Wanted: Virginia Law Students To Argue The Question

To Be Or Not To Be.

That is the question as to whether I have a right to trial in the Commonwealth of Virginia.

Even though a number of Virginia medmal lawyers told me it was too late to sue because the Virginia statute of limitations for medical malpractice actions is two years from the date of injury, I found this was not necessarily the case. In Virginia, certain circumstances may extend the statute of limitations.

I need help in determining if any of these circumstances apply and if so, in making my case to toll the statute of limitations so that I may get my day in court.

Circumstances that may extend the statute include fraud or concealment preventing discovery of the injury, incapacity of the victim, a foreign object left in a patient without the patient’s knowledge, delayed diagnosis of cancer and Virginia’s “continuing treatment rule.”

The “continuing treatment rule” resulted from a Virginia Supreme Court case, Grubbs v.Rawls, 235 Va. 607, 369 S.E.2d 683 (1988) which holds that continuing treatment for the same conditions tolls the statute until treatment ends. The summer of 2012, a Ben Glass attorney who screens prospective cases told me that this ruling only applies if the harmed patient continues to be treated by the doctor who caused the harm.

On April 21, 2011, the Virginia Supreme Court stated in Chalifous v. Radiology Associates that in its opinion the several MRIs and reports rendered by the radiologists in the case constituted a continuing course of treatment and therefore the statute of limitations did not begin to run until the end of the last treatment (MRI) even though the last treatment did not encompass any negligence. The question was whether the radiological treatment was a series of isolated episodic events, each standing on its own, or whether each MRI was part of a continuing course of treatment.

The series of MRIs taken over a period in this case all showed the cause of the patient’s ailment, but only the last radiologist pointed out the problem. Could this ruling be applied to my case, in which various CT scans and other radiographs taken over the years were dismissed yet held the cause of my problem?

Could the fact that I became disabled on my quest for care qualify as “incapacity” or being too ill to file suit? Could the fact that I found missing from my patient records a report recommending my primary care doctor follow up on an x-ray abnormality be sufficient evidence for “concealment?”

Any one of these might allow me due process or my day in court.

In my case, I would be suing for failure to diagnose. I needed to get diagnosed to prove I was not diagnosed and that took several years. I guess there is no justice for all if the Ben Glass attorney correctly interpreted the Virginia Supreme Court rulings. Was she right?

If you like puzzles, are a law student seeking practical experience, I’m your patient.

My medical records are assembled and organized. I’ll gladly assist where possible.

Virginia has up to a $2 million cap on medical malpractice awards, so this is not about my trying to gain a windfall. Heck, I lost over a $1 million in wages and assets alone since becoming disabled in 2005 and losing my job the year prior — not to mention pain and suffering. And I still need care not covered by Medicare nor many private medical insurers.

Pursuing a case and documenting the steps in a documentary is about questioning the status quo, finding a way and achieving equality.

So I’m seeking legal assistance to argue the question as to whether the statute of limitations can be extended to allow me to file suit.

This blog documents my experiences seeking competent medical care from 2003 through the start of 2009. In 2009, I began finding doctors who are helping me improve my health. (It takes a village.)

Now I’m seeking your help. Will you by contacting me at doctorblueblues@gmail.com?

The Story #21: Channeling Stephen Colbert

Maybe I’ve got this all wrong. Maybe I need to look at things from the doctor’s perspective and channel Stephen Colbert so I can upchuck thoughts as they occur uncensored while adopting the persona of a mainstream medical doctor.

After all, what do patients expect from a doctor within the typical eight-minute office visit? Miracles? Do they expect the doctor to change water into wine, exorcise demons or reverse years of accumulated oxidation from eating all those Big Macs and KFC fried chicken sandwiches – all by prescribing a magic pill???

To tell us more about the doctor’s perspective, I visited hyperbaric medicine specialist, Cosmetic Surgeon Eric Desman, M.D., as an outpatient in the Wound Healing Center at Inova Mount Vernon Hospital in Alexandria, Virginia on August 26, 2010.

I went there because Medicare pays for hyperbaric oxygen therapy for patients with persistent actinomycosis.

Dr. Desman is a handsome, burly type with the kind of intimidating arm muscles that come with a tire gauge much like those of ex-Marine and Daily Show correspondent/comedian Rob Riggle. (Google their photos. You’ll know what I’m talking about.) They’re the kind of arms that make you feel protected, and docs have to protect the weaker minds of their patients from worry.

Docs can’t show any signs of indecision or wavering when treating patients — even if they don’t have the faintest idea of what’s wrong with the patient. (The ubiquitous idiopathic ailment.) Docs have to be absolutely sure that the prescribed medicines or therapy will not “harm” the patient. (The Hippocratic Oath or Lawyer’s Treatise.)

House, M.D. fans may have noticed that TV Dr. Gregory House prescribes treatment based on an educated guesstimate of what’s troubling his patient. The practice is based on the assumption that medicine that cures the patient proves the diagnosis. But we all know Princeton-Plainsboro is no typical hospital. It’s the enchanted forest in never-never land. Prescribing treatment without a positive biopsy or culture never occurs in real life medical care. (Ahem.) Much too risky.

In real life medical care, doctors surgically remove a large enough sample of the patient’s tissue so the pathologist can definitively proclaim what the patient has prior to any treatment. As Dr. Desman said, it’s for the patient’s safety. Of course. And although performing such biopsies (cutting tissue) in patients with anaerobic bacterial infections causes the infection to rapidly spread, this cutting and removing of otherwise needed tissue ensures that the patient with an anaerobic infection will get worse and will therefore definitely need treatment. (Win-Win. No if, ands or buts here.)

I knew this. So I was not fazed when Dr. Desman told me that before I could receive treatment for my infection(s), I would have to have another doctor somewhere else perform such a biopsy. The positive test results I had, he said, expired after three months. It’s water under the bridge that I was not properly diagnosed nor treated previously. (No crying over spilled milk!) Docs have to make sure the patient is still sick now. (Miracles do happen.) And docs hate looking at other doctors’ homework. (Too much reading and deciphering.)

