Dr. James Ogsbury is the author of the new book, “About Not Losing” which is a memoir of a controversial malpractice trial in the late 1980s and early 1990s in Denver, Colorado. As a neurosurgeon, Dr. Ogsbury lived an exciting life of which the book is only a part. In this series of articles from Dr. Ogsbury, we learn more about his life before and after the trial that is written about in his new book. 

You can buy “About Not Losing” here. The book comes in hardback, paperback, and e-book! 

AFTER THE END OF “ABOUT NOT LOSING”

After the trial ended on May 14, 1990, I tried to return to the practice of medicine but found it nearly impossible to do so. I simply could not get the events of the trial out of my mind and could only practice the most basic of medicine. In addition, during the next three years, Peter, Fran, and I embarked on completing the manuscript. This was an arduous job, given that we had agreed that we would not look at the trial record until each of us had completed our parts of the manuscript from our notes. 

Finally, in January 1993, we completed our parts and assembled the finished product. The manuscript was taken to a large New York publishing company by a friend in the literary business. We were not surprised that the publisher turned down the request, but we were surprised at the reason that was given. Our friend reported that the publisher’s representative liked the writing, which is not surprising given that Peter, Fran, and even Mr. H were eloquent, and I guess I was a pretty good kibitzer at my own trial. She reported he particularly liked the strong Native American overtones throughout the story. The problem was that the abrupt ending of the trial with the settlement meant an abrupt ending to the manuscript, not acceptable in literary terms. Our representative reported that she was told that, if we changed the ending, the manuscript would be published – she said she confirmed that opinion. But, the manuscript involves an experiential story, and a new ending would be fiction. So, to our disappointment, the manuscript project came to an end.

Over the next years, I attempted to return to some semblance of the practice of medicine. Unfortunately, the excitement and passion for neurosurgery simply did not return. My focus seemed to be to avoid situations where I might be taking the risk of a similar occurrence. In addition, the words from a colleague continue to resonate. He said, “We treat plaintiffs, not patients, and anyone who thinks otherwise is naïve”. It was very difficult to face a new patient with that in the back of my mind. I continued to perform procedures that I considered routine (obviously not so for the patient), and I performed them well, as I was still well-trained. During this time, I developed the reputation of treating patients with back problems with little or no hospital stay but with excellent satisfaction, which were attractive to the work compensation system. I quickly developed a large population of work compensation patients, which was good for the hospital, as I was bringing patients from all over the city to the hospital.

WORKMEN’S COMPENSATION AND MEDICINE

As I was caring for these patients, along with regularly insured patients, I noticed a striking difference between the care rendered by the work compensation system and the regular healthcare system. As I was already interested in healthcare reform, I began to carefully investigate these differences. I found there were many differences, but the main one seemed to be the cost basis of each of the two systems. For some years, I worked with the Coors Brewery Medical Center and experienced a striking finding there. In the past, the primary medical director treated work compensation in the old manner, with prolonged off-work status while recovering at home. A new medical director arrived and, for whatever reason, did not like the fact that the patients were at home and not working for such long durations. He then put forth a dictum that, if at all possible, a patient injured on the job would return to work on the day following the injury, that transportation would be provided if necessary, and then while at the company, the patient would undergo aggressive treatment, and would perform work tasks commensurate with the patient’s disability. Interestingly, when the Coors representatives looked at the data after two years with the new system, they found that the number of operations and, as a result, the cost of spine care had been cut in half. Given that, at that time, there was no approval process for surgery; if a known surgeon asked for a procedure, that procedure was approved. Thus, the only reason for the decreased number of procedures and cost was felt to be the early aggressive care. 

During that time, I also followed other work compensation patients, and realized that the work compensation system made decisions based on indemnity costs, which, of course, are a reverse measure of outcome. I found that this practice stemmed back to 1994 when the work compensation system was semi-privatized. The then director of Pinnacol Assurance, the largest competition company, looked at the financial aspects of the picture, money in versus money out, and realized that there was a significant amount of money going out that had nothing to do with healthcare costs. He inquired about those costs and learned that the costs were largely indemnity costs. He then inquired what could be done about the indemnity costs and was told that an investment in early healthcare would lower indemnity costs, which he thereafter supported. From that time forward, Pinnacol Assurance, in essence, utilized an outcome-based system, basing all of their decisions on indemnity costs. This, of course, is in direct contrast to the regular healthcare system, which is cost-based. Further, with my increasing interest in healthcare reform and progressively feeling less inclined to perform any surgery after breaking my hip in a bicycle accident on a New York City bike ride, I decided not to return to surgery after I recovered and retired from the surgical part of my practice. I continued to be involved with neurosurgery as a consultant for some years, however.

