AARP reported that AARP filed briefs in two cases arguing that signing a health care proxy regarding end-of-life decisions does not waive a nursing home resident’s right to have a jury decide his or her case.  The two disputes are now on appeal. Attorneys with AARP Foundation Litigation filed AARP’s friend-of-the-court briefs in both cases in conjunction with the National Academy of Elder Law Attorneys, arguing that signing a health care proxy is vastly different from signing over all legal rights. In particular, the right to a jury trial for disputes is a fundamental individual right enshrined in the state constitution that could not be waived ambiguously.

In 2011, Stephanie Johnson Leslie and Barbara Johnson – co-administrators of the estate of Dalton Johnson – filed a wrongful death lawsuit against the nursing home.  Defendants moved to dismiss the proceedings based on a clause in his nursing home admission contract that sent all disputes to arbitration, and a trial court agreed.

Plaintiffs argue that although Dalton Johnson had signed a health care proxy that was to govern specific medical decisions regarding end-of-life options, he had not given away his decision-making authority about all contracts. Specifically, he had not authorized anyone other than himself to make decisions about whether to obligate himself to arbitrate future disputes. Arbitration is a dispute resolution mechanism designed for business-to-business transactions and it does not provide the same public scrutiny, right to a jury trial, right to access evidence, adherence to precedence and other procedural protections lawsuits do; it can also be significantly more expensive.

Similarly, Rita Lacita suffered from Alzheimer’s and was admitted to a nursing facility run by GGNSC Malden Dexter. Her son admitted her to the hospital and while there signed the paperwork discharging her to GGNSC without fully understanding what he was signing and believing that if he did not sign all the documents the facility would not admit his mother. When he sued for wrongful death, that trial court found that the Massachusetts health care proxy statute permits agents only to make health care decisions, and the scope of that role did not include the authority to waive the right to seek legal redress in court.

In planning for incapacity and surrogate decision making, people consider who will be suited and qualified to make specific and separate decisions in the event of incapacity – decisions regarding financial matters are different from health care matters and require different skill sets. Merely designating a qualified health care agent does not indicate this person is intended to combine both roles. If a health care proxy is regarded as tantamount to a power of attorney for all affairs, people will be left at tremendous risk of signing away significant rights while assuming they are merely designating a medical decision maker.

Johnson v. Kindred and Licata v. GGNSC Malden Dexter are both before the Appeals Court of the Commonwealth of Massachusetts.


The NY Times reported on a new report that indicates that lawsuits improve the quality of health care because providers learn from their mistakes. “New evidence, however, contradicts the conventional wisdom that malpractice litigation compromises the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: the openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk.”

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Experts agree that the best way to reduce medical error is to gather and analyze information about past errors with an eye toward improving future care.  Full disclosure and transparency is the best way to improve safety and prevent injury.  Several factors appear to have overcome resistance to transparency, including widespread laws requiring disclosure to patients.  Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.


USA Today had an interesting article on health care spending since enactment of ObamaCare.  In the four years leading to expanded health insurance, the government has used authority in the Patient Protection and Affordable Care Act to try to reshape the economics of health care through regulation and financial incentives. That appears to be keeping a lid on medical costs.  One big change is the government’s revived push toward managed care. The government wants to pay a lump sum for a patient or diagnosis, demand higher standards and expect the medical provider to get the job done for that cost. Rather than cutting reimbursement rates, the government is raising the bar for what it expects for every dollar it spends.

“Health care spending last year rose at one of the lowest rates in a half-century, partly the result of cost-saving measures put in place by the 2009 health care law, a USA TODAY analysis finds.”  “Health care spending hit a record $2.67 trillion last year, but its share of the overall economy shrank, from 17.12% of gross domestic product in 2011 to 17.04%, … an analysis of Bureau of Economic Analysis data found.”

“Cost-saving measures under the health care law appear to be helping keep medical prices flat, according to health care providers and analysts.”   In 2012, the average price paid for medical care rose at about the same rate as other prices in the economy, an inflation rate of less than 2%.

Also keeping costs lower:

Government insurance. More people are getting health insurance from Medicare and Medicaid, which pay less to doctors and hospitals than private insurers. Medicaid, which pays the least, covers 56 million poor people, up 10 million from five years ago. It will add nearly 20 million enrollees next year.

