Science and Doubt

There are those who have faith in America's medical system, and others who have doubts. Many are quick to decry those who doubt scientists, while a few acknowledge that doctors themselves have built the foundation upon which doubters rest. It is time for recognition of why and how there is doubt. It is time to rebuild, somehow, the faith Americans had in medicine decades ago. Those who decry "anti-science" must acknowledge the failures of science and scientists, and we must all move somehow to restore faith.

Social media and the Internet generally are alive with "anti-vax." There is a population of people that have concluded that vaccines are dangerous, and should be avoided. Some merely decline vaccination, while others deny their children vaccinations. A variety of celebrities have been accused of holding anti-vaccination views. In response to the anti-vaccine expressions, there have been a variety of analyses published. According to CBS News, the World Health Organization (WHO) concluded that the anti-vaccination movement is one of the "top threats to global health in 2019." And, Anti-vaccination is not a new movement. Some claim that the movement is as old as vaccines themselves. 

That is the WHO after all. Who could argue? It notes that "cases of measles have surged 30 percent worldwide in recent years." There remain risks of influenza and even polio. The HPV vaccine to forestall or address cervical cancer has faced resistance. In the United States, CBS reports that "approximately 100,000 young children have not been vaccinated against any of the 14 potentially serious diseases for which vaccines are recommended." That population appears to be increasing. Though there are those who see anti-vaccination as debunked, California has recently worked on legislation for immunization exemptions, and celebrity Jessica Biel made the news in June as she appeared in the state capitol, according to the Los Angeles Times. 

Of course, those who do not vaccinate are assuming a risk. And, there is some justification in a free society to say people should be free to take their risks and make their choices. That argument was raised frequently in the United States regarding smoking. There were, and perhaps are, many who believe a person's choice to smoke is a personal choice: "They aren't hurting anyone." That sentiment has changed in the last few decades. 

There has been a recognition that smoke affects more than the smoker. Only 16 states still allow smoking in bars or restaurants, according to MarketWatch. Nine jurisdictions have outlawed smoking in cars that contain children, according to LeagleBeagle. On flights, efforts began in 1988, in earnest in 1990, and concluded in 2000, with a complete ban on smoking on commercial flights, according to Traveler.com. That is public smoking, and many are disturbed by smoke, others are even allergic. But if it only affects the smoker, why should others care about smoking in private? 

Reuters reports that almost ten percent of American healthcare spending is "due to smoking." That means that "$170 billion a year, is for illness caused by tobacco smoke." That might seem at first blush to still be the smoker's problem. But, the Center for Disease Control report upon which Reuters is commenting concluded that "public programs like Medicare and Medicaid paid for most of" the $170 billion. Of course, the sale of tobacco also generates tax revenue for federal, state, and local governments. But, it is unlikely the taxes collected equal those expenses. 

Vaccinations and smoking are but two examples. There is science on the side of vaccines, and yet a significant number of people opt out based on their beliefs. There is scientific and economic data supporting that smoking is unhealthy in a variety of ways, and yet the CDC says that about 14% of adults in America continue to smoke. Despite a dearth of evidence yet, many also continue to "vape," though states are moving to restrict that smelly act also. 

Behavior has personal and societal impacts. This is clearly illustrated by the smoking discussion above. It is easy to see people peripherally affected by second-hand smoke, by the societal costs of smoker's medical care. Notably, there is also a broader, societal impact alleged in the vaccination discussion. This is referred to by the term "herd immunity." It is perhaps a bit disappointing that scientists refer to us all as a "herd," but there it is. 

Vaccines Today explains that herd immunity "arises when a high percentage of the population is protected through vaccination." This challenges "virus or bacteria." It is difficult for them to propagate "because there are so few susceptible people left to infect." The immunity of the herd helps to protect everyone. Vaccines Today places blame for recent measles and pertussis "outbreaks" on failure to vaccinate and the resulting "declining herd immunity." 

There is credibility to medicine. Most will remember that "four out of five dentists recommend sugarless gum for their patients that chew gum." We all likely have a logo on our toothpaste attesting to the endorsement of the American Dental Association. People are somehow inclined to listen to celebrities and to doctors when they tell us what is good for us or not. A few readers will remember when doctors and dentists even purportedly endorsed smoking. 

Everyone has heard of some historical medical treatment that has since been discredited. Some contend that a large number of medical (current and former) "procedures and practices are ineffective." According to The Atlantic, "much of what medical researchers conclude in their studies is misleading, exaggerated, or flat-out wrong." An article in the Yale Journal of Biology and Medicine contends that the flaw is in how procedure or treatment is accepted. Once accepted, a practice or treatment may become established and then might continue long after efficacy is questioned or even debunked. The Yale authors urge that science "raise the bar" on how vetting or acceptance occurs. 

Some note that once a medical practice is accepted, change is difficult, asking "Why do doctors keep performing ineffective procedures?" There is no absence of criticism regarding procedures, testing, and even surgery. USA Today concluded that some patients "fall victim to predators who enrich themselves by bilking insurers for operations that are not medically justified." And, it noted that some physicians end up in prison; ironically for billing Medicare for those services, not for the damage done to the patient. There is a steady stream of conviction news it sometimes seems, from the Department of Justice and in the press. 

Patients are vulnerable. No one is seemingly exempt from this. As the Los Angeles Times reports, Dr. Robert Pearl contends that our American medical system is broken. He is the author of Mistreated. He describes in his book how he sought care for a family member. Dr. Pearl is a physician and a former leader of a major healthcare delivery system. He knows care, treatment, and benefit management. And, he and his family nonetheless struggled with navigating the care system and making medical decisions. If he is not an informed and sophisticated consumer, then none of us is. 

The fact is that we live in a time of great innovation and change. Medicine, knowledge, and expertise are evolving at an epic pace. Doctors and other scientists are today doing with ease things that were science fiction mere years ago. Despite this, science remains fallible. Despite the progress, medicine remains partially art. Despite the progress, consumers remain with doubts, uncertainty, and suspicion. See My Mum Didn't Vaccinate Me, from the British Broadcasting Corporation. What is the next thermogram? What is the next "harmless" opioid? What is the next "latest and greatest" surgery? There is, among some, doubt about science, medicine, and the recommendations of both doctors and pseudo-expert celebrities.  

In the end, who is responsible for the credibility gap some perceive as regards science or medicine? When a physician gives advice, orders a test, or recommends a procedure, why do patients have doubt? What drives cynicism? Can physicians be wrong? Is it possible that even four out of five could be? Perhaps there is merit in the cautionary "Physician, heal thyself?" If medicine is to improve, if consumer confidence is to be reclaimed, that will be led by doctors. In part, it will be led by the innovators and their innovation. But, it must be tempered by others' critical review and cautions. 