LOW BACK PAIN

Also, at about that time, while I was the surgical director of the Lutheran Medical Center in Wheat Ridge, Colorado, I noted that the primary care physicians were referring their acute low back pain patients to specialists immediately after the initial patient visit, raising my concern that such a practice would lead to early surgery, which might not be necessary. I chided the primary care physicians for this, but they whined that work compensation patients were difficult to manage, that they presented a high malpractice risk, and that the physicians were not adequately paid to manage these patients. I asked them if they wished me to look into developing a program that would address these issues, and, of course, they eagerly agreed. At that point, then, I asked 10 excellent primary care physicians and 10 equally excellent occupational medicine physicians to address how they would handle 100 patients with acute back pain, allowing them to choose the modalities that they wished to utilize. With their agreement, I developed decision trees based on the usual course of the treatment of patients with acute low back pain. Interestingly, after three months of the physicians addressing how their patients might respond to the decision tree, the result showed that the care of the work compensation managed patients resulted in the same or better results, with one-half the cost, and, in one instance, one third the cost of those managed within the regular healthcare system. 

At that point, I had become friends with Dr. Byron Jones, a physiatrist with an interest in the computer management of patients with back problems. He agreed that he might be able to develop a computer model that would mimic the decision tree. I also knew Dr. Jacqueline Stiff, the local Medical Director of United Healthcare. I asked her if we could present this information to her, and, on one evening at the hospital, Byron and I demonstrated our information. We all understood that this was not exact patient data, but rather the estimate of how patients would respond to the variety of treatments as the physicians arranged them. Not knowing much about the work compensation system, she was surprised by our information but also saw the potential for the development of a program. She obviously talked to her colleagues at United and, at a later date, asked if we would be willing to present the information to Dr. David Bradford, the chairman of the University of San Francisco spine program and the head of the United Healthcare Scientific Advisory Committee. Obviously, we agreed, and the meeting with Dr. Bradford proved memorable, to say the least. A Denver colleague who had trained under Dr. Bradford reported that he was not the friendliest physician imaginable, an opinion certainly consistent with our experience. Dr. Jones and I remember our discussion with Dr. Bradford to this day. We went to the United Healthcare building and were taken to an impressive conference room. We found about six United Healthcare representatives sitting on one side of a long table; Dr. Jones then sat on the other side of the table, Dr. Bradford sat at the far end of the table, and I sat at the near end. We developed a formal presentation, which I presented to Dr. Bradford. For nearly an hour, he never once smiled or raised his eyes, but then, abruptly in the middle of a sentence, he simply said, “We should do it.” After that, we discussed the situation with Dr. Stiff, and she agreed that we should proceed in developing a program. For the next three years we developed the computer management program, utilizing the decision tree’s computer manifestation. To our team, we added Dr. Elizabeth Kraft, a primary care physician who worked primarily at Blue Cross Blue Shield. Dr. Kraft had extensive experience dealing with the insurance industry. I also added Marion Wells, a Duke-trained physician’s assistant whom I met at Pinnacol Assurance. Aas we discussed a patient there, I immediately realized that she needed to be part of our team, and she agreed to do.

FIXING THE INSURANCE INDUSTRY

The team encountered many problems. Many glitches came up regarding the computer programs, but they were solved. Orthopedic surgeons around the state were unhappy that we were attempting to direct the treatment of spine patients – even though they were our hospital spine patients. Finally, the program was presented to the hospital where the treatment would take place, and the hospital representative reported that it was his opinion that this was a research project for which we needed NIH approval. Therefore, the three physician directors took the three-month NIH research certification program, and each of us, to this day, has our blue paper, certifying our capability. Interestingly, sometime later, another representative from Lutheran decided that this was a quality assurance project and that we did not need the research certification. Throughout the development of the program, I kept the primary care group informed about our progress. They were initially appropriately concerned that the program might take an extensive amount of time out of their office practices. However, we had performed trial training with other offices and found that the initial evaluation took about four minutes extra over normal patient care for data insertion, and follow-up evaluations took about one minute extra. Upon hearing that, the Lutheran primary care group agreed to proceed. Soon thereafter, one worrisome event occurred. Dr. Stiff arranged for Dr. Stan Herring, the physiatrist director of the Washington University spine program and the physician for the Seattle Supersonics professional football team, to give a four-hour talk about the multiple factors involved in spine care. I became concerned when the director of the primary care group suggested that the primary care physicians should be paid for their time. I pointed out that all the physicians had extensive requirements for continuous medical education and that they frequently went to other areas of the country and paid significant amounts to satisfy their requirements. In this circumstance, they were to obtain significant CME credits in a hotel in their neighborhood, with meals being provided. They ultimately agreed to go. Dr. Herring’s discussion was glorious, infused with information and humor and extensive appropriate data. 

