What would it look like?

Kristy asked me a question I couldn’t answer: How did she receive a risky spine implant two weeks after a class-action lawsuit was settled against the manufacturer of that device?
After two days of thought I replied: What would it look like to ensure that doesn’t happen to anyone else?
This is the result.
Background
This is a work in progress. It will be meandering, run-on, and possibly confusing. It’s not representative of my writing; other blogs are. You’ve been warned.
Kristy received a spinal disc replacement, intended to maintain motion of her spine, compared to other technologies that permanently fuse the spine. Her results were catastrophic, leading to a lifetime of poor health and chronic pain. Since then she’s been a public speaker and advocate for patient awareness.
A motion-preserving spine implant replaces part of your spine that was damaged in an accident or degenerated with age or disease.

There are many designs, but any design is only a part of the success or failure of an implant. Your outcome would also depend on surgeon’s skill and experience with that device, your unique medical history and lifestyle, and your expectations for how you’d define successful treatment.

When a spine implant fails from any cause there can be catastrophic consequences because it’s near the spinal nerve that controls your life-functions. These consequences can be life-altering and forever painful; usually there’s no recourse, which is why many surgeons start with the least invasive option and gradually increase implants only if necessary. Other surgeons choose to recommend motion-preserving devices as the first option.

As a society we do not know if the benefits of spine motion-preserving devices outweigh the risks of complicated surgeries and unproven technologies. A theoretical advantage of preserving motion is to reduce damage to other parts of the spine, which has not been proven to be caused by fusion and would require research studies following thousands of people over 8+ years.
The FDA approved some motion-preserving devices, but insurance companies are not obligated to pay for them. Medicare and Medicaid, our national insurance systems and a source of healthcare for almost half of the country, do not pay for them.
Motion-preserving discs provide 10X more revenue than fusion devices for the companies that make and market them, and there’s no evidence that the benefits outweigh either the risks to patients or the costs to insurance.
Kristy didn’t know this information when her doctor recommended her motion-preserving spine implant. We could discuss why she wasn’t informed about the class-action lawsuit, why the device continues to be sold, or why some insurance companies still pay for risky devices are all valid questions. But I believe those discussions distract us from solutions that could address all problems and give patients more informed choices in their healthcare.
Seeking blame or asking the wrong questions is like being shot by an arrow, bleeding to death but asking who shot you, what was their motivation, which type of bow they used, or how many people were involved. You’d die while asking questions. Similarly, too many of our debates about healthcare are centered around blame or understanding motivations and intentions of companies that may be too complex to answer and won’t help us save our bleeding patient, which is our healthcare system. The treatment for our patient probably looks the same regardless of the blame and questions about who shot the arrow and why.
This article is about what it would look like to make healthcare safer for everyone.
Kristy and me
Kristy was in an accident that crushed vertebrae in her spine. A surgeon implanted a motion-preserving medical device two weeks after a class action lawsuit had been settled against that device. Kristy developed Autonomic Neuropathy and has battled chronic pain for over a decade. She’s an entrepreneur, designing light-weight purses designed for people with back injuries, is a public speaker for motivation and public awareness, operates a podcast, and writes articles on Linkedinto raise public awareness of medical device risks.
I met Kristy when mutual connections on LinkedIn recommended that we speak about some of my posts about healthcare errors and what we could do about them.
I currently consult medical device companies on international regulations and methods for innovating new devices; I also consult on socially-responsible business methods and purpose-driven workplaces. I’ve invented multiple medical implants and co-founded companies around them, served on national committees standardizing testing of medical devices including both fusion and motion-preserving spine implants, served as a liaison for companies with new spine technologies seeking regulatory approval from the U.S. Food and Drug Administration, and performed my graduate studies under a spine surgeon who was chairman of the FDA orthopedic advisory panel; my thesis involved studying the effects of spinal fusion on the rest of the spine. I’ve taught engineering and socially-responsible entrepreneurship at two universities and a public high school; equitable education and healthcare are my life’s work.
Facts
80,000 to 250,000 people die in America each year from healthcare errors5 million people die each year globally from poor quality healthcare

400,000 people received toxic implants from a European company, prompting public demand for increased regulations; the new European Union Medical Device Regulations (EUMDR) will begin in 2020.