The patient community has been given examples in which doctors' conclusions have later been debunked. There is a sentiment among patients of caution and sometimes doubt. There is a potential for celebrities to leverage their fame to proclaim their beliefs and conclusions, seemingly contrary to science, and to be believed. The public willingness to believe the movie star instead of the scientist can be blamed in part on the celebrity status and a gullible fan base. But, there is also fault for the medical community which has a record of seemingly documented missteps, failures, and even fraud. 

If American medical care is to be strengthened, streamlined, and effective, ultimately the patient will have to have faith. The patient faith will have to be restored. When innovation and progress come, the scientists and doctors who possess training and expertise must be at the forefront of questioning, testing, and commenting. The rest of us depend on their conclusions, on the acceptance of these procedures and treatments, and ultimately on the approval process and their recommendations for us. 

That people have doubts about vaccines is in part their ignorance and gullibility. That celebrities lacking any scientific education are listened to is in part the many examples of medicine's past questionable promises, complicity, and failures. Americans deserve critical thinking, innovation, and science. They deserve medical care in which they may confidently put their faith. The relationship between scientists and the public has been fractured, and if we are to persevere, that fracture of doubt must be healed. 

Having thus diagnosed the issue, the scientists must formulate a plan to do just that. Even if it is accepted by only four out of five of them. Our health deserves it, and our herd deserves it. 

Labels Matter

In June, the Florida First District Court of Appeal rendered Lafleur v. The Arbor Holding Company, No. 1D18-0381 (Fla. 1st DCA 2019). The Court reversed the trial judge, citing Myers v. Pasco County School Board, 246 So. 3d 1278 (Fla. 1st DCA 2018), which was rendered just over a year prior. The Court noted that the trial judge in Lafleur "did not have the benefit of the Myers opinion before rendering the order under review." 

The Lafleur opinion is concise. It reminds us that in Myers the Court concluded that:

"[a] physician who provides similar services in a different specialty does not qualify as a doctor in the ‘same specialty’ because—quite simply—‘same’ is different than ‘similar.’"

In Lafleur, the injured worker was treating with a doctor specializing "in physical medicine and rehabilitation." Upon request for a "one-time change," section 440.13(2)(f), the employer/carrier timely authorized "an anesthesiologist." The Court concluded that this authorization did not 

"satisfied their statutory obligation to provide a physician in the 'same' specialty as the previously authorized physician."

The Myers decision provides more explanation on the subject. There, the injured worker was treating with an orthopedic surgeon and requested a "one-time change." The employer/carrier authorized a neurosurgeon. A petition was then filed seeking an order compelling the provision of an alternate orthopedic surgeon; the Judge of Compensation Claims (JCC):

"denied the petition reasoning that the term "specialty" is broader than the 'specialty of [the] physician' and 'should be extended to' the types of conditions the doctor treats."

The Myers Court noted that: 

"This one-time change must be made with a doctor who practices in the same specialty as the originally authorized physician. (Citations omitted). The doctor's specialty is determinative, 'regardless of who makes the selection.'"

The last sentence is worthy of consideration. This is the law regardless of whether it is the injured worker or the employer/carrier that believes some different specialty might be as efficacious or more; regardless of what a physician does, it is the title that matters.

It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits.”) Burgess v. Buckhead Beef, 15 So. 3d 25, 27 (Fla. 1st DCA 2009). Therefore, a "per se application . . . of the administrative rules" might directly conflict with the "specific legislative intent of the Florida Workers' Compensation Law." Boyle v. JA Cummings, Inc., 212 So. 3d 1060 (Fla. 1st DCA 2017). Thus, the rules might sometimes have to bend to accommodate the law. However, the outcome is different when the law itself is unyielding, though the perceptively rigid application might likewise appear to some as contrary to that overall, general, intent that "merits" intent quoted in Burgess. See Section 440.015, Florida Statutes.

Several years ago, the Court in Watkins v. Wolf, 626 So. 2d 1080 (Fla. 1st DCA 1993) explained that the statute itself should be read strictly. Conceding that the workers' compensation statute of limitations "may 'exalt form over substance,'” the Court nonetheless required that a "claim" (now petition for benefits) has to be filed within the limitation period. The Court explained there is "no express or implied good-faith exception" to that statutory language. Thus, a claim received by the division of workers' compensation "one day after the statutory period had expired" was not timely, and the case was dismissed. The specific of the statute overrides the sentiment or theme of a "merits" decision. 

Ten years earlier, the Court decided Mahoney v. Sears, Roebuck & Co., 438 So. 2d 174 (Fla. 1st DCA 1983). There, the Court used a similar reference regarding it being "contrary to the basic principles of Chapter 440 to exalt form over substance." However, the Court explained that "it is not the province of the deputy (now JCC) or of this Court, but of the Legislature, to supply appropriate remedy" regarding the application of the plain language of the workers' compensation law. The specific statutory language controlling, and the Court explaining that to change that language or effect would be a legislative endeavor. 

In the context of a statutory change in physician, this might make for an interesting debate. If the legislature were to consider changing its "quite simple same," Lafleur, in favor of broader language like "similar," there is the potential for significant litigation. There is some human tendency towards perception bias. That is, that we have inherent, human, tendencies. As has been variously stated, "Beauty is in the eye of the beholder." Thus, what an injured worker or an employer might see as "similar" might be seen as vastly dissimilar by the other (you know, tomAto, tomaHto).

A legislative standard that required "similar" rather than "same" might require significant judicial involvement regarding various parties' perceptions of what is or is not actually similar. In a particular case, what is "similar" to one adjudicator might be vastly different from what another adjudicator sees as "similar" regarding the same specialty providers in another case. Furthermore, it is possible that an appellate panel might well see "similar" differently than a trial judge does. The potentials are various and numerous. 

This illustrates, of course, that when strict rules are applied, there could be instances in which one does not like the outcome. But, similarly, it is equally possible that one would not like the outcome if a more relaxed standard or rule were applied. The potential for dissent exists in either instance, but for different reasons perhaps. 

That, across America, has been a workers' compensation struggle for many years, illustrated in such concepts as physician choice, expert medical advisors or similar, impairment rating benefit calculation, evidence-based medicine, and so much more. As judicial discretion decreases, so increases consistency and predictability, and vice versa. But, what is consistently predictable is that the appellate court and judges strive to follow the law as written, leaving changes to the legislature that wrote it.

