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March 7, 2022 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Request for New QME Panel for Late Report Must be Timely. Drugmakers Finalize $26B Nationwide Opioid Settlement. Purdue Pharma and Sackler Family Agree to $6B National Settlement. Sutter Health Risks $1.2B in Price Gouging Class Action Trial. Sim Hoffman M.D. Acquitted of Comp Fraud After 10 Years of Litigation. WCIRB Report Focuses on COVID-19 Claims and Long COVID. Newsom Signs Order to Update Workplace Mask Rule. Arthroscopic and Open Rotator Cuff Repair Have Similar Results. Scripps La Jolla Earns Top-Tier Trauma Certification. NAIC Report Shows Travelers Has Largest Comp Market Share.

Scientists Report on the Pandemic Related Research Sliver Lining

The billions of dollars invested in covid vaccines and covid-19 research so far are expected to yield medical and scientific dividends for decades, helping doctors battle influenza, cancer, cystic fibrosis, and far more diseases.

“This is just the start,” said Dr. Judith James, vice president of clinical affairs for the Oklahoma Medical Research Foundation. “We won’t see these dividends in their full glory for years.”

James hopes that computer technology used to detect covid will improve the treatment of other diseases. For example, researchers have shown that cellphone apps can help detect potential covid cases by monitoring patients’ self-reported symptoms. James said she wonders if the same technology could predict flare-ups of autoimmune diseases.

We never dreamed we could have a PCR test that could be done anywhere but a lab,” James said. “Now we can do them at a patient’s bedside in rural Oklahoma. That could help us with rapid testing for other diseases.”

According to the story published by California Healthline, building on the success of mRNA vaccines for covid, scientists hope to create mRNA-based vaccines against a host of pathogens, including influenza, Zika, rabies, HIV, and respiratory syncytial virus, or RSV, which hospitalizes 3 million children under age 5 each year worldwide.

Researchers see promise in mRNA to treat cancer, cystic fibrosis, and rare, inherited metabolic disorders, although potential therapies are still many years away.

Pfizer and Moderna worked on mRNA vaccines for cancer long before they developed covid shots. Researchers are now running dozens of clinical trials of therapeutic mRNA vaccines for pancreatic cancer, colorectal cancer, and melanoma, which frequently responds well to immunotherapy.

Ambitious scientific endeavors have provided technological windfalls for consumers in the past; the race to land on the moon in the 1960s led to the development of CT scanners and MRI machines, freeze-dried food, wireless headphones, water purification systems, and the computer mouse.

Likewise, funding for AIDS research has benefited patients with a variety of diseases, said Dr. Carlos del Rio, a professor of infectious diseases at Emory University School of Medicine. Studies of HIV led to the development of better drugs for hepatitis C and cytomegalovirus, or CMV; paved the way for successful immunotherapies in cancer; and speeded the development of covid vaccines.

Over the past two years, medical researchers have generated more than 230,000 medical journal articles, documenting studies of vaccines, antivirals, and other drugs, as well as basic research into the structure of the virus and how it evades the immune system.

Dr. Michelle Monje, a professor of neurology at Stanford University, has found similarities in the cognitive side effects caused by covid and a side effect of cancer therapy often called “chemo brain.” Learning more about the root causes of these memory problems, Monje said, could help scientists eventually find ways to prevent or treat them.

One of the most important pandemic breakthroughs was the discovery that 15% to 20% of patients over 70 who die of covid have rogue antibodies that disable a key part of the immune system. Although antibodies normally protect us from infection, these “autoantibodies” attack a protein called interferon that acts as a first line of defense against viruses.

The discovery of interferon-targeting antibodies “certainly changed my way of thinking at a broad level,” said E. John Wherry, director of the University of Pennsylvania’s Institute for Immunology, who was not involved in the studies. “This is a paradigm shift in immunology and in covid.”

For decades, public health officials created policies based on the assumption that viruses spread in one of two ways: either through the air, like measles and tuberculosis, or through heavy, wet droplets that spray from our mouths and noses, then quickly fall to the ground, like influenza.