The United States Food and Drug Administration hasn’t updated its regulations since 1997; they recently announced they are beginning that process and are soliciting feedback from companies and the public.The FDA reviews new technologies and inspects existing manufacturing facilities, hopefully to ensure consistency in products.FDA or EUMDR approval does not automatically mean the devices are cost-effective or proven on a large scale, consider all complex factors of manufacturing and use, or are beneficial compared to alternative approaches or competitive products.FDA approval is usually based on “predicate devices,” which means that if you’re similar to something already approved you can get also get approved; you can choose which predicate device you use for comparison and you don’t have to make it safer.

The FDA is an agency of the government, bound by guidelines created by elected officials in congress and the senate. The FDA staffing and budget are also set by our elected officials.
There are over 5,000 medical device companies in the United States and we receive medical devices from many foreign companies that need to be inspected by the FDA.
Some people believe the FDA is inconsistent in its requests therefore difficult to navigate, and that the process slows down innovative healthcare.
A 2.5% tax on gross profits was part of healthcare reform. Political lobbying from companies led to senators postponing that tax for two years; it’s scheduled to resume in 2018.
Thoughts
There’s no concise answer for Kristy’s question, or what a solution would look like so that other people don’t have to suffer unnecessarily. Here are some of my thoughts, all supported by respected research sources and my personal experiences.
The information for Kristy’s answer was available. In other words, everything could have helped her make an informed choice was available, online, for free, by combining sources. But no one could expect her to be an informed consumer in the situation at that time. She trusted her doctor.
Her suffering may have been avoided if someone like myself had been there, a knowledgable friend with access to the internet while she was distressed and pressed for time, or if there had been a consumer-protection organization they would have known the risks of her device, possible links between her surgeon and the device company; that surgeon’s success rate; current information about complaints against the product, manufacturer, surgeon, or hospital; current information about the risks of other products or alternatives to the procedure; Kristy’s unique needs, expectations, and lifestyle; and who cared.
In other words, Kristy’s suffering may have been prevented if someone was doing what she hoped her doctor was doing.
I could find the information primarily because that’s what I’ve done for a living for 20 years, and because I have both a medical and an engineering background, but what I do is based on public information and is repeatable and scalable. A simplified, short version would be that I would:
Read current medical literature and understand the condition and terminology. using generally accepted top-tier publications, government summaries, etc.Read treatment options on trusted websites including major hospitals and government agencies.Read FDA recall notices, “warning letters,” and other publicly-available information that is not well-known by the public nor user-friendly in the search features or terminology.Ask other researchers and surgeons detached from industry-funding their opinions on the situation and options.Listen to Kristy to understand her unique needs, expectations, and situations to balance factual data with her human condition.Care.
I’ve done this for friends, family, and people who have asked. In all situations they made informed choices, most of those choices against the first suggestion of a physician who was qualified but human, partially informed about current trends and the patient’s human needs, and with limited time to dig deeper. In all situations they were grateful they made informed decisions.
My process comes from personal experiences that agree with facts.
Even with access to published information we should consider that published research advocating risky medical devices is overwhelmingly funded by the companies that sell those devices. In other words, companies pay physicians to be write reports; though few reports are shown to directly influenced by companies there’s a correlation between favorable reports and who funds them. Reports that cautious or critical are overwhelmingly from independent researchers who do not accept corporate funding.
Also, regardless of the funding source, we should consider what the report means by “success” or “failure.” Most research journals say a surgery was successful if it didn’t fail, or if it achieved a measurable goal that may not be directly related to the patient’s end result. For a spine fusion device a successful implant would not fail and would fuse bones together. But, when independent researchers added patient satisfaction to their studies with a simple question, “would you do it again?” they found that many patients that surgeons classified as successes felt their surgery was unsuccessful; not a failure, but unsuccessful, not meeting their expectations, and they wouldn’t do it again.
When we see that a product is cleared by the FDA, the Food and Drug Administration, we should consider that new products are compared to existing products, regardless of the risks of those products, or tested against a placebo. A placebo is anything that has no effect, such as giving sugar pills to one group and a new medication to another, and current standards are often based on previous placebo comparisons. Because of quirks with math and people that means that many new devices are only approximately 55% successful. In other words, FDA clearance often means that a new product is only as good as existing products which may only be 55% successful. It’s like betting your future on a coin toss.
Many physicians are diligent and put patients first. But they are human, prone to error, biased by what they are initially taught and what they learn from peers, and not always altruistic. They are just as susceptible to marketing and advertising as we are, and are often as confused by all options or uninformed about current news, litigations, or FDA warnings. I’ve met few who admit that openly, which I feel is the biggest risk to patients: false confidence from partially-informed physicians.
Most physicians receive information from sales representatives who earn up to 30% of a commission for each medical device sold. Often the physicians receive a “research fee” for reporting how the surgery went. I’ve also witnessed, multiple times, at multiple medical conventions, attractive sales representatives accompanying physicians of the opposite sex on dinners and other events to advise them. This was common enough that the United States congress became involved, creating laws to reduce and monitor financial and personal relationships between physicians and companies.
I’ve known medical device distributors with a few sales representatives working for them who made much more money than the surgeons. Their success fed back to the medical device manufacturer’s success, leading to large bonuses for senior executives who exceeded sales goals. Again, congress got involved, several executives went to jail, and new laws tried to curb the root cause of all of these problems: financial incentives for healthcare rather than regard for patient care.
This is a problem that many people are trying to address. My graduate school advisor was a spine surgeon who became chairman of the FDA orthopedic panel. One of my favorite memories of him was when he tossed a packet of sugar on the table in front of a spine implant sales representative, saying “my patients have as much chance of improving from your implant as from taking this sugar packet, and it’s less risky, and it’s free.” He paid for his coffee and I realized I had an ethical mentor.
Since then I’ve served on national committees for spine implant safety and testing, worked with some of the world’s most respected spine surgeons, including ones who published research about links between surgeons who publish favorable studies and the companies that sell those devices. I’ve also worked with surgeons who, without corporate sponsorship, published research showing that patient expectations are not met in many research papers that claimed “successful” surgeries.
Despite many people working towards patient well-being and lowering healthcare costs the problems persist, partially because medical devices are a lucrative business. This is not just about spine implants. The same could be said about almost any medical implant or procedure. For example, a few years after President George Bush received a cardiovascular sent his surgeon published an editorial that it wasn’t necessary, just like hundreds of thousands of stents implanted each year.

