Lessons to be learned from a newsworthy medical malpractice case – National Consumers League

By NCL Executive Director Sally Greenberg

Medical malpractice and abuse of the government payment systems tend to go hand in hand, but the medical profession rarely blows the whistle on its own members. Vishal James Makker, a Portland, Oregon doctor, has finally lost his operating privileges after an investigation – launched by the Wall Street Journal – showed that he performed multiple spinal fusion surgeries on the same patients and billed Medicare for huge reimbursement charges. Makker is also facing multiple malpractice lawsuits, with one filed last week, for a total of 9 such suits in seven years. What’s interesting here is that the medical profession does such a poor job policing itself; several years ago the Oregon Board of Medicine, clearly perceiving that Dr. Makker’s surgeries were subpar, forced the doctor to undergo remedial training for unnecessary surgeries and billing for procedures he didn’t perform. But they let him continue practicing.

The result is that Dr. Makker continued to harm patients with unnecessary and harmful surgeries while bilking the government to cover the cost. From January 2009 to May 2010, Dr. Makker was performing two to three surgeries a week—the highest rate of spinal fusion surgeries among 3,407 surgeons who performed the procedure on 20 or more Medicare patients in 2008 and 2009. Dr. Makker’s rate was ten times the national average. He operated on some of his patients as many as seven times.

Further adding to the intrigue is the fact that Makker had a sweetheart deal with a spinal implant maker, which gives financial incentives to doctors who use its products in their surgeries. The Wall Street Journal says that the surgeon received $519,674 from the spinal implant manufacturer in a year and a half’s time.

There are a couple of lessons to be learned from this scenario. First, the American Medical Association fights medical malpractice lawsuits with a vengeance but doctors do a lousy job of policing their own. A tiny percentage of doctors commit the vast majority of malpractice and physicians know who are the bad apples are, but, as with Dr. Makker, they don’t police them effectively. This doctor is under scrutiny largely because of a newspaper article. The second lesson to take from the Makker case is that it’s unhealthy to have doctors get financial rewards to do more surgeries with a manufacturer’s devices. It puts all the wrong incentives in place.

Lastly, as Congress debates deep cuts in Medicare, policing doctors who abuse the system by overbilling for unnecessary procedures would save many millions. That’s a far better approach than punishing patients who rely on Medicare for their health care.