If I Were Elizabeth Warren, What I Might Say Now

We are now in the midst of Donald Trump's attacks on Joe Biden and the beginning of the impeachment.  What I might say if I were Elizabeth Warren:

We are now seeing a vicious, unprincipled attack by Donald Trump on Joe Biden. I don't need to detail how extensive are the lies, how unrestrained the calumnies, how corrupt the use of governmental resources for the personal and political advantage of Donald Trump. Trump will be impeached by the House, as he should be.

But what I want to comment on here is us, the Democrats, and on the terrible attacks on one of the Democrats contending for the presidential nomination, Joe Biden. Joe Biden is my teammate. We are Democrats together. Our ideals are similar, although our approaches differ. Over nearly a half-century of public service, Joe has distinguished himself with his persistence in working for the betterment of the common person. He has done this with a spotless record of integrity. In fact, for years and years Joe was known as the least wealthy member of the Senate because he denied himself any opportunity to make money by virtue of his prominence. Yes, Joe has had his missteps, and his famous gaffes. But I ask, when you are in the arena this long, what else can you expect? Is there anyone whose epitaph will be, he never made a mistake?

Joe is my teammate as we contend to be captain of the Democratic team. If he wins, I will support him enthusiastically, and we can all be sure, he will do the same for me if I should win. We are, after all, teammates. And nothing could be clearer than the difference between us, on this side of the line, and the Republican Donald Trump.

I am speaking today because Joe Biden is being subjected to heinous attack from Donald Trump. Joe can defend himself, but I want to enlarge the issue to defending the spirit of our nation. Trump is subjecting Joe to another one of his assaults on an American icon. This is what he did to John McCain. If you are a hero, or if you are a decent human being, somehow you are a threat to Trump, and he needs to retaliate. He retaliates by tearing down, by lying, by vilifying, by sullying, by trampling, by lying and lying and lying. He tried to cut down a man much greater than himself, John McCain, and now he's trying to do the same thing to another great American, Joe Biden.

This is what this terrible, destructive man does. When Trump does this to people, individual people or whole groups of people, to children on the border in Trump detention centers, to people in countries where he has never been and hardly knows where they are, when he does this, we all need to rise up as one and denounce him. I am standing up now and denouncing Donald Trump for the bully he is, for the liar he is, for the detritus he is.

We on the Democratic side need to ferret out among us who will be the best captain of our team. We are now engaged on a contest to find who will be captain, and also in the process, to see what many of our leaders of the present and future are made of. But besides detailing our differences, we are also discovering where we all stand together. We are discovering that one thing we have in common is human decency. Unhappily for the country, this is something that is not shared by our current President.

We are Democrats together. We are the Party of Decency. I honor my colleagues in the race for captain of our team. We share that, we all share that, and it is an important difference we hold against Donald Trump.

Alamo Rent-A-Car at the Philly Airport

OK, sports fans, I did an epic takedown of Dollar Rent-a-Car a few years ago that earned many readers, and amazingly, still does (I think it's spamers.) Dollar was horrible. http://buddshenkin.blogspot.com/2016/06/dollar-rent-car-sucks.html?showComment=1569320703244#c2137561876380058350

But now I've just had the mirror opposite experience as I flew into Philadelphia for my high school reunion. Alamo Rent-a-Car at the Philadelphia airport, there must be a place in heaven for you somewhere! Sometimes, you just don't know where your pleasure will come from. From a rental car company? Really?

Our flight from SFO to PHL via Phoenix arrived near midnight, so we bedded down at the Philly airport Marriott. It was hot and humid the next day as we arose in the late morning, so I sweated a little as I walked around the bend of the multitude of rental car lots to Alamo, but the weather also made me nostalgic – ah, Philly, city of my birth and early life! Ah, the sweat and itching skin! Home again!

I found the Alamo lot as advertised and walked in, encountering a dreadlocked Black dude in his late twenties, I think, and we exchanged amiable greetings and smalltalk as he directed me to the office. They weren't busy, and I walked right up to the counter where a swarthy mustachioed guy in his 30's or early 40's greeted me with a relaxed and inquiring smile. The reservation from American Express didn't immediately appear, no worries, oh here it is but they didn't update it for the new arrival time but no worries. OK, it's $274 but let's see what we can do, what's the best rate available – how's $178?

“Good enough,” I said, “thanks.”

“You want to pay for your gas here? $42 and return it empty.”

“Nah – I'll bring it back full.” Of course. Everyone knows that's a ripoff, just like the extra insurance.

“We aim to please,” he smiled back. “Just go out to the lot and that guy there (another dreadlocked Black guy) will find your car for you.”

“I like this guy here,” I said, indicating the dude who had greeted me first as I walked in through the lot.

“Great! Show him to his car!”

I had contracted for a standard car, but that didn't matter to the dude.

“Which car you want?” he said. “How about this pickup? This is great for getting girls! They love this!”

I believe he was referring to what we called in high school a “pussy wagon.”

“Nah,” I said, “I'm past that!”

“No, man, you never past that!”

“I'm here for my high school reunion,” I told him.

“Which one?”

“My sixtieth.”