What’s the treatment? Oxygen. More specifically, hyperbaric oxygen therapy or HBOT, for short. In HBOT, the patient spends multiple two-hour sessions breathing in 100 percent oxygen in a chamber in which the oxygen pressure is higher than in the atmosphere. It’s used to treat a variety of ailments such as carbon monoxide poisoning, the bends (from scuba diving improperly), non-healing wounds and anaerobic bacterial infections, such as actinomycosis.

Inova Mount Vernon Hospital’s website calls HBOT “a highly effective and safe treatment.” In fact, in The Oxygen Revolution authors Paul Harch, M.D. and Virginia McCullough point out that the only side effect of HBOT that isn’t reversible is due to tank operator error – giving the patient too much oxygen under too much pressure. This happens when the patient’s reactions to treatment aren’t properly monitored. (Hospital liability is a side effect?!)

Dr. Desman did clarify that my lungs could collapse during HBOT if I had any lung conditions like emphysema, but that the risk of this side effect occurring was minimized by requiring all HBOT candidates to have a chest X-ray prior to treatment. (Whew! Had me there for a minute.)

Now getting a decent biopsy of an aerobic bacterial infection — one that lies on the skin – is one thing. Performing a biopsy on a patient with an anaerobic bacterial infection – one you can’t see – is far more challenging. Trying to even convince a doctor you have an anaerobic infection is akin to a new car salesman trying to convince his customer to pay for the clear coat on his new car. You can’t see it. The dealership won’t let you in the back to see if it’s actually applied…

Anaerobic infections nestle deep within tissue to avoid exposure to oxygen because oxygen kills anaerobic organisms. For anaerobic infections, docs have to get a tissue sample large enough to encapsulate and shield any anaerobic germs from coming into contact with the air so as not to compromise the specimen.

My first biopsy was from a tonsillectomy. The tonsils have tonsillar crypts that safeguard the actinomycotic granules from the atmosphere so they can be seen under the pathologist’s microscope.
Finding another biopsy site in the head and neck region proved a bit more challenging because there’s nothing there I really care to part with.

(Sidebar: Mrs. Christine Wicks, who was diagnosed with actinomycosis in England at age 67, had to have a biopsy prior to being approved for HBOT by England’s National Health System to show that the months of intravenous penicillin therapy failed to eradicate her infection. She had a large chunk of her neck removed, which was not only unsightly – leaving what she called “a visible hole in her neck” – but also caused the infection to spread to her lungs so she no longer qualified for the treatment for which she got the biopsy. How ironic.)

Dr. Desman instructed me to see Dr. Michael Abidin, an otolaryngologist I’d seen years earlier, for my updated anaerobic bacterial biopsy. “He trained at Johns Hopkins,” Desman said trying to reassure or convince me that although neither surgeon admittedly knew anything about actinomycosis, that I would be in good hands with Abidin because of his affiliation with Johns Hopkins.

This was the same surgeon who, on the last of a half dozen office visits, handed me another patient’s file to take to check out. It was the file he’d been referring to during our brief visit. Abidin never addressed me by my name, nor identified the disease-causing pathogen(s).

Apparently, Dr. Desman is good buddies with both of my former otolaryngologists, “Mike and Larry” (Dr. Laurence O’Halloran).

Dr. Desman never mentioned the letter recommending HBOT from my primary care physician, Dr. Norman Levin. Instead, he called one of my former infectious diseases physicians, Dr. Richard Sall, who had prescribed a few months of penicillin VK 500 mg oral tabs the year prior for actinomycosis. And he called Dr. Abidin. Desman was hoping they would remember me and fill him in on the details of my ailment so he wouldn’t have to read any of my paperwork.

He said he’d caught them both between patients and neither recalled who I was, but that Dr. Abidin had agreed to do the biopsy anyway.

Do you really think Dr. Desman knew he was asking Dr. Abidin to take a chunk out of my neck? And did Dr. Abidin really understand that he’d agreed to do that? Of course not. Doctors like to think of themselves as omniscient, but they rarely are. They’re oriented toward what they typically do on a daily basis, which is geared to dealing with aerobic bacterial infections.

Dr. Desman told me that in the 25 year history of the Mount Vernon Hospital Wound Healing Center, there were two or three patients with actinomycosis who received HBOT as an adjunct to conventional therapy. These were patients of Dr. John Symington, an infectious diseases doctor who specializes in treating patients with Methicillin-resistant Staphylococcus aureus (MRSA), a bacterial infection highly resistant to some antibiotics.

It appeared most of the patients undergoing HBOT here were treating open wounds and (MRSA) infection. This was news to me since I understood oxygen only killed anaerobic bacteria — not aerobic MRSA infection. I began rethinking whether this environment was such a good venue for me in my autoimmune-compromised (petri-dish) state.

I later stumbled upon some articles about the turf wars between microbiologists and practicing wound care physicians over biopsies. Apparently, microbiologists have known for some time that not only do anaerobic infections have aerobic co-infections, but aerobic infections have anaerobic co-infections. The microbiologists argued that for proper patient wound care, practicing physicians needed to do two biopsies – one surface biopsy for aerobic pathogens and a deeper biopsy for anaerobic infection.

The community of practicing physicians felt this was unnecessary. One article gave the distinct impression that the reticence on the part of the practicing physicians to do anaerobic biopsies was based more on resistance to what was being viewed as territorial trespassing than on good science — turf wars.

Makes me wonder how many of the MRSA infected patients receiving HBOT had anaerobic bacterial biopsies before being treated. My money’s on “not many, if any.” A bit of a disparity in treatment protocol, don’t you think?

The Story #13: The Partial Diagnosis Part II

The diagnosis and treatment of anaerobic bacterial infections seems to be off the radar screens of all doctors except research medical doctors, who aren’t licensed to treat patients.

Of the many physicians I saw about my actinomycosis, only one had any familiarity at all with the disease. The list of doctors I consulted about this infection in recent years included four infectious diseases doctors, two otolaryngologists, four dentists, three endodontists, four oral surgeons, three colorectal surgeons, three gastroenterologists, three gynecologists, one gynecological oncologist and five internists – all of which are believed by mainstream medicine to be able to diagnose actinomycosis. This list doesn’t include other specialists and family doctors I consulted over a lifetime of being plagued with the disease.

Medical researchers concluded that early undiagnosed occurrences of the disease go into remission with the use of short courses of antibiotics prescribed for suspected bacterial infection only to recur in later years – typically during middle-age once the body’s defenses have weakened. They found a clinical pattern of remission and exacerbation of symptoms occurring in parallel sequence with initiation and cessation of standard antibiotic therapy.

