Monday, June 30, 2014

Malpractice and drug testing: Pee Pee Politics (PPP)

We've been asked several times to provide the dates of our posts on the Pee Pee Wars, namely,  the trial lawyers' attempt to disguise advantageous malpractice reform in their favor while making it seem as though they want to protect the public by testing doctors for drug abuse. The Triple P moniker arises from the method of testing, namely, micturition into little cups. Here's the dates of our posts: 6/25/14. 5/28/14, 4/27/14, and 4/24/14. - RLW, editor

P.S. The trial lawyers' initiative, The Troy and Alana Pack Safety Act,  has now been officially designated Proposition 46. Accordingly, we recommend support for the NO on 46 campaign. - rlw, ed.

Wednesday, June 25, 2014

Interim Bill Review: AB 1340, 2400, 1805, 1886, and the thinly disguised malpractice initiative

This post includes late additions to the original posting

Assembly Bill 1340 (Achadjian) that would establish Enhanced Treatment Programs is a life-and-death issue for nurses, technicians, and doctors who take care of the sickest and the meanest among us. For this privilege the trial lawyers would like to force the doctors, but not themselves, to pee in a cup. That's the program the trial lawyers are hiding behind in their shameless effort to get higher malpractice awards for themselves under the guise of the Troy and Alana Pack Safety Act which has as its most likely main benefit for a family of four the opportunity to pay $1,000 more annually for health insurance.

Assembly Bill 2400 (Ridley-Thomas) would level the playing field so that Big Biz insurance companies would not be as able as they are now to drive down access to care for patients with chronic and expensive illnesses. For this privilege the trial lawyers want the doctors to pee in a cup. The trial lawyers who have even gone so far as to concoct bogus statistics actually are the ones who should pee in cups. Their campaign cited a report from March of 2000 by the California Medical Board which said "many believe" that 15% of the general population has problems with substance abuse and that among health care professionals the lifetime level might even be 18%. This rough estimate was a supposition, not a researched statistic. Moreover, this lifetime risk translates to no more than 2% at any one time. The trial lawyers' addled research team that thought this one up should pee in as many cups as can be distributed as quickly as possible.

As for the convicted drunken driver who fled the scene  after running down 10 year old Troy and 7 year old Alana Pack,  it is known that she had three drunken-driver convictions before the accident.  Because she fled the scene and evaded the authorities for two days, a timely blood alcohol test was not obtained. While she was on the run, her apartment was searched. Cocaine was found. She eventually told police she'd taken vicodin prescribed by her treating doctor. Her legal defense at trial was that it was her doctors' fault because they prescribed the medicine for pain relief. She did not assert that they also told her to drive under the influence. Her sentence: 30 years in prison.

Our reward, as doctors whose duty includes the relief of pain, is now supposed to be to pee in cups while prosecutors who get wrongful convictions because they withheld exculpatory evidence from the defense booze it up when what they deserve is to pee in cups and then serve out the time they foisted upon defendants who've since been released because of wrongful convictions. It's a logical next step to have every lawyer,  as he passes through security to enter the courthouse, pee in a cup.

Late flash: the trial lawyers' initiative has been officially designated Proposition 46. The campaign against it will be known as the No on 46 campaign. We support the No on 46 Campaign.

Medi-Cal: we support AB 1805 (Skinner and Pan) which would restore the 10% cut in Medi-Cal remuneration that was installed by the State Budget Act of 2011.  It isn't lost on us that devoted  doctors who take care of the sickest and poorest among us would also be obliged to pee in the trial lawyers' cups. Of course, some might say that Gov. Brown already did that for them when he sent through his recent budget bill which managed once again to give the short end of the stick to the doctors who care for Medi-Cal patients. His having done so raises the ugly spectre of  a possible veto of the Skinner-Pan bill even if it passes handily.

AB 1886 (Eggman): Its original aim, while modified pursuant to amendments obtained by the CMA, remains unchanged, e.g., indefinite posting of disciplinary actions, civil judgments, and arbitration awards against doctors, just enough to make sure that good doctors who  run afoul of one or another disciplinary board become persona non grata to whatever managed care, HMO, or PPO organizations that want to use even minor misdemeanor convictions to ruin careers. It's all about the control and humbling of what used to be an honored profession. Doctors need to learn to say "no" to their would be overseers.
So here are our recommendations: yes on AB 1340, yes on AB 2400, yes on AB 1805, and no on AB 1886 and no, no, no on the Troy and Alana Pack Patient Safety Act, now officially designated as Proposition 46. Accordingly, we urge support for the No on 46 Campaign.

