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Tag: 2017 News

No Consent Needed to Sent “Advocacy Letter” to AME

The parties agreed to utilize Doctors Abeliuk, Johnson, and Lapins as AMEs in this case.

Applicant’s counsel provided defendants with draft copies of letters to the AME’s asking if defendants had an objection to them. The defendants objected to all the letters and asked applicant’s counsel to redraft and send the letters back for review. But applicant’s counsel then sent these letters to the AMEs over their objections.

A hearing was set to resolve issues related to applicant’s submission of the advocacy letters.The parties specified the following issue to be decided: “Whether applicant counsel’s letter to Drs. Johnson, Abeliuk and Lapins constitutes ‘other information’ as contemplated by Labor Code § 4062.3 and 8 CCR § 35.”

The WCJ found that the letters to Doctors Lapins, Abeliuk, and Johnson constituted “communications” under section 4062.3(f), rather than “information” under section 4062.3(c), and thus did not require defendants’ agreement before they were sent. Specifically, the WCJ found that section “4062.3(f) controls and when ‘communications,’ including advocacy letters, are sent to an AME, they need only be served on the opposing party.”

The defendant filed a Petition for Removal. The WCJ recommended that the petition be granted “because applicant’s letter arguably constituted both a “communication” and “information” under the Labor Code, it likely should not have been served on the AMEs over defendants’ objection without an order from the WCJ.” Thus the WCAB granted the Petition for Removal in the En Banc case of Maxham v California Department of Corrections and Rehabilitation Service, and return this matter the trial level for further development of the record after clarifying the law on this issue.

The Labor Code requires the parties’agreement before any “information” is provided to an AME. (Lab. Code, § 4062.3(c).) In contrast, when a party wishes to send a “communication” to an AME, it is necessary only to serve the opposing party with that communication. Obtaining the opposing party’s consent regarding a “communication” with an AME is not necessary. (Lab. Code, § 4062.3(f).)

Because of the tension between these provisions, it is important to delineate when documents and other materials provided to an AME constitute “information” rather than “communication.” Section 4062.3(a) defines “information” as follows: “(1) Records prepared or maintained by the employee’s treating physician or physicians[,]” or “(2) Medical and nonmedical records relevant to determination of the medical issue.”

At first blush, applicant’s advocacy letters to the AMEs should constitute “communication” because they do not fall into one of the two categories of records that characterize “information,” as that term is defined in section 4062.3(a). however, that “[a] given piece of correspondence or a letter to a party, under certain circumstances, may be more than simply an act of ‘communication.’ It may also be ‘information.’ … We have accordingly held that sub rosa video provided to a QME constituted “information” because, “Information, such as a film or video is separate from a communication and its enclosure with a communication will not transform it into a communication.”

“We disagree with defendants, however, that applicant’s letters to the AMEs constitute “information” simply because the body of the letter itself included the applicant’s legal position.” “…advocacy letters discussing legal positions or decisions would not constitute “information” as defined by section 4062.3(a).

Correspondence engaging in “advocacy” or asserting a “legal or factual position” can, however, cross the line into “information” if it has the effect of disclosing impermissible “information” to the AME without explicitly containing, referencing, or enclosing it. Misrepresentation of case law or legal holdings, engaging in sophistry regarding factual or legal issues, or misrepresentation of actual “information” in a case are three ways in which a party might attempt to convey purported “information” to a medical examiner to which the opposing party has not agreed. The WCJ retains wide discretion in assessing the contents of a parties’ advocacy letters to ensure parties do not serve correspondence which could confuse or misdirect the attention of a medical examiner, even if that “communication” does not expressly contain, reference, or enclose “information.”

“We recognize that previous panel decisions on this issue may have created confusion regarding the precise delineation between “communication” and “information” and whether engaging in advocacy crosses that line. To the extent that those decisions do not comport with the above analysis of the dividing line between “information” and “communication,” we disagree with them. Despite our previous indications to the contrary, engaging in legitimate “advocacy” does not transform correspondence with a medical examiner from “communication” into “information.””

Study Supports Possible Apportionment to “Frailty”

Nearly a third of middle-aged workers suffer from some level of frailty, including fatigue, issues with walking and other physical limitations that make them less able to hold a job, according to a UK study published by Occupational and Environmental Medicine.

