Empowering our medical entrepreneurs: A simple plan to save lives

Darpana M. Sheth Attorney, Institute for Justice
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Ten years ago, Congress passed the first resolution designating March as National Colorectal Cancer Awareness Month. Since then, we have made progress in curbing this deadly disease. According to the Centers for Disease Control and Prevention, incidences and mortality rates have dropped approximately three percent. But colorectal cancer remains the second leading cause of cancer death in the United States. Every year, about 140,000 Americans are diagnosed with this painful disease and more than 50,000 die from it. The high mortality rates are particularly disturbing because when caught early, colorectal cancer has a 90 percent survival rate.

We can do better, and the best way to start is by empowering medical entrepreneurs.

According to the American Cancer Society’s guidelines, every person over the age of 50 should get screened every five to ten years. Yet, fewer than 50 percent of at-risk individuals are getting screened for colon cancer. The reason? The traditional colonoscopy, an invasive and uncomfortable procedure that comes with real health risks including adverse reactions to the sedation, infection, severe bleeding, or in some cases, tearing of the colon, requiring an immediate operation.

Patients want to be healthy, but they also want alternatives to traditional colonoscopies. Entrepreneurs, for their part, are answering the call. Advances in medical imaging technology have made screening more comfortable and less expensive, pointing to a future in which many more men and women will get screened, saving countless lives. In “virtual colonoscopy,” a CT scanner takes multiple cross-sectional X-rays which are combined by a computer to form a three-dimensional image of the patient’s colon and surrounding abdominal cavity. A radiologist then checks the image for suspicious polyps.

Because virtual colonoscopy is noninvasive, there’s no sedation, no discomfort, and no need for a day off of work. And virtual colonoscopy is safe; President Obama himself chose virtual colonoscopy over traditional colonoscopy as part of his first comprehensive exam as commander in chief.

Unfortunately, a handful of states (like Virginia, Connecticut, and Michigan) perversely prohibit medical providers from offering virtual colonoscopy or even purchasing necessary equipment without first obtaining permission from unelected state officials in the form of a “certificate of need.” In a lengthy and expensive process, verging on full-blown litigation, medical providers must demonstrate a “need” for the proposed services. Worse, existing healthcare facilities are invited to oppose and defeat a would-be competitor’s application. This process results in a de-facto “certificate of monopoly” for favored established businesses.

Consider entrepreneur and physician Dr. Mark Baumel. He wanted to open several “one-stop shops” for colon health in Virginia that would provide virtual colonoscopies along with same-day polyp removal, just as he does at his flagship facility in Delaware. Unlike Delaware, Virginia prohibits purchasing a CT scanner without first obtaining a certificate of need. And yet, Virginia’s Department of Health has denied Dr. Baumel a certificate of need.

Forcing medical entrepreneurs to get a government permission slip before they can offer lifesaving diagnostic services isn’t just wrong, it’s unconstitutional. That’s why Dr. Baumel teamed up with the Institute for Justice to challenge Virginia’s certificate-of-need law in federal court.

Dr. Baumel’s case is ongoing, but in the meantime, National Colorectal Cancer Awareness Month is the perfect time to start a dialogue not only about what individuals can do to prevent colon cancer, but also about how we can empower our entrepreneurs to provide more life-saving screening methods. When private citizens want to invest in innovative and effective healthcare services, the last thing the government should be doing is stopping them.

Darpana M. Sheth is an attorney with the Institute for Justice and represents Dr. Baumel in a constitutional challenge to Virginia’s certificate-of-need program. The case is currently pending before the U.S. Court of Appeals for the Fourth Circuit.