“No, man, that's not possible! I figured you for maybe your twentieth!”

“Nah, 60^th.”

Pretty funny! Or maybe it sometimes takes more time to graduate than I'm used to. But I loved it anyway, naturally. You really think so, twentieth?

He continued: “I thought you were a young guy.”

“I am a young guy!”

Where's that mirror?

We walked a little farther down the lot.

“How about this one?” he said. It was a shiny new red Nissan Rogue SUV.

“Great!”

And it was. Spotless, handled great, I'm used to Nissan controls from my Infinity. It turned out to have 25,000 miles on it, but you couldn't tell, it could have been 2,500 from the shape of the car.

Then I drove out and at the check out station was greeted – really greeted – by a pretty young Black lady who made giving and receiving back the papers a pleasure. With a big smile she said , “How's your day going?”

I told her, “Getting this car has been such a pleasure! You are all so nice!”

And here was the final surprise – “It's our training!” she said. She said that making us happy came from her training. “That's what makes us different. We really care about making you happy” she said. Wow. Some training.

It was busierf a few days later when I returned the car in the afternoon. I got the usual gesture from the traffic manager for where to line the car up. And then, here came another young Black guy with dreadlocks, and I was again smiled at, interacted with, asked if everything was going well, etc. I told him that, once again, Alamo was making me happy.

And so here again is where I heard the same thing – “It's our training!” he said. He said that they are trained to be happy when the customer is happy. And then he said, “The other companies aren't like that. That's why we're better than they are. We care about how you are. It's the training.”

I told him that I was so impressed and happy that I was going to write this lot up – I said on Trip Advisor, but I don't think Trip Advisor does that, so I'm settling for my blog. So this young guy said, “Mention me! My name's Jarron.” Ok, Jarron!

And then he said, “Here's my manager.” A slightly older Black guy with a clipboard and dress shirt, clearly working assiduously and keeping things in good working order. I complimented him and he answered back something, I forget exactly, but it was essentially the same – we're here sincerely trying to do a good job. As I looked around I noticed how many employees there were working there – Alamo is serious about doing a good job, so they are staffed up to do it.

So what struck me most was the pride all these people at Alamo had, pride in themselves, pride in the job they were doing, and pride in the company, which they obviously felt cared about them. I think they also felt pride in being with a company that was trying to do things right, to help people. They referred to their training with reverence. Clearly, this training program must be quite sophisticated. Pride in what you do, trust in the training, and pride in the respect they had been accorded in the training. It clearly is not just a “do this then do that” training, but it's training in respect and thoughtfulness, in manner as well as instrumentality . They are accorded respect and they give respect, not only to the customer, but to the company that showed them the way.

So, why do I mention that they were all Black, except for the intake clerk? Should I even have noticed that and mentioned that? It did strike me, and as I think about it, I think this is the way it's been at the Philly airport when I've been there before. Maybe it's irrelevant. But I'm old now, and I remember a lot of prejudice, and I remember when everything was all white, and I remember when Black dudes were hired but weren't trained on how to do their jobs in a professional way. I remember the explanation for what was called Black sullenness, failure to meet eyes and smile, and the explanation that in the 'hood not meeting eyes and keeping to yourself is a survival mechanism. So, remembering all that, it just makes me so happy to see these guys, and ladies, with jobs where they are obviously respected, where they take pride in their work, and where they relate well to me without being subservient or fawning. It just really made me happy.

And now a reflection from my professional view as a health care policy analyst. In medicine, I habitually decry large corporations as inevitably depersonifying. That's certainly what I find in health care. But here, with Alamo, corporate culture obviously works! They are leveraging their size for sophisticated training and systems for the customers' benefit. What's the difference? True competition. To get to Alamo I had to walk past Avis, Hertz, Enterprise, Thrifty, and a few others. The service and the product were readily comparable, I didn't have to sign up for one service to get access to another (in health care, that would be that you sign up for networks, and maybe accept poor outpatient care to access a needed hospital service.) The prices were relatively transparent. Etc. There is a place for the free market to work, and car rentals seems to be one of them. Health care? I'd argue that a lot of work needs to be done on regulation to make the market work there. Find a way that Alamo-like service leads to lower costs and higher customer satisfaction and better income for the company, and you will be a health care savior.

Finally, as always, I like sports analogies. Years ago, I observed that Hertz had a really good system. I got on the bus, gave my name, and the driver knew who I was, took me straight to where my car was, my name was up on the board with the exact location of the car, the trunk was open ready for the bags, the keys were in the ignition, the papers in the glove compartment, and check out was straight through. I saw no one personally, yet I felt completely well cared for. That was great innovation.

Now with Alamo, we have cars well prepared and ready to go, big time choice, and friendly people with pride and professionalism.

So what are the final standings? Alamo will be my go-to company from now on, Hertz will be number two (unless the cost is very different), and Dollar? Dollar is on my list as don't touch it with a ten foot pole.

Viva competition! And viva the people who are doing the right thing at Alamo.