Frailty is more often something considered when treating elderly patients, but middle-aged patients may face some of the same symptoms, the study team writes in the journal Occupational and Environmental Medicine. Physical frailty leaves many people out of work entirely, while others take a lot of days off or struggle with physical demands, especially in manual labor jobs, the research team writes.

To examine the link between frailty and employment, researchers recruited more than 8,000 people in their 50s and early 60s from 24 English general practices.

Overall, the researchers classified 4 percent of participants as frail, based on having three to five of the frailty symptoms, while nearly a third of participants were considered “pre-frail” because they reported one or two of the frailty symptoms.

Frailty was tied to a large impact on employment. Three-quarters of frail people were not working at all and 60 percent had left their last job on health grounds. Compared with non-frail people, frail people were 30 times more likely to lose their jobs. Frail people were nearly 11 times more likely to have been out of work on prolonged sick leave in the past year, compared with healthy workers. Frail workers were also over 17 times more likely to report needing to cut down a lot on work in the past year, compared with non-frail workers. Workers considered to be frail were nearly 15 times more likely to have difficulty coping with physical demands at work and to be unsure if they would be able to continue work in two years. The pre-frail workers were also at higher risk of bad outcomes compared to healthy counterparts, but their risk was not as extreme as that of frail people.

Frailty had the biggest impact on blue collar manual workers rather than office workers, although the office workers still saw a significant effect, researchers note.

“Older workers are more likely to be physically vulnerable than younger workers,” said Lucie Kalousova, a researcher at the University of Michigan who studies frailty among workers.

Despite this, frailty is preventable and can be reversed, said Kalousova, who was not involved in the study. “Though medical science is not yet fully clear on the best ways to prevent frailty, it may be delayed or forestalled by regular exercise and a nutritious diet,” Kalousova said by email. Although it is difficult to pinpoint the causes of frailty, research shows that for elderly people, exercise programs focused on balance and strength and attention to diet can improve health outcomes, Palmer noted.

Judge Blocks Aetna – Humana Merger

A federal judge Monday temporarily blocked the proposed $37 billion mega-merger between health insurance industry giants Aetna and Humana, ruling that the transaction would reduce competition for consumers.

Although the antitrust decision can be appealed, the outcome could have significant ramifications on how older Americans purchase government Medicare and private Medicare Advantage coverage in the rapidly changing U.S. healthcare market, as well as on the options available to individuals who don’t have employer coverage.

The ruling marks a significant setback for the companies, which in July announced the proposed deal to create the largest seller of Medicare Advantage plans, covering more than 4.1 million seniors. Humana could get a $1 billion breakup fee from Aetna if the deal ultimately falls through.

“In this case, the government alleged that the merger of Aetna and Humana would be likely to substantially lessen competition in markets for individual Medicare Advantage plans and health insurance sold on the public exchanges,” U.S. District Court Judge John Bates wrote in his 156-page ruling. “After a 13-day trial, and based on careful consideration of the law, evidence, and arguments, the court mostly agrees.”

The judge based his decision enjoining the merger on evidence of “overwhelming market concentration figures” the merger would generate, plus findings of head-to-head competition between Aetna and Humana that would be eliminated if the deal were finalized.

The decision represents legal vindication for the Justice Department, which was joined by eight states and the District of Columbia in opposing Hartford, Conn.-based Aetna’s proposed takeover of Louisville, Ky.-based Humana during the Obama administration. Eight states and the District of Columbia joined the federal action.

The companies contended the deal would not lessen competition. They also said their complementary strengths in technology and relationships with health care providers would benefit consumers. But, calling those arguments “unpersuasive,” Bates’s ruling concluded that federal regulation would be insufficient to keep the merged firms from raising prices or cutting benefits. The judge also ruled that neither new health insurance competitors nor business divestitures the companies proposed to address antitrust concerns would replace competition eliminated by the merger.

“Today’s decision is a victory for American consumers – especially seniors and working families and individuals,” Deputy Assistant Attorney General Brent Snyder, the current head of the Justice Department’s Antitrust Division said in an official statement. “Millions of consumers have benefited from competition between Aetna and Humana, and will continue to benefit, because of today’s decision to block this merger.”

In response, Aetna spokesman T.J. Crawford said “we’re reviewing the opinion now and giving serious consideration to an appeal, after putting forward a compelling case” in the non-jury antitrust trial heard by Bates in December.