I found a clinical pattern of doctors’ increasing frustration leading to diagnoses of anxiety and prescriptions for antidepressants when patients return after the previously prescribed antibiotics failed to resolve symptoms long term. And this wasn’t just happening to me.

With no non-profits or other organization to help patients get help with anaerobic bacterial infections, I started an actinomycosis support forum on http://www.mdjunction.com in the fall of 2008. I wanted to see if there were others out there encountering the same difficulty that I was in finding competent medical care for this infection. There were — not only in the U.S, but also in England and Norway as well.

Diagnosis of a case of actinomycosis in England in 2008 made headline news because the disease was largely thought to have been eradicated from developed nations with the invention of penicillin. Dr. John Jacklin and Dr. Syed Tariq diagnosed Mrs. Christine Wicks of Long Sutton as suffering from actinomycosis — a diagnosis that eluded the numerous doctors Wicks saw over two decades. To help raise public awareness of the disease and establish a support forum for other sufferers, Google in conjunction with Queen Elizabeth Hospital in King’s Lynn, Norfolk set up an “actinomycosis group” within Google Groups.

Here we learned that within four months of stopping several months of intravenous antibiotics her husband administered in their home, Mrs. Wicks’ infection was back with a vengeance. Some felt that failing to follow the IV treatment with six to 12 months of oral antibiotics caused the infection to return. Others felt that because her infection had gone on for so long before being diagnosed, she had developed complicating factors. There was really no consensus on the issue.

Mrs. Wicks had heard reports of hyperbaric oxygen therapy being successful in eradicating anaerobic infections. So she pursued the possibility that the NHS would cover such therapy for her actinomycosis.

The requisite approval process took months and included surgical removal of a noticeable part of her neck to obtain a biopsy sample large enough to encapsulate pathogens that die immediately upon being exposed to oxygen in the air. Pathologists needed the biopsy to confirm that Wicks still had the infection and that the obvious lumps in her neck weren’t being caused by something else. Wicks said the biopsy left a hole in her neck and caused her so many problems that she wished she’d forgone trying to get approved for additional therapy. (Actinomycosis experts know that traumatic disruption of mucosa — cutting flesh — causes the infection to spread.)

Once approved, Wicks started hyperbaric oxygen treatments in the hopes that this treatment regime would help. She underwent 12 of the 40 two-hour hyperbaric oxygen therapy sessions prescribed before she was again hospitalized, this time with an e-coli kidney and urinary tract infection. The actinomycosis infection eventually spread to her lungs, which precluded her from continuing the hyperbaric oxygen treatments.

When she was diagnosed two years ago, Wicks, now 67, knew she’d never be cured. She told reporters then that it was just such a relief to finally understand what had been happening to her body the past 20 years and to have found a doctor with the patience to listen and find out what was really wrong. Like so many others with undiagnosed illnesses, Wicks endured multiple encounters with doctors who told her she was making up symptoms and needed psychiatric help.

She first visited her doctor in 1988 with persistent sore throats and ear pain. As the pain worsened and symptoms spread to other parts of her body, dozens of internists and specialists indicated everything from tonsillitis and strokes to multiple sclerosis and smoking as the cause of her health problems, even though she has never smoked.

Asked why so many doctors failed to correctly diagnose Mrs. Wicks, Dr. Syed Tariq surmised it was because anaerobic bacteria dies when it comes into contact with air or more specifically, oxygen.

Because the clinical presentation of anaerobic bacterial infection is non-specific (lacking specific symptoms upon which to pin a diagnosis), definitive diagnosis is generally based on the pathologist’s identification of actinomycotic granules from a biopsy or tissue specimen. Such biopsies are difficult to master because special precautions must be taken to prevent the pathogen from coming into contact with any oxygen. Special pre-reduced anaerobically sterilized (PRAS) transport media and non-typical stains (ie. Grocott-Gomori methenamine-silver nitrate, Brown-Brenn, McCallen-Goodpasture) must be used with specimens.

Because lab technicians do not typically use these materials, pathologists need to be notified in advance that the specimen contains anaerobic bacteria. Since exposure to an aerobic environment may compromise biopsy specimens, prompt transport of specimens (in an anaerobic transport device) to the microbiology lab is necessary for isolation of the anaerobic pathogen. Cultures, if done, can take up to two weeks to grow, which is more time than the few days labs typically allow for bacterial cultures.

The Merck Manual notes that fine needle aspiration is often used to obtain a sample of tissue deep enough to be infected with Actinomyces because surface mucosa typically carries only aerobic bacteria. It further states that computed tomography or ultrasonography are often employed to guide the needle to the infected area because it is essential that the tissue sample be representative of the infection core as peripheral tissue may not yield the bacterium.

Research indicates that not many practicing surgeons take the time or go through the inconvenience of fine needle aspiration biopsy to detect an anaerobic infection. Using this technique can often take as many as three tries or more before a successful specimen is captured.

This is why most surgeons prefer to remove entire organs (ie: hysterectomy) to obtain a proper biopsy. Or as Dr. Norman Tacktill put it,

“Typical tissue biopsy is like playing the mechanical “claw” game” in which the operator of a toy crane fishes for toys and prizes. “More often than not,” Tacktill said, “he comes up empty handed.”

As a practical matter, actinomycotic specimens are typically discovered by pathologists anecdotal to surgery performed for some other suspected condition. Consider the challenge in convincing insurance companies to pre-approve the expense for what amounts to exploratory surgery to obtain the evidence that the patient has the suspected anaerobic bacterial infection. In advanced cases of persistent actinomycosis, radiographic studies such as CT scanning and MRI are useful in detecting osseous (bone) and soft tissue involvement. But isn’t the point to try to diagnose the infection early enough for treatment to be effective?

With this many hurdles, it’s understandable why so many practicing physicians would choose to pretend anaerobic infections don’t exist or that such diagnosis is the responsibility of some other physician. In truth, the pervasive aspect of the infection makes it most doctors’ responsibility to diagnose and treat. Unfortunately, when everyone is responsible, no one is responsible. So you end up with scenarios like the following that happened to me.