Who is Dependent on Antiquated Technology?

In 2018, the Centers for Medicare and Medicaid Services (CMS) announced a vision for "the free flow of information between patient, provider and payer." Posts on this blog have advocated for greater transparency as part of improving the delivery of medical care in America. See Transparency for Efficacy (June 2019) and Medical Charges and Challenges June 2019). 

CMS perceives technology as the path to this information flow, as reported by Healthcare IT News. The particular tool in which it is interested will be web-based, likely as "consumer-friendly applications for Medicare beneficiaries to connect." Thus, the drive is toward new technology and through it transparency for those who use Medicare. The critics, at this stage, will point out that us boomers are perhaps less app-savvy than other generations, and we are a larger part of the current and certainly near future Medicare beneficiaries. 

In that, there may be a disconnect between the technology and (some of) us users. Intertwined in this drive for applications to share information is less-favorable news for older, some would say antiquated, technology that remains ubiquitous. After announcing the app plans, the CMS Administrator also suggested that these efforts could help us "make doctors' offices a fax-free zone by 2020." Apparently, that proposition drew applause from Administrator Verma's audience. 

What is the point of transparency through technology? A patient is seen by a primary care physician, who recommends a consultation with a specialist. Or, a patient is seen in the emergency room or after-hours facility, treated, and told to follow up with the primary care or a specialist. Each of the care providers is interested in the delivery, interpretation, and evaluation of care, including that of ancillary providers such as a radiologist or laboratory. 

In the age of paper, each participant on the care team obtained information about and perhaps from the patient, recorded it, and filed it away. When the patient presented elsewhere, physicians and facilities shared that information through the use of correspondence, facsimile, and the telephone. Each of these consumes time. Even the facsimile, though quicker than the mail, still requires contacting the possessor of the record in question, the retrieval of that physical record, and the transmission back. 

The age of electronic medical records has dawned. However, some may say that sunrise is proceeding more slowly than it should. Systems exist to both record and store medical information. Sharing that information within an office or facility has been greatly enhanced, from doctor to doctor, from treatment to billing, and more. But, there remain challenges to sharing that information, seamlessly, with others that are more detached from the particular facility that created the record. 

The IT News says that some healthcare providers contend "data can't be shared," when in fact they mean they choose not to share. The story quotes CMS Administrator Verma's contention that this refusal choice is because "of the fear the patient will be poached." There is thus a business reason for declining to share. Administrator Verma plans to counter that with another business factor, reducing physician and hospital payments for those who decline to afford patient record access electronically. 

Vox reports that in medical practice, records currently are virtually always transmitted by facsimile or mail. It reports that clinics have progressed to the use of electronic records, but some say their "electronic system can’t connect with other clinics’ records." 

This is a portability issue that has been mentioned periodically in workers' compensation. However, with an even broader scope. Attorneys lament that they can, using a prospective client's identification and password, review medical records within the Social Security system. Thus, when discussing the potential of representation, an attorney may be informed in real-time from the actual records rather than only the best recollection of the potential client. There is value in such real-time information. 

That opportunity does not exist widely in the workers' compensation world. Certainly, there are medical providers that provide patients with each office visit note. There are patients who assiduously catalog and maintain those records. But, the vast majority of us are not consistently that organized. We find ourselves in that familiar position of clearly remembering having some piece of paper but being utterly unable to recall what we have done with it. Thus, an interview with a prospective client may be a bit challenging at times. 

Understanding the drive for portability, and the view that the Internet is the platform with the most promise, why the disdain for the facsimile machine? A later Healthcare IT News describes the risks that facsimile presents. It asserts that "75 percent of all healthcare communications are still processed by fax." Those communications are vulnerable to hacking. It concludes that "the antiquated devices pose real privacy issues when it comes to transmitting patient data." While that is an issue for stand-alone machines, it could apparently be a larger issue for facsimile machines that are connected to computer networks. 

Vox notes: 

"Most industries abandoned the fax machine in the 1990s, and for good reason. Fax machines are terrible at sending data. Busy signals interfere. Printouts are blurry. And sometimes faxes go to the wrong place entirely." 

It says that the "Obama administration spent upward of $30 billion encouraging American hospitals and doctor offices to switch from paper to electronic records." That effort brought about significant change in terms of having electronic records, but "didn’t account for a critical need: sharing." 

Despite the criticism of facsimile, Vox says that "in the medical sector, the fax is as dominant as ever. It is the cockroach of American medicine." Popular Science reports that "its continued use among doctors, lawyers, and governments" means that the machines will remain "in one form or another, for years to come."

I have discussed the elimination of facsimile machines in the practice of workers' compensation repeatedly. Each time, the suggestion is met with objections. Some remain convinced that the law cannot be practiced without such machines. About a year ago, the facsimile machine in the Pensacola District office ceased to function and was removed. The world did not stop, there was no hue or cry. In fact, it seems that no one noticed that the "cockroach" was gone. Life went on, and cases were filed, mediated, and adjudicated, without the antiquated technology.

I will be curious to hear from readers. I wonder how many lawyers out there remain convinced that the fax machine is an indispensable part of the practice of law in the 21st century. I wonder how many lawyers have calculated what their facsimile line costs them each month, and compared that to the number of actual faxes she/he has sent or received. How many of those lawyers have investigated the Internet-based alternatives to that old, dusty, fax machine. Are lawyers clinging because medical providers are, or is this a co-dependency based in fear of progress or change?

Progress comes for us all. Some of us are merely better prepared to greet it.

The Life You Save May Be Your Own

Following up on the topic of distracted driving. This blog featured the topic in December 2018: Texting and other Distracted Driving (December 2018). That focused on the proposals in Senate Bill (SB) 76 and House Bill (HB) 45. Motor vehicle accidents are a major cause of workplace accidents; driving safely is an important workers' compensation subject. The statistic quoted in that post that "92 percent of drivers" have used mobile devices "while in a moving car" is troubling.

In the December post, there were other examples of distracted driving. At least according to one ranking, "cellphone use" was not the most pervasive distraction. The number one distraction listed was "lost in thought," contributing to 62% of the distracted events. Conversely, "cellphone use" was listed in only 12% to 14%. There are a variety of potential distractions on the road. The Legislature elected to address this one. 

As often happens, bills in the legislative process change through the course of the session. This year, the Senate altered the language in SB76 various times. One version of that bill included an "informing and educating" period beginning October 1, 2019, through December 31, 2019. During that period, law enforcement would have been able to stop motorists "to issue verbal or written warnings." After December 31, 2019, the actual enforcement was to begin (a warning period). 