Surgeons are human, subject to the same confusion about our healthcare system as we are, and it takes brave physicians to admit their learning lessons.
This article isn’t about any specific implant, or to point fingers, it’s about how to continuously improve our healthcare system and how to empower patients to make informed choices.
Information
There are many big-picture changes underway, but they will be slow to implement and we don’t know if they will address situations like Kristy’s. New European Union Medical Device Regulations will enforce a method for ensuring companies reduce risk to patients in a process of continuous improvement. Each product must be compared to other products, alternative treatments, and current medical trends to demonstrate that any risks are outweighed by benefits to patients. I believe this will increase patient safety and give a competitive edge to innovative companies; in other words, patients won’t receive medical devices just because a large company negotiated a hospital contract, they will have assurance that their medical devices were compared against all competition and provide the same benefit with the fewest risks. This information is expected to be posted on a European database with public access.

I can’t emphasize this enough: these regulation changes came after the public demanded it from elected officials after 400,000 people received toxic implants from their former system. The European Commission coordinated the laws of 28 countries into one policy focused on reducing risk to patients through a process of continuous improvement and transparency in corporate policies and safety data.
Similar improvements have come from ethical, concerned people in the medical device industry. For decades a think-tank called the Global Harmonization Task Force, now part of IMFRF.org, advocated improved healthcare regulations that could be universally applied to all countries and would negate human bias between auditors. In words, regulations aren’t effective if the results vary between people inspecting them, and companies are swamped trying to adjust to varying results from varying regulations for each country in which they would like to sell medical devices.

The result of their effort was the Medical Device Single Audit Program (MDSAP), which will be required in Canada by 2019 and is currently accepted by Canada, the United States, Japan, Brazil, and Australia. All countries will forego their current regulatory requirements for companies with MDSAP certification. It’s 95% repeatable between different inspectors, available online, for free, for any company wanting to use it, and focuses on reducing risk to patients throughout the design, supply chain, manufacturing, distribution, and field results of the companies quality system.
The EU-MDR is centered around products and based on a company’s quality system, MDSAP is centered around a company’s quality system by looking at products. I believe that together they paint a complete picture.
Learn More
Learn more about people impacted by medical device errors and healthcare mistakes inthe Netflix documentary The Bleeding Edge:

Learn about the challenges of providing healthcare with financially sustainable and equitable funding in a comedy show about a serious topic: dialysis.