Big PhRMA Launches Propaganda Campaign

The largest lobbying organization for pharmaceutical companies began running TV ads on Monday morning to improve the industry’s image as criticism from U.S. President Donald Trump increases.

The industry is touting developments in science by pharmaceutical companies and will spend “tens of millions” on television commercials, according to an announcement on Monday by officials of lobbying group PhRMA. A spokesman did not provide a specific amount.

Pharmaceutical companies may be facing their most difficult time ahead as criticism about the price of drugs continues to increase. In a news conference this month, Trump said drug manufacturers were “getting away with murder” because of their pricing.

Additionally, drug manufacturers were considered winners when the Affordable Care Act became law because more people had increased access to prescriptions. A repeal of the law often known as Obamacare could mean many people losing insurance could not afford to purchase drugs.

PhRMA CEO Stephen Ubl cast the “Go Boldly” campaign as an effort to refocus the discussion about the strides in research. But he acknowledged the industry was at the center of criticism.

According to the PhRMA press release “The campaign will include national TV, print, digital, radio and out-of-home advertising. A new website,, will provide visitors with more information about the topics and themes featured in campaign advertisements, and a redesigned will provide in-depth information about exciting advances in biopharmaceutical innovation. #GoBoldly will be used across social media platforms to salute the sheer will and tenacity of patients and scientists fighting against disease every day.”

“We take the concerns that have been raised by the president very seriously,” Ubl said. “We think there are pragmatic policy solutions, and we look forward to working with the administration.”

While outspoken while the Affordable Care Act was being drafted, PhRMA has largely remained quiet during the early discussions about whether the law should be repealed and replaced.

Planning for the group’s campaign began six months ago, well before the November presidential election, according to spokesman Robert Zirkelbach. Like many organizations, the group signaled it expected Democrat Hillary Clinton was going to win and began planning to push back at her calls for capping drug prices. It continued with plans for the campaign, which Ubl said would have been the same had Clinton won, even after Trump was elected.

The group also released a four-part regulatory and legislative agenda that it said would be part of an extensive lobbying campaign, including advocating for changes to the Food and Drug Administration and the ability for drugmakers to coordinate with insurance companies when developing new treatments.

The campaign makes almost no mention of the repeal of Obamacare. “(This campaign) is not aimed at any one legislative issue,” Ubl said.

Christine Baker Responds to NBC Bay Area Criticism

NBC Bay Area has been highly critical of the California workers’ compensation medical delivery system in a string of articles dating back to mid 2016.

Its thesis has been that “Many injured workers and their doctors say the California workers’ compensation system is dragging out their medical care, making it difficult to recover and get back on the job.”

The Investigative Report essentially was based upon anecdotal accounts of perhaps a dozen cases that it says leads to its conclusion that “Injured workers across California say the workers’ compensation system is dragging out or denying the medical care needed to get them back to work. Those workers say they feel trapped in the sprawling labyrinth of a system, battling insurance companies and navigating through red tape instead of getting well.”

But now the director tasked with administering California’s workers’ compensation system respondes to the criticism.

Christine Baker, the director of the Department of Industrial Relations, defended the system, saying reforms made four years ago improved access to medical treatment and helped contain costs. She also credits a new law enacted in January for further strengthening the system.

The major changes launched in 2013 under SB 863 emphasized evidence-based medicine and shifted treatment decisions from the courts to medical reviewers using state-approved guidelines to authorize or deny treatment requests. According to Baker, the changes are paying off.

“Benefits are going to workers, treatment has been sped up and appropriate treatment is being approved,” she said. “It is overall an improvement to the workers’ comp system, which is very complex.”

According to recent estimates, the reforms also cut costs to the nation’s most expensive workers’ comp system by more than a billion dollars per year.

NBC Bay Area responded to her assertion with more anecdotal accounts saying “many doctors and attorneys who represent injured workers told NBC Bay Area the savings have come at a price. They say denials have reached all-time highs. They believe the guidelines touted by state administrators are too rigid and don’t always keep up with modern treatment techniques”.

Baker rejects those claims.

“Ninety-five percent of medical care decisions are approved,” Baker said. “There are a few that don’t get approved and it could be that it’s inappropriate care or the doctor didn’t document the requirements for care.”