Budd Shenkin

When A Health Center Takes Over A Practice

Large health centers, often based on an academic hospital, are amassing practices as owned or affiliated entities. Such vertical integration solidifies their businesses, makes them even more formidable as political actors, makes them less vulnerable to competition from other medical centers who would enjoy the referrals that are now guaranteed to them, and makes them even more formidable when negotiating with insurance companies. In a business sense, this is a savvy thing for them to do with all the money they have accumulated from their profits. 

As the practices are wooed by the medical center, the pressures on them to succumb to the wooing are telling – join or be frozen out, join or we will make offers to your practice members that they can't refuse, join or else.  A very talented friend of mine found himself in a situation where he couldn't help but join such an expansionary system. If I were head of the system that acquired his practice, I would very soon promote him to a position of great responsibility within the system – he is very smart, capable, experienced, knowledgeable, and management-savvy. The acquiring medical systems, of course, are usually very short on some of these very characteristics, but I imagine that they think that since they are in control, they do know what they are doing. But, as he writes below, that's not what happened.

My own experience in selling my practice to Stanford was more favorable than my friend's – I think they have done a decent job in putting a network together, although their excellence in science is not matched by their excellence in administration. Nonetheless, seven years after the Stanford takeover, Bayside offices and practitioners seem to be doing OK, so I'm grateful. On the other hand, this short note from my friend in another city serves as a cautionary tale for other docs, policy makers, and the nation as a whole, for what can happen in less favorable hands.  Although, it should be noted, the price rises after the Stanford takeover were in the same ballpark as my friend's experience.

Beware of the large monopolistic centers, the monopolists, the bureaucracies, the rent extractors, the corporate capitalists!

Here is his letter (slightly shortened and made anonymous) to me:

Hi, Budd:

I wanted to take this opportunity to fill you in on my experience with (Large Academic Medical Center X) this year. As you remember, my group suffered greatly as a result of ACA. Our area saw lots of narrow network changes at the same time ACA was implemented, and we lost a meaningful number of patients ( ~40%) as a result. Newborn visits in the nursery for me fell from ~300/year to < 20.

We shopped around several of the larger hospital systems, and ultimately ended up joining X Center. This has not gone well, the result of which has been legal action. Our complaint alleges that X offered to pay our malpractice tails, and then reneged: offered to pay to store our paper charts, and then reneged;  offered to pay us a "transition fee" equal to 1/3 of our annual salary for 3 consecutive years to "transition" our patients to the new practice, and then made this transition fee into a bonus that was conditional on performance on metrics over which we had little or no control; discarded personal belongings; overbooked time scheduled to see patients, and a variety of other things.

In addition to issues surrounding our agreement, there have been multiple issues surrounding administrative and clinical services. Administratively, X's charges are - in my view - breathtaking.  Here's part of our price list:

                $

99212    188

99213    406

99214    570

99215    640

99392    459

99393    390

99394    455

99395    490

Prevnar       600

Hepatis B    254

Gardasil      455

90460         113 

Largely due to the fact many of our families have high deductible plans, and due to the increase in charges (we got on average $72 for a 99213, for example), more people are leaving than are coming back, which had been the hope (X has access to the narrow network patients we had lost).

Staffing is done predominantly by "rotators," individuals who spend days to weeks to months at a certain office, and then are rotated somewhere else. Can't tell why some people stay one or two days and others spend a few weeks. Only about 1/2 of the staff is "permanent." MA's weigh and measure patients, and give injections, but are not allowed to either draw up injections or take a history.

The result has been a serious collection of clinical mistakes. We have had more incorrect vaccine administrations in one month than we had (on paper) in 20 years. The MDs do not act as the MA's supervisors, and the MAs are not responsible to them, which has resulted in some clinically meaningful episodes of insubordination. The MAs are union, so there is nothing anyone can do. We have had episodes where bilirubin samples on newborns were left in the office and not processed and sent to the stat lab (or any lab) for processing. This has happened on multiple occasions. On other occasions, MAs have refused to administer albuterol neb treatments to toddlers with sats in the 80s.

In sum, the last 9 months have been the worst of my career. Every day is a guarantee of chaos and oversight. Charting (Epic) requires hours after dinner every night. 

I'm done.

We are presently towards the tail end of things, and I expect to be offered settlement documents within a week. In the end, two of the three partners in the group pursued legal action, and they stonewalled us right up until we were going to file (which we still may). More likely though, they will settle and show us the door.

Best,

Your Friend

Elizabeth Warren Needs To Change Her Medicare For All Stance Right Now

This is an emergency communication. It is becoming increasingly possible that Elizabeth Warren will be the Democratic presidential nominee. She could make it. But if she does make it, she will need to win the election, and among the tasks for achieving that goal is reducing her vulnerabilities. I believe one of her greatest liabilities will be her support of Medicare For All.

MFA is neither good policy nor good politics. Medicare as a public option for anyone to buy into – Medicare Available For All (MAFA) -- including employers who buy health insurance for their employees, and with automatic enrollment for those who have no other insurance, makes a lot more sense. I call this an “emergency communication” because if she changes her position, as she really needs to, she needs to do it as soon as possible.