Popular media will be biased in order to create an emotional reaction. Consider reading articles from major news sources and respected scientists about healthcare errors, balancing hyperbole with real-world data.
Learn more about the big picture of the European Union Medical Device Regulations in an article I wrote that hopefully explains a complex topic to a wide audience, from the general population to a healthcare expert, with links to deeper details.

As an example of one of the deeper topics, I compare hip implants to car safety features and share how to make state of the art medical devices.

We wouldn’t consider buying a car without seatbelts, turn signals, child-safety seats, etc. That’s partially because government regulations required them so the public began to consider them “generally accepted state of the art,” a concept used in the European Union Medical Device Regulations. Self-driving cars are new technologies without enough history to make informed choices yet, but car manufacturers can choose to add these features and appeal to consumers. Unfortunately the same approach hasn’t worked for medical devices.

Take the example I use in the article on making medical devices state of the art. We’ve made hip implants since 1940 yet are still sources of errors, with product recalls after thousands of people suffered due to a mistake in manufacturing and quality control of an established design. Over 3,500 had to have recovery surgeries and may never walk normally again.
We’ve had 80 years of history with hip implants, 30 years of FDA guidelines, and extensive case-studies, lawsuits, corporate quality control training programs, physician training programs, etc. and we still aren’t protecting patients.
The products are too diverse and the reasons for failure to complex to simplify into one set of effective regulations. Perhaps it’s time to rethink our approach rather than simply making more regulations. To do it effectively requires everyone learning more about the existing situation then proposing achievable steps in a process of continuous improvement.
The Next Step
I’d like to add one thing to the comparison between cars and medical devices: fruit.

The FDA oversees our food supply. Most of us don’t study the complex farming system, distribution supply chain, and storage requirements for bringing apples and oranges to our grocery store; we trust that it was done safely. We occasionally see recalls of contaminated spinach or cartons of milk, and we trust that the system works. Some of us would like to know more, to know if our food was grown without pesticides, or from local farms, without artificial colors added, etc. Doing this for the entire system would be too burdensome, but we’ve made steps to inform consumers using “organic” certifications that have transparent processes for certification. That system isn’t perfect, but the enemy of “better” is debating what’s perfect. Perhaps there’s a lesson there for better ways to inform consumers about the risk of their medical devices, allowing them to choose doctors, hospitals, and insurance providers that allow a choices based on a patient-friendly certification process, the same way that the USDA organic certification is a niche certification built upon the existing FDA process.
In other words, repeat the process I would have done for Kristy as a certification. It could be build upon existing regulations: the first step would be products that passed the European Union Medical Device Regulation and companies that passed the MDSAP. The next step would be a database of warning letters or complaints against companies, products, physicians, and hospitals. The final step would be a way to identify unique needs of each patient, their expectations, and their level of experience at making complex choices. The result would be a certified organic apple that either keeps the doctor away or steers you to a different product, hospital, or insurance provider. Eventually, customers could influence our healthcare system the same way we influence food in our grocery stores, electronic equipment in our computer stores, or safety features in our cars.
Like most certifications, a medical device “safe and effective” certification would probably need to be a sustainable business, where consumer demand for the certification led to companies, hospitals, and doctors choosing if it were worth paying for it. What’s important it that healthcare becomes influenced by consumer choice.
I believe that patient safety and innovation would come from something in addition to more effective government regulations. Government programs are wonderful because they enforce things for public well-being, such ensuring food safety, that the gas that goes into our car is what it claims to be, that our buildings withstand earthquakes, and that airplanes flying over our homes pass safety inspections. But few people claim that government regulations happen quickly, are efficient when they do happen, or make everyone happy.
The idea in this article is a starting point, a step towards consumer choices in healthcare that increase safety and stimulate innovation. It’s not perfect, there are many flaws, and there would be many obstacles such as how to initial fund and grow such a massive program, how to ensure quality control of the program, how to make it financially sustainable, and how to avoid overburdening an already complex system. But it’s a talking point on which to build.
Consider writing your congressman and senator, letting them know that your vote depends on their action, on collaborating towards gradual solutions that can continuously improve, increased funding towards existing programs and collaborating towards gradual steps in a process of continuous improvement. Consider sharing this article and asking them “why not?” or “what would your solution look like?”
If you’re a medical device professional, consider participating in the IMDRF, a volunteer organization so respected that the FDA uses their consensus papers as guidance for companies.
What do you think?
Thoughts? Improvements? What would your idea look like?
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