Combination in restraint of trade: An illegal compact between two or more persons to unjustly restrict competition and monopolize commerce in goods or services by controlling their production, distribution, and price or through other unlawful means. Such combinations are prohibited by the provisions of the Sherman Anti-Trust Act and other antitrust acts.
I have written on these blog pages that the IT industry has staged an invasion of the healthcare professions.
One of these invasions has to do with the ethics of the IT industry, ethics at odds with medical ethics and the Hippocratic oath. The HIT industry is characterized by an overarching interest in profits and cavalier attitudes towards HIT-related adverse clinical events through sales of inferior products (domestically as well as abroad) based on archaic technologies, exaggerated claims of benefits, ultra-aggressive marketing, and legalized suppression of adverse events information about unproven, non-secure, largely experimental health IT medical devices.
I find it truly remarkable, more than 20 years into consumer availability of the GUI, that in the 2009 publication "Principles and Proposed Methods of EMR Usability Evaluation and Rating" (PDF) the major HIT trade group HIMSS admits that:
Electronic medical record (EMR) adoption rates have been slower than expected in the United States, especially in comparison to other industry sectors and other developed countries. A key reason, aside from initial costs and lost productivity during EMR implementation, is lack of efficiency and usability of EMRs currently available.
Unbelievable. What has this industry been doing for the past few decades?
Worse, the health IT industry is entirely unregulated and has pushed to maintain that status quo. Now the HIT industry may be clamoring for industry regulation as a means of restraint of trade as described below.
The public is beginning to wake up to the vendor and HIT trade group puffery, at least with regard to security hazards and exaggeration of the benefits:
Electronic health records prompt security, costs concerns
Richmond Times-Dispatch
By Tammie Smith
Published: April 5, 2010The thought of one's personal medical information being just a computer click away does not sit well with many consumers. In a March 2009 survey of 1,238 randomly selected adults by the Kaiser Family Foundation, the Harvard School of Public Health and National Public Radio, 59 percent of respondents didn't think confidentiality of electronic medical records could be assured ... 76 percent thought it was likely that an unauthorized person would get access to medical records online.
... While there are anecdotal stories of electronic health records improving outcomes, the data are mixed on whether they save money. A Harvard Medical School study published in the American Journal of Medicine last year linked 2003-2007 cost and quality data for 4,000 hospitals, including the 100 "most wired" hospitals. The researchers concluded that the electronic health records systems in place so far "might modestly improve" quality quality but produced no savings on administrative or overall costs.
'Anecdotal'? 'might'? 'modestly'? Is that worth spending hundreds of billions of dollars on, at a time when the healthcare system is struggling to make ends meet, I ask?
Unfortunately, the public and healthcare regulators need a further awakening about the Healthare IT industry's ethics.
A profoundly disappointing lesson in the ethics of the healthcare IT sector (and the B-schools as well) can be gleaned from the following, a paper written by a Cerner employee and two health industry colleagues for a Duke Fuqua School of Business course.
The course is "Health Economics & Strategy (HLTHMGMT 326), Distance Executive MBA" (syllabus here in PDF). The course's stated purpose:
We will apply the tools of economics and strategy to address the challenges and opportunities of today's health care managers and policy makers. We will begin most classes with analysis of recent news, then discuss a case, and conclude with additional insight on the application of economics and strategy.
The paper is entitled -
"A STRATEGY FOR CERNER CORPORATION TO ADDRESS THE HIT STIMULUS PLAN" (PDF).
*** April 18 NOTE: the paper apparently has been scrubbed and is no longer available from the above link as it was on April 16. A copy is here (PDF).
It is actually highlighted at Duke professor David Ridley's page "Duke University Fuqua School of Business: Past Papers."
*** April 18 NOTE: the "Past Papers" page has also seemingly been scrubbed. This is how it looked two days ago:
(click to enlarge)
This appears to be a Final Paper for an online MBA program course for executives. These are therefore not just students in the academic sense; as in my own healthcare informatics courses, I've had 'students' who concurrently were executives and managers in healthcare companies and organizations.
All three authors are listed at business networking site LinkedIn.com:
- Dan Aycock - appears as Business Strategist at Cerner
- Aparna Prasad - MBA Candidate at The Fuqua School of Business, Duke University
- Barri Stiber - Administrative Fellow at Legacy Health - formerly Senior Analyst at The Advisory Board Company
The paper is emblazoned with the Cerner corporate logo on its cover page and could be mistaken for an official document:
Paper's cover page. Click to enlargeFrom the paper, an example of HIT corporate ethics (and business school ethics as well):
Electronic health records (EHRs) have the potential to improve the healthcare system through several means including reduced medical errors, better coordination of care, and reduced costs. However, adoption of EHR systems in the U.S. has been slow; only 1.5% of acute care hospitals have comprehensive EHR systems.
While the Bush administration made efforts to spur adoption of these systems, the Obama administration’s American Recovery and Reinvestment Act of 2009 (ARRA) has pushed EHR adoption to the fore with over $20 billion dollars in incentives. With such a large infusion into a relatively small market the effects of the stimulus package have enormous strategic implications for EHR vendors.
This paper seeks to clarify these implications, understand the strengths and weaknesses of various players in the industry and recommend a strategy for Cerner Corporation to maximize its profit from the stimulus package and thereby secure a dominant position in the HIT industry.