House Bill 45 was withdrawn prior to introduction, on January 10, 2019. The House began working instead on HB107. That bill was ultimately passed by both chambers, substituted for SB76 on April 25, 2019, and signed by the Governor on May 17, 2019. Much of it it becomes law on July 1, 2019, and that has generated news coverage as well as commentary. 

Florida law already provided that:

"A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication." Section 316.305(3)(a), Florida Statutes.

Therefore, texting while driving was already illegal in Florida. The change effected by HB107 is largely the change rendering it a "primary offense," meaning that a driver might be stopped specifically for using a device. In prior laws addressing texting and driving, the offense was "secondary," meaning that a citation for texting could be issued if the driver was stopped for some other, "primary," offense such as speeding, running a red light, etc. Some Floridians will remember that mandatory seat belt laws followed a similar path of first being "secondary" and evolving into "primary."

HB107 also includes specific language precluding law enforcement from accessing someone's cell phone ("wireless communications device") without a warrant, from confiscating such a device, or from obtaining consent to a search of a device "through coercion or other improper method." The new law requires police agencies to record and report on the race and ethnicity of any violator cited under this law. All state law enforcement agencies will be required to both maintain that data and to report it to the Governor and Legislature annually. 

Florida motorists will continue to see cell phones in driver's hands. Section 316.305(3)(a), Florida Statutes provides:

"a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph."

That exception is also reiterated in Section 316.306, which is a new section added by this law. This specific portion is not effective until January 1, 2020. This section is specific to "school crossing, school zone, or work zone area as defined in s. 316.003(101)." The stated intent of it is to "improve roadway safety" in these specific areas. This new provision does include a "warning period" allowing officers to issue warnings regarding this section and the use of devices in these "zones" beginning October 1, 2019. This three-month warning period may help educate drivers as to the change. 

There are exceptions that allow the use of a "wireless communication device" even in these specific zones. These include 

"operator(s) of an emergency vehicle . . . , a law enforcement or fire service professional, . . . emergency medical services professional, Reporting an emergency or criminal or suspicious activity . . .. . messages related to the operation or navigation of the motor vehicle; Safety-related information, including emergency, traffic, or weather alerts," Radio broadcasts, and use in hands-free or hands-free in voice-operated mode."

Those exceptions are essentially the same as the exceptions that already existed in Section 316.305(3)(a) regarding the use of such devices outside of these specific "zones" addressed in the new section. 

The distinction between the general prohibition and the new addition is in the penalties. A driver that violates Section 316.205 "commits a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318." A second violation "within 5 years" is "punishable as a moving violation as provided in chapter 318." Section 316.205(4). However, a violation of the "zones" prohibition, Section 316.306, is "a noncriminal traffic infraction, punishable as a moving violation." The new section says that the driver "shall have 3 points assessed against his or her driver license" for violation. The penalty for the "zone" violation is stricter. 

However, there are two specific methods for a driver to avoid the Section 316.306 penalties. First, for a "first offense," the driver instead "may elect to participate in a wireless communications device driving safety program." This would waive the assessment of point, and a court clerk would be allowed to waive "associated costs." The law also empowers a "clerk of the court" to "dismiss a case and assess court costs" for a first offense if the driver "shows the clerk proof of purchase of equipment that enables" the driver to use "his or her personal wireless communications device . . . in a hands-free manner." There is a definite emphasis here on education and transitioning to "hands-free."

With some of the law changes taking effect July 1, some in law enforcement have expressed doubts as to the efficacy of the new law. Fox13 Tampa Bay recently reported that "police officers say enforcement is going to be a challenge." The focus of their skepticism is their perception of a "loophole" in the law. A memorandum was circulated to St. Petersburg officers reminding them that drivers are allowed to use their devices for specified purposes even while driving. There is some conjecture that any driver will claim one of these exceptions if stopped for the use of a device while driving. 

The Fox13 article quotes a spokesperson of the St. Petersburg police. She says that for "an officer to know for sure" what a driver is using a device for, "he (or she) must inspect your phone." The spokesperson notes, as discussed above, that the driver "can decline to give it to him (or her), under the law." It is the perception of these listed "approved uses" that is driving the skepticism regarding enforcement. 

Thus, the significant amendments to Section 316.305 regard the change from "secondary" to "primary." Whether that will enhance enforcement or not remains to be seen. The creation of Section 316.306, and the enhanced penalties, may perhaps make drivers think twice when in school zones, crossings, and work zones. Notably, according to Brightfleet, "distracted driving has overcome impaired driving as a major cause of road injuries and fatalities." The fact that it is an issue is thus clear. With the passage of HB107, and again as implementation nears, there has been significant coverage of distracted driving both in news and commentary. 

Perhaps in that raising of awareness alone, there is value in this new law. Possibly all of the coverage has discouraged distracted driving. With the implementation of Section 316.306 delayed until next January, perhaps there will similarly be significant news coverage of distracted driving this fall and winter. To the extent the subject can be reiterated, revisited, and stressed, there is a likely benefit to all motorists. We can all use that periodic reminder to recognize and avoid distractions. 

Some will take to heart the discussion above and particularly focus on the conclusion that there are many potential distractions while driving. Can we all learn from the statistics concerning the seemingly innocuous "lost in thought?" Will employers take to heart the legislative focus? Might parents as well? Any of us might put aside distractions while we drive, and encourage others to do likewise. And, if we know someone is driving at a particular time, we might defer making a non-emergency call or sending a text to that person. 

As Flannery O'Conner wrote: "The life you save may be your own." It is definitely worth skipping that call, text, or news flash until you can pull over and take a break. 

Final or Not?

There is a recurring challenge in Florida workers' compensation, the finality of a "final" order. The topic seemingly frustrates the most seasoned attorneys periodically. The challenge relates to the nature of workers' compensation. There are statutory provisions that will close a workers' compensation case forever. However, workers' compensation is different from many other types of civil cases in Florida because they may proceed over long periods of time in a serial nature. 

The Florida First District Court has reminded periodically that "workers' compensation proceedings are, of necessity, often serial in nature. See, e.g., Nelson & Co. v. Holtzclaw, 566 So.2d 307, 309 (Fla. 1st DCA 1990)." There may be issues tried in a particular hearing while other issues or benefits are not ready for adjudication. This may present questions regarding such issues as "'res judicata,' prevailing party costs," and more. See Hernandez v. Manatee County Government, 50 So.3d 57 (Fla. 1st DCA 2010). 