Politics

There are several major reasons that MFA is bad politics. MFA will seem dangerous to many voters, who will become fearful – all of a sudden I won't have the insurance and access to care I'm used to? It will seem like a take-away to the majority who already have insurance, which is absolutely not what wins elections. And it can be legitimately be viewed as government coercion. Can you envision the Republican campaign that accentuates that fear? “She's a socialist” sounds a lot more realistic if they can credibly say, “She will take away your insurance and replace it with a government promise, and you have no choice, you will be in one big pool with no one caring about you individually.” Most people in America have been conditioned to disbelieve the claim, “I'm the government and I'm here to help you.” Just wait for the Republican ads of a couple asking friends where to get their health care, and they answer: “Just go on down to the DMV.” Going for MFA would be a classic case of turning a Democratic winning issue – health care – into a losing one. Elizabeth, politically, you just can't do it.

To try to make the point more vividly: If you are a common citizen with current insurance from your employer, say, you have access to health care in recognizable circumstances. Others might have insurance and access problems, but they are a minority, and you are not among them. You might wish the best for them, but your most pressing concern is yourself. If you are told that you will have to give up this insurance and this access, but that it will be replaced by a governmental program, and that you will then be in a pool with the entire rest of the nation, and that there will be many obvious problems (such as paying hospitals and ensuring that all physicians will sign onto the new program) that will have to “be worked out,” is this really something that will fill you with confidence? No, it will feel dangerous, and it's your health care, so it's important. It's buying a pig in a poke, which is something that no sensible person will do.

Policy

But besides politics, what about the policy argument that MFA will actually be a better system than the one we have now? The answer is that it would be hard to find a system that wouldn't be better than the one we have now. But is MFA the only one that would be better? That's not at all clear. Guaranteeing access to health care for all Americans is not the same thing as MFA, of course, there are many ways to skin that cat. Some say, well, the Medicare system works now pretty well for Americans over 65, why not just expand it to everyone? That's not a bad argument, but it's simplistic.

The current Medicare system works, but it is far from perfect. Fraud and abuse are severe and persistent, it's not clear that payments are fairly allocated, the government is often in bed with the large monopolistic providers in its provisions, there is little flexibility with so large a system in which it is almost impossible to individualize and individual variations and waivers are not well received, the system would have to be reconfigured to accommodate all the new age groups (especially pediatrics), Medicare traditionally overpays proceduralists and underpays the cognitive specialties, prevention is chronically under-recognized, pricing of drugs is not well handled, Congressional meddling with Medicare is traditional, many of the administrative savings are overstated, and so on.

Moreover, Medicare involves a bureaucracy. It's not like Social Security, a large bureaucracy with a simple task – enroll, verify, send out checks. Medicare's tasks are profoundly more complex. The more complex the task, the less appropriate is a large bureaucracy. Were Medicare to stand alone, it is unclear where pressure for change and innovation would come from, and it is unclear that the program would be able to withstand the usual pressure for bureaucracies to ossify. If MFA were to be adopted, there would be a need for a lot of work to design the new inclusive Medicare program so that bureaucratic ossification would not happen. I personally would favor decentralization of administration and the establishment of a policy of at least two competing Medicare programs in every area – both would be funded identically from the central government, but they would compete for patients and medical practitioners and institutions locally. We have this exact program with managed care Medicaid in California, and it has proved viable. But this would take time and experimentation, which would not be available on a rushed schedule that would have to be adopted were electoral promises to be fulfilled.

MAFA is a much better option. Look at it this way: we are on one side of a creek, and we want to get to the other side, where the grass looks greener. How do we get there? Do we take a big run up to the edge and leap over the creek in a single swoop, hoping for the best? I don't think so. Instead, it would be better for us to have stepping stones that look secure, carefully, one after the other, with a chance to change direction or move back if the path became insecure. That's just sensible.

If Medicare turns out to be a superior choice, let this be a choice of the buyers. As an employer, I evaluated competing plans and chose the one that seemed best for me and for my employees. If employers all have the choice that includes buying into Medicare, let them make the assessment, let them weigh the wishes and the interest of their employees as well as their own, and let nature take its course. Believe it or not, people will take directions issued by their employer more readily than they will from government. Let the earlier adopters jump right in, with the knowledge that they can pull out if the experience is unpleasant, and let the more cautious decide on the basis of the experience of others. Who knows, maybe some programs devised by groups other than the Federal government will prove superior. That's a prospect that respects choice and respects feelings and fears. To me, this scenario makes a lot of sense.

Timing

If one is persuaded by this political and policy argument, the question then becomes, when is the best time to change your position? The answer is, right away. If you change right now, Elizabeth, you will be criticized by the Bernie left. You are a great explainer, and you can argue that it's a disagreement about means, not ends. You might lose some of them in the general election, but that will be more than made up for by those you gain from the middle.

If you are attacked as a wobbler on policy, you can do what Keynes did when he was confronted on a change of opinion. You can say that you have been talking to many and listening to many, and you have been persuaded that MFAWWI is the smarter way to go; you changed your opinion. This could well be portrayed as a strength. If you are asked if you did this to peel off Biden voters, you could say: “I listened to many people, including Joe. I concluded he was right on this, and I'm happy to be corrected. I'm not trying to peel off his voters, I'm trying to propose the best policies I possibly can, and that means being open to the arguments of others. I'm not buying all of his argument, but he had some things that were right, and I've adopted them, just the way I adopted Jay Inslee's environmental proposals. If you are going to be President, you can't think that your brain and your ideas are the only ones that count.” Tell me that's not a winning explanation.

