Unscrewing the Light Bulb: Addressing Systematic Mistreatment of Physicians

Getting screwed is a necessary element for a light bulb to perform its designed function. This is not true for healthcare professionals, and we need to stop treating physicians like light bulbs.

Once upon a time, healthcare professionals were able to focus solely on the provision of healthcare. Decisions were made with the best interests of the patient in mind, based on the training, experience, and instincts of the healthcare provider. Concerns regarding paperwork, reimbursement, regulations, and lawyers were secondary, at best. Those days, however, are behind us.

Every story that begins “once upon a time” is supposed to end with “happily ever after.” That is not going to happen for physicians without a degree of honesty, openness, and diligent effort. The expectations of, impediments to, and influences upon physicians—all of which are secondary to the provision of care and the welfare of patients—are discouraging the physicians of today and tomorrow.

How Did We Get Here?

Let’s start with the proliferation of medical malpractice claims. Physicians found themselves consistently having to evaluate the risk of being sued, regardless of whether one had done anything wrong. This became a significant external impact on the decision-making of physicians. The cost of premiums, the stress on one’s practice, and the unenviable potential for additional time spent with attorneys made physicians realize that these problems were worth avoiding, if possible. However, this was easier said than done.

A physician’s primary goal should not be to avoid being sued, because anyone can sue anyone else for virtually anything. The goal should be to avoid being sued successfully. However, it must be acknowledged that defending a bogus lawsuit can often be more expensive than defending a legitimate one, because when something happens that should not have, good people want to make the circumstances better. Often, that is why we have insurance. However, when you have done nothing wrong, it is often about principles, and maintaining principles can be expensive.

Physicians found every medical decision being evaluated with the benefit of hindsight (and the influence of an opportunistic attorney). Despite the practical reality of what occurred, actual or threatened litigation would often highlight the “tests not performed,” arguing that “a simple test” could have improved, prolonged, or even saved a patient’s life. Given the artful nature of the practice of medicine, there was almost always another healthcare professional who would offer an opinion (especially for a fee) that the physician’s conduct fell below the standard for the community, thus enabling certain claims. Fortunately, the transfer of millions of dollars (of which the attorney and expert would retain appropriate portions) would make everything better. How could this not impact physicians’ decision-making?

What Was The Result?

Physicians began performing every conceivable test imaginable to protect against not having the necessary information available to provide the best possible care.

In concept, that’s not really a bad thing, is it? Increased testing yielded more information. Information is never a bad thing. What one does with information, however, can produce problems. As with most things, there were unintended consequences, some of which were good and some of which were bad.

One unintended consequence was that increased testing yielded increased revenue. More money allowed for greater profits, and how could that be a bad thing? When insurance providers did not want to provide reimbursement for services, in those instances, the excess costs tended to fall upon the patients. Patients assumed that the testing was being done for the benefit of their care, never considering that, in part, it was also a protective measure for physicians. Eventually, however, the increased expense became too much for the payers to bear. Let us now usher in the era of audit, compliance, and recoupment actions. Oh, and allegations of fraud—both civil and criminal.

A New Era

The government and private insurance companies concluded that the increased volume of testing, even though it was a byproduct born from the proliferation of medical malpractice suits, reflected improper conduct. “Lack of medical necessity” became a routine basis for denial of payments and an unwillingness to provide coverage.

Ironically, the same test that created the risk of a malpractice lawsuit if the physician failed to perform it now carries the risk of an audit for providing unnecessary care if the physician does perform it. The light bulb is now illuminated. Consider the parallels.

The practical impact of medical malpractice efforts was to acquire physicians’ money. Everyone was lined up with a hand in the physician’s pocket: insurance companies, medical malpractice attorneys, defense attorneys, experts, and consultants (to understand the problem, avoid the problem, manage the problem, and fix the problem).

The practical impact of audit, compliance, and enforcement efforts is to acquire physicians’ money. Once again, everyone is lined up with a hand in the physician’s pocket: the government, insurance companies, qui tam relator attorneys, defense attorneys, experts, consultants (to understand the problem, avoid the problem, manage the problem, and fix the problem).