The lack of finality might be caused by doubt regarding what issues are or are not ripe for a particular trial. The Court has cautioned that because "workers' compensation matters can result in numerous hearings relating to a single accident and injury, the parties cannot simply ignore outstanding issues when they attend final hearings." The law may result in an issue being "waived" if it is ripe for hearing and yet not raised at that trial. 

The Rules of Appellate Procedure acknowledge there are similarities and differences. Rule 9.180 (a) "Appellate review of proceedings in workers’ compensation cases shall be as in civil cases except as specifically modified in this rule." Thus, workers' compensation cases are similar to "civil cases," but warrant specific rules. 

That Rule, sub-paragraph (b) defines the jurisdiction (authority) of the Court. This is limited to a (1) "final order," or "any nonfinal order of a lower tribunal that adjudicates": (A) "jurisdiction" or (B) "venue." Thus, an order concluding the lower tribunal (Office of Judges of Compensation Claims) does or does not have jurisdiction (authority), or an order determining the place where the trial will occur (venue) are subject to appeal. 

The appropriate venue for the trial of a case is of particular interest. The Court has concluded that if a trial is conducted in the wrong venue, the judge there "lacked jurisdiction to hear the claim." Thus, the decision in that case was reversed and a new trial was ordered. See Talisman Sugar Corp. v. Jaime, 498 So.2d 516 (Fla. 1st DCA 1986). 

Additionally, there is a third non-final order that may be reviewed by the Court, despite being non-final. These are orders that determine "compensability." However, this is a more narrow exception to the general requirement that orders must be "final." For a non-final order that adjudicates "compensability" to be reviewable, the order must: 

"expressly finds an injury occurred within the scope and course of employment and that claimant is entitled to receive causally related benefits in some amount, and provided further that the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time." Rule 9.180(1)(C). 

That must be an "express" conclusion of the Judge of Compensation Claims. In Cadco Builders, Inc. v. Roberts, 712 So. 2d 457 (Fla. 1st DCA 1998) the Court said that the judge noted he "gave consideration to the substantial amount and variety of benefits in dispute." Thus, the judge made a reasonably clear acknowledgment that the issues were somewhat complex. The Court concluded though that "he did not, however, expressly certify that determination of those benefits will require substantial expense and time." 

The Court explained that review of non-final ("interlocutory") orders are seen as a "waste (of) court resources," and a cause of delay. Therefore, they are not viewed favorably (by that, the Court implies they will be examined critically). Because of those concerns, the Court there held that the order must contain "a certification which clearly conforms to the prerequisites of the rule." The absence of that clear and precise certification rendered the order non-final; as it was not final and not within the Rule's exceptions for specific non-final orders, the order was not appealable. The appeal was therefore dismissed. 

This arises sometimes when the parties seek to have the Judge of Compensation Claims "bifurcate" the issues in a case. The suggestion is sometimes that if some threshold claim or defense is adjudicated, then the remaining issues may become clearer to the parties. For example, if the question of whether the worker was or was not an "employee" of the particular employer; or, if the employee was in the course and scope of employment when the injury occurred. See Personal Comfort - Testing Compensability (April 2019). 

That the parties may agree to such a bifurcation, or that a judge may order it, may present tacit or implied recognition that the other issues are complex and "will require substantial expense and time." But, the judge's decision to bifurcate is not the same as the judge actually saying in the order: "determination of those benefits will require substantial expense and time." 

The time to know whether an issue is ripe for appellate review is before the appeal is filed, before the record is prepared and paid for, and before the briefs are written about the alleged error in the lower tribunal. It is unfortunate for the time and effort to be invested only to result in "we . . . dismiss this appeal for lack of jurisdiction," see Cadco Builders because the required certification is not included. This certification is an issue for the judge in preparing the trial order. However, it is likewise one for the parties to raise when proceeding to try only the "compensability" of an injury or accident.

If the certification is not included, that does not bar or prevent seeking appellate review. Certainly, review remains a right. The absence of that certification merely delays review until after the parties have returned to another trial for determination of "the exact nature and amount of benefits due." And, because that might "require substantial expense and time," such a second trial might be specifically what the parties sought to avoid when trying the case in the first instance.

Though this limitation on the appeal of non-final orders may confuse and confound periodically, it is reasonably straightforward in many instances. It is one of the subjects that merits attention and consideration when a trial proceeds on less than the full spectrum of issues and benefits that may be ripe, due, and owing at that time.

. 

Sanctions and Speech

There is a litigation privilege in Florida and indeed in many jurisdictions. This is discussed in depth in The Litigation Privilege (October 2017) and Defamation in the News (September 2018). This is a protection from defamation allegations regarding "what occurs in legal proceedings." This privilege "prevents most comments from being actionable defamation." However, I cautioned in the Privilege post that just because "a statement is not defamation does not render it immune from consideration or review." There are examples of imposition of sanctions, Judicial Qualification Commission proceedings, and lawyer rules of professionalism to consider. 

In December 2018, the Florida Third District Court decided Bank of America, N.A. v. Atkin, ___ So. 3d ___; 2018 WL 6595138 (Fla 3rd DCA 2018). It is an extraordinary writ case, with the bank seeking a writ of prohibition. The three most frequent types of extraordinary writs are discussed in If it is Moot, What Does it Matter (August 2018). The situation lends itself to further analysis as it is one of those examples of significant implications despite there being no cognizable defamation. It is also pertinent because the statements in question were not in a trial proceeding. 

An attorney in the Atkin appellate proceeding filed a response to the Bank's petition for writ, which contained statements that the Court concluded were "recklessly impugning and disparaging (to) the judges of this court and two judges of the circuit court." The opinion quotes these in detail, but includes that the Court "ignored . . . precedent," "falsified facts"; and the attorney further questioned the Court's impartiality, and asserted that a circuit judge disregarded the law and constitutional rights in making a ruling in an unrelated, previous case that this appellate Court had thereafter affirmed. 

Later, the attorney filed a petition for review with the Supreme Court of the United States (SCOTUS) in Atkin. In documenting the arguments to be raised there, the attorney included statements "impugning and disparaging the judges of this court (Third District) and the Florida Supreme Court." These included allegations of the Court misrepresenting facts, ignoring precedent, and accusing the Court of "dishonesty," "factually dishonest opinions," partiality, "cover-up," and of "ignoring fraudulent conduct." These are serious allegations to level. The fact that such allegations were made against multiple courts and judges itself is worthy of note. 