If you wait too long to make the switch, however, you will be more vulnerable to charges of opportunism, the way Hillary was with the TPP. Do it now. If the Republicans attack you as a socialist, your best defense will be a history of conflict with Bernie over MFA. If they attack you as a flip-flopper, you can easily point out that you probably lost Bernie votes as you consulted your conscience and your intelligence.

Very soon, it will be too late to change your stance without looking opportunistic and unreliable. Changing now, you can make the reasoned argument that the ideal is to guarantee access to medical care to everyone at a reasonable price, and that making Medicare a choice for everyone is an important step that will reach that goal. Beyond that, to achieve the reduction in cost objective, there are many roads one can take, and it is exactly within the Warren point of view to avoid large concentrations of authority and resources, and to introduce competition to drive quality up and cost down.

Do it now. Carpe diem.

It's an emergency.

Budd Shenkin

PS - 10-22-2019: Here is a link to a quick description of Medicare For America, which is a phase in to Medicare for most people in a way that should be quite acceptable.  I understand that Beto O'Rourke has adopted this as his plan. If I were Elizabeth, I'd say, this makes a lot of sense to me: https://twitter.com/charles_gaba/status/1185940209856385026.

The Continuing Disaster of Electronic Medical Records

EMR's have been a disaster for clinicians.  As a patient, I like the patient portal, where I can get and receive messages, cancel appointments, get lab tests, etc.  But doctors are reduced to data input clerks, become much less efficient, and as some say, have their souls sucked out of them.  Here is a brilliant exposition:

https://www.facebook.com/100001707018713/posts/2411531452247065?s=1160393503&sfns=mo

 It is such a violation that the decision makers for purchasing these things, the government and the administrators, victimize the doctors by their own ignorance and lack of advocacy for the doctors, and for the entire system of medicine, if truth be told.

This has been known for some time, but there is no sign of improvement.  We're stuck.  Government is doing nothing.  Judith Faulkner, owner of Epic, remains a billionaire who obliviously observes, "Why would a patient want his medical record?"  And Epic then produces records that no one can really use well, neither patients nor doctors.  But they are good for billing!

Others say that doctors are just too stupid to use the EMRs correctly.  Right.

Medical care is becoming like the weather, everyone complains about it but no one does anything about it.  To me, the answer is strict government regulation of anti-trust measures, and vigorous pursuit of interoperative EMRs, regulating Epic and others as platforms, mandating that innovations from other companies be open for incorporation into them.

In medicine, corporatism is failing, as it has in so many other walks of life, because government has failed to regulate the marketplace so that competition is strong and works in favor of the consumer.


Just to make the feelings of doctors vivid, here are two trenchant comments from the American Academy of Pediatrics, Section on Administration and Practice Management Listserve:

Oh, man, he is singing my tune! (referring to the ZDog clip that started this post.)  I literally grew up with computers dating back to the Commodore 64 and Vic 20. I learned to program as an elementary and middle school child and was always very pro technology.  I was an early adopter of the palm pilot and handspring devices because they were innovating and creating new and more efficient ways to care for patients.  I used a Palm device to do my progress notes in residency and was able to do so efficiently. At that point, the technology increased my efficiency and organization, so I used it. 

I finished  residency and spent the first 11 years of my career on paper and was rather efficient. I saw roughly 6000 patients a year and then transitioned to electronic records. 

 After four years on Centricity, I can only see about 4000 patients a year while working longer hours.  Additionally, the quality of what I am doing for my patients is worse than what I was able to provide when I was on paper. Among other things, this is why I am finally setting out into independent practice.  At least I can choose my EHR this way. 

 All this to say that we could keep virtually every benefit of electronic records and regain quality and efficiency if we could return to paper for almost everything except a problem list, allergies and medications.  Perhaps in the hospital you might want to include a few other features, but undoubtedly you could make the system much more efficient and improve quality of care by eliminating most of what has to be done in the computer.  

My two cents,

DS, M.D.

to SOAPM

I could not agree more.  While I did not grow up with computers, I was an early adopted of the Mac platform in 1986 when the 9” mac cost more than $3000 and had a 20 megabyte hard drive and floppy disc!  I used to love the Mac until, in recent years, it began to copy Microsoft in being packed with “features” that the average user did not comprehend or need.  It is still the best around, but getting harder and harder to use.

I too could see 6000-7000 patients yearly on paper.  Now, 4000 is a stretch and it is solely due to the adoption of the word vomit producing, time sucking, soul killing nearly useless EMR, also with much longer hours needed to be a click monkey.

The only useful part is ERx and allergies and legibility.  All other “improvements” in data collection, population health, and better care have been total vaporware.

Thank the government for essentially mandating the adoption of mutually incompatible, horrible programs for all, without any effort at producing a universal standard or insisting on user friendliness.