I was having so much difficulty finding a practicing physician in the U.S. who knew anything about actinomycosis, that in December 2008, I wrote Nancy Davenport-Ennis, who was the chief executive officer of the National Patient Advocate Foundation (PAF). She asked one of her supervisors, Mary Giguere, to seek out a local infectious diseases doctor, who was familiar with actinomycosis. She had quite a time locating one.

When I called the offices of various specialists as a patient to inquire if a doctor had specific knowledge about diagnosing and treating actinomycosis, the administrative personnel instructed me to make an appointment. They had no way of knowing the doctors’ sub-specialties without specifically asking the doctors, which they weren’t about to do. Giguere had the slight advantage of stating that she was asking about a specialist’s typically unadvertised sub-specialty on behalf of the PAF.

Actually, I’m not sure whether Giguere’s affiliation with PAF pulled much weight or whether she was lucky enough to reach an office in which the assistant was related to a doctor and therefore was not afraid to ask if he knew anything about actinomycosis. In any case, Giguere was successful in locating a physician with at least some familiarity with the infection. For this, I shall be forever grateful because I know that non-profits shy away from recommending specific doctors to patients, and policy-wise, the PAF was no exception.

In 2009, based on the evidence I provided, Dr. Richard Sall of Infectious Diseases Specialists of Virginia LLC prescribed four months of oral Penicillin VK (500 mg) to treat my actinomycosis. Instructions were to take four tablets a day. At a follow up visit, I told him that I was experiencing terrible heartburn from taking just one to three tablets of Pen VK each day and reminded him of my history of gastrointestinal problems, which included erosive esophagitis, reflux, hiatal hernia, H. pylori infection, ulcerations and colitis.

Still believing conventional thought that treatment consisted of high doses of penicillin, I asked Dr. Sall about the potential of getting IV antibiotic therapy. I knew I needed gastrointestinal surgery and was worried that without such treatment, the actinomycosis would spread as it’s known to do with traumatic disruption of mucosa. (I found from experience and from other patients that surgeons tend to feel that infections resolve themselves after surgery or that an infectious diseases specialist is responsible for prescribing antibiotic therapy.)

The request was problematic for Dr. Sall for a couple of reasons. First, Dr. Sall wasn’t certain that around the clock home administration of IV therapy was feasible. Second, he wanted an updated pathology report showing the presence of actinomycotic granules. The pathology report I had supplied from the tonsillectomy in 2001 was now several years old.

I told him I was having a consult with colorectal surgeon, Dr. Donald Colvin of Fairfax Colon & Rectal Surgery, P.C. and could arrange for a biopsy to be done during my upcoming colonoscopy. This, too, proved to be problematic.

In a brief telephone conversation prior to our initial consult, Dr. Colvin made clear that he was not familiar with actinomycosis and recommended that I seek treatment for the infection from an infectious diseases specialist. Nonetheless, he agreed to do the biopsy.

At our initial consult on August 5, 2009, I gave Dr. Colvin the contact information for Dr. Thomas Russo, a research doctor in the Division of Infectious Diseases at the University of Buffalo School of Medicine. Dr. Russo wrote a section on actinomycosis in Mandell’s Principles and Practices of Infectious Diseases. Dr. Russo responded to my e-mail inquiry saying he would readily speak with a practicing physician about the nuances surrounding actinomycosis, but could not speak directly with me because, as a research doctor, he was not licensed to diagnose and treat patients. From what I’d read, it seemed important to know the particulars about biopsying for a specimen so sensitive to oxygen.

At the follow-up visit following my colonoscopy in September, I was surprised to learn that the pathologist found absolutely no bacteria whatsoever in my colon. Medical researchers reported finding upwards of 480 species of bacteria in the typical human colon.

I learned that multiple surface mucosal biopsies were taken, placed in formalin and sent to the lab as usual. It never dawned on me that it was not possible during a colonoscopy to obtain a tissue sample deep enough to contain anaerobic bacteria. Doing so would certainly result in colon perforation. I also hadn’t counted on the fact that the harsh colon prep would remove all flora from the surface layer of the colon from which, I learned, colonoscopy biopsies are typically obtained.

Dr. Colvin’s failure to consult an expert in the disease and frustration over my questioning the procedure is reflected in his notes of September 21, 2009 in which he concludes the patient “is still pretty convinced that she has systemic actinomycosis as the cause of all of her problems.”

There was an obvious disconnect here. I assumed the surgeon would obtain needed information and perform the anaerobic bacterial biopsy correctly. He assumed that proceeding as usual was all that was required to obtain a proper biopsy for detecting actinomycotic infection.

Once a common disorder, actinomycosis is now said to occur in 1 of 300,000 cases. Some postulate that the occurrence is much higher, but that the disease is either misdiagnosed or goes undiagnosed.

The Doctor Parent Trap

I wish someone would loan me a book about how grown kids are supposed to interact with their parents. I have books on parenting which talk about how parents are supposed to interact with their kids. But I need advice on how to handle conversations based on the parent’s assumption of how things are supposed to work in an ideal world.

I’m no kid. I’m 55. But I often feel like I’m 17 when doctors try to explain to me why it’s okay for them to assume that I don’t have such-and-such condition rather than test for the condition. If I had something, they assume some other doctor would have already diagnosed it.

“I’d like to have a Prometheus test to determine if I have ulcerative colitis or Crohn’s disease,” I say.

“Oh, the colorectal surgeons would have already diagnosed you during surgery if you did,” the doctor says.

“When I was at my surgery follow up visit, I asked one of my colorectal surgeons if she could determine during surgery if I had an inflammatory bowel disease. She said that was not her specialty, and she referred me to another gastroenterologist.”

I continued. “I don’t know if she said this because there’s some actual or unwritten law that forbids doctors from crossing certain territorial lines…I just know doctors have been reticent to address any topic remotely outside of their specialty’s seemingly very narrow parameters.”

“Look,” the doctor said, “surgeons don’t work like horses with blinders on strictly honing in on the narrow aspect of the organ they’re operating on. They get their hands in there and feel around for any abnormalities. If they find something in an organ they don’t think looks right that’s outside of their expertise, they ask the appropriate specialist to take a look before they close up. It’s not unusual at all for different specialists to treat a patient simultaneously if another condition is discovered during surgery.”