We have an entirely new external influence on the decision-making of healthcare professionals that has nothing to do with the welfare of the patient.

A particular area in which the concrete impact can and will continue to be seen relates to the so-called 60-day rule, promulgated as part of the Affordable Care Act (ACA) and modifying the False Claims Act (FCA). Under Section 6402(d)(2)(A)(iii) of the ACA, healthcare providers must report and return overpayments within 60 days after identifying the overpayments or by the date on which a corresponding cost report is due. The failure to do so may subject the individual to substantial liability under the FCA. The “look back” period stands at 6 years (recently reduced from 10).

If you ask anyone to navigate a complex path while looking backward, there is only one certainty: that person will stumble and fall.

This rule requires physicians to look back over six years for any inadvertent overpayments, with the consequence for failing to identify and disclose any overpayment being an allegation of fraud. Remember, these are not circumstances in which the government believes that anyone committed intentional fraud: the government has ample means of redressing those circumstances. These reflect circumstances where unintentional conduct, sometimes not even involving a mistake by the provider, results in an improper payment.

If we continue to expect healthcare professionals to navigate the complex path of healthcare regulations while looking backward for inadvertent mistakes, it is inevitable that they will stumble and fall. One must ask the question, then: is it possible that that is part of the system’s design?

The government is budgeting for millions of dollars in recovery for healthcare fraud that has not yet been identified, alleged, or in some cases even committed. The government has contracted to ensure that its beneficiaries will be provided healthcare. In these circumstances, the beneficiaries have received the healthcare, but because of inadvertent errors, the government sets out and recoups the money it agreed to pay despite retaining the benefit of the healthcare that was already provided. Even more interesting is that the government then gets to spend that same dollar a second time.

Let us be clear: there is real malpractice happening, and there is real fraud being committed. Both are bad, should not happen, and should be redressed. The group of individuals you will find who are most bothered by it beyond the immediate victims are the secondary victims: quality healthcare professionals.

When medical malpractice “boomed,” was there really more medical malpractice being committed?

However, we have created a construct designed to address the worst conduct by the worst players, and then we cavalierly apply that construct to professionals who are not those worst players. When medical malpractice “boomed,” was there really more medical malpractice being committed, or just more instances in which individuals could portray the circumstances in that manner? The same question is true when you consider the increased incidence of healthcare fraud. Are there really more instances of healthcare fraud taking place, or just more circumstances that can be portrayed that way?

For both, the most important question might be: are the resolutions taking place because people actually did anything wrong, or have the costs and consequences of defending oneself been outweighed by the potential negative impact of doing so? If the latter is true, what will result from this round of unintended consequences?

The Pendulum Always Swings Back

Physicians are facing a pendulum that continues to swing back and forth. The practical consequences are discouraging existing and future physicians, because the provision of care is often becoming a secondary, if not tertiary, consideration. Very few individuals went to medical school to be administrators, billers, auditors, and the target of constant scrutiny. One can only presume that the Sunshine Act will provide a new generation of plaintiff’s attorneys’ insight into the deepest of pockets within the medical profession, which might spawn another round of impact on independent medical decision-making.

We must, however, be realistic and know that the government’s healthcare fraud enforcement efforts are not likely to subside. At recent public events, senior officials from both the civil and criminal arms of the Department of Justice acknowledged that its efforts would not decrease and that its use of data analytics would increase. The comfort offered was that analytics will not get you indicted, nor will it produce an allegation of fraud. These statements are both true. However, analytics will get you investigated, and simply being investigated comes with costs. The potential for fiscal, reputational, and practice management fallout is very real. Additionally, it provides yet another example of interfering with the independent decision-making of healthcare professionals.

When something goes wrong, healthcare professionals have long relied on morbidity and mortality conferences to evaluate mistakes that took place during the care of a patient. The goal is to learn from complications, mistakes, and the management of unexpected developments to prevent repeating the same errors in the future. Perhaps it is worthwhile to have a morbidity and mortality conference to evaluate systematic mistakes made in management and oversight of the healthcare delivery system? If we do not, physicians will continue to suffer, and the autopsy will likely be even more unpleasant because it will identify a series of avoidable mistakes that caused the death of the medical profession as we know it.