Operating For Profit?

unnecessary surgery.jpgIf you had to guess what hospitals, over the period of 2004-2008, billed Medicare for the most spinal fusion surgeries what hospitals would you name? Number one on the list – Johns Hopkins – probably would not surprise you. It’s a massive teaching hospital and one of the finest hospitals in the country. Number two on the list – UCSF Medical Center – wouldn’t raise many eyebrows either. Again, a massive teaching hospital.
But you might be taken aback a bit by who occupies the bronze medal space on this podium: Norton Hospital in Louisville, KY. The story of how a backwater hospital in Kentucky came to bill Medicare for $48 million in spinal fusion surgeries was recently told by Wall Street Journal reporters John Carreyrou and Tom McGinty in the latest article in the Journal’sSecrets of the System” series (which uses publicly available Medicare data to uncover possible fraud and waste).
As the Journal article notes, spinal fusion is one of the most hotly debated surgeries in medicine. It involves fusing together two or more vertebrae in the hopes of alleviating a patient’s back pain. A number of orthopedic surgeons contend that fusion surgery is only indicated for a small number of patients with back pain. Other surgeons, such as the team at Norton Hospital, find spinal fusion to be useful in a much wider set of cases, including cases where the patient is suffering from disk degeneration due to aging.
The disagreement among surgeons about the usefulness of spinal fusion would only be an arcane medical debate if some surgeons weren’t being paid millions of dollars by medical device makers for promoting the use of their hardware. The hardware used in a single spinal fusion surgery runs into the tens of thousands of dollars (“You can easily put $30,000 of hardware in a person during a fusion surgery,” says one medical professor quoted in the piece). Last year a half-dozen surgeons at Norton Hospital earned more than one million dollars apiece from hardware manufacturer Medtronic.
The payments – which some characterize as “kickbacks” and some call “royalties” – are supposed to be for contributions that the Norton Hospital doctors made to the development of the hardware technology. But the innovations for which the doctors supposedly receive these payments are slight; in a day and age when virtually anything can be patented (a patent is meaningless; it’s whether the patent stands up to a challenge that’s important) some of the Norton Hospital doctors receiving millions aren’t named on any patents. Critics contend that the payments are really kickbacks paid to the doctors for getting their colleagues and others to use Medtronic products.
Thanks to pressure by Sen. Chuck Grassley, Medtronic now discloses “royalty” payments to doctors on its website. If you have a question about whether Medtronic is paying your doctor for his work with the company, you can discreetly check by using Medtronic’s Physican Registry, now available here.
Of course, if your spinal fusion surgeon receives payments from Medtronic, all that information will also be buried somewhere within the informed consent packet that the surgeon has you sign prior to surgery. That boilerplate, as one back fusion patient detailed in the Journal story learned, is a virtually ironclad defense in some cases where patients were injured by medically unnecessary surgeries. Assuming that a doctor, prior to performing an operation of dubious necessity, has disclosed all of his financial interests to the patient and his care in performing the surgery did not fall below that of the ordinary surgeon, you will have a very hard time with a medical malpractice lawsuit even if you were injured and only subsequently learn of the troubling conflict of interest raised by the doctor’s surgeries and the medical device payments.
Ultimately, the Journal story should not be a surprise to the readers of this blog. We’ve seen how doctors in McAllen, TX bilk Medicare for unnecessary tests and procedures, we’ve seen doctors bilk insurers for unnecessary cataract surgeries and we’ve seen dialysis centers who have developed techniques to squeeze every last penny out of Medicare. It’s all part of the fee-for-service model that is driving up our health care costs.

This blog is maintained by the Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. The blog neither offers nor contains legal advice.