References, 4/29/14, Oppose AB 1886 (Eggman) Unless Amended, and California Medical Association Legislative Hot List, 6/02/14 (author accepted CMA's amendments , CMA now neutral);, 6/24/14, AB 2400 (Ridley-Thomas), Deserves Support plus an amendment;, 6/23/14, AB 1340 (Achadjian), Deserves Safe Passage;, 6/18/14, AB 1805 (Skinner & Pan), Supporting Medi-Cal and 6/16/14, Medi-Cal Patients Snubbed by State Budget;, 4/24/14, Random Drug Testing for Lawyers and 5/28/14, Drug Testing for Lawyers and Pharmaceutical Executives

Tuesday, June 24, 2014

AB 2400 (Ridley-Thomas) deserves support plus an amendment

AB 2400 (Ridley-Thomas), sponsored by the California Medical Association, deserves support. As matters stand now, certain Goliath-like health plans force physicians to accept  contract terms that are harmful to patients, for instance, contractual terms that are adverse to patients with chronic diseases who are more expensive to maintain than healthy 30 year olds. The idea is to force physicians to drop their sickest chronic patients to reduce corporate expenses and increase executive compensation. This bill would put a stop to the perfidious corporate healthcare practice of dropping doctors who insist upon trying to negotiate contract terms or who refuse to accept unilateral material changes in existing contracts. This corporate practice is known as "take-it-or-leave-it."

This bill would allow changes in health plans only if the provider has negotiated or agreed with the provision and if the provision is in accordance with state or federal laws and regulations. Otherwise, the provider will be enabled to opt out of the contract even though it was previously agreed upon. This bill is aimed at the unfair and heavy-handed practices imposed upon patients and their physicians by group health plans and PPOs. It is expected to spill over into Workers Comp, e.g., Coventry (Aetna), Anthem/Blue Cross, etc.

Meanwhile, here's the latest heavy-handed move to inconvenience injured workers and their treating physicians: Travelers Indemnity Company and Constitution State Services, quoting CLC 4600.2, have informed their providers that starting June 20th "all prescriptions for workers compensation related medications and medical supplies must be filled by a network pharmacy ... no payments will be made  for prescriptions or medical supplies provided by a non-network pharmacy, clinic, or medical  office after July 31, 2014."

A provision to take down this latest dictate should be amended into AB 2400 by the authors.

Monday, June 23, 2014


Assembly Bill 1340 (Achadjian) deserves favorable consideration: here's why.

Today, in my day-to-day role as a physician specializing in neurological injuries and diseases, I examined a nurse who in the course of trying to take care of a mentally unstable patient, got so badly beaten up that her head and neck injuries preclude her from returning to work in almost any capacity. Could her injury have been prevented?

Sadly, the answer is yes. Luckily, the same answer portends better for others in a similar position in the future.

About 4 years ago at Napa State Hospital (NSH) Psychiatric Technician Diana Gross was killed. Further less dire incidents have happened since then at NSH and other mental health facilities. At Atascadero State Hospital (ASH) one mentally unstable patient killed another. All this despite increased guard patrols and police attention.

Psychiatric technicians, nurses, and doctors are now calling for preventive measures in the form of AB 1340 (Achadjian) which would mandate intensive treatment for high risk patients. The bill would require that Enhanced Treatment Programs (ETPs) be set up in California by State Hospitals and would enable state hospital psychiatrists and psychologists to refer patients to ETPs as needed, i.e., when it is determined that a patient is potentially dangerous to himself or others because of impaired mental status when there is evidence of proclivity to violence. The bill would require professional forensic medical evaluations.  Patients could then be assigned to an ETP for up to a year but with provision for re-evaluation within one year.

Psychiatric technician Linda Monahan was quoted in BUSINESS WIRE as having said "Legislators need to understand that we struggle to provide the best patient care possible under extraordinarily dangerous conditions. Some of our patients' mental illnesses make them predatory or sociopathic. Those few are responsible for the majority of the violence we endure. We need specialized programs to provide those patients with more effective treatment while also making hospitals safer for other patients and staff."