The Third District in December issued an order to show cause, and compelled the attorney to address the statements made. The Court noted that: 

"Every lawyer admitted to the Florida Bar has sworn that he or she 'will maintain the respect due to courts of justice and judicial officers' and to 'abstain from all offensive personality.'” 

The Court explained that "insults or disparaging comments by lawyers to courts in court filings cannot be justified as zealous advocacy." Such language risks "alienating the very judges the lawyer was hired to persuade." Therefore insults are "not attempts at persuasion," but instead are "the abandonment of any attempt to persuade."

A lawyer "venting" frustration in pleadings or in a hearing "cannot be justified as a means to identify problems in the legal system." The result is not an improvement in the system, "because insults usually garner resistance to an idea rather than a sympathetic consideration." In other words, when you insult someone it builds walls, not bridges. That particular point applies to parties in litigation making references to one another. Disparaging an injured worker or an employer with insults is unlikely to engender good feelings or encourage productive communication. 

Notably, the Atkin Court reminds us, that “attorneys play an important role in exposing valid problems within the judicial system." It is a responsibility that they do so. However, statements "made with reckless disregard as to their truth or falsity, erode public confidence in the judicial system without assisting to publicize problems that legitimately deserve attention.” Florida Bar v. Ray, 797 So. 2d at 556, 560 (Fla. 2001). Furthermore, as I stress each year when it is time for the survey, "the point is not to belittle, insult, or slur," but to provide positive suggestions on how something might be done better and more effectively. 

The Court also noted that this attorney had "previously three times (had) denied" various motions to disqualify the entire Third District Court. In the Atkin case, the attorney again filed such a motion. Based upon the Court having "denied virtually identical motions," filed by this attorney, it concluded that the filing of that significantly similar motion in this case violated court rules and justified the imposition of sanctions. The Court concluded that:

"In light of these prior denials, the fourth motion to disqualify appears to have been designed to serve no other purpose than to allow (the attorney) to express 'the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief.'” 

Upon those conclusions, the Court ordered the attorney to show cause why sanctions should not be imposed. The response was filed in early January 2019. The response provided an explanation and admitted that the statements quoted by the Court were "unprofessional and unwarranted.” The response also explained steps the attorney had undertaken “to prevent any reoccurrence.” The Court was duly impressed, it appears, with the admission of fault, the acceptance of responsibility, and the efforts to prevent recurrence. The Court noted: "Frankly, if this were an isolated event, we would be inclined to end this matter." 

But, this was not the first such encounter this attorney had with this Court. The Court noted prior similar conduct, stating "We have previously sanctioned (the attorney) for similar unprofessional statements." On April 10, 2019, the Court entered an order of referral, sending the matter to The Florida Bar for investigation. The Court concluded that it was "not in a position to ascertain the veracity of this latest explanation" from the attorney. Furthermore, it was concerned with a perception that the attorney's "latest explanation is inconsistent with the previous one." 

The lessons and reminders in Atkin are numerous. First, things said in litigation may not be "defamation," but they can still cause trouble for the speaker or writer. Second, those statements might be made entirely in an appellate action, in an attempt to change a trial decision or outcome; one might exercise caution in describing feelings about a trial. Third, it is important to be forthright when confronted; accepting responsibility, being proactive in preventing future recurrence, and being contrite are all appropriate and helpful. Finally, the Atkin matter proceeded to The Florida Bar primarily because on two occasions this attorney provided explanations, and the Court at least perceived those were not consistent. Consistency may be a critical issue in any proceeding; one which deserves attention and consideration. 

But really, only one point is necessary to remember: "You catch more flies with honey than with vinegar." If you are striving to convince someone of something (a party in mediation, a judge or witness at trial, an appellate court), attacking, belittling, or insulting is unlikely to accomplish your goal. The height of professionalism is accomplishing your goal, achieving your end, without resorting to such. The best cross-examining lawyers I ever witnessed managed to achieve what they needed (discrediting or even co-opting) with a witness without that person ever realizing what had happened. The best litigators are effective without being mean, name-calling, or bullying.

This is perhaps a good example also of the value of a mentor or peer to whom you might express such irrepressible feelings. Internalizing frustration and anger might be damaging, despite the deposition, hearing, trial, or pleading being an inappropriate place to vent. Every lawyer, judge, adjuster, or otherwise should have someone to whom she or he is comfortable getting feelings and emotions expressed and relieved. 

A Constitutional Challenge Denied

On June 18, 2019, the Florida First District Court rendered Abreu v. Riverland Elementary, ___ So. 3d ____; No. 1D17-2755 (Fla. 1st DCA 2019). The injured worker there took issue with the application of the Expert Medical Advisor (EMA) statute, section 440.13(9)(c), Florida Statutes. The subject of EMA has appeared in this blog before. The Striking of an EMA (May 2019), Not with a Bang, but with a Whimper March 2016).

The Abreu opinion revisits some authority that is familiar, including Delisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018)(Dissing Daubert (January 2019), Daubert's New Day (May 2019)) and Amendments to Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004)(Separation of Powers (February 2017), Conferring Jurisdiction (July 2017)).

This case is significant because the injured worker:

"challenges the statutory (EMA) presumption as violative of separation of powers, equal protection, and due process guarantees of the Florida and federal constitutions."

There is a perception that constitutional challenges to workers' compensation are on the increase. Some see a tendency toward viewing those analyses from an atomistic rather than holistic perspective. The worker in Abrue sought to have the judge's decision set aside on the argument that the statute was affecting an unconstitutional encroachment upon her rights particularly. See A Procedural Progeny Potential of Castellanos (October 2015), Constitutional Law in Florida 2016 (December 2016), Westphal is Over, Questions Remain (June 2016). The Court in Abreu concluded that the EMA statute was not unconstitutional either "as applied" or "facially," and affirmed the trial judge's decision and reliance on the EMA report. 

The injured worker, Ms. Abreu, sought a judicial determination to provide her with shoulder surgery. The initial authorized treating physician performed surgery once. Then the worker sought an alternative orthopedic surgeon, who did not recommend further surgery. The worker then sought care with "an unauthorized orthopedic physician" who did recommend surgery. The employer then authorized yet another orthopedic surgeon who also concluded that further surgery was not recommended. Such a conflict in medical opinions is not uncommon in workers' compensation. 