NBC refutes Baker’s claim. “But the data cited by Baker is impossible to verify. Until this year as a result of new reforms, the state has not collected data on the number of medical treatment requests that are approved or denied by insurers.”

“Instead, state administrators point to studies published by the California Workers’ Compensation Institute. The research group relies on data voluntarily provided by its members – insurance companies – which is not made available for public inspection.”

Baker said she’d have to look at these individual cases to understand why they faced denials, but reiterated the majority of the 250,000 workers who go through the system each year get satisfactory results.

“Most people are not stuck,” Baker said. “Most get back to work. Most people are getting their treatment.”

Baker said the state is also coordinating an outreach effort to help doctors understand how to properly document a request for a specific course of treatment, which she expects to further reduce denials.

“It’s an education piece and the Division of Workers’ Compensation is working hard at getting information and educational information about treatment guidelines on our website and how to use them,” Baker said. “We’re hoping the holistic approach will overall really make improvements to workers’ comp in California.”

Canada Takes Action Against Deadly Painkillers

As deaths from powerful painkillers continue to rise, Canada is pursuing unprecedented measures to curb their use, including requiring cigarette-style warning stickers on every prescription, Health Minister Jane Philpott told Reuters.

Next month Health Canada plans to publish a detailed proposal for the stickers, which Philpott said would warn that opioid painkillers can cause addiction and overdose. In March, an advisory panel is set to consider a second measure, revising the official label definition of how opioids should – and should not – be used, officials said.

Any revision would affect marketing efforts by manufacturers, including privately held Purdue Pharma and Pharmascience, as well as publicly traded Teva Pharmaceuticals Industries, Mallinckrodt Plc, Novartis’s Sandoz and Johnson & Johnson’s Janssen Pharma.

Warning stickers would be a first and could serve as an example. The measures would follow other strategies that failed to stem addiction and death involving prescription opioids, such as OxyContin and Hydromorph Contin, as well as illicit ones, including heroin and powerful fentanyl smuggled from China.

Fatal overdoses have increased across Canada, mirroring the much larger epidemic in the United States. Philpott has called the opioid epidemic the nation’s greatest public health crisis and pledged to use every tool at her disposal to fix it. “We’re concerned when opioid prescriptions are on the increase,” she told Reuters. “We need to understand what’s behind that and make wise recommendations.”

Drug companies have said they support measures to increase patient safety. Several companies and industry groups declined to comment until the government lays the new proposals.

Some doctors and public health experts who have long clamored for safeguards said the new measures may be too little, too late. “Stickers may have been helpful in 2006, 2007,” said Edmonton, Alberta, addiction doctor Hakique Virani. “But when we’ve created this huge demand for opioids that is now being met by powder from China, and you can traffic a million doses of that stuff in a 10-gram greeting card envelope, I’m sorry, but stickers on pill bottles is not going to solve this problem.”

In an effort to address Canada’s drug problem, health officials made it more difficult to obtain OxyContin after Purdue introduced a tamper-resistant formulation of the drug in 2012. But physicians and addicts switched to different drugs. Illegal fentanyl flooded Canada’s streets, and doctors began prescribing more Hydromorph Contin, which has eclipsed oxycodone and fentanyl as the most commonly prescribed opioid in Ontario, B.C., Alberta, Saskatchewan and Quebec.

Canadian and U.S. public health advocates have campaigned unsuccessfully to restrict the long-term use of any opioid for non-cancer pain.

“The best available evidence does not support their use for treatment of chronic pain,” said David Juurlink, an addiction specialist at Toronto’s Sunnybrook Health Sciences Center.

The U.S. Centers for Disease Control and Prevention released non-binding guidelines last year cautioning against the use of long-acting opioids as first-line treatment for chronic pain and urging low initial doses and discontinuation as soon as possible.

Pharmaceutical CEOs Fear Trump Price Controls

The World Economic Forum (WEF) is a Swiss nonprofit foundation, based in Cologny, Geneva. The flagship event of the foundation is the invitation-only annual meeting held during the winter at the end of January in Davos, Switzerland, bringing together chief executive officers from its 1,000 member companies, as well as selected politicians, representatives from academia, NGOs, religious leaders, and the media in an alpine winter environment.

Among the many speakers at the 2017 Davos event was Vice President Joe Biden. Also at this years Davos event, leaders of the global pharmaceutical industry, blasted by incoming U.S. President Donald Trump for “getting away with murder” on drug prices, are putting a brave face on the challenges in their biggest market.

