Asheville – On July 27, the City of Asheville and Buncombe County filed a lawsuit against HCA Healthcare, Inc., Mission Hospital, and other affiliates. This likely came as a ray of hope for patients and their families who would like to hold the hospital to a higher standard. Long before its acquisition by HCA, Mission already had a reputation for mixing up doctors’ orders and overbilling, among other things. After the merger, the stories got worse. Secretaries were terminated, leaving already overburdened nurses to answer phones and treat patients, and doctors left in droves.
Setting the Scene
Personal observations from multiple hospital visits over the last two years include seeing only one nurse working in a fast-paced section of the emergency room. She was running and having to be reminded by patients of what they needed. At one point, she drew blood in a manner that spurted it onto the furniture, the floor, and the person next to her, who ended up cleaning up the mess. Then, there was the blood that remained on the sidewalk of the emergency department entrance for the entire day and the big red stains in the ambulance parking area, highly visible from patients’ windows.
Other curiosities in the health and hygiene departments included the outside stairwells, which looked like they could use a good coat of paint and sometimes reeked. Particularly memorable was the main stairwell door that always required a significant kick to open. Inside, a centipede was seen in the stairway of the heart tower, leaving one to wonder what it would be like to be paralyzed or in great pain and share the sheets with one of their brothers.
Then, the COVID unit was run with a touch of do-it-yourself sanitation responsibilities, like picking up medical waste and changing the overflowing trash bags. Days passed without seeing a custodian. For ten days, while a patient was seen by multiple doctors for comorbidities, only three of them bothered to wear the personal protective equipment required per the note posted on the door. The patient never had his sheets changed and only had a sponge bath on the last day of his visit. In fact, for all the extended stays, no proper showers or baths were ever provided. It led one to wonder if hospital staff no longer subscribed to the germ theory of disease.
Then, there were staffing shortages. Nurse call buttons would go unanswered as a single nurse would be covering an entire wing. One holiday, a nurse brought down from another floor to compensate for absenteeism said the charge nurse on her floor had had to offer tacos for anybody who came to work. In the entire heart tower, there was only one physical therapist.
Fortunately for this patient, he was under the care of a brilliant and dedicated concierge, who worked around the clock, convened teams of specialists, preempted administrations of drugs that would have been harmful to the patient, and postponed multiple attempted premature discharges. One time, the patient was going to be sent home flat on his back with COVID; another time, he was going to be sent home without rehab, before anybody knew if he would even be able to stand. On another occasion, the concierge just happened to call the room as hospital staff was about to commence a procedure that had been canceled in lieu of more appropriate treatment. This left one wondering about the dispensation of truly sick patients, without advocates, under the care of hospitalists, many of whom entered this patient’s room in search of other patients.
For all its faults, though, it’s hard not to love Mission. It’s like El Az, that Mexican restaurant all the Michigan State students loved because it was such a dive. But there are more important reasons. The big story should be that, after many close calls and many amazing interventions at Mission, the patient who experienced all of the above and more has now stabilized and is on the road to recovery. In healthcare, one error by a physician is going to be far more glaring than thousands of his successes, and there will never be enough praise for bright, kind, and hard-working doctors, nurses, and other staff who go to help and heal with life-and-death decisions every day. The question at hand, however, is: Will the city/county litigation increase staffing levels and make other interventions before the talented heroes who continue to work at Mission also burn out?
The Answer Is No
While suing private enterprises for damages to the government is a far cry from any original intent, the litigation was still disappointing. It called to mind a variation of the quote now believed to be misattributed to bank robber Willie Sutton, “Why do people slip on the floor at Walmart? Because that’s where the money is.” Instead of calling for increased staffing, better cleanliness, or less paperwork so professionals can spend more time on the healing arts, the city and county wanted money. A possible motive might be that COVID relief funding, which came in handy in balancing recent budgets, is drying up. Another idea that makes more sense than expecting the lawsuit to improve patient outcomes would be that it’s nothing but a machination to tie the hospital up in litigation long enough to disqualify it from being awarded the certificate of need for a new 67-bed hospital approved to serve Asheville and Buncombe County. This issue remains a hot news item, with Attorney General Josh Stein weighing in just a couple days before the litigation was filed. The gist of Stein’s statement was that he would rather have the certificate awarded to one of the other applicants, AdventHealth or Novant Health.
The first 35 pages of the litigation speak mostly of hypotheticals and potentials. In painfully repetitive language, it talks about the economics of monopolies. Without getting into specifics, it accuses HCA, and Mission before it, of perpetrating “the Scheme,” which is broken down into four ploys.
The first is “all-or-nothing” tying arrangements. Auto manufacturers use the same ploy. They can make more money by requiring buyers to select from a few “bundles” of accessories than they would by letting them make selections cafeteria-style. HCA-Mission, obviously, is the only hospital in its service areas to offer certain procedures. But, instead of being satisfied with the income that would accrue from offering these services and others competitively, HCA-Mission is accused of wording its contracts with insurance companies so as to require people wanting coverage for its unique services to go to HCA-Mission for any other service.
The second is the anti-steering and anti-tiering provisions. The litigation explains that in a market not dominated by a monopoly, insurance companies can direct plan holders to higher-quality, lower-cost providers. One familiar strategy is to cover costs up to a threshold and leave patients to pick up the balance. Tiering is merely a ranking of practices in terms of a quality-to-price ratio. The litigation alleges that HCA-Mission worded its contracts in such a way as to forbid steering and tiering.