Today it’s clear that the coronavirus – and all respiratory viruses – spread through a combination of droplets and aerosols, said Dr. Michael Klompas, a professor at Harvard Medical School and infectious disease doctor.

Researchers Study Use of Plastic Barriers On COVID-19 Transmission

Controlling the spread of COVID-19 has become a priority worldwide. After case reports in December 2019, social distancing has been widely adopted as a containment strategy. Therefore, it is essential to control the risks and ensure safety in educational, public, and workplaces.

To reduce the risk of COVID-19 transmission, measures against all three routes of infection (contact, droplet, and aerosol) and to reduce the probability of infection through multiple defenses, social distance, mask, vaccine, etc., are required.

However, compared to contact and droplet transmission, which can be prevented by social distancing and the use of masks, aerosol transmission is difficult to visually recognize, and the effectiveness of respective countermeasures has not been confirmed. Accordingly, mass transmissions of COVID-19 have been reported in poorly ventilated areas.

The inappropriate use of plastic sheeting for preventing droplet infection has caused clusters of infectious diseases and threatened workplace safety.

The use of carbon dioxide (CO 2) sensors to control indoor air quality has attracted significant attention. The measurement of indoor CO 2 concentration (referring to exhaled air) is considered an effective method for indirect risk management to ensure that exhaled aerosol particles containing SARS-CoV-2 do not remain indoors.

Therefore, these devices have been widely installed as a safety measure in places where people gather, such as restaurants, stores, classrooms, and offices. The guideline for its operation considers a provisional control value of 800-1000 ppm set by government agencies of each countries as the maximum CO 2 concentration. Under pandemic conditions, the Centers for Disease Control and Prevention has indicated that the CO 2 concentration should be maintained below 800 ppm, which has been considered a good safety indicator.

However, as CO 2 concentration is not a direct risk indicator and there is no direct epidemiological relationship between CO 2 concentration and COVID-19 transmission.

In a new study, researchers used a CO 2 sensor network and conducted a tracer gas experiment to evaluate the complex ventilation conditions in a business site in Japan, where a cluster of COVID-19 infections occurred. In 2021, 14 infections occurred among 30 workers who spent a short time in a large work preparation room. The room was divided by four partitions, and only a small number of entrances and exits served as ventilation routes.

The objectives of this research were to 1) demonstrate a method for evaluating and determining the state of air quality management in an office with a complex geometry using a CO2 sensor network, and 2) verify the effectiveness of ventilation improvement measures.

The Researchers concluded that for aerosol infection control, which should be conducted in parallel with measures against contact and droplet transmission, the maximum height of partitions should be strictly controlled, and they should be installed at a height and orientation that do not interfere with ventilation. Measurement using sensor networks is effective in detecting such a ventilation bias.

Ventilation bias caused by ventilation pathways and inappropriate use of plastic sheeting can be detected by a CO 2 sensor network and time series data analysis. Estimated ventilation rate will be a good index to suppress the formation of the COVID-19 cluster.

Google Announces New Technology For Electronic Health Records

Just a week after pulling back the curtain on new natural language processing features for Care Studio, its clinician-facing patient record interface, at the ViVE conference in Miami, Google Health took to HIMSS 2022 to announce the technology’s first-ever integration with an electronic health record vendor.

News site Fierce Healthcare cited a “to-be-published blog post” from Google saying “Using Google Health’s tools, Meditech will form a longitudinal health data layer, bringing together data from different sources into a standard format and offering clinicians a full view of patient records.

Google wrote that it has entered into a collaboration with Meditech to develop “a deeply integrated solution” that marries the search, contextualization and data harmonization capabilities of Google Health’s Care Studio with Meditech Expanse, the vendor’s web-based EHR platform.

“Using Google Health’s tools, Meditech will form a longitudinal health data layer, bringing together data from different sources into a standard format and offering clinicians a full view of patient records,” Google Health wrote in the to-be-published blog post. “And with Google Health’s search functionality embedded into their EHR, clinicians can find salient information faster for a more frictionless experience and the intelligent summarization can highlight critical information directly in the Expanse workflow.”

Care Studio leans on Google’s expertise in organizing information to help clinicians find health record information faster. The tool’s Clinical Search feature enables clinicians to simply type what they’re looking for and quickly find the specific information requested, and even related concepts.