The following are comments from chief executives on U.S. pricing prospects, based on Reuters interviews at this week’s Forum in Davos:

JOE JIMENEZ, NOVARTIS: “The new administration has been pretty vocal about supporting innovation. They understand that when you spend money on research and you develop intellectual property there needs to be some level of return for that investment. I believe, based on who the president-elect has put in place around him, that there is a clear understanding of investment and return on investment.”

KEN FRAZIER, MERCK & CO: “Pricing will remain a challenging issue for those of us who are in the research-based pharmaceutical industry, as well as a challenge for the overall healthcare system in terms of what it can afford.” “The tweets will be what they will be, but the subject matter of the tweets has been a challenge before the election and I think it will remain a challenge after the election.”

ANDREW WITTY, GLAXOSMITHKLINE: “Clearly, the industry has an obligation to deliver value-creating innovation and it needs to price it at a level that is deemed to be acceptable.” “Industry has to price in an empathetic way. Just because you can demonstrate value doesn’t mean it is affordable.”

SEVERIN SCHWAN, ROCHE: “If you provide true medical differentiation coupled with a strong intellectual property position, I think the U.S. will continue to reward this kind of innovation. If you don’t offer that then, frankly, I think it is the right thing that prices should come down.”

OLIVIER BRANDICOURT, SANOFI: “It’s very difficult to understand what all those comments and tweets will end up being.” “It’s going to probably be very difficult to issue legislation on drug pricing.”

FLEMMING ORNSKOV, SHIRE: “I think we are in good position to prove the value of our products but, of course, there will be challenges.”

Santa Barbara Targets Fraud With PSA

Santa Barbara County District Attorney Joyce E. Dudley announced the release of a Public Service Announcement as part of the “District Attorney’s Office Anti-Workers Compensation Fraud” program.

This Public Service Announcement comes at no cost to Santa Barbara County. It was created by the Santa Barbara County District Attorney’s office with State funds in an effort to reduce pay outs for fraudulent Workers Compensation claims in Santa Barbara County.

The 30-second Public Service Announcement will be broadcast throughout Santa Barbara County. According to District Attorney Dudley, “The purpose of this Public Service Announcement is to raise awareness about Workers Compensation fraud, its impact on all of our Jives and how to report a potential violation.

Workers Compensation fraud is an escalating statewide problem which includes fraudulent claims by workers, medical providers and fraud committed by employers who fail to provide Workers Compensation Insurance. Further, Workers Compensation Fraud has had an impact on our local governmental, and non-profit agencies as well as small businesses and individuals.”

District Attorney Dudley concluded by noting that, “All of the costs associated with the production and presentation of this Public Service Announcement came from grant funding from the State of California under the guidance of the California Department of Insurance and the Workers Compensation Fraud Assessment Commission.”

DIR Orders Stay on $1 Billion Worth of Liens

The Department of Industrial Relations filed a report this week on its anti-fraud efforts in the California workers’ compensation system, and announced it has stayed more than 200,000 liens worth a combined claim value of more than $1 billion. The liens are associated with 75 medical providers facing criminal fraud charges.

DIR’s efforts were bolstered by two new laws effective January . SB 1160 (Mendoza) requires DIR to automatically stay liens owned by providers who have been indicted or charged with crimes until the disposition of criminal proceedings. And AB 1244 requires the Division of Workers’ Compensation (DWC) Administrative Director to suspend any medical provider, physician or practitioner from participating in the workers’ compensation system when convicted of fraud. DWC has adopted provider suspension regulations and is now issuing notices of suspension to convicted providers.

DIR and the Department of Insurance convened working groups last June to gather stakeholder input and evidence of fraudulent activity. Participants offered a variety of observations on factors that facilitate fraud and strategies to combat it. DIR prepared a report on further recommendations to the Governor and the Legislature.

Proposed solutions included not only statutory and regulatory fixes, but also better enforcement of existing rules and procedural requirements, more information sharing and coordination among agencies, greater vigilance by insurers to identify and combat provider and premium fraud, more and better use of existing data, making examples of bad actors, greater education and transparency for the workers’ compensation system and system participants, and reviewing strategies used in other health-care systems.