Generic drugs. About four of five drugs used today are less expensive generic medicines. The nation’s top-selling drug, Lipitor, for high blood pressure, lost patent protection last year.

Competition. Health care exchanges, which start next year, may keep insurance prices down while limiting consumer choice. In early deals, hospitals and doctors are agreeing to lower rates than traditional private insurance in exchange for more volume.

Among the most visible successes are efforts to save money on the most expensive patients by permitting the use of a hospice rather than a hospital for end-of-life care and emphasizing home health care over nursing homes.


The price tag of American medical services has been increasing for years, but this new study finds that the price for an average ER trip has become more than what some people spend on rent.  A new NIH study found that the average cost of an Emergency Room visit was over $2000, 40% more than most people spend on their rent each month. ER trips can have a large price tag, but because of the range in pricing, most Americans have no idea what the final cost will be. This study finds that when the IQR, interquartile range, is factored in, Americans pay more or less than the average prices of these services. The study looks at the most common reasons for visiting the ER and doesn’t factor in how much of the cost will be paid by insurance.

The IQR represents the difference between the 25th and 75th percentile of charges, meaning that it shows the variation between charges. The study looks at the top 10 most common reasons for visiting the ER: sprains and strains, other injury, open wounds, normal pregnancy/delivery, headache, back problems, upper respiratory infection, kidney stone, urinary tract infection, and intestinal infection. The average charge and the IQR are compared. This study shows that what people should be charged, the IQR cost, is rarely what they’re charged. In almost all instances, the average charge is higher than what it should be.

If the median IQR is what most people should pay, why are some people paying more and some people paying less? The healthcare system needs more transparency in its pricing and cost evaluations. Because when people do the math, it just doesn’t add up.
See article at ThinkProgress.


The New York Times reported “a sharp and surprisingly persistent slowdown in the growth of health care costs is helping to narrow the federal deficit.”  The Congressional Budget Office said health spending growth continued at its lowest rate in decades.  In figures released, the Congressional Budget Office said it had erased hundreds of billions of dollars in projected spending on Medicare and Medicaid. The budget office now projects that spending on those two programs in 2020 will be about $200 billion, or 15 percent, less than it projected three years ago. New data also show overall health care spending growth continuing at the lowest rate in decades for a fourth consecutive year.

The slowdown has occurred in both government and overall health spending. From 2009 to 2011, total health spending grew at the lowest annual pace since the government started keeping records 52 years ago, a trend that seems to have continued last year. In the 2012 fiscal year, Medicare spending per beneficiary grew just 0.4 percent. The new Congressional Budget Office data said that overall Medicare outlays grew 3 percent in 2012, the slowest rate since 2000.

According to calculations by White House economists, slowing the annual growth rate of health care costs by 1.5 percentage points might increase economic output by 2 percent in 2020 and 8 percent in 2030. It might also lead to higher wages for workers and more room for productive investments in the budget.


The Daily Mall reported the ongoing battle between the West Virginia Supreme Court, the U.S. Supreme Court and the nursing home industry attempting to take away resident’s right to a jury trial by hiding pre-dispute mandatory arbitration clauses in admission paperwork.  Critics argue the arbitrators are beholden to the companies that give them repeat business. “The state’s high court is obviously dubious of an emerging and parallel system of justice in America: arbitration hearings.” “People who sign these agreements – often without knowing they are doing so – are giving away their right to jury trials. Instead, they agree to leave things in the hands of private arbitration judges.”

In summer 2011, the court said: “Disputes should be decided by juries of lay citizens rather than paid, professional fact finders who may be more interested in their fees.”  The nation’s high court said in early 2012 that Ketchum’s ruling that all nursing home arbitration clauses are “per se” unconscionable was “incorrect and inconsistent” with federal law.  The W. Va.  Supreme Court  found a new way to ensure some bereaved family members can sue nursing homes in normal courtrooms with jury trials. The court’s most recent ruling said people who check their relatives into nursing homes as a health care surrogate couldn’t sign away a resident’s right to a jury trial. This means an untold number of arbitration agreements are unenforceable unless the resident or legal representative signs the arbitration clause. Arbitration agreements (like any other contract) are not valid or legally enforceable unless the signatory had legal authority.