It is probably true that the civil rights of these violent patients may be obliged to play second fiddle to their mental health needs until such time as they're enough better to accept treatment in traditional and less supervised environments. Managers of these programs will be obliged to ensure that a proper balance is struck.

My patient today, a devoted nurse who'll probably not work again because of her injuries, is among the lucky ones. She's still alive.

We owe it to her and her colleagues to give them more protection in the form of safer working environments where their skills as doctors and nurses won't depend upon the ability to duck a punch, a kick, or a weapon.


Napa, CA., BUSINESS WIRE, 6/09/14

CAPT (California Association of Psychiatric Technicians), 6/06/14

AB 1340 is sponsored by the Union of American Physicians and Dentists (UAPD) and is co-sponsored by the American Federation of State, County and Municipal Employees (AFSCME)


Thursday, June 19, 2014

SB 492 (HERNANDEZ) re optometry vs. ophthalmology

SB 492 (Hernandez) is in the process of being prepared for committee hearing. This bill intends to water down ophthalmology in order to facilitate optometry (the lacrimation of ophthalmology). In general it's part of Senator Hernandez's overall effort to reduce the scientific and scholarly requirements of medical practice that currently requires a medical degree. In a recent previous post our report revealed why a California hospital's Board of Directors recently voted to allow a nurse practitioner to join the medical staff and have admitting and discharge privileges despite a negative vote by the hospital's Medical Executive Committee. In effect, this hospital passed a mini-version of SB 491 (Hernandez) which was intended to equate MDs and Nurse Practitioners (SB 491 failed in the legislature but has had new life breathed into it by the hospital in question, see our editorial, June 15).

SB 492 opposition still includes the California Medical Association, California Neurology Society,  and the California Society of Physical Medicine and Rehabilitation, and numerous others. What it does not include is a faction of ophthalmologists whose practices are intertwined in terms of referrals with optometrists. Many of these ophthalmologists are opposed but won't speak out -- it's their  way of straddling the issue and walking down the middle of the road.

Wednesday, June 18, 2014

AB 1805 (Skinner & Pan): supporting Medi-Cal; SB 1215 (Hernandez): this one bites the dust.

Now that the State Budget has in effect told Medi-Cal patients to wander off and die quietly someplace, the next step is to push for passage of AB 1805 (Skinner and Pan). This bill aims to restore the 10% cut that was put into effect with the State Budget Act of 2011. It is this 10% cut that the State Budget that just passed this past Sunday could have restored. If AB 1805 passes it still risks veto by the Governor. In fact, AB 1805 isn't going anywhere very fast since it is as of this writing being held, some would say smothered, in Assembly Appropriations.

On the other hand, we're glad to report that SB 1215 (Hernandez) took its final dive for this year when it failed to clear the Senate Business and Professions Committee. One of the principal purposes of this bill was to eliminate the exception for in-office referrals for selected specific services such as advanced imaging, radiation therapy, and even physical therapy, in other words, as mean spirited a bill as one could envision.

The Skinner-Pan bill needs help because it is on a collision course with the newly accepted State Budget which went out of its way do kick the Medi-Cal patient in the butt by denying access to services. In support of this bill is the California Medical Association, the California Neurology Society, the Union of American Physicians and Dentists, and most organized professional medical groups.

Individual letters to your Assembly representatives and State Senators are needed to assist in the passage of AB 1805 and to try to turn aside the anticipated gubernatorial veto.

Monday, June 16, 2014


The 10 percent pay cut for reimbursement for providing medical care to Medi-Cal patients was not restored by the state budget that was accepted this past Sunday. Reimbursement for California's Medicaid patients remains among the lowest in the United States.  Although the budget did not make the cut retroactive, it's bad enough as it is -- patients on Medi-Cal often cannot get care. Restoration of the 10 percent cut would have alleviated but not cured this problem. So why would the Governor leave his Medi-Cal constituency in the lurch?

This writer spoke to the Governor about this problem during his first years as Governor when he was often known as "Gov. Moonbeam." This writer can attest that Brown was never a moonbeamer, maybe a little tilted towards idealism, but always realistic and politically savvy.