Today’s medical data is often siloed, health records live within and across multiple systems. Care Studio simplifies complex information by creating a real-time, normalized longitudinal representation of a person’s clinical data.

The Google tools give clinicians a single, centralized view that automatically brings forward a patient’s important information – including hospital visits, outpatient events, laboratory tests, medications, and treatment and progress notes. And the intuitive interface offers unique ways to visualize health data and trends in tables, graphs and other helpful formats.

The Care Studio mobile app makes it easy to find important information before seeing a new patient, or quickly check in on a patient’s progress. It helps clinicians easily search a patient’s record, review the most recent physician notes, view a patient’s lab trends and more right from their phone.

In an Axios interview in January, Google Chief Health Officer Karen DeSalvo said, “When we think about how we’re going to support the health ecosystem, we’ve got three big buckets. Is it going to support consumers in their health journey? Is it going to support caregivers who are providing the services on the front lines – or is it going to support community context? Those are our three C’s: consumer, caregiver and community context.”

Google also used last week’s ViVE healthcare conference in Miami Beach to preview its new Conditions capability.

A March 8 Google blog, said “Healthcare data is structured in numerous ways, making it difficult to organize. Clinical notes may be written differently and stored across different systems. Clinician notes also differ based on if content is meant for clinical decision making, billing or regulatory uses.”

“Further, when it comes to writing notes, clinicians use different abbreviations or acronyms depending on their personal preference, what health system they’re a part of, their region and other factors. All of this has made it difficult to synthesize clinical data – until now.”

Adding Conditions to Google Health enables algorithms to pull meaningful detail from physician and clinician notes often written in partial sentences or using non-standardized terms to describe diagnostic findings, even ferreting out misspellings that can cause problems.

Judicial Council Votes to Rescind Covid-19 Superior Court Rules

Emergency Covid-19 rules put in place two years ago to help California courts deal with the operational pitfalls of the pandemic will expire on June 30, as the Judicial Council voted Friday for their repeal at its first in-person business meeting in two years.

According to the report by Courthouse News the eight remaining Covid-19 rules lengthened time limits or filing civil lawsuits and bringing civil cases to trial, prioritized juvenile delinquency and dependency hearings, extended temporary restraining order or gun violence emergency protective orders and allowed defendants to appear remotely at hearings and waive their right to appear in-person at trial.

“The rules were always intended to be temporary,” said Justice Marsha Slough, chair of the council’s Executive and Planning Committee. “We believe it’s time to move past these rules.”

Last Friday, Chief Justice Tani Cantil-Sakauye decided to rollback four other Covid-19 rules extending deadlines for preliminary criminal hearings from 10 to 30 days, letting courts extend time to bring civil cases to trial by up to 60 days, and giving courts authority to conduct hearings by remote technology and adopt their own local Covid-19 measures. Those rules will now expire on April 30.

The sunset of these court rules does not spell the end of all remote hearings. The legislature passed a law last year to preserve remote access to civil proceedings either by videoconference or phone.

The Judicial Council will also sponsor legislation this year to continue allowing criminal defendants to appear remotely in court.

We do recognize that the use of remote technology became much more widely used during the pandemic and it actually provided a way for people to access the courts they way they never had before,” Slough said. “It served to be a very important response, and we appreciate the fact that remote technology made courts accessible to users. We recognize the importance of continued remote access in all case types. And we want to continue to work towards additional measures to assure there are remote proceedings in all case types.”

The move comes a few weeks after Governor Gavin Newsom lifted some of his emergency executive orders.

Judicial Council administrative director Martin Hoshino said council members should encourage judicial officers and court staff to remember that the rules were temporary and the authority on which they were predicated will expire on June 30.

It remains to be seen if the same trend toward remote technology is embraced by district offices of the Workers’ Compensation Appeals Board.

WCAB Panel Reviews Case Law Allowing Minor Pleading Errors

Patrick Jamerson filed three applications for inter vivos benefits, two for a continuous trauma with ending dates in 2011 and 2016, and one for a specific injury on May 4, 2016. One of the CT cases was resolved via Stipulations with Request for Award, with the Award issuing September 8, 2014.

