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“Doc, how long do I have to live?”

When a patient has a difficult diagnosis, they want answers. That’s reasonable. They want to know how to structure the time they have left. Why? Priorities change. They want to get their affairs in order.

It’s also a question that determines whether a patient qualifies for government funding for hospice. For Medicare to write the check, a physician must certify the patient has less than six months to live. And that determination must be made within a medical certainty.

A case is currently marinating in the 11th US Circuit Court of Appeals which addresses civil and potential criminal liability based on the medical judgment of whether a patient will survive beyond 6 months.

The background:

AseraCare is a hospice provider. Between 2007 and 2009, AseraCare filed certifications with the government that patients had under half a year to live. The government believed many of these assertions were false and Asera intentionally filed false claims. These allegations were fueled by a whistleblower.

To prove its point, the government hired a specialist in hospice and palliative medicine. He reviewed AseraCare’s records. He concluded most of the 233 patients were likely to live longer than 6 months. So, they (and AseraCare) were not eligible for Medicare benefits. The government asserted AseraCare was liable under the False Claims Act based on filing false life-expectancy forms.

Not so fast.

AseraCare hired other experts who disagreed with the government. They concluded most of AseraCare’s patients actually had 6 months to live.

In 2013, the government’s expert moved some in the “not about to die” category into the “about to die” column. The expert’s rationale. “I was not the same physician in 2013 as I was in 2010.”

The jury ruled in favor of the government.

Again, not so fast.

U.S. District Judge Karon Bowdre overruled the jury. She opined how can our legal system conclude that one doctor’s prediction was “false” when other reasonable physicians, looking at the same data, would make the same prediction? Isn’t a reasonable disagreement a matter of judgment and not a statement of fact? The judge concluded a mere difference of clinical judgment—here, regarding conditions for a medical certification of hospice eligibility—is not enough to show that the claims are objectively false under the False Claims Act (FCA)

Here, the dispute over False Claims is civil and about money.

But, false claims can also trigger criminal liability. Which would mean a reasonable disagreement could land a certifying physician in prison. True, the threshold would be beyond a reasonable doubt and the certifying doctor would have intended to file a false claim? But, in a battle of experts, anything is possible.

Most glioblastoma patients die within a narrow time frame. But not all. Some live 5 years. Some live even longer.

Even when we say a patient has 6 months to live, we are really stating there’s X% probability the person will live 6 months. Not much different than actuarial tables for an insurance company. They are making statements about statistics and populations. In that population, most fall within a standard curve. But there are outliers.

Do we really want to criminalize a failure to predict whether someone lives or dies within 6 months – which arguably is already an arbitrary number?

As two prominent trial lawyers noted in an op-ed piece:

Some medical judgments can be false. But the government is trying to create a standard that is far too broad. Professional disagreement should not be illegal.

What do you think?


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ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.

4 Comments

  1. Joe Horton

    Seems that there’s a straightforward way to resolve this. Have all parties examine 250 medical records each and predict how long a patient has to live. After 9 months, see how often each person was right. You only care about the 6 month window so 9 months allows for an error margin of 50%.

    This can be done retrospectively, too: look at histories of people from a year earlier. You already know who loved and who died.

    Piece of cake. If you haven’t done it, you can’t be a witness. And we’re gonna look at how close your predictions were. This really is a no-brainer. Why wasn’t this done?

    Reply
  2. EasyE

    Why do the feds make such false assumptions? Could AseraCare be a superb hospice that keeps those with intractable illnesses alive longer than most facilities? It would be interesting to see the diagnoses of those 233 patients before hospice. Predicting death is not an exact science, and we should celebrate institutions that boast longevity and favorable clinical “outcomes”. Unless the favorable outcome is dying sooner than 6 months after admission to hospice. Yuck.

    Reply
  3. retired

    Inter-rater reliability in most medical areas is so poor as to make this kind of prediction worthless. Inherent bias is present also depending upon outcome in malpractice cases, such that if the medical reviewers review a case with a bad outcome they consider the care to be sub standard. However if the outcome is good the same reviewers reviewing the same case and the same records would review the care as meeting standards.
    There is an easy way to solve this problem. Stop allowing Medicare to pay for hospice care. Only permit medicare to pay for full on medical care. That will eliminate all of the issues in such cases. It will eliminate the hospice shops that often provide no care and starve patients of food and water.

    Reply
  4. Carla Schlissel

    I believe we are forgetting two basic “things:” One, we are dealing with human beings. The human body is a wondrous thing; it is also not that overly predictable. We, as healthcare providers, can only make educated guesses. Which leads me to Two: we are also dealing with insurance companies and the government, who would like nothing more than to pay the least amount of money possible – for anything. It is certainly made to appear that insurance companies, at least, would prefer to line their CEOs’ pockets. And, therein, may lie the problem.

    Reply

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