I asked him then about the  pro and con arguments for supporting increased Medi-Cal benefits.  He said the pro argument was that the Medi-Cal population might need the support and even benefit from it. But to do it money would have to be poured into Medi-Cal that was also desired and equally needed by other programs, programs more popular with the voters, and more vital to the interests of tax-payers. Brown wryly pointed out that if he supported increased funding for Medi-Cal, he'd probably not hear a word of appreciation from the Medi-Cal patients but he sure as heck would hear about it from other agencies that got stiffed and miffed.

Needless to say, the Medi-Cal raise didn't happen then, just as it didn't happen now. This time, however, there is a consolation prize:  the budget now includes $41.3 million for technical assistance to Medi-Cal providers that will help set up electronic health records pursuant to the federal Electronic Health Records incentive program.  $3.75 million will come from state funds, 37.5 million from matching federal funds. Not a bad deal for the techies!

When it comes to governing, nobody holds a candle to our Gov. Brown.

Sunday, June 15, 2014

DRGs and HENRY MAYO NEWHALL HOSPITAL: was there malfeasance by the hospital's Board of Directions or the Medical Executive Committee?

THE EFFECT OF Diagnostic Related Groups (DRGs) and Nurse Practitioners (NPs) on hospital policy and Economic Credentials and Corporate Income

When the DRGs were originally thrust upon the unwitting medical profession in 1982, the purpose was to determine how much Medicare would be obliged to pay hospitals for "products" where "products" became the new word for services, e.g., an appendectomy became a "product" instead of a service or an operation. Application of DRGs has since widened and may be used for non-Medicare patients. Some healthcare pundits find DRGs effective for controlling Medicare costs and hospital costs in particular. An early challenge occurred when Hillary Clinton's father was admitted to hospital and was allowed more than the DRG-allotted time for his hospital stay and more advanced diagnostic studies than the DRGs recommended. Most physicians, this one among them, favored the doctors' decisions in favor of the patient and the hospital's willingness to set the DRGs aside.

Now enters Henry Mayo Newhall Hospital in Santa Clarita which has just determined that Nurse Practitioners (NPs) can have admitting privileges. We will discuss how the two  problems have common ground, namely, cost and reimbursement control. Keep in mind that only one year ago a California Senate Bill (SB 491) to give advanced recognition to NPs failed passage.

Here's the story according to our correspondent, Gene Uzawa Dorio, MD, from his guest commentaries in the SCV Beacon. Doctor Dorio is at the time of this writing, to the best of my knowledge, a member of the hospital's Medical Executive Committee (MEC).

For the last three years, the hospital administration has sought to allow NPs to practice at the hospital. The NPs will be employees of the hospital. That means that the hospital  administration will be able to influence admission and discharge decisions. That there is a likely financial relationship is obvious, for instance, it's why physicians are not allowed to own pharmacies and refer their patients to them. When the effect of the DRGs became of concern to the hospital management, statistics were developed. If a heart attack patient with a DRG of 4 days stayed more than 4 days in the hospital then the additional days were an extra "cost" to the hospital and would not be reimbursed under the DRGs. Doctors whose patients stayed longer than the DRG designations became a liability. The name of the game was how to control these doctors. Doctor Dorio said in his piece on the subject that "every primary care admitting physician was given a total dollar amount ... claiming now the MD was responsible for this 'lost' money." So how did the hospital's BOD bring about change?

The hospital had received an NP application for practice privileges which the MEC rejected when it was determined by the MEC that the hospital had withheld information which Dr. Dorio's editorial asserted showed "the candidate was not qualified to care for hospitalized patients." In any case, the MEC decision not to accept the NP's application was set aside by the BOD which granted practice privileges to the NP in question. That is how matters stand now. While broad-based legislation to grant practice privileges may have failed, one hospital, on its own, has managed to install an NP in precisely the role that the hospital's own MEC found incompatible with the applicant's education and training. Stay tuned: we don't think this issue is finished.

Editor's confession:  I have  testified in Congress on the issue of economic credentials for physicians, see references below. My opinion in the Henry Mayo Newhall Hospital case is that the hospital's BOD wants to wrest control over medical decisions and their economic impact on the hospital from the Medical Executive Committee in particular and from the physicians in general.


"Why is Private Practice on the Way to Obsolescence?" (, 6/10/13)

"Medical Red-Lining, Economic Credentials for Physicians," San Francisco Examiner, 1/12/96

The Congressional Record,  Vol.  144,  # 118, with  comments by former Representative Tom Campbell, R-CA, 09/09/98