Friday, January 27, 2012


"I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage, or charge women differently," was how President Obama summed up the ACA (Obamacare to opponents). It is why many believe the president may feel that the ACA in its present form overshot the mark and is prepared to reform it if the ACA survives the courts. We are particularly interested if Congress is exempting itself, staff, and favored others from coverage by the ACA, supposedly so good that it was made mandatory for the rest of us.

We also remember something else President Obama said in the autumn of 2009: "I will ensure that no government bureaucrat gets between you and the care you need." The trouble is that the IPAB does just that, "gets between you and the care you need." That is reason enough to repeal the IPAB forthwith (or mabe even a tad sooner!).

Stay tuned! We're not finished with this subject.

See also my comments in The Hill Newspaper, Washington, DC, 1/27/2012,

Wednesday, January 25, 2012


OBAMACARE is correctly known as the Affordable Care Act (ACA) or as the Patient Protection and Affordable Care Act, nick-named "Pee-Pahka" after its initials.

Precious little was heard about the ACA in the president's State of the Union speech. Some pundits suspect the president is preparing to slip away quietly from support of the ACA since specific parts of the bill are under bipartisan attack, e.g., Section 10320 which sets up the Independent Payment Advisory Board (the IPAB). The IPAB was originally the IMAB, Independent Medicare Advisory Board, derisively known at the time as Euthanasia for the Elderly. Disguised now as a more equitable board, the IPAB still aims its arrows straight for the hearts of the elderly. In fact, the IPAB would be made up of appointed persons, none elected, and would not have to be comprised of physicians. The IPAB would appoint bean counters, annoint them as health care deciders, and give them the power to undercut the best efforts of caring physicians.

The purpose of the IPAB would be to reduce costs and to decide which procedures in medical care, what facilities, and which equipment used in patient care should be considered medically necessary. There is resistance in Congress since an effort to repeal Section 10320 surfaced long ago, viz., Sen. John Cornyn, R- Texas. The president expects a tough time for re-election. Speculation is that he may not want to drag the ACA, mocked as Obamacare, behind him as he swims for political survival. Neither does he want to abandon it.

Earlier references to the ACA and Sec. 10320 appear in this blog, issues of 4/6/11 (Obamacare revisited), 1/18/11 (Repeal Section 10320), and 11/04/10 (Obamacare needs instant revision).

Saturday, January 14, 2012


We can expect concussions not to be concussions whenever they're called by another name, for instance, elbow or knee injury, or even neck contusion, or, for that matter, head injury without concussion. Because of careless legislative writing, Assemblywoman Hayashi's bill, AB 25, now law, is expected to have consequences unanticipated by legislators. In football, some head injuries occur after a tackle when the player falls backwards, bouncing his head against the turf, but not getting overtly knocked out. The American Academy of Neurology has defined such an injury as one in which the injured party has had his "bell rung." Such an injury may be defined as concussion without loss of consciousness.

Up until 1 January 2012 when Hayashi's legislation became law, decisions could be made on the field, sometimes incorrectly. Now the onus has changed: once a player is removed because of a suspected concussion, legislative counsel's digest of the bill states that "the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance (italics added) from a licensed health care provider ..." This bill, supported by well meaning but naieve medical organizations, lends itself to being circumvented by players eager to return to the game and by coaches and team managers who want their stars on the field and not on the bench. Waiting for "written clearance" may be felt by some to take too long because players won't be able to get "written clearance" soon enough. Allowing players to return without "written clearance," even when clearly safe to do so, will be a violation of the law subject to criminal penalties.

The law does not specify that neurological specialists must be involved. A designated "licensed health care provider" may ask for clearance by a neurologicacal specialist, but that step isn't mandated in the new law. Eager players and coaches may be tempted to find ways around this legislation. Even so, if a concussion has occurred, the new law as written should be protective of injured players and should work if all games are attended by "a licensed health provider" who has back-up from neurological specialists. But this last step is not mandated in the new law. Furthermore, even if it were, safety in clearing the player to reurn, given current medical and legal standards, might very well require a player to miss a game or two while he or she goes for a brain scan or other neurological testing. We will soon enough find out which schools want to take a chance and return players too soon based on diagnoses other than concussion, for instance, neck contusions for which players can be returned to the field without written authorization. Sooner or later a mistake in judgment will result in violation of the law and criminal prosecution. That's when doctors will think that ordinary civil litigation known as malpractice will be a cakewalk by comparison. If they have followed the law as written, our expectation is that criminal liability should be avoidable but that increased civil litigation is likely.