He died on September 25, 2018 of suicide. His spouse and children filed an application for death benefits on September 6, 2019. The death benefit application lists all three case numbers. and does not specify the dates of injury for either of the other two case numbers listed. The did not petition to reopen the one case with a Stipulated Award.

The parties proceeded to trial on September 14, 2020. The parties placed in issue whether sections 5406(b) (Proceedings shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury) or 5410 (the five year time limit to petition to reopen a case) barred compensation in all three cases.

The WCJ issued Joint Findings of Fact on October 18, 2020, determining that applicants’ claim for death benefits in Case No. ADJ8129185 (injury through December 1, 2011) was barred under Section 5406(b). But the WCJ further found that defendant failed in its burden of proof to establish that benefits were barred under Section 5406(b) in ADJ11011618 (May 4, 2016 specific injury) and in ADJ11011740 (injury through June 10, 2016). The WCJ further determined section 5410 would not preclude applicant from seeking death benefits.

The employer’s petition for reconsideration was denied in the panel decision of Jamerson v Commercial Metals Co. ADJ11011618; ADJ11011740; ADJ8129185 (March 2022).

Defendant’s contended that the September 6, 2019 application for death benefits was procedurally defective because it listed more than one case number. And applicant’s failure to file three separate applications for death benefits invalidates the filings.

In rejecting this contention, the WCAB Panel noted “that the principles of ‘liberal pleading’ have infused California’s statutory landscape for more than 150 years.”

The Panel went on to discuss statutory provisions enacted in 1872, and proceeded to carefully summarize case law interpreting and implementing the rule that the workers’ compensation system “was intended to afford a simple and nontechnical path to relief.” And that “Informality of pleading in proceedings before the Board is recognized and courts have repeatedly rejected pleading technicalities as grounds for depriving the Board of jurisdiction.”

Moreover the Panel noted that, section 5709 states that “[n]o informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division.” And “it is the policy of the law to favor, whenever possible, a hearing on the merits.”

This Panel decision is an excellent narration of statutory and case law citations supporting forgiveness of technical errors in pleadings by parties who might seek judicial relief from minor technical errors.

Newsom Proposes New Office of Health Care Affordability

Governor Gavin Newsom’s California Budget for 2021-22 includes a proposal for a new Office of Health Care Affordability to be housed within the Office of Statewide Health Planning and Development (OSHPD).

The Office of Health Care Affordability will be charged with analyzing the health care market for cost trends and drivers of spending, creating a state strategy for controlling the cost of health care and ensuring affordability for consumers and purchasers, and enforcing cost targets.

The work of the Office will be guided by an Advisory Board comprised of experts that will advise on the key activities of the Office:

The Office will require reporting of total health care expenditure data, broken down by service category (e.g., hospital care, physician services, prescription drugs, etc.). This data will be supplemented with financial reports from providers and granular claims data from the emerging Health Care Payments Data System. The Office will publish an annual report in conjunction with a public meeting on health care spending trends and underlying factors, along with policy recommendations to control costs and improve the quality and equity of the health care system.

The Office will establish an overall health care cost target for changes in per capita spending in California, and have the ability to set specific targets by health care sector, including payers, providers, insurance market and line of business, as well as by geographic region. The targets will be based on established economic indicators.

The Office will progressively enforce compliance with cost targets, beginning with technical assistance and progressively increase to include testimony at public meetings, corrective action plans, and assessment of escalating financial penalties.

Because focusing on cost alone can have unanticipated consequences, performance on quality and equity measures will be reported for health plans, hospitals, and physician organizations, with special consideration of disparities in health care. Alignment with other payers and programs will be prioritized to reduce administrative burden and avoid duplication.

The Office will set a statewide goal for adoption of alternative payment models that promote shifting payments from fee-for-service to payments that reward high quality and cost-efficient care. The Office will measure progress towards the goal and adopt standards for alternative payment models that may be used by providers and payers during contracting. The standards will consider the current best evidence for strategies such as risk sharing arrangements and population-based contracts.

