a Big Data world, but all that complexity is at cross-purposes with helping consumers understand their care and its cost. 

My third suggestion: shorten the list of services.   I bet most providers could narrow their set of services to a much more manageable list, at least on the consumer-facing side.  I mean, how many types of office visits should consumers have to understand?  

The above don't require huge systems changes, but they would require a significant mind-set shift for providers:  treating patients like they are, in fact, the consumer.   Walmart gets it, retail clinics get it, and PwC says the affluent and millennials are most likely to demand it.  Which providers are arrogant enough to think they don't need to change?

The fact that health care is complex does not inherently make it unique from other goods and services.  We shouldn't just accept that its bills can't be easier to understand.  Getting consumers to take more responsibility for their health is hard enough; bills shouldn't make it harder.

At the risk of overextending this literary metaphor, instead of settling for a Kafkaesque medical bill, we should be aiming for more of a Hemmingway style ("simple, direct, and unadorned").