... We recommend that Cerner collaborate with other incumbent vendors to establish high regulatory standards, effectively creating a barrier to new firm entry. Other strategic recommendations to capture market share, facilitate EHR adoption, and improve Cerner’s operational readiness are detailed and framed within an implementation plan.
I am going to highlight one key sentence for emphasis:
We - recommend - Cerner - collaborate - with - other - incumbent - vendors - to - establish - high - regulatory - standards, effectively - creating - a - barrier - to - new - firm - entry.
Did I read that correctly?
The paper goes on to explain:
... With the introduction of stimulus funding, this industry is ripe for disruptive innovation, which could significantly change the competitive landscape. Examining Christensen’s work on disruptive innovation outlined in Figure 6, the primary factor that will influence the entry of new HIT vendors is regulation.
Therefore, the technology standards and definitions of “meaningful use” which are under development have the potential to raise or reduce barriers to entry, limiting or enhancing the ability for disruptive innovations to enter at a lower performance point. When asked about which competitors the organization is most concerned about, a Siemens Executive indicated “it is these new guys who could come in and undercut prices with substandard products.”
["New guys" ="substandard"? This from a company that apparently fired an informatics physician for raising concerns that a substandard ICU system was going to kill patients - ed.]
Therefore, incumbent firms, like Cerner, have strong incentives to influence regulation in their favor, keeping barriers to entry high.
[Influence in their favor, not in the favor of patients, to maintain the industry oligarchy? - ed]
In other words, to stifle disruptive innovation and prevent newcomers from entry into the HIT business, large HIT vendors should influence regulation towards high standards impossible for newcomers to meet.
NOT that they should influence regulation for the sake of patient safety!
This student is apparently a Cerner strategist seeking an MBA. His colleague Barri Stiber was a Senior Analyst at The Advisory Board Company, a company that serves "nearly 3,000 progressive organizations worldwide—health care, health benefits, and educational organizations alike—providing innovative solutions to their most pressing challenges such that they can “hardwire” best-practice performance."
This paper raises a number of questions:
- Does this paper reflect a strategy that would amount to illegal restraint of trade and/or fall under the federal RICO act, through knowingly and willfully advancing a lobbying strategy to strangle fair competition?
- Were any of these authors on Cerner's payroll when this was written?
- Are Mr. Aycock or other authors giving such advice to Cerner management presently?
- Did or does Cerner use this paper or derivatives thereof internally?
- Does this paper reflect on the business ethics of Cerner or other large HIT vendors? Will they openly condemn its ideas as both wrong minded and monopolistic, using their influence to create a market adverse to smaller competitors - not to mention the paper's seeming lack of concern for what really matters - the "customer" (patients)?
- Did or does this paper reflect a more widespread healthcare IT large player collusion on restraint of trade?
- Is this how the Advisory Board company conducts its business in advising healthcare organizations?
- What type of professor would exalt a paper via posting it as an example for other students to emulate, a paper whose basic premise is unethical, or at the very least on the precipice of unethicality?
- Does this professor teach such ethics?
- Why was this paper not returned to its authors with a big, red "F" on it? That's what I would have done.
- What other papers are accepted by this professor that demonstrate similar business "strategies" in other sectors?
Finally, and perhaps most importantly:
- Does this paper reflect, or did it influence, current Cerner or other large HIT vendor business strategy?
From that article:
I was puzzled by that turnaround.
.... Yet some inside the industry favor stepped-up scrutiny. One major vendor, Cerner Corporation, which has voluntarily reported safety incidents to the FDA in recent years, signaled its support for a rule that would make those reports mandatory. Cerner has reported potential safety concerns because it is the “right thing to do,” a company official said.
Perhaps now I know from where it arose.
It certainly is the "right thing to do." It's the right thing to do to enhance profits and enforce restriction of market entry by "disruptively innovative" newcomers.
Those newcomers might actually hold the answers to improving healthcare IT and reducing costs through fair, free market competition, saving lives and money the healthcare system dearly needs. (For example, see my post "Hospitals Under the Knife: Sacrificing Hospital Jobs for the Extravagance of Healthcare IT".)
-- SS
Addendum Apr. 16 -
A commenter speculates that:
... When I did my MBA, back in the day, we were one of the first programs to have a working business background as a requirement for admission. From that base I would make the following guesses:
- The people were not only on the company payroll, but also were having their tuition paid for by the company.
- This document was widely circulated within the company,
- The document was highlighted as a means for the university to curry favor with the company thus increasing recruits or for financial gain.
... The modern remote MBA program is in many instances simply a way to check a box for employees on the fast track to senior management. Often papers are written with the support of the company and access to department heads who contribute to material turned in.
From my experience this is not some theoretical exercise, but a document that, even retiled, will be used internally to drive policy.
While that is speculation, it is certainly plausible; nothing would surprise me in the health IT industry.
Addendum Apr. 19 -
A former HIMSS staffer related to me that I am likely blacklisted from the HIT vendor industry as a result of my writings on health IT on this site and at my academic site dating to 1999, via verbal exchanges and even in writing among HIT organizations. It could explain why my CV's been uniformly ignored by that industry since the early 2000's.
If so, so be it. Who else might be on that blacklist, I wonder?
Also, didn't Richard Nixon get into a bit of trouble for maintaining such a list after it was discovered?
-- SS
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