The matter thus proceeded to litigation, and the injured worker obtained an independent medical examination (IME) regarding the surgery recommendation. The testimony of the unauthorized surgeon with whom she had sought care was not admissible as evidence under the law. This is a critical point, the Florida workers' compensation law affects the admissibility of evidence in various ways, including limiting opinion testimony to authorized treating physicians, expert medical advisors and independent medical examiners. Section 440.13(5)(e):

"(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims." See also Office Depot v. Sweikata, 737 So. 2d 1189 (Fla. 1st DCA 1999). 

The IME agreed surgery was both necessary and related to the work injury. Thus, there was a conflict between the opinions of the authorized physicians and the workers' IME. The judge therefore appointed an Expert Medical Examiner (EMA), who concluded that further surgery was not medically necessary or recommended. The statute affords the opinions of an EMA a presumption of correctness. It may be disregarded only if contradicted by clear and convincing evidence. It is also noteworthy in this case that the EMA physician did not testify in the trial, and only his written report was therefore in evidence. The judge accepted the EMA opinion and denied the worker's claim for authorization of surgery. That led to the appeal. 

The Court noted that the explicit constitutional challenge was "as applied" (unconstitutional as applied to this particular worker's dispute), but that there was a suggestion of a "facial" challenge in the documents filed by the lawyers in the appeal. The Court therefore analyzed both. When a decision concludes that a statute is unconstitutional, which did not occur in Abreu, it may be critical for the Court to be clear and specific as to whether the pronounced infirmity is "as applied" (the statute cannot be applied in this case) or "facial" (the statute cannot be applied in any case). When the conclusion is that a statute is not unconstitutional either facially or as applied, an explanation of subtle distinctions between the two analyses is perhaps less critical. 

It is noteworthy that the injured worker, after the judge ruled against the surgery claim, first sought to have the trial judge re-open the case for further evidence. Having elected to not obtain the EMA physician's testimony (at trial or by deposition), the worker then sought to re-open the evidence after trial. The Court noted that the decision not to depose the EMA was a "tactical decision" and that the judge did not err by declining to reopen the case following the issuance of the trial order. That is a critical point to guide attorneys. Tactical decisions on evidence may or may not be the best decisions, may or may not work out as planned, and often will be permanent choices.

The Court concluded that the EMA statute is constitutional. It noted the statute includes a "presumption of correctness" for the opinion of EMAs, but that presumption is rebuttable. The Court noted that the evidence required to rebut that opinion is significant but noted there are other such statutory presumptions with similarly significant (clear and convincing) proof requirements. 

The Court dismissed an argument that the statutory procedure that defines EMAs is an inappropriate legislative "procedural rule." The worker had argued that only the state Courts can define procedural rules, and asserted that the legislature's adoption of a procedural process violates the legal maxim of "separation of powers." In support, the worker relied upon the allegedly inviolate "supreme court’s authority to impose rules governing evidence." But, in Florida, there is both an evidence code and there are evidence rules. See To D or not to D, that it appears, is the Question (January 2016).  That is a conundrum that frustrates both practitioners and academics. The Court was not persuaded, noting that the Supreme Court has concluded that it cannot proscribe procedure in the Executive Branch. Amendments to the Fla. Rules of Workers’ Comp. Procedure, 891 So. 2d 474 (Fla. 2004).

The worker also argued that the legislature defining process was an unconstitutional incursion (separation of powers) into the "executive branch’s ability to fairly adjudicate workers’ compensation claims." The Claimant argues the EMA presumption is impermissible as the "legislative branch" is "dictating (procedure) to the executive branch and without the approval of the supreme court." As to the legislative delineations interfering with the authority of the Executive Branch, the injured worker essentially argued that because her IME in this case did not overcome the presumption of correctness of the EMA in this case that therefore:

"a single IME cannot produce the evidence necessary to reach the standard of contrary, clear and convincing evidence sufficient enough to successfully challenge an EMA opinion." 

Essentially, the argument seems to be that if the evidence was not enough in this case, then "enough" simply cannot be achieved. The Court concluded that proceedings before the OJCC are "subject to statutory regulation." Indeed, the entire existence of workers' compensation, the OJCC, and the authority of its Judges is entirely the result of legislative creation, definition, and delineation. The Abreu Court noted multiple "examples of the Legislature dictating procedure in workers’ compensation actions." The Court also cited multiple prior decisions upholding the Legislature's authority to dictate evidentiary determinations and other procedures in this administrative process. 

As an aside, the Court noted that the injured worker argued "that workers’ compensation proceedings must follow the rules of evidence." (emphasis added). That is an interesting point. The Courts have, however, concluded that the "evidence code applies to workers' compensation proceedings." In Dissing Daubert (January 2019), there are several citations to cases specifically using "code" (what the legislature passed, not what the Supreme Court has adopted). In U.S. Sugar Corp. v. Henson, 787 So. 2d 3 (Fla. 1st DCA 2000), the Court makes specific reference to both the "Evidence Code, chapter 90, Florida Statutes," and to the applicability of "common law rules of evidence" that were applied in workers' compensation "prior to the adoption of the Evidence Code." Though the Court mentions the argument about evidence rules in Abreu, it is not clear from the decision what authority, if any, the injured worker has cited in support of that inference or allegation that the Court's "rules" apply to these proceedings.  

In addressing concerns of due process, the Court reminded "that an injured employee’s right to receive workers’ compensation benefits qualifies as such a property interest." Thus there must be "procedural safeguards including notice and an opportunity to be heard," which must be "meaningful, full and fair, and not merely colorable or illusive." The Court noted that Ms. Abreu was afforded the opportunity to present the testimony of her IME. She therefore “was not completely denied the right to present evidence.” Therefore, "no violation of due process occurred." In this context, the tactical decision to forgo presenting some available evidence, the cross-examination testimony of the EMA physician, may be relevant. 

The Court also discussed an interesting argument of the injured worker that the EMA statute violates "her equal protection rights guaranteed by Article I of the Florida Constitution and the Fourteenth Amendment . . .." But, the Court concluded that "the EMA statute applies equally to claimants and E/Cs alike." Furthermore, the "Claimant has failed to pinpoint a classification created by the presumption which runs afoul of equal protection." An argument of equal protection is dependent upon the demonstration of a law either through word or impact effecting different results upon different groups or individuals based upon some inappropriate classification of those groups or individuals.

The decision is an interesting read. It helps with the understanding of constitutional analysis and the application of constitutional protections and constraints to statutory authority. In the end, the various challenges were not persuasive, and the Expert Medical Advisor remains a mandatory process in Florida workers' Compensation. Similar decision-making processes, such as California's Independent Medical Review (IMR) have similarly been upheld by the courts. See IMR and Due Process (December 2018).