This I knew was true based on my mom’s experience. During a routine hysterectomy, surgeons found a tumor on her kidney that turned out to be renal cell carcinoma. She was being treated by gynecologists, nephrologists, cardiologists and oncologists. She died shortly thereafter.

What I didn’t know was how the “feeling around” scenario applied to laparoscopic surgery — not hand assisted laparoscopic surgery, but three-tiny-incisions, hands-free laparoscopic surgery.

“Are you a surgeon?” I asked the gastroenterologist.

“No, but in medical school, we assisted in surgeries and saw how things worked,” he responded.

The question “What year was that?” sprang into mind but I didn’t say it. I didn’t say anything. I felt it would be disrespectful to bring up laparoscopy. I wanted the Prometheus test, a fairly new test used to diagnose Crohn’s disease and ulcerative colitis, but I didn’t want to broach any subject that might lead to the doctor’s losing face. I suspected this gastroenterologist hadn’t ever heard of the test.

Plus there was the added concern that this was someone my internist had referred — a friend he’d known for years — and I have high regard for my current internist. It took me years to find him, so I wasn’t about to do anything stupid to skew that relationship.

Since home schooling about all things medical, I’ve been profoundly fascinated at the medical advancements I discovered — surgical advancements and the slew of new tests that doctors in day-to-day practice rarely order.

I found that doctors typically don’t mention to their patients any tests that insurances typically don’t cover. I can only assume they must have surmised that if the insurance doesn’t pay for something, there’s no reason to learn about it. Makes you wonder who’s really making medical decisions.

Some doctors even admit that they don’t test for things that they believe they can’t treat or do anything about.

What audacity I think when I hear such statements. What about testing just to inform the patient of a condition that the patient can improve by implementing lifestyle changes or by taking non-prescription supplements? Do these doctors assume that all patients are set in their ways, so why bother? Is the office visit about what that particular doctor knows or what he can help the patient with? Is the doctor’s ego worth more than the patient’s life or quality of life? And who has the right to make that judgment?

I know there’s no cure for inflammatory diseases as well as many other conditions. In fact, much of the prescription medication available only addresses some symptoms while creating other health problems. Still, it would be nice to have a proper diagnosis — one way or the other — for the patient’s peace of mind, if nothing else.

But rather than get into an argument or further discussion with the time-constrained doctor, I sat there feigning acquiescence like a child. I felt the way I’d felt previously in parent-child situations — like it was futile to try to persuade the unconvincable. It makes me think I’d be a terrible debate team member.

So why did I submit to “child” mode so readily?

It’s no secret that many doctors view their patients as children. As a real estate broker, I sometimes felt similarly about the tenants I placed because they needed my help. I felt like a mom to my pets. Yet I doubt this viewpoint lends itself to a healthy relationship — one open to honest discourse and mutual trust. Better to face each other as compassionate adults with open minds. I just don’t know how to get there.

Healthcare Omens: What GM, Toyota and Big Banks Taught Us

When I listen to news accounts of businesses gone bad, a common theme emerges among the reasons given for their downfall. Monetary reward motivated people to act as they did.

And while hindsight is 20/20, a closer look into what blinded those in charge — those who should have had foresight — is strikingly revealing. It begs the question of whether other industries, including health care, are susceptible to the same fate that befell some of the world’s most highly regarded enterprises, including Goldman Sachs, JP Morgan, AIG, Washington Mutual, General Motors and Toyota.

For example, in 1984, General Motors (GM) and Toyota formed a joint venture that converted one of GM’s worst auto plants in the U.S. into one that produced some of its best cars thanks to lessons learned from the Toyota production system. Toyota shared with GM the secrets of how it made higher quality cars at much lower costs than the American conglomerate.

GM ultimately found shifting American cultural mores difficult, if not impossible, and failed to implement what it learned across the company. As a result, GM filed bankruptcy and closed the Fremont, California automobile manufacturing plant on March 31, 2010, sending thousands of auto workers looking for jobs. Adding insult to injury, GM along with other U.S. auto manufacturers appealed to Congress for funds, and taxpayers paid $50 billion to bail them out.

In the end, instead of learning from Toyota, GM influenced the Japanese company’s American counterpart to adopt GM growth strategies emphasizing quantity over quality. This ultimately led to Toyota’s apology of deeply regretting the harm caused by accidents that occurred as a result of a faulty product.

A March 26th, 2010 airing of This American Life revealed some very interesting reasons for GM’s inability to regain market share or implement the practices Toyota shared.

The pioneering venture between GM and Toyota seemed a perfect match. GM needed to manufacture a small, reliable car profitably, and Toyota needed to start building cars in the U.S. to avoid possible import restrictions. Yet, senior leaders at GM were nonplussed at the arrangement — maybe they’d learn something, maybe not. Pride and defensiveness were prominent in their attitude. After all, in its heyday GM had been the biggest and best auto maker in the world.

Cultural and legal considerations made implementing the Japanese auto workers’ way challenging. In Japan, auto workers and management worked together to achieve continuous improvement, a philosophy known as kaizen. In this teamwork-based approach, all line personnel were expected to stop their moving production line in case of any abnormality and, along with their supervisor, suggest an improvement to resolve any challenges.

In America, labor relations seemed at constant battle with management. Auto workers were yelled at for falling behind. Keeping the line moving was sacrosanct. With no backing from management when problems occurred, GM workers were encouraged to let things slide on down the line. If something needed to be fixed, the thinking was some other workers would get to it later in the yard once the car was completely assembled.

In effect, the Japanese turned the Henry Ford assembly line concept of volume production on its head in putting quality before quantity. The last thing Toyota wanted was a lot of defective cars to repair later.

Employing the Toyota production system in the U.S. necessitated a radical change in the relationship between labor and management.

GM and Toyota managed to accomplish this near miracle in a pilot program at the New United Motor Manufacturing, Inc. (NUMMI), an automobile manufacturing plant in Fremont, California.

The choice of the Fremont plant and its workers was unusual. The factory which NUMMI took over was built and operated by GM from 1962 until its closure in 1982. According to the United Auto Workers, at the time it closed, the plant’s workers were “considered the worst workforce in the automobile industry in the United States.” Employees drank alcohol and got high on the job, had frequent absences, and even committed petty acts of sabotage. Yet in spite of the history and reputation, when NUMMI reopened the factory for production in 1984, most of the troublesome GM workforce was rehired. Some went to Japan to learn the Toyota production system.