Push will come to shove when schools and coaches look for ways to avoid pulling athletes out of action because of possible concussion injury because they know once they do they may not be able to get them certified in time for the next game. The spectre of "unanticipated consequences" may open the door to criminal liability.

Monday, January 9, 2012

Sports concussions, brain tumors, and legislation (Assemblymembers Hayashi and Halderman at work)

Assemblywoman Mary Hayashi has disclosed that she has a benign brain tumor that her attorney reportedly said "clouded her judgment," Mintz and Harmon, Bay Area News Group, 1/07/12. The report implies that the benign brain tumor contributed to the lapse that allowed her to walk out of Nieman-Marcus with unpaid merchandise and for which she has been convicted of a misdemeanor. We sadly acknowledge the Assemblywoman's plight and wish her well for the future.

In the meantime we've been asked how her situation compares to the situation endured by Sen. Ted Kennedy whose brain tumor was malignant and caused occasional convulsions. Kennedy's condition was inevitably fatal whereas Hayashi's is benign. The latest word from her attorney is that "it is being treated. It's no longer affecting her concentration or her judgment" (Daily Post, Jan. 7-8, 2012). Unfortunately, this statement implies that Hayashi's judgment was previously impaired during which time she authored two poorly drafted legislative bills that Gov. Brown has since signed into law (see our previous blogs).

Because the legal charge against Hayashi was reduced from a felony to a misdemeanor she will be able to keep her assembly seat and finish her term. She will pay a fine, do three years of probation, and stay at least 50 feet away from the Neiman-Marcus store. Her carelessness in creating legislation is documented well enough to repeat here.

Re AB 25 (Hayashi, re brain concussions):
This bill is now law thanks to Gov. Brown's signature. It means that athletes who sustain apparent concussions on the field must be withdrawn from play and not allowed to return until they're judged able to do so by somebody designated to make such judgments but not necessarily including neurological or neurosurgical specialists. Prior to passage of this law, healthcare professionals were at risk for civil liability better known as malpractice for wrongful decisions resulting in harm to players. Since many doctors undertook this responsibility on a pro bono (unpaid) basis, parents, schools, and teams often cut a little slack in the process. Not so anymore because the issue has now been raised to one of criminal liability. It is no longer just a civil matter to make a mistake. It is now a matter of potential criminal liability. High schools are unlikely to afford putting in place optimal protective measures, e.g., an on-site neurological specialist, ambulances and EMT vehicles discreetly parked near-by, etc.

Hayashi and staff were offered ways to improve the bill without pulling it. These offers went unanswered. The bill was supported by certain medical organizations that meant well, that intended to protect players, but that were short-sighted in their eagerness to have a seat at the legislative table. That seat has now become the hot-seat. Hayashi should offer protective amendments while she still has the chance.

AB 655 (Hayashi, transfer of peer review material): This bill, now signed into law by Gov. Brown, was also well intended; unfortunately, it was written in such a careless manner that it allows false and defamatory materials to be included with whatever peer review documentation is transferred from one hospital to another (this process is how a physician gets practice privileges at additional hospitals).

Hayashi and staff were advised about the defect in the bill and were offered language to abort the careless language in the bill. Hayashi and staff did not offer a reply. Instead, Hayashi belittled the doctors and falsely told the Assembly that there was no opposition to the bill even when there were about 50 protests already on file (none were from fellow legislators).

Linda Halderman, MD, Assemblywoman, told the Assembly that she'd received a record number of inquiries on this bill. Hayashi told the Assembly that there was no opposition. Halderman then stated that she would support the bill. We believe that Halderman should have known better, indeed, that she did know better and gave Hayashi support in a legislative charade where Halderman pretended to ask a question and then dove head first into the Hayashi camp. The shameful show got video-recorded and is still available through the Assembly itself. We can now watch for Halderman's rise in insider legislative circles (Hayashi's chair and future are in doubt even though she can finish her term). All the same, there is still time for Hayashi to seek corrective amendments to her bills. The question is whether or not she wants to do so.

In the meantime, doctors are now at risk of criminal culpability for errors in judgment and should fully understand the consequences of participating in sports activities that are associated with concussions (such as but not limited to football, hockey, soccer, boxing).