The Office will examine and analyze the role of the health care workforce and assist health care entities with strategies to implement cost-reduction strategies that do not exacerbate existing workforce shortages and promote the stability of the health care workforce.

Research has linked higher prices paid for health care services to increased market consolidation among health plans, hospitals, medical groups or physician organizations, pharmacy benefit managers, and other health care entities. The Office will increase public transparency, through cost and market impact reviews on transactions that may impact market competition and affordability for consumers and purchasers and work with other regulators to address them.

Pain Clinic Chain with 20K Patients Abruptly Closes Under Investigation

Last spring, Lags Medical Centers, a sprawling chain of pain clinics serving more than 20,000 patients in California, abruptly shuttered amid a cloaked state investigation into “credible allegations of fraud.” Tens of thousands of patients were left scrambling for care, most of them low-income Californians covered by state and federal insurance programs. Many have struggled for access to their medical records and to find doctors who would renew long-standing opioid prescriptions.

According to the Los Angeles Times, report, the closures came on the same day that the California Department of Health Care Services suspended state Medi-Cal reimbursements to 17 of Lags Medical’s 28 locations, citing without detail “potential harm to patients” and an ongoing investigation by the state Department of Justice into “credible allegations of fraud.”

In the months since, the state has declined to elaborate on the concerns that prompted its investigation. Patients are still in the dark about what happened with their care and to their bodies.

Even as the government remains largely silent about its investigation, interviews with former Lags Medical patients and employees, as well as Kaiser Health News analyses of reams of Medicare and Medi-Cal billing data and other court and government documents, suggest the clinics operated based on a markedly high-volume and unorthodox approach to pain management. This includes regularly performing skin biopsies that industry experts describe as out of the norm for pain specialists, as well as notably high rates of other sometimes painful procedures, including nerve ablations and high-end urine tests that screen for an extensive list of drugs.

Those procedures generated millions of dollars in insurer payments in recent years for Lags Medical Centers, an affiliated network of clinics under the ownership of Dr. Francis P. Lagattuta. The clinics’ patients primarily were insured by Medicare, the federally funded program for seniors and people with disabilities, or Medi-Cal, California’s Medicaid program for low-income residents.

Taken individually, the fees for each procedure are not eye-popping. But when performed at high volume, they add up to millions of dollars. Take, for example, the punch biopsy, a medical procedure in which a circular blade is used to extract a sample of deep skin tissue the size of a pencil eraser. The technique is commonly used in dermatology to diagnose skin cancer but has limited use in pain management medicine, usually involving a referral to neurologists, according to multiple experts interviewed. These experts said it would be unusual to use the procedure as part of routine pain management.

Lags Medical clinics performed more than 22,000 punch biopsies on Medi-Cal patients from 2016 through 2019, according to state data. Medi-Cal reimbursement rates for punch biopsies changed over time. In 2019 the state’s reimbursement rate was more than $200 for a set of three biopsies performed on patients in fee-for-service plans.

Laboratory analysis of punch biopsies was worth far more. Lags Medical clinics sent biopsies to a Lags-affiliated lab co-located at a clinic in Santa Maria, according to medical records and employee interviews. From 2016 through 2019, Lags Medical clinics and providers performed tens of thousands of pathology services associated with the preparation and examination of tissue samples from Medi-Cal patients, according to state records. The services would have been worth an estimated $3.9 million using Medi-Cal’s average fee-for-service rates during that period.

In that same period, Medicare reimbursed Lagattuta at least $5.7 million for pathology activities using those same billing codes, federal data show.

Much of the work at Lags Medical was performed by a relatively small number of nurse practitioners and physician assistants, each juggling dozens of patients a day with sporadic, often remote supervision by the medical doctors affiliated with the clinics, according to interviews with former employees. Lagattuta himself lived in Florida for more than a year while serving as medical director, according to testimony he provided as part of an ongoing malpractice lawsuit that names Lagattuta, Lags Medical, and a former employee as defendants.

A lawsuit, filed in Fresno County Superior Court, accuses a Lags Medical provider in Fresno of puncturing a patient’s lung during a botched injection for back pain. Lagattuta and the other named defendants have denied the incident was due to negligent treatment, saying, in part, the patient consented to the procedure knowing it carried risks.