IMHO it has been a total disaster.  Longer hours, no eye contact, box checking instead of history taking, choices limited by databases, not by what you need and the total loss of ability of the clinician to find any useful nuggets of data amid the pages and pages of word vomit spewed forth by EMR.

And that was me being polite.

HL, M.D.

Practice Liability When Treating Non-Vaccinating Patients

Reducing the Risk of Legal Liability To Third-Parties When Treating Non-vaccinating Patients

Budd N. Shenkin, MD, FAAP^a, Dorit Rubinstein Reiss, PHD^b, David I. Levine, JD^b

Affiliations: ^a Bayside Medical Group, Berkeley, CA; and ^b University of California, Hastings College of the Law, San Francisco, CA

Abbreviations: American Academy of Pediatrics (AAP), Vaccine Information Statements (VIS), Non-Vaccinating Information Statements (NVIS)

Abstract

Deciding whether to accept voluntary non-vaccinators into a practice has become increasingly controversial. One important concern is the fear that a practice accepting such patients might incur legal liability if another susceptible patient should contract a vaccine-preventable disease in the practice’s office. This paper addresses the question of legal liability and offers suggestions to minimize that risk.

Reducing the Risk of Legal Liability To Third-Parties When Treating Non-vaccinating Patients

As preventable disease outbreaks due to voluntary non-vaccination spread, deciding whether to accept these non-vaccinators into a practice has become increasingly controversial. Some authorities argue that it is ethically correct to care for children despite the risky decision of the parents, and many pediatricians want the opportunity to convince hesitant parents to vaccinate. Others, however, are vexed when patients reject medical advice, don't want the increased burden of treating non-vaccinated patients, believe that not accepting non-vaccinators is more effective than persuasion at increasing vaccination rates, and fear that they will be disserving other patients who cannot be vaccinated because of their age, compromised immunity, or other reasons.ⁱ In addition, some fear the possibility of their own legal liability if a susceptible patient should contract a vaccine-preventable disease in the office from a contagious, unvaccinated individual.ⁱⁱ This potential for liability has been noted by the Committee on Infectious Diseases of the American Academy of Pediatrics (AAP).^iii. Our concern in this paper is to address the question of legal liability and to offer suggestions to minimize that risk.

If Patient A were to contract a disease in a practice from voluntarily non-immunized Patient B, Patient A could sue the practice for negligence.^iv The suit might allege: “Practice X knowingly included non-vaccinating patients who could potentially spread immunizable diseases to their other patients, but the practice neither informed all patients of that potential, nor took sufficient steps to reduce it.” Physicians have a special legal duty of care to avoid unreasonably harming others because of their professional knowledge and patients' reliance on their recommendations. Patients can expect that health facilities will be reasonably safe environments. In fact, hospitals (another natural congregating point for infectious disease vulnerable patients), have been sued over hospital-acquired infection.^v Indeed, states seek to protect children against disease transmission by requiring vaccination for school admission.

If a preponderance of evidence proved that such a disease transmission took place in the practice's office, the practice's liability for monetary damages would hinge on whether the physician and the practice acted reasonably or negligently in safeguarding the injured patient’s health. The crucial issue would be, then, what actions are “reasonable?”

Courts would be unlikely to conclude that merely accepting such patients was legally unreasonable. This policy is still widespread and expert opinion is currently divided.^vi

The next issue would be vital: has the practice acted “reasonably” to protect patients from contagion due to unimmunized individuals? A trial court admits evidence of what informed opinion recommends in a field, such as AAP’s committee statements, to determine whether the defendant met the standard of care. Ultimately, a jury would have to weigh the evidence (presented through physicians testifying as experts) and determine what was reasonable under the circumstances.

Practically speaking, the plaintiff’s experts would have the complex task of proving that the disease was contracted at the practice’s premises and that the practice acted unreasonably. The litigation would involve lengthy investigation; early dismissal of the case would be unlikely because both inquiries are fact-dependent. The stakes for the practice could be high, if the insured’s liability limits were exceeded because of a very serious injury or if several children were injured in one outbreak. Even if the practice were not left financially harmed, the process could be harrowing for the defendants.

What Can A Practice Do?

For a practice accepting voluntarily non-vaccinating patients, it would be both medically ethical and legally prudent to take steps to safeguard the health of the other patients. These steps would help demonstrate that the non-vaccinator-accepting practice had acted reasonably should a legal claim arise. The safest way to avoid infecting other patients would be to treat unvaccinated children only with home and telehealth visits. Some practices might try this, but it would be impractical on a large scale.

A minimal step to would be to inform all patients that non-vaccinating patients are accepted in the practice. A simple notice in the waiting room might be insufficient to provide meaningful warning. We suggest instead that, similar to the Vaccine Information Statements (VIS) that are routinely used in offices, Non-Vaccinating Information Statements (NVIS) could be given to patients to be read and signed, and then kept on file. These would explain that the practice accepted non-vaccinators, and would detail the specific dangers of each disease, those most liable to contract the disease (babies, immune-compromised patients), and what protective measures the practice is taking. The weaknesses of any protection system should be noted, especially that many diseases are most communicable before there are signs of illness. Since a uniform NVIS does not currently exist, practices would need to develop their own, probably utilizing legal advice.