It didn’t take long for the NUMMI factory to start producing cars with as few defects per 100 vehicles as those produced in Japan. Workers began feeling like they were making a difference in their jobs. But 15 years later, GM still hadn’t been able to replicate this manufacturing approach at the rest of the company’s plants in the U.S. Why not?

Simply, there were too many people at GM convinced that they didn’t have to change. Many union members saw the Toyota plan as a threat because it required a quarter fewer workers. Many felt the team concept hurt their seniority rights. Instead of “team players” seeking to solve a common problem, team members started to snitch on other members’ mistakes and gang up on those viewed as a weak link.

But most of all, GM managers didn’t want the line to stop because their bonuses were still based on the number of cars produced — defective or not.

Similar production-based compensation schemes led to our scandalous subprime-mortgage crisis. Monetary reward incited lending practices in which credit evaluations took a back seat to approving as many loans as possible.

Senator Carl Levin summed up some of the problems within the banking community in the hearing looking into the collapse of Washington Mutual. He said, “To keep the conveyor belt running and feed the securitization machine on Wall Street, Washington Mutual engaged in lending practices that created a mortgage time bomb…WaMu built its conveyor belt of toxic mortgages to feed Wall Street’s appetite for mortgage-backed securities. Because volume and speed were king, loan quality fell by the wayside, and WaMu churned out more and more loans that were high risk and poor quality.”

Other firms capitalized on the fact that bankers were incentivized to do transactions for the upfront fees. They knew no one was watching out for the investors. So hedge funds, like Magnetar, collaborated with Wall Street banks to create very toxic securities explicitly so that they could make money by betting that these securities would tank.

A system designed to help homeowners achieve the American Dream of homeownership transitioned into a casino game for monetary reward. The more money pocketed, the more those incentivized to gamble became blind and deaf to the risks.

I ask, are doctors and others involved in medical care (insurers, pharmaceutical companies, etc.) so different from bankers? The incentive systems all favor short term profits over quality care. Insurers reimburse doctors for the number of patient visits, not patient outcomes. Doctors are paid for doing tests and procedures, not for the time it takes to properly diagnose a patient.

As a result, too many patients run through a gauntlet of doctors in an epic quest to get healthy to no avail. Too many doctors do little to actually help their patients get well or find the cause of their illness. Medicine has become impersonal. It’s an assembly line that can’t be stopped. Problems get sent down the line from specialist to specialist, and none seem to be responsible for ultimately diagnosing or treating the patient.

When reliability and commitment to quality start being assumed more than ensured, mistakes will follow whether we’re talking about producing cars, making loans or delivering proper health care. Has health care become the same profoundly dangerous system of beliefs and incentives cooked up over decades with the active participation of the people who were supposed to oversee and regulate?

State Insurance Regulation Conundrums

This week I ended up calling the Virginia Bureau of Insurance regarding the difficulty I was having finding an insurance company that would sell Medicare Supplement Insurance or a Medigap policy for disabled persons under age 65 in Virginia. (While finding a Medigap policy is fairly easy for seniors age 65 and over, the availability of such policies is restrictive for Medicare recipients under age 65.)

I had already contacted three of the four companies allegedly offering such policies which were listed in the Center for Medicare & Medicaid Services’ 2009 “Choosing a Medigap Policy,” a guide to health insurance for people with Medicare coverage. Of the four companies licensed to sell such policies to those under age 65 in Virginia, I found that only three actually sell these Medigap policies, and one of the three listed required the insured to be a member of the Mennonite religious sect.

I found that left United American and Blue Cross/Blue Shield as the only companies offering Medigap policies to the disabled under 65 in Virginia who weren’t Mennonite. Even though Golden Rule Insurance Company is listed twice in the guide, the company has stopped selling such policies.

When I reported this to Charles Fisk at the Virginia Bureau of Insurance, he explained that the booklet lists those insurance companies who are licensed to sell the referenced insurance in Virginia — not companies actually selling the insurance.

I took the opportunity of our phone call to also inquire about filing a complaint against Cigna HealthCare for failing to document and acknowledge my repeated written and verbal complaints regarding its providers’ failure to diagnose and treat me.

I became disabled unnecessarily because untreated infections spread to my spine causing degeneration while Cigna’s providers each delegated responsibility for my care to other Cigna providers. To me, this behavior does not constitute the “quality care” members are promised upon enrollment and, in my humble opinion, constitutes, at the least, false advertising. Code of Virginia Title 38.2-502 states that no person shall make, issue, circulate or knowingly allow to be made a sales presentation that misrepresents the benefits, advantages, conditions or terms of any insurance policy.

In Virginia, Managed Care Health Insurance Plans (MCHIPs) are required by law to have internal grievance procedures for their members, and that procedure must be explained in the contract or evidence of coverage. For Cigna members, the complaint procedure starts and ends with a call to Member Services, whose reps revealed to me that there was no space in their computer program to enter grievances and that there was no mailing address to which I could send a written complaint. The fact that Cigna chronically ignores the complaints of its members is borne out by the numerous fines other state insurance bureaus lodged against Cigna for failing to respond to member complaints time and again.

Mr. Fisk was most cordial over the phone and responded to my questions and concerns in a manner that indicated to me that he was empathetic with my dilemma. As he laid forth the quagmire of various state statutes covering insurance companies, it became clear to me that my dilemma mirrored the Virginia Bureau of Insurance’s own impotency or inability to take any action on behalf of the insured against insurance companies.

First, he asked if my complaint was against an insurance company or against the providers? “Both,” I responded, then clarified that my complaint here was specifically against Cigna for failing to have the complaint process in place which Virginia law requires.

He then asked if the policy was self-funded by my employer. (Self-funded plans are subject to their own set of laws.) He then speculated that my policy was regulated by the laws of the state in which Cigna was headquartered, Pennsylvania. Or, if my employer was headquartered in another state, say California, the laws of that state would regulate the master group policy issued. If my policy came under the jurisdiction of any of these other states, the only thing the Virginia Bureau of Insurance could do was to direct me to the insurance commission of that other state.