Finally, with all that background, we formally presented the information to the more than 50 Lutheran Hospital primary care physicians. We confirmed that the program included a $500 per patient management fee in addition to their usual remuneration, and they agreed to participate. 

With the support of the primary care group, the specialists, and the hospital, the program was rolled out in January 2011 to great national business acclaim. The business community understood that true computer management would standardize the care of these patients and that standardized data could then be trusted to indicate the results of various treatments. The program ran from January 2011 to April 2011, but during the latter months, we found that many of the primary care physicians were not entering their data. We offered to perform the data input for them and even offered to have physiatrists involved in the program manage their patients for them. However, most of the primary care physicians simply proved to be reluctant to become involved in a computer-based program and, at a meeting, informed us that they would be withdrawing from the program. 

Therefore, obviously, I had to inform Dr. Stiff that, despite all her efforts, the program had to be canceled. I remain embarrassed to this day that Dr. Stiff trusted that we could deliver a program that would be important to her in that, if successful, the model could be transported to the care of patients with other problems. Moreover, I was furious that I trusted the promise by my primary care colleagues that they would participate in the program for at least one year, but then, they decided not to do so.

INSIDE THE BEAST OF INSURANCE

During this time and particularly sometime later, Dr. Kraft suggested that I might be interested in joining Anthem Blue Cross Blue Shield as a physician reviewer. Given that I was no longer operating and I was not particularly interested in extensive neurosurgical consulting, I agreed to do so. I learned the review program for Anthem Blue Cross. I soon realized that their program involved primary care physicians performing the initial reviews of procedure requests, and if spine care requests were denied, then specialists would be involved in further reviews. I discussed the situation with a local physician vice president, who agreed that it made much more sense for specialist reviewers to perform the initial reviews. It was suggested that I then join a Midwest colleague to develop a program to manage spine-related surgical requests in the Ohio region, and the program we developed proved sufficiently successful that it became the standard throughout the company. It was enjoyable to utilize this program because the spine reviews were based on guide a set of guidelines called the Milliman Care Guidelines, developed some years before. What made these guidelines useful was that they guidelines had been reviewed by the representatives of all of the spine-relevant societies, neurosurgical, orthopedic, scoliosis, and multiple others, and those representatives had strongly approved the guidelines. 

Therefore, our reviews were not based on our personal styles but rather on the appropriate interpretation of well-accepted guidelines. Once the physicians in Ohio learned that this was to be the process, they supported it. They learned to trust our decisions, and when a decision involved declining a request, they frequently asked for a discussion with the reviewer so that the reasoning could be assessed. With that, the reviewers became quite well known to the spine community in a relatively favorable way and, not too infrequently, a surgeon whose case I had denied, based on the guidelines, would ask me about another case (saying that it seemed that I had been around the block for some time), and I then could carry out a generic discussion with that spine surgeon about his other case. It really was a very pleasant but thorough way of managing spine care, and the few surgeons whose style was a bit more aggressive than seemed appropriate were managed using the guidelines. 

However, after performing more than 26,000 reviews, someone in the company decided that I should be transferred to the appeals team. The appeals process is a more stringent process, one which many practicing physicians do not wish to engage. I wonder if part of the problem came from the fact that the appeals division was directly under the management of the most senior physician in the company, who was under the direct management of executives above her. In this system, there clearly seemed to be pressure to deny requests whenever possible, unlike what had been the case with the routine reviews where the standard of care, as defined by Milliman, was the rule. After working in the system for a while, I realized that my style was not playing well in that system. I was clearly not one who tended to favor upholding denials when the data indicated otherwise. In addition, because I was charged with reviewing hospital-based cases, generally for requests for additional days in the hospital, I was forced to read an entire chart to ferret out the surgeon’s notes. At times, there were up to 1300 pages, and the surgeon’s notes were not always contiguous, meaning that I had to read the entire chart. 

When I was told that the time of my reviews was greater than the average of the other reviewers, I pointed out that I was the only one doing this type of complex review. Obviously, my answer was not appreciated, and sometime soon thereafter I found that my position as a contract physician had been withdrawn. The removal of the contracts of the “contractors” was reasonable and indeed necessary, as the government was applying pressure on companies to completely stop using contract personnel physicians for tax reasons. 

However, not surprisingly, I was not reappointed to an employee status. I was disappointed, not because I needed the job, but because I took pride that I could be a patient advocate in that company. With all of this, and nearing my time to retire, in 2010 I retired from active practice.