Another important measure would be to exclude potentially infected non-vaccinating patients from common spaces. The practice's computer system should inform staff that the patient involved is unvaccinated, especially at the stage of making the appointment, so that anticipatory protective steps might be taken. Since these patients might be infectious in a prodromal stage even when they are not known to be sick, the practice should consider if all visits should be accomplished by entering the office by a separate entrance, treating in an isolated room, disinfecting the room, and not using it for some hours afterwards. Certainly, these steps should be taken if the patient is symptomatic, as pediatricians did with suspicious infectious cases prior to the vaccines being available. Of course, if a case of infectious disease develops in the patient who has visited the office, all patients who might have been exposed must be contacted and prophylaxis offered, according to the directives of the Red Book.^vii

A practice might also consider if state law permits requiring voluntarily non-vaccinating families to sign an indemnity statement accepting financial liability to the practice resulting from an outbreak emanating from them. (This indemnification would be in addition to a vaccine waiver, such as the one available through the AAP.)

Documentation that policies were actually being followed in the practice would be essential. As physicians have been told repeatedly, “if it is not documented, it did not happen.”

In summary, practices accepting voluntary non-vaccinators may be expected by law to act reasonably to protect all of their vulnerable patients from the foreseeable risk of disease transmission. Methods to avoid liability may be cumbersome, but practices accepting voluntary non-immunizing patients should consider adopting policies like those recommended here, for the safety of their patients and their legal protection.

References:

i^{Deem MJ, Navin, MC, Lantos, JD. Considering whether the dismissal of vaccine-refusing families is fair to other clinicians. JAMA Pediatr. 2018; 172(6): 515-516.}

ii Sugerman DE, Barskey AE, Delea MG, et al. Measles outbreak in a highly vaccinated population,

 San Diego, 2008: Role of the intentionally undervaccinated. Pediatrics. 2010; 125:747-755.

iii Rathore MH, Jackson MA. Committee on Infectious Diseases. Infection prevention and control in pediatric ambulatory settings. Pediatrics. 2017; 140(5):e20172857.

ivAmerican Law Institute. Restatement of the law third, torts, liability for physical and emotional harm. 2012.

vMiller JM. Liability relating to contracting infectious diseases in hospitals. J Leg Med. 2004; 25: 211-227.

viEdwards KM, Hackell JM, Committee on Infectious Diseases, Committee on Practice and Ambulatory Medicine. Countering vaccine hesitancy. Pediatrics. 2016; 138(3): e20162146.

viiCommittee on Infectious Diseases, AAP, Red Book: 2018-2021 Report of the Committee on Infectious Diseases. 2018; 31^st ed.

Can Trees Save Us, The Big Brained Animal?

We have a small backyard, but there are those of us who love it. It's only about 50 by 35 feet or so, but we have a full size 100 year old California redwood – sequoia sempervirens – and a full size dawn redwood – metasequoia. The latter can't be 100 years old, since it was thought to be extinct and was rediscovered in China in 1944. The shortest of the redwoods and the only one that is deciduous, its eventual height should be about 165 feet. Both of them are quite beautiful. We also have some yuccas and a couple of loquats – eriobotrya japonica – which is also from China. And a grapefruit tree, purchased at Costco 25 years ago.  Small it may be, but our backyard is certainly woody! Since I lived in West Philadelphia until the age of 13, living in the midst of woods is something of a wonder to me.

So I was thinking the other day as I ducked out back and looked around, what if more people had backyard trees the way we do? We also have trees up and down our little street. What if the rest of Berkeley had trees on their streets the way we do, and what if everyone in the country did it, and what if the rest of the world did it? Would it make a difference to the overriding existential issue of our time, global warming? After all, trees drink up the CO2 that is poisoning the atmosphere and keeping the heat in as we burn up the planet.

To review our situation in one paragraph, the basic equation for global warming is based on carbon dioxide atmospheric concentration. CO2 generation - CO2 uptake = total CO2 added to atmosphere. Since the major change that has produced global warming is an increase in CO2 generation, our attention has centered on efforts to reduce that CO2 production. While there has been progress and there is hope and expectation of a great deal of further progress, it won't be easy. But the part of the equation after the minus sign has been paid less attention – the so-called carbon sink. The sink cannot be the only change to be made, but I wondered, could more trees make a significant impact? And if so, how much? What if others had my backyard; what if others had our tree-lined street, what if we as a city, a state, a country, a collection of nations, went full bore Johnny Appleseed and planted, planted, planted? Would that make a difference?

Only a few weeks after I wondered this, a significant paper appeared the Science.

RESTORATION ECOLOGY

The global tree restoration potential

Jean-Francois Bastin1*, Yelena Finegold2, Claude Garcia3,4, Danilo Mollicone2,

Marcelo Rezende2, Devin Routh1, Constantin M. Zohner1, Thomas W. Crowther1

tin et al., Science 365, 76–79 (2019) 5 July 2019

The intent of it is to answer the question I had posed in my back yard – could trees significantly contribute to the solution to the global warming problem? The article says:

“This highlights global tree restoration as our most effective climate change solution to date.