When I told him that I took out an individual policy with Cigna in Virginia after my Cobra coverage ended, he pointed out that most policies require that complaints be handled within 180 days of an incident and that too much time had passed to do anything in my situation. That means that if Cigna or any insurer ignores a complaint for six months, the insured is screwed because the states regulate insurance companies.

To the outside observer, it might have seemed Mr. Fisk was programmed to come up with any excuse to dissuade a complainant from filing a complaint against an insurer with the Virginia Bureau of Insurance. Yet I could tell from his demeanor that he was just being matter-of-fact about how totally helpless the Bureau actually is against insurers because of the state laws the insurers themselves fought Congress for.

In the way of background information, the insurance industry enjoyed relative freedom from interference by the federal government until 1944. In that year, the U.S. Supreme Court handed down the decision of United States v. South-Eastern Underwriters Ass’n. In that case, an association of 200 fire insurance companies and 27 individuals were indicted under Section 1 of the Sherman Anti-Trust Act for fixing non-competitive rates and Section 2 for monopolization. The issue was whether the federal Congress should be deprived of the power to regulate the industry under the Sherman Act, and the court held that insurance transactions were subject to federal regulation under the Commerce Clause.

Following the South-Eastern Underwriters case, the National Association of Insurance Commissioners (NAIC) proposed legislation to limit its impact and secure the state form of regulation under which it had operated. The result was the McCarran-Ferguson Act. The Supreme Court subsequently found that Congress’ purpose was brought broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.

Legislation is currently pending to repeal or modify portions of the McCarran-Ferguson Act for the purposes of bringing the insurance industry under more pervasive federal regulation. On February 15, 2007, the U.S. Senate introduced a proposed amendment to the McCarran-Ferguson Act entitled The Insurance Industry Competition Act of 2007, S.618. On that same date a proposed bill with the same name was introduced in the House as H.R. 1081. Both proposals seek to provide for federal regulation of unfair methods of competition by placing them under the auspices of the Federal Trade Commission Act and the Department of Justice.

To date, both bills remain in committee.

In January 2010, House Democrats are again attempting to get a provision repealing the antitrust exemption afforded to healthcare and medical liability insurers in the health care reform legislation. Some House Democrats are concerned that removing the “public option” removed an obvious cost-cutting incentive, so they’re trying to level the playing field by repealing the antitrust exemption.

A letter circulated to the offices of all House Democrats by Rep. Peter DeFazio, D-Oregon, and Rep. Gene Taylor, D-Mississippi, insists that as part of any compromise there should be a provision in the antitrust language giving the Federal Trade Commission the authority to collaborate with the U.S. Department of Justice in investigating the insurance industry by permitting the FTC to investigate health insurers and medical malpractice insurers.

The letter noted that since 1945 when the McCarran-Ferguson Act was enacted “regulation of the insurance industry has since been left largely to the states, which suffer from a lack of resources to go after offenders, as well as a patchwork of 50 different state regulatory regimes with inconsistent enforcement.”

An October Rassmussen poll found that 65 percent of Americans favored removing the antitrust exemption for health insurance companies. The letter also noted that 64 percent of independent voters and 58 percent of Republicans also feel insurers should abide by the same rules as every other company in America.

It’s certainly a provision worth consideration given that Blue Cross/Blue Shield charges $700 per month for Medicare Supplement Insurance to Virginia disabled Medicare recipients under 65 to cover the 20% of health care costs Medicare doesn’t cover. Medicare charges Part B recipients less than $100 per month for its 80% coverage.

Reflections on Virginia’s Election Results

Democrats are licking their wounds after Republicans won the top three posts for governor, lieutenant governor and attorney general by an overwhelming margin in this past Tuesday’s election in Virginia. Bob McDonnell won the governorship with 59% of the vote to Creigh Deeds’ 41%. What happened? Republicans showed up, and Democrats stayed home.

Cursory examination of the electorate reveals that nearly half of the 3.8 million voters in Virginia last year didn’t show this go round. Those who did show were disproportionately Republican voters.

Young voters comprised only 10% of this year’s electorate compared with 21% a year ago. And the proportion of the electorate made up of African Americans dropped this year from 20% to 16%.

The question is “Is this trend likely to carry through in the non-presidential electorate in 2010?”

It’s easy to chalk up this year’s election results to off-year elections, which are often low turnout and tend to be anti-incumbent if the economy is bad. Some postulate the Democrats’ loss was tied to public unrest over President Barack Obama’s performance to date and Congressional “politics as usual” maneuverings. If you ask me, this sounds like “It’s not about me, if I lose” rationalization.

It’s about time the Democrats in Virginia take a cold, hard look at what compelled voters to turn out for Obama last year and take a lesson from his playbook. Marginal voters showed up for Obama because, for once, they felt like someone cared about their issues. He gave them hope that, having seen firsthand some of the strife many Americans encounter daily, someone would take their concerns seriously. There was a connection that compelled these voters into action.

Based upon my personal interactions with staff of my four state and federal Democratic elected officials, there is no connection. In fact, conversations left me feeling like we were living on two separate planets. And for those of us, who like me, are now disabled living on social security disability payments and are unable to fork over the thousands of dollars I assume it would take in campaign contributions to get five minutes of face time with my elected representative, staff represent the frontline. Staffs reflect politicians’ views and demeanor to their constituencies.

Let me relay just one example of such interaction to illustrate my point. It involves a conversation that occurred in late October with Donna Kloch, a case worker in the Office of Congressman Jim Moran.

Kloch sent me an e-mail on October 19, 2009 in response to my correspondence to Congressman Moran sent quite some time ago. I’d written regarding my dysfunctional experiences with my medical insurer and doctors that left me disabled unnecessarily. In hindsight, I can see the e-mail was nothing more than another referral — this time to the Virginia Bureau of Insurance in Richmond. But when I received it, I was elated at just being acknowledged by anyone in Moran’s office. Plus she asked me to give her a call to discuss the matter.

As it goes, health insurance companies were exempted from antitrust laws with the adoption of the McCarran-Ferguson Act of 1945, which allows for state but not federal regulation of medical insurers. Currently, there is bipartisan support in Congress to move such regulation authority back to the feds. For some unknown reason, I thought she wanted to hear about my experiences with the Virginia Insurance Commission to use as an example in determining whether the Congressman should support such legislation.