The report notes that a “lien filer’s ability to get one foot inside the courthouse door creates tremendous pressure on the insurer to pay something in settlement, rather than taking on the expense of fighting or disproving a clearly invalid claim. A recent internal analysis showed that 10% of the state’s lien filers were responsible for 75% of the lien claims filed between 2013 and 2015. The top 1%, comprising 68 businesses, filed more than 273,000 liens, totaling $2.5 billion, and included five individuals who were being prosecuted or had already pled guilty to fraud. However, it remained possible to continue filing and settling liens notwithstanding fraud prosecutions and other lien-filing restrictions.”

“Over the past year, we have worked to prohibit criminal and indicted providers from lining their pockets through liens,” said DIR Director Christine Baker. “Removing fraudulent providers and their lien claims from the workers’ compensation system will further improve services to injured workers and ultimately reduce costs in the system.” DIR has posted information on its fraud prevention efforts online, including information on indicted medical providers.

DIR’s ongoing work to combat workers’ compensation fraud includes the creation of an Anti-Fraud Support Unit to share and track data from system participants. The department contracted with the RAND Corporation for an independent evaluation and recommendations, including a review of fraud detection in other federal and state health care programs. The study, currently in peer review, is slated for release this spring.

Physicians have been prohibited from referring workers for evaluation or treatment by another office or facility in which the physician has an ownership interest. And from having cross-referral or referral fee arrangements. DIR will be drafting financial interest disclosure rules to improve the transparency and tracking of ownership interests and referrals. DIR will then serve as a repository of information available for use by the workers’ compensation community, medical licensing boards, and other oversight agencies.

DIR is is also currently looking at filing data to identify physicians who consistently overbill for certain services, including through the use of incorrect billing codes, inflating the extent of time spent on an evaluation or treatment, and the “unbundling” of combined services (i.e., making separate claims for each element of service in order to increase the total amount charged).

Malpractice Laws Provide Little in Patient Benefits

A new study published in the Journal of the American College of Surgeons and summarized by Reuters Heatlh claims that more aggressive malpractice climates do not necessarily protect patients from surgical complications.

Supporters of medical malpractice laws that make it easier for patients to sue doctors say these protections are necessary to improve care. But in the current study, the risk of litigation did not translate into better outcomes, said study leader Dr. Karl Bilimoria, director of the Surgical Outcomes and Quality Improvement Center at Northwestern University’s Feinberg School of Medicine in Chicago.

“It doesn’t really work – malpractice environment doesn’t influence doctors to provide better care,” Bilimoria said by email. “Rather, it may lead to defensive medicine practices where more tests and treatments are ordered unnecessarily just to try to minimize malpractice risk.”

Bilimoria and colleagues examined state-specific data on medical malpractice insurance premiums, average award size and the number of claims for every 100 physicians in each state as of 2010.

During the study period, the average annual malpractice premium for general surgeons was roughly $47,000.

More aggressive malpractice laws and larger malpractice awards did not reduce patients’ risk for any of the postoperative complications studied. No individual state malpractice law was consistently associated with improved post-operative outcomes.

Instead, in states where doctors faced greater risk from malpractice claims, patients were 22 percent more likely to develop sepsis, a potentially life-threatening bloodstream infection, the study found. Patients in states where doctors had the most litigation risk were also 9 percent more likely to develop pneumonia, 15 percent more likely to suffer acute kidney failure and 18 percent more likely to have gastrointestinal bleeding.

The results add to a growing body of evidence suggesting that tort reforms aren’t associated with better outcomes, said Michelle Mellow, a law professor at Stanford University in California who wasn’t involved in the study. “This study contributes further evidence that liability pressure doesn’t spur doctors to get better results for patients, but neither does adopting reforms to limit liability,” Mellow said by email.

It’s not surprising that the study didn’t find a consistent link between malpractice environment and surgical complications because these associations can be specific to certain procedures or fields within medicine, said Dr. William Sage, a law and medicine professor at the University of Texas at Austin who wasn’t involved in the study.

Some previous research suggests that one type of law, that compares doctors’ results against national averages, can help improve outcomes in below-average states, said Dr. Anupam Jena, a researcher at Harvard University in Boston who wasn’t involved in the study.

“Changing the standards against which physicians are judged, either by ensuring that all states adopt national standard laws, or using administrative courts that hold physicians to a pre-specified clinical standard, are ways that I think the malpractice system can be leveraged to improve quality,” Jena said by email.