Transparency for Efficacy

There are challenges with medical costs in America. For some reason, medical inflation has run well in excess of inflation generally. See Medical Charges and Challenges (June 2019) and The Conundrum of Medical Inflation. The simple fact is that medical care costs in this country are growing faster than the economy generally. While the cost of everything is rising, the cost of medical care is rising significantly more rapidly. And, that will affect our ability to spend on a variety of other matters. Why are medical costs so high and rising so consistently?

This hyperinflation is not solely isolated to medicine. There is also evidence of rapid growth in post-secondary education in America. Recently, in Risks for Attorneys (June 2019), a report from the Virginia State Bar Special Committee on Lawyer Well-Being was surveyed. It noted that "in 1985, the average annual tuition in private law schools and public law schools was $7,526 and $2,006." Had those increased commensurate with inflation since then, in 2018 the costs "should have been $17,520 and $4,670." That is, they should have each increased 232% over that 33 years. 

Instead of $17,520, private school tuition in 2018 was $47,754. That is over 634%. That may seem a bargain compared to the $27,160 for public schools, which is over 1,353%. Money magazine blames the increases in costs on government. It asserts that "the government no longer carries its fair share of college costs." An interesting position; it seems easy to simply blame government for our woes. The author of that article urges better record keeping so that students can be better counseled regarding debt. In other words, more information and education for making better consumer decisions. 

After writing Medical Charges and Challenges (June 2019) and Risks for Attorneys (June 2019), two news articles came to my attention. In May, Forbes reported that the federal government may soon "make it easier for patients and employers to comparison shop for healthcare." This is purported to come through an executive order that "would mandate disclosure of prices throughout the healthcare industry." Forbes describes the world of healthcare pricing as less-than-transparent, calling it "murky." 

Forbes lauds two legislative actions signed into law in 2018 which it says started us down a path to greater transparency, and led to this executive order. Forbes claimed that before these statutes, pharmacies were precluded from telling a patient that their prescription medicine would be cheaper if they paid cash than it would be under their health insurance. Presumably, this would be medications whose price is less than a patient's co-pay. Someone was keeping information away from the consumer, the person paying in the economic exchange? 

Forbes also notes that since January 2019, hospitals have been required "to post lists of prices of services and technologies online." Despite the requirement, Forbes concedes that there has as yet been little enforcement of this requirement. Furthermore, the information that is posted is "identified in acronyms, abbreviations, billing codes, and medical terminology that most consumers can't be expected to understand." Thus, there appears some compliance with the letter of the law and an avoidance of the spirit?

Forbes cites Kaiser Health News on the concept of posting pricing information, detailed in a March 8, 2019 article. It asserts that "most hospitals appear to be complying with the rule." But, the information is not prominent on websites. And, the information is difficult for the average consumer to interpret or decipher. The question is whether the transparency is effective or merely present. Posting information is not that helpful if consumers cannot interpret or comprehend it.

The second article that hit my news feed almost simultaneously comes from Foxbusinessc.com, regarding "unexpected medical bills." The theme is that despite having good health insurance, Americans are being surprised with "surprise bills, and often threatened by bankruptcy," despite that coverage and their efforts to comply with their health insurance carrier's rules. The author contends that insurance companies and medical providers are "wrangling," and that their efforts or struggles with each other "often leaves patients holding the bill." See Confusions and Disconnects in Medicine (July 2018). 

Essentially, patients are presenting for care with a provider or at a facility that is "in their network," only to have care or interpretation (testing) performed by someone who is not "in their network." When those services are billed, the insurance company is not covering the out-of-network cost, and the patient is being billed for the "often outrageously high" cost. 

Fox Business contends that this is occurring in about "20% of inpatient emergency department cases." After some portion is paid by the health insurer, the physician or facility then bills the patient for the remainder. The author notes that receipt of such a bill may be stressful, but that there is also the additional "threat of being turned over to a collection agency." 

Nationally, there is a discussion of somehow solving the resulting consumer dilemma. As yet, however, there is no such national or universal solution. But, Fox Business says that "some 20 states have established various forms of consumer protections." The article concludes with the sentiment that "comprehensive solutions" are needed "that address the excessive costs of the broken U.S. healthcare system." 

What do all of these examples have in common? Transparency. And, transparency that is full and clear. Providing information that is in abbreviations or professional codes will not benefit the average consumer. Doctors make referrals to other providers or testing facilities, and consumers need to be able to easily determine whether those recommendations are appropriate, or whether some alternative provider may be equally efficacious and more affordable as an "in-network" alternative. That may be practical today with a phone call to either the health insurer or the referred-to provider.

Such a call might solve the "out-of-network" provider issue, and the surprise medical bill. But, such a call is unlikely to be an option when those services are provided in an urgent care or even emergency situation. When the patient is battered and bloody in the emergency room following a vehicle collision, she or he is not in the state of mind to check the credentials and the financial details of the various providers that render services. Thus, it appears likely that the most vulnerable of patients are least able to be an informed consumer.

When the non-emergent consumer is afforded transparency, she or he may elect to make informed economic decisions about care. Knowing that one facility charges twice as much as another for a particular service might influence a consumer's decision. But, it is likely that those with health care coverage will be concerned only with their own economics. That is, "What is my copay." Generally, the economics of facility selection may only be of interest to a patient who will have a personal financial interest. Otherwise, transparency regarding cost may be of more import to the health insurer in selecting "partners" than to patients making choices.

What information would be of interest to all patients? Perhaps a patient would be interested in transparency regarding how many surgical patients at a facility required readmission within some period following discharge? Perhaps consumers would be interested in how many patients at a particular facility required wound care that was beyond some level deemed to be "normal" or expected? Perhaps the volume of a facility's patients that suffered secondary issues such as infection would be of interest?

In the end, requiring the publication of such data might be helpful to consumers. But, if required would such information be understandable to the consumer? Would it be prominent and accessible, or hidden in the depths of a website? Could it be manipulated like the emergency room "wait times" being advertised on billboards around the country (the minimal times listed allegedly refer to how long you will wait for someone there to speak to you, not how long you will wait to actually receive care).

This all illustrates a struggle with the availability of information and our willingness as consumers to use it. It illustrates that despite our desire to use it, we may lack the knowledge. And, it illustrates that America seems to remain focused on the cost of medical care rather than the quality and effectiveness. Providing clear and transparent information regarding cost may be of little assistance without the information about the effect.

In the end, there is much in medicine about which to complain. There are market forces at work that consumers do not understand, secrecy, and reluctance to change. Will American consumers demand more and better?