Former employees said they were given bonuses if they treated more than 32 patients in a day, a strategy Lagattuta confirmed in his deposition in the malpractice lawsuit. “If they saw over, like, 32 patients, they would get, like, $10 a patient,” Lagattuta testified.

After Ten Years of Litigation – Jury Clears Sutter Health of Antitrust Claim

Northern California’s largest hospital chain prevailed in a landmark federal antitrust lawsuit claiming its contracting practices with insurers drove up the cost of premiums for millions of Californians.

Court House News reports that a nine-member jury unanimously found Sutter Health did not abuse its market power by forcing five major California health insurers to agree to all-or-nothing contracts that tied seven largely rural areas of the state where Sutter had the only hospital around to hospitals in areas with more competition.

The jury answered “no” to two critical questions. The first was whether Sutter sold inpatient hospital services in one or more tying hospitals located in Berkeley-Oakland, Antioch, Auburn, Crescent City, Davis, Jackson, Lakeport and Tracy, on the condition that health plans also include San Francisco, Sacramento, Santa Rosa and Modesto-based hospitals in their networks.

The second was whether Sutter’s contract terms preventing insurers from steering consumers toward cheaper care providers, or using tiered plans as an incentive for patients to go elsewhere.

The verdict is the culmination of 10 years of legal wrangling. Originally filed in 2012, the case has survived multiple motions to dismiss and a trip to the Ninth Circuit Court. In 2016, the appellate court reversed a federal judge’s order dismissing the case, finding the plaintiffs had alleged sufficiently detailed geographic markets for inpatient hospital services.

The lead plaintiffs – a handful of individuals and two small businesses – claimed Sutter’s practices caused 3 million California families and businesses to collectively pay nearly $411 million in insurance premium overcharges between 2011 and 2017.

The case was the first antitrust class action against the giant hospital network to go before a jury. Two similar state actions brought by a group of employers and unions in 2014 and California’s attorney general in 2018 settled just hours before the start of trial. Sutter agreed to pay $575 million and change some of its business practices “to restore competition in Northern California’s health care market.”

The four-week trial took place in a sealed courtroom in San Francisco. Though the press and the public were allowed access to the proceedings through a phone line and separate video feed in another courtroom, the trial was marked by frequent periods of confidential testimony, mostly at the request of the insurance companies.

Through testimony offered by its executives, Sutter argued that its contracting practices allowed them to better predict patient volume, which translates to revenue. For a nonprofit system like Sutter Health, more revenue means more resources that can be put back into improving hospital quality and patient care, and more funds to invest in innovative treatments and technology.

Sutter also asserted that Kaiser Permanente, one of the nation’s largest non-profit hospital systems with a growing presence in California, neutralized its market power by taking a large portion of Sutter’s market share. During the trial, LeVee presented the jury with a pie chart indicating that Sutter only has 25% market share in Northern California. Factoring in Kaiser, Sutter’s share went down to 17%.

It was an argument that persuaded at least one juror, who said Kaiser’s presence factored into her decision. “We don’t live in a vacuum with Kaiser,” said the juror, who asked not to be named.

“This case was difficult and we certainly saw both sides of the case,” she said. But ultimately, she did not believe the plaintiffs had done a sufficient job of proving their claims. Another juror, who also asked that his name be withheld, agreed, saying “This was a very complicated case for a jury to decide and both sides did a good job.” While he believed Kaiser does compete with Sutter for market share, his decision boiled down to whether the plaintiffs could prove that they had suffered $411 million in damages.

February 28, 2022 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: SCOTUS to Consider Controversy Over Workers’ Comp Cannabis. WCAB Panel Says OMFS Does Not Apply to V.A. Lien. JPMorgan Chase Sues California for $5.9M Over N95 Mask Fraud. First Prison Inmate Pleads Guilty in $25M EDD Fraud. SEIU Accuses HCA Healthcare of Medicare Fraud. Single-Payer Health Care Initiatives Fail Nationwide. Politicians Object to Facial Recognition Used to Combat EDD Fraud. 25% of Healthcare Workers Likely to Leave Workforce.