Will there be a doctor in the house?

Linda Johnston Contributor
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Is There a Doctor in the House?

After the televised health care bore-a-thon Obama said, “Everything there is to say about health care has been said, and just about everybody has said it.” Whereas I am sure he believes that, it is not actually true. Conspicuously absent from all debate and planning on health care are the doctors. This seems to be another “don’t ask, don’t tell” policy and it is inherent in heath care legislation. This has been the case even as far back as ClintonCare discussions in 1992. No doctors need ever apply. Republicans have complained for months about being shut out. They are the belles of the ball compared to how physicians have been treated. Surely it has crossed someone’s mind how astounding it is to transform medical care delivery in this country without talking to the people who do the work.

A recent cartoon by Lisa Bensen provides the visual based on the well-known post-summit tableau of Obama behind the podium and an array of white-coated doctor human-equins behind him all against that ghastly bright bile-yellow curtain. Bensen’s version has the would-be docs tied and gagged. Indeed, all of us doctors have been virtually gagged because we have not been invited to participate to give information or ideas about taking care of patients, running a medical office, dealing with insurances or government medical programs or any other aspect of our daily lives in taking care of real live people with real medical problems. This treasure house of experience, knowledge and talent is laying wasted. All the drastic changes proposed for our own profession are being done without so much as a passing glance. This is reminiscent of an important meeting in 1938 in Munich. The maps were on the table and five politicians divided Czechoslovakia into pieces. The Czechs were not invited. Doctors know just how they felt. Politicians, lawyers, policy wonks and accountants are making up the rules by which doctors and patients must relate to each other.

If anyone would take the trouble to talk to doctors, they would be able see through some of the myths being accepted without question by most of the players in this yearlong debate. Since the start of this round of ‘free health care for all’ free-for-all, Obama has stated “if you like you doctor, you can keep him or her”. Has it never occurred to anyone that your doctor might not want to keep you? The Medicus Firm conducted the survey in December 2009 that attests to the fact that if ObamaCare passes upwards of 45 percent of practicing doctors will seriously consider retiring. Of the nearly 800,000 practicing doctors in the USA, that would amount to a drop of 360,000. It is a mere three weeks since the passage of the legislation and already there are doctors warning about the imminent closure of their practice and suddenly the angst du jour seems to be an “unexpected” doctor shortage.

This is not a new problem. Doctors’ morale has been falling for years and many have already retired early, but not nearly as many that wanted to. A 2002 survey by the California Medical Association prophetically entitled, “And Then There Were None” showed that about half of the doctors in California were so dissatisfied they planned to retire or move out of state within three years. Between 1995 and 2000, several counties showed a physician decline of 13 percent at a time when the general population increased by nearly 10 percent. The authors stated that if these trends continued, California would have a non-functioning health care system before long. That ‘before long’ is here now. The Medical Education Council of Utah had similar findings when they determined that a growing number of their physicians planned to retire 10 years earlier than the traditional age 65. More recently a survey of physicians by the Association of American Physicians and Surgeons showed that 66 percent of those asked plan to retire from active patient care at a younger rage than they had planned on 5 years earlier. This is true across the country.

What is causing this mass exodus by doctors? The same AAPS survey yielded results that could only be surprising to anyone but practicing doctors. Of the respondents, 66 percent said the main reason was government interference in the practice of medicine, 63 percent cited hassles with Medicare, 80 percent expressed fear of unwarranted investigation or persecution and 56 percent listed the reason as the reduced fees from Medicare. Those who bandy back and forth how great government run health care is have never tried to deliver medical care under it. Unless you are in it, you have no idea of the immense burden, down-right hassle and fear-provoking ordeal it is to have to work with the government in providing medical services and getting reimbursement.