Our results highlight the opportunity of climate change mitigation through global tree restoration but also the urgent need for action.”

“More than 50% of the tree restoration potential can be found in only six countries (in million hectares:Russia, +151;United States, +103; Canada,+78.4; Australia, +58; Brazil, +49.7; and China,+40.2) (data file S2), stressing the important responsibility of some of the world’s leading economies.”

“Nevertheless, under the assumption that most of this additional carbon was sourced from the atmosphere, reaching this maximum restoration potential would reduce a considerable

proportion of the global anthropogenic carbon burden (~300 GtC) to date (1). This places

ecosystem restoration as the most effective solution at our disposal to mitigate climate change.”

As an article in Science, the turbidity of the prose and presentation is regrettable but rather standard. It is policy-relevant, rather than a policy article. But, frustrating as that is, the article nonetheless appears to answer my question – trees should be a significant part of the climate change answer. Which leads us to think – why do we hear so little about it? Why do we hear only technological answers to our technologically introduced global warming? Especially when we could easily envision tree-planting solutions that involved millions of people participating, companies making money from it, a part of a green new deal?

I don't know the answer, but one thing we do know is that deforestation has been severe and it is ongoing. Lots of people and companies are making a lot of money in the developing world by developing, which means clearing land, which is deforestation. How can one stop them? It's a classic case of the tragedy of the commons.

What is Tragedy Of The Commons?

The tragedy of the commons is an economic problem in which every individual has an incentive to consume a resource at the expense of every other individual with no way to exclude anyone from consuming. It results in overconsumption, under investment, and ultimately depletion of the resource. As the demand for the resource overwhelms the supply, every individual who consumes an additional unit directly harms others who can no longer enjoy the benefits. Generally, the resource of interest is easily available to all individuals; the tragedy of the commons occurs when individuals neglect the well-being of society in the pursuit of personal gain.

(https://www.investopedia.com/terms/t/tragedy-of-the-commons.asp).

The answer to the tragedy of the commons is strong government, which is hard enough to muster in one country, but virtually impossible in the world at large, where the local rich say, why shouldn't I have my piece of the action, especially when it was the First World that made the problem in the first place?

Still, as the article points out, the developed world could make a contribution, and one wonders if straight payoffs to the developing world to preserve forest could work.

While we have a moral imperative for optimism, and we must remain optimistic, some are pessimistic. The originator of the Gaia theory of the world (https://en.wikipedia.org/wiki/Gaia_hypothesis), James Lovelock, postulated years ago that we would develop our way to oblivion. Oblivion, he was asked? The end of human beings? Well, he responded, the species will probably survive. There will be mating pairs at the poles. Shiver, and not from the cold....

Which leads to the question, maybe, is the human species worth saving? How special are we? Are we just another species that comes and will go, as >90% of species have done? Are we just sentimental about our own species, putting ourselves speciously at the center of the universe, indulging in pre-Copernicus species thought?

I like to read short, sweet works of genius. Edward O. Wilson, the originator of sociobiology, author of Ants, has just published Genesis, The Deep Origin of Societies. (https://www.amazon.com/Genesis-Origin-Societies-Edward-Wilson/dp/1631495542/ref=sr_1_1?keywords=edward+o+wilson&qid=1563808585&s=gateway&sr=8-1)

He lists the Great Transitions of Evolution, where “In each..., altruism at a lower level of biological organization is needed to reach the one above.”:

1. The origin of life
2. The invention of complex (“eukaryotic”) cells
3. The invention of sexual reproduction, leading to a controlled system of DNA exchange and the multiplication of species
4. The origin of organisms composed of multiple cells
5. The origin of societies
6. The origin of language

Language! How did that get in there? I think it must be true. It's based on the rise of the brain from 600 cubic centimeters to 1,400 cubic centimeters in guess who, you and me. It's recent, maybe over 3 million years, which is nothing in geological and evolutionary terms, but more than we can imagine on the basis of our lifetimes. And what allowed our brains to grow, was necessary but not sufficient? The taming of fire, which led to cooking, which led to markedly more calories per meal (heating does that), which allowed our brains to be nourished by what people could find to eat in a few hours a day of hunting and gathering. (I read this in a great book by an Oxford biologist, but I can't find the exact reference right now. It's an amazing book, carefully calculating calories and time, with numbers.)

So, yes, we are indeed a special species. Our attachment to the power of our brains – Woody Allen's second favorite organ – isn't just sentimental. How on earth did this brain every evolve? If we exit, it won't be invented again.

We need to plant trees. We need much more powerful governments. We might need the end of democracy, the end of non-state capitalism. We're back to better Red than Dead thinking, grim as that is.

Apocalypse.

Wouldn't it be worthwhile planting the world full of trees, and buying up huge swaths of land, while we pursue technological improvements in our energy generation and utilization?

And oh yes, in today's NYT there's a nice little article on the potential of trees: https://www.nytimes.com/2019/07/22/opinion/trees-global-warming.html?action=click&module=Opinion&pgtype=Homepage. The author refers to the NYT summary of the Science article I started with. Since that article a few weeks ago, this is the only follow up I've seen.

I guess this essay of mine is what you'd called discursive.

Budd Shenkin