The third is “gag” clauses. In just one example of how this document is not as grammatically tight as typical legal documents, the litigation states that gag clauses “inhibit the ability of employer self-funded health plans to know the prices they pay for their employees’ healthcare…” The fourth ploy is simply a catchall for “other anticompetitive conduct relating to the negotiation of pricing.”
On one hand, the accusations sounded too capitalist to be coming from the same dais as the city council’s bimonthly calls for more radical forms of socialism and welfare statism. This document stated that markets and competition were healthy, and that prices were critical in signaling market data. On the other hand, the economic analysis didn’t go far enough. It glossed over the statutory and regulatory context that fostered HCA-Mission’s monopoly status, not mentioning that, outside of a few natural monopolies, monopolies do not grow without government favors. In other words, more ink might have been spilled elucidating why the city and county are going to invoke the Sherman Antitrust Act instead of lobbying the state to repeal laws and regulations that foster monopolies like HCA-Mission. For example, it was the legislature that repealed Mission’s certificate of public advantage in 2016, and it’s the legislature that keeps the cost of lateral entry into the healthcare market high with certificates of need.
The accusations get a little thicker in later pages, although the document never goes into any detail; the reader is left with a sense of footnote deprivation. One example of HCA-Mission actually acting like a monopoly was when, in 2017, HCA-Mission and Blue Cross Blue Shield North Carolina (BCBS) ran into a stalemate in negotiations. The litigation says this was because HCA had been asking the insurer to substantially increase prices and cover visits to any HCA-Mission hospital. When BCBS didn’t capitulate, HCA pulled itself out of the Blue Cross Blue Shield network for two months, causing turmoil for anybody sick enough to try to use their insurance then.
Details are not provided on HCA-Mission’s steering and tiering. Instead, the litigation states as evidence, “Investigative reporting has shown that HCA has a history of using anti-steering, anti-tiering, or similar restrictive contractual language in their contracts with health plans in other states and regions.” As evidence of it happening locally, the litigation cites numerous closings of outpatient practices and decisions by practices not to operate in the territory serviced by Mission’s main campus. In the absence of public access to private contracts, assessing detrimental outcomes would amount to tallying opportunity costs.
On gag orders, the litigation says Mission has not disclosed its pricing structures as federal law requires. Searching public databases, however, the litigants were able to find some astonishing numbers that they claimed to be representative. For starters, Mission’s main campus charged, on average, 305% more than Medicare for general acute care, compared to a state average, which seems to include Mission’s data, of 211%. Mission’s pricing for outpatient services was only 3.6% higher than the statewide average.
The costs for specific services presented by the plaintiffs for HCA-Mission and the entire state, respectively, are: caesarean sections $10,076: $4,373; and shoulder arthroscopy $2,419: $897. Price increases for caesarean sections are 17.3%: 14.4%; cardiovascular stress tests are 29%: (-10%); shoulder arthroscopy is 75%: 19%; and lipid panels are 31%: (-19%) between 2017 and 2020. After that, the litigation discusses how price increases extend to the entire region served by HCA-Mission.
The next section mentions accusations of HCA breaking terms of its purchase agreement with Mission, resulting in headlines about 79 doctors leaving the system; disgruntled and exhausted nurses unionizing; shifts in services and the volumes provided thereof; facility closures; problems maintaining facility cleanliness; prioritizing profits over patient care; and reductions in quality, budgets, and staffing. Other points of concern concern falling ratings, statements by local political luminaries, and the involvement of the attorney general in related matters.
The document indicates the city and county are not suing out of concern for public health, which has historically been a function of county government. If they were, they might think twice about the outcomes of going for the jugular of a healthcare provider already so strapped it can’t find it within its profit margins to provide adequate care – and how any awarded dollars would provide better patient care in the hands of local government than in a hospital. Rather, as self-insured entities, the city and county wish to be made whole for excessive charges passed on to them through employees seeking services. Realizing they are not unique, the litigation was written to accommodate other organizations wishing to join them in class action. The class is defined as any insurer or provider of health plans that overpaid HCA-Mission for services from June 3, 2018 forward.
The city and county have lawyered-up with experts from three nonlocal firms, and they’re seeking compensation in the amount of three times the value of damages assessed, plus court costs, “and/or injunctive, declaratory, or equitable relief.” In other words, if the courts won’t order a cash payment to the city and county, it is hoped they would at least issue a cease-and-desist order preventing future egregious price gouging by HCA-Mission, clarify the rights of both parties for a better-articulated second round of litigation, or compensate the city and county in some non-pecuniary way.
HCA-Mission spokesperson Nancy Lindell was prompt to reply to an inquiry from the Tribune with the same statement provided to other media outlets. Unsurprisingly, it can be summarized as, “If you ask a stupid question, you get a stupid answer.” The question went something like, “Seeing you’ve been named a defendant in litigation, what can you state publicly without risking incriminating yourself or hinting at your legal strategy?” The answer consisted of adjective-laden pabulum, praising the overall successes of the hospital while, of course, steering clear of any confirmation or denial of monopolistic behaviors.