The West Virginia Supreme Court of Appeals held that a resident’s family may make health care decisions for persons not able to do so under the state’s health care surrogates statute, but that agreeing to arbitration is not a “health care decision” of the sort authorized by the statute.  The resident is not bound by the arbitration clause in the admissions paperwork.  A family member (or similar person) who signs the paperwork for admission for incapacitated person to a nursing home or similar facility, they don’t have the authority to agree to arbitration.

Here’s a link to the decision:

The Tennessean reported that the national for profit chain National HealthCare Corp. agreed to buy six nursing homes — including three in the Nashville area — for $21 million from a related entity and its biggest landlord, National Health Investors.  NHI was created in 1991 to own NHC properties and has since expanded to owning other medically-related facilities beyond those that the nursing home chain runs.

In addition, Murfreesboro-based real estate investment trust NHI has extended a lease with the company’s biggest tenant, NHC, for 41 facilities — 38 nursing homes and three independent living facilities.

Separately, NHI also sold a 148-unit senior living facility to that facility’s operator Sunrise Senior Living Inc. for $23 million.  NHI referred to the six nursing homes it has an asset purchase service agreement to sell to NHC as older facilities. NHC’s spokesman Gerald Coggin considers them well-operated with high occupancy rates in great markets.


Several media outlets have reported that national health spending has remained stable as a share of the economy since Obamacare was enacted.   Spending increased overall to $2.7 trillion in 2011, or an average of $8,700 for every person.  The rate of increase in health spending, 3.9 percent in 2011, was the same as in 2009 and 2010 — the lowest annual rates recorded in the 52 years the government has been collecting such data.   National health spending grew at roughly the same pace as the overall economy, without adjusting for inflation, so its share of the economy stayed the same, at 17.9 percent in 2011, where it has been since 2009.

Kathleen Sebelius, the secretary of health and human services, said that “the statistics show how the Affordable Care Act is already making a difference,” saving money for consumers. Medicaid spending grew less quickly in 2011 than in the prior year, as states struggled with budget problems. But Medicare spending grew more rapidly, because a one-time increase in Medicare payments to skilled nursing homes.

A sign that the effects of the recession have begun to fade is the percentage of people with private health insurance increased 0.5 percent in 2011 after losing ground the previous three years.
And the share of Americans with health coverage is expected to grow substantially in 2014, when some states will expand their Medicaid programs, and federal subsidies will be offered through insurance exchanges under the Affordable Care Act.  More people gained health insurance as a result of the health law’s requirement that young adults can stay on a parent’s plan until age 26.


Health care spending is highly skewed toward the sickest people. Five percent of patients account for nearly half the total spending in any given year.  Prevention and early treatment are the keys to keeping health care spending low.

See articles at The Washington Post, The N.Y. Times, The Wall St. Journal, and Politico.

The Washington Post published an interesting article that sheds light on Mitt Romney’s plan to help those with preexisting conditions get health insurance. Romney claimed during the past debate, “I do have a plan that deals with people with pre-existing conditions.” However, he is unable to articulate how it will help anyone other than those that have maintained continuous insurance coverage and it is still unclear how the 49 million uninsured individuals will get coverage.

As the article explains, the plan that Romney has been stressing will only help those with pre-existing conditions that have maintained continuous health insurance coverage. This means that anyone who may have had a break in coverage due to losing their job or for any other unforeseeable reason will not be helped at all by Romney’s plan.

After all of Romney’s talk about making it easier for those with pre-existing conditions to get coverage, in actuality only a small fraction of those with problem medical conditions will be helped, leaving a far greater number of people out of luck.

This plan is in stark contrast to President Obama’s health care law that allows those with preexisting conditions the same comprehensive coverage, at the same rates that every other citizen pays.  As the law says, an insurance company “may not impose any pre-existing condition exclusion.” Karen Pollitz, an insurance market expert, explains that Romney’s plan is much more unlikely to provide a solution than the president’s Affordable Care Act. Pollitz explains, “The ACA just says insurance companies can’t discriminate against you, period. If you’ve been uninsured, you can come into this market on Jan. 1, 2014, no questions asked.”