Being chronically ill with major brain fog, it takes me longer than most are willing to wait to verbalize my thoughts. So I e-mailed her my thoughts on and experience with attempting to file a complaint against Cigna HealthCare with the Virginia Bureau of Insurance.

I told her that I started to file a complaint but wasn’t sure which of the two forms on the Bureau’s website to use even after reading the instructions for filing a complaint. When I called the Bureau for direction, whoever answered the phone (allegedly the only person I could speak with) kept repeating that such determination could not be made without seeing the complaint in writing submitted with copies of all relevant materials and correspondence.

My complaint is that Cigna ignored multiple complaints I made against several of its providers for failing to diagnose and treat me — a violation of the tenets Cigna espouses in its Code of Ethics and Compliance, which is referenced in materials given to its members and in Cigna’s SEC filings. Cigna’s Code includes a Patient’s Bill of Rights that declares its members have a right to be heard and receive quality medical care. Cigna executives and board members are obligated to oversee that their employees are following its policies and procedures in line with its Patient Bill of Rights.

To be heard, Cigna members are instructed to call Member Services (customer care) at the toll-free phone number on the Cigna HealthCare ID card. If Member Services cannot resolve the member’s concerns, care reps are supposed to provide information about how to have the member’s concerns addressed.

Yet, on several occasions, Cigna Member Services refused to take seriously my complaints about the lack of quality provider care or provide me with an alternative method of complaint. Cigna’s customer care reps told me that Cigna’s computer system could not accommodate recordation of complaints, and that there was no address where my complaints could be mailed or other persons to whom I could voice my complaint.

A quick internet search revealed numerous incidents in which some state insurance commissions had imposed fines on Cigna and other medical insurers for repeatedly neglecting consumer complaints. Virginia’s Bureau of Insurance was not among them. In fact, Kloch commented that she was not aware that Virginia’s insurance commission had ever taken action against a medical insurer.

My e-mail to Kloch included specific dates and names of Cigna representatives I contacted in my effort to attain competent medical care. It also reflected on the reasons I ultimately decided not to file a complaint with the insurance bureau. Paramount among the reasons is Virginia’s reputation as the #1 pro-business state in the nation and the potentially detrimental toll that the emotional stress of having to recall my experiences would have on my already diminished health status.

In our phone conversation, Kloch suggested that I contact my state representatives for assistance since medical insurers were regulated by the state and not the federal government, so Moran’s office could not help me. I told her that I had already contacted the offices of my state representatives, Mary Margaret Whipple and Adam Ebbin, not about the state insurance bureau but about my inability to find a doctor who would do more than refer me to other specialists and about the insurer’s total disregard for its member’s plight.

Kloch wanted to know how they responded. I said their assistants told me to “hire an attorney” because elected officials don’t get involved in personal matters. I said I didn’t think my message ever actually made it to the state senator and delegate. “Why would you think that?” she asked, then assured me that my inquiry most certainly would have been addressed by the elected representatives themselves.

While she said she was trying to help me, it soon became clear that her definition of help amounted to the same level of help I received from doctors — a dead-end referral — often to someone or some entity I’d previously contacted. The demeanor of the phone conversation conjured up the image of Virginia’s legislators standing shoulder to shoulder in a circle — each pointing to the guy on the right. I felt like little more than a morsel weighing down someone’s plate — a crumb easily wiped away to give someone the illusion they were competent and efficient.

Kloch was under the impression that it was easy for the injured to retain a medical malpractice attorney on a contingency basis, which to her, implied that no upfront cash outlay was required. She didn’t believe me when I told her that, in all medical malpractice cases, win or lose, the injured party is responsible for paying the expenses of the case. (Rule 1.8(e) of the Virginia Rules of Professional Responsibility for Attorneys.) By contacting several such attorneys, I found that the expenses for witnesses, medical records, review fees, photocopying, postage and the like can range from $25,000 to $40,000 and up. I also found that the injured’s ability to pay for expenses upfront is the paramount criterion used by attorneys to determine whether to take a case.

To me, suggesting to someone that he or she hire an attorney after the person just relayed his plight of becoming destitute and disabled, having spent all his resources fruitlessly seeking competent medical care, is a bit ludicrous. Yet, Kloch and others I contacted were not newcomers to politics or the issues. The dichotomy I felt seemed to stem from one party’s inability to comprehend what the other was going through. There was no frame of reference, and this frustrated the politicians’ aides. They couldn’t understand why I wasn’t grateful for their referrals.

At one point in our conversation, I broke down and started crying. I was trying to explain what it was like being chronically ill and disabled, taking ten times longer to accomplish anything… “Can you imagine what it is like to do your job with a bad flu that never goes away?” I asked. “No, I can’t,” Kloch responded empathetically. “You need to get some help.”

I could feel my stomach tense anticipating the direction of the conversation — deflecting away from the larger issue about health care dysfunction and medical insurers’ disregard to my personal need to reach out to family and friends for help with daily living activities. My reaction brought to light how sensitive I remained to my orphan-like status, the daughter of deceased immigrants, whose European and South American relatives I’ve never met, and who don’t speak English. I felt how sensitive I remained at how insensitive others can be at someone’s not having accessible family, or family in a position to help — not that they should be so burdened.

Friends? In mid and later life, friends have their own families and problems. Plus there’s a predominant ingrained societal belief in doctors’ infallibility, particularly among those who haven’t experienced chronic illness firsthand. It’s unfathomable for most to believe that multiple doctors wouldn’t diagnose and treat a paying patient. Patients who, at a glance, don’t appear to be in distress are characterized as mentally unstable and prime candidates for antipsychotics.

My neighbors are caring, good hearted people who’ve offered to help in any way they can. They referred me to their doctors, helped me with chores and offered moral and spiritual support for which I am most grateful. But these people aren’t political insiders who know how to work the system to affect change.

To me, that’s the job of my elected officials. And this past Tuesday’s resounding Republican victory in Virginia is proof positive that the incumbent Democrats are falling down on the job. This past Tuesday, voters took their legislators’ advice and hired an attorney, Bob McDonnell, as Virginia’s next governor.

McDonnell campaigned on a platform of being a problem solver, not a problem referrer. During our conversation, Kloch asked me, “What’s wrong with referrals?” I responded, “At some point, someone has to be responsible for diagnosis and treatment.” “I would hope so,” she said.