To give you some idea of what it is like, think about how pleasant and easy it is to deal with the IRS. That is easy to do since that infamous April day is upon us. The complexity and confusion about the IRS tax code mystifies and terrifies just about everyone. For years there have been calls for a simpler, easier to understand tax code, but each year it gets more complex and longer. The law constantly changes; there are conflicting provisions and no one person can possibly keep up to do the right things. Now image what it is like to be called for an audit, where the rules are stacked against you and the same people who run your audit adjudicate the outcome. As awful as that sounds, multiply that several times over. A decade ago the tax code was 17,000 pages, it is now estimated to be 80,000. The Medicare law, however, is now over 100,000 pages. The paperwork is unbelievably oppressive and for so little result. Payments from the government are so low that they often don’t even cover the expense of collecting the money. A stroke of a pen in Congress and doctor’s salaries are reduced, notwithstanding that expenses rise continually, including the expense of trying to work with the government to get paid. Doctors who do accept Medicare patients relegate 22 percent of their staff time to Medicare compliance issues. It costs over 25 percent more to process a claim to Medicare than private insurance. Even so, it is nearly impossible to participate in the existing government health care system without making mistakes. Just try to keep your nose clean following all of those extensive, ambiguous and ever changing rules. You can’t. For all of these reasons, doctors have been leaving the Medicare program in droves, more with each passing month. Almost 25 percent of doctors refuse to treat new Medicare patients. This is the government’s idea of “Medicare is working.” But it gets worse. Much worse.

The clarion call for anyone who wants to find money in any government run health care program is to stop ‘Waste, Fraud and Abuse’, as if WFA is a piggy bank just waiting to disgorge its treasure, if only some smart auditor would wield the hammer. There is always WFA in every government program. Every time a new medical program is proposed, proponents claimed that a share will be paid for by more efficient administration and the cracking down on fraud to crack open the piggy bank. Recall the recent expansion of Medicare to include the prescription benefit. That too was going to be paid for by going after WFA. Did it ever happen? No. Did weeding out WFA yield a reduction on the cost of the new benefit? No. The 1996, innocuous sounding Health Insurance Portability and Accountability Act sponsored by Senators Kennedy and Kasselbaum had extensive provisions for cutting WFA. If it had worked back then, there shouldn’t be any WFA today. Obviously, it didn’t work because ObamaCare’s proponents want us to believe that this time they will stop WFA and be showered with money. Of course, everyone is against wasting taxpayer’s money and in favor of stopping fraud. What’s not to like? Ask any doctor and they will tell you the real cost of overzealous, misguided attacks against innocent doctors spurred on under the cover of the laudable theory of stopping WFA.

The main way that reduction of WFA has been addressed is through the criminalization of medical care and it started happening a long time ago. Since the Kennedy-Kassebaum bill of 1996, for the first time, there are criminal prosecutor / health-care fraud coordinators in each of the nation’s 94 U.S. attorney offices. Furthermore, the FBI and Office of the Inspector General are allowed to investigate small offices of even one practicing doctor. There is something fundamentally wrong when legislation supposedly about health institutionalizes such massive legal involvement in medical care.

A few examples of the draconian measures aimed at doctors include fines and jail time for trivial errors. There are now mandated $10,000 fines for each instance of putting the wrong billing codes on claims. That means a busy, minimum wage clerk putting one wrong digit on a claim form subjects the doctor to accusations of intentional fraud. ObamaCare would increase those fines to $50,000 per mistake. There are five-year prison sentences for refusing to release private medical records to the government (without the patient’s permission) or having the audacity to give medical care other than the market value. That means that doctors offering charity care are at risk for prison or fines. Even more shocking is that through the law doctors accused of fraud are subject to asset forfeiture and arrest, actions that until the bill’s enactment into law were originally used to stop organized crime. I did not say their assets were seized, bank accounts frozen and goods confiscated when convicted of a crime, these things happen on suspicion of wrongdoing. Without any money or the ability to continue their livelihood, doctors then must go about trying to defend themselves. A report prepared by the American Society of Internal Medicine states that, “the government can freeze the assets of an individual committing or about to commit a federal health care offense.” The law allows, even encourages, all of this through its system of paying informants and whistleblowers and giving rewards to enforcers from the forfeited money. The ‘catch the doctor crook’ system has led to outrageous abuse of power by government agents who routinely engage in tactics of intimidation for which their agencies make a profit. No wonder the U.S. Department of Justice refers to doctors as “targets”, putting the bull’s eye mark on the back of their white coats. No one is talking about how many more things like this are buried in ObamaCare’s 2,700 pages.

Whatever small error or wrong step is made attempting navigate the labyrinth of regulations, restrictions and rules is now assumed to be intentional insurance fraud and thereby unleashes the whole cascade of accusation, clinical closure and asset forfeiture. Once accused, adjudication is often done by administrative law and not regular courts, which deprives the accused of basic rights enshrined in the constitution. It often takes years to complete these investigations, during which time the doctor usually cannot work.

The egregious nature of these assaults demands that we doubt this could happen here and if it does, the doctor must be guilty. The record since 1996, however, verifies that this is very often not the case. Many perfectly innocent doctors have been falsely accused and had their offices raided at gunpoint by a team of agents, who, without telling the doctor what was happening began to pack up and take all charts (the patients’ supposedly confidential medical records), computers and office records. The case stories are horrific and this law has left a trail of ruined lives in its wake. AAPS website, www.aapsonline.org, has many stories of such persecution of innocent doctors who inadvertently fell afoul of a government system intent on prosecution regardless of any transgression. Doctors assume all this risk for ever-reduced payments for services. This has been going on for years, and will only get worse as the government takes over an even larger share of the medical system, with even less money to pay for it.

Why would anyone in their right mind want to go into a profession, let alone stay in a profession, where one can be falsely accused for even the most minor of clerical transgressions, the result of which is that all one’s money and possessions are confiscated by the government even before you are found guilty by a proper court of law? One false move and you are for the high jump. Did you know that? Does anyone know these things? Do you realize that every time a doctor sees you as a patient, he is taking the risk that his whole future, security, retirement and the security of his family could be at risk? Do you understand now why doctors are so demoralized and why they are leaving medicine? The statistic about 80 percent of doctors worrying about being investigated or persecuted looks less paranoid, and more like realistic assessment. Is that what you want on your doctor’s mind when he is performing your surgery, assessing your symptoms or reviewing your laboratory tests? This is the inevitable result of lawyers dictating how doctors and patients interact. It is all about crime and punishment, not health and healing.

When doctors are not worrying about the government SWAT team raiding their offices, they still have to worry about being sued for malpractice. What about tort reform? It is a very telling point that ObamaCare does not address this highly important issue. Nothing is an accident in ObamaCare, and this sleight-of-hand is ominous. I think they have not given it the slightest attention because they do not expect a need for tort reform. Soon there will not be any torts as we know them today. The reasoning goes something like this—the government takes over the entire health care sector one way or another. ObamaCare has mandates for the government to vet all insurance policies and dictate what is allowed and not allowed. A patient will then only receive the medical care, medications, tests or procedures that are allowed under the government-dictated insurance benefits. It is inevitable that there will be bad outcomes from a lack of timely testing, adequate medications or other payment-related decisions. The doctors are squeezed in the middle by having to function under these government regulations and restrictions while being stuck with the responsibility for their patients. They will be sued and will seek liability relief from the government. Immunization manufacturers received liability relief when they threatened to stop making immunizations because of their liability exposure. Doctors will be next. Added to the fact that doctors are already receiving their payments from government-mandated insurance, once the doctors are indemnified by the government they will be, in fact, government employees. If there is a grievance, the patient will have to sue the government. Good luck with that one. Why go through the motions of working out realistic tort reform in ObamaCare when all the doctors are eventually going to be working for the government?

There is lot more to be said about the legalized assault on doctors in recent years, for which there is not time or space to address in this brief overview. I join thousands of other doctors in becoming increasingly disheartened watching non-doctors systematically ruin our profession in the last 30 years. We are weary of trying to do our job all the while being treated as criminals, scarcely paid criminals at that. For years, there has been a cornucopia of laws far too complicated to understand or comply with, draconian punishments arbitrarily meted out without due legal process or protections and a political culture that regards doctors as fair game to fleece, persecute and vilify.

Yet, doctors have always responded to patients’ needs. We have always been there to provide you with the medical care you require, performing medical miracles almost beyond imagination and you, quite understandably, assume that will always be the case. After trying to survive under increasingly onerous and difficult circumstances, that will not always be the case. It isn’t that we want to leave our cherished profession. We are being driven out. ObamaCare will turn what has been a slow attrition into a flood. No, there will not be a doctor in the house.

Linda Johnston, MD has had a private practice of general medicine in California since 1981. © Linda Johnston, MD