Stephen Latham: The End of Irreversibility

Transcript

Harlan Krumholz: Welcome to Health & Veritas. I’m Harlan Krumholz.

Howard Forman: And I’m Howie Forman. We’re physicians and professors at Yale University. We’re trying to get closer to the truth about health and healthcare. Our guest today is Professor Steve Latham, but first we like to check in on current or hot topics in health and healthcare. What do you have today, Harlan?

Harlan Krumholz: Well, we always have an abundance of hot topics, and I’m going to take one that sort of appeared in the news, and I’m going to try to unpack it a little bit. So this sounds like a clear public health success story. Actually, you mentioned it last week when you were going down your top public health things, but let me unpack it a little bit. So a recent analysis published in The New England Journal of Medicine: Evidence using national survey data, the National Health Interview study, found that smoking rates in the United States dropped from 10.8% to 9.9% in a single year. The first time we’ve ever fallen into single digits. So pretty much of a reason to celebrate. These estimates just to say are based on self-report, but that’s pretty much how we track smoking at a population level for decades. So it gives us a pretty consistent way to compare year-on-year because it’s the same approach.

Now, if you zoom out, the trend’s even more striking. I don’t know, about a decade ago, smoking rates were in the mid-teens. As you know, even before that, they were much, much higher. It was normative behavior for a long time, ’60s—1960s—’70s, until the surgeon general reports came out. But even then, we’ve been on a slow trend. I mean, it’s a good trend, but it’s taken us a long time to get to this point. It’s a remarkable shift, reflects decades of public health effort, taxation, regulation, education, real cultural change. But when you look more closely, the story becomes a little bit more complicated. Even now, about 25 million adults still smoke. That’s not an insignificant number. And nearly 50 million are using some form of tobacco. And importantly, use of other products like e-cigarettes and cigars hasn’t really declined at all. And in some cases, maybe in some groups increased.

It’s also important to recognize all these products don’t carry exactly the same risk. Cigarettes still are by far the most dangerous, largely because of the combustion, the burning of tobacco, which produces toxins that drive cancer, lung disease, cardiovascular disease. But these other products, e-cigarettes, though to be less harmful, but really we’re still at the beginning of studying all these and understanding them. And they raise concerns certainly about addiction and uptake among younger people. But here’s the layer that I thought was easy to miss unless you really looked for it in this report. Among people with graduate degrees, tobacco use is under 8%, but among those with these sort of high school equivalency degrees, it’s over 40%. So for some people, smoking feels like a problem that’s disappearing. And you and I, I mean, in our daily life with colleagues, we rarely see people smoking, especially in the medical profession, but for others, it’s still very much a part of daily life.

And what’s striking to me is that the people with the fewest resources are the ones spending the most money on these cigarettes. And they often were targeted when they were teens. And it raises this deeper question: Why did we succeed so dramatically in some populations and less so in others? Is it because the interventions we designed and the kind of things we tried to change were more accessible to people with resources? Better access to care, more support, more stability. Is it that people in these more stressful circumstances of life are actually resorting to cigarettes because they actually become sort of a coping mechanism, or at least when they’re young and they’re addicted to them? They are a time when they’re vulnerable and they actually could be something they’re using to manage the economic hardship or the psychological stress or other things. So I think we’re left with a bunch of questions, which is, what do we do now?

Are people just making the choice they want to smoke? But why is it cutting so much across socioeconomic lines, and what are we exactly trying to achieve, and how can we get there? Reduce harm, address inequality, respect individual choice. And then I have one more question for you just to ponder, which is we have had this dramatic decline, but we’re not seeing marked increases in life expectancy. So did we just substitute other risks for these risks? This is when opioids came out, a lot of other things going on. So it would have been much worse if people didn’t stop smoking, but people who were smoking moved to other things that also were incurring risk. So anyway, I thought it was kind of nuanced, that report, not just about the rate going down, but there’s a lot of features of the data that still leave me with questions.

Howard Forman: Yeah. Look, I think taxation policy around cigarettes has probably had a bigger impact on cutting smoking than anything else. And there is data to suggest that poorer individuals are actually more impacted by the higher taxes than richer individuals. And so it may take a generation more for us to see the effects that we’d like to see, but I do think it will eventually impact all the way down the demographic scale to the lower-income and lesser-educated individuals. But there’s just no question, once you’re down to less than 10% of the population, you’ve seen a decline across all groups.

Harlan Krumholz: It’s good, but we got to be careful not to declare success when–

Howard Forman: No, no. There’s still a lot, and we still see an awful lot of the sequelae of smoking in the emergency room every day.

Harlan Krumholz: And that’s the point. I mean, this is really preventable harm.

Howard Forman: Yep, absolutely.

Harlan Krumholz: And the companies target young people to get them on with lifelong addictions, and that’s the part that really always bothers me. All right. Hey, let’s get onto our guest. We’ve got a great guest today.

Howard Forman: Steven Latham is director of the Interdisciplinary Center for Bioethics at Yale University, where he teaches bioethics and environmental ethics courses. A former healthcare business and regulatory attorney, he served as secretary to the American Medical Association’s Council on Ethical and Judicial Affairs before entering academia full-time. At Yale, Latham chairs the Human Subjects Committee, co-chairs the Embryonic STEM Cell Research Oversight Committee, and provides clinical ethics consultation at Yale New Haven Hospital. He is the author of over 150 publications on health law, professionalism, and bioethics, with work appearing in leading journals, law reviews, and university press books.

His research interests also include animal ethics, environmental ethics, and value theory, and he is a fellow of the Hastings Center for Bioethics. Latham earned his bachelor’s degree from Harvard University, his JD from Harvard Law School, and his PhD in jurisprudence and social policy from UC Berkeley. Before joining Yale, he was a professor of law and director of Center for Health Law and Policy at the Quinnipiac University School of Law. So first, I just want to welcome you to the podcast. We’ve had a few bioethicists in the past, but among them, none of them have sort of the undergraduate following and cult-like passion–

Harlan Krumholz: I thought it’s your class that’s the cult-like–

Howard Forman: No, no, no, no. He’s the cult leader. I mean, I love when students come to me and they talk to me about Professor Latham’s class. So I want to just ask about that journey because you start off, and out of law school, you did work at a more traditional law firm.

Steve Latham: That’s right.

Howard Forman: How did you make this pivot, not just to academia being a true scholar, but really being an educator as well?

Steve Latham: So I went to law school kind of out of lack of imagination combined with a little bit of parental pressure, I would say. My mom in particular had been thwarted in her desire to become an attorney because it was the ’50s, and her parents said girls shouldn’t do that. So she really thought that I should because she hadn’t been able to. So I went off to a big Boston law firm when I finished law school. I clerked for a federal judge, but then I went to a big Boston law firm, and my first day at the firm, I arrived and they said, “What area of law do you want to try to practice in?” And I said, “Oh, I want to be a litigator.” And they said, “Well, at our firm, we want people to have at least two areas when they start out to give them more options as they grow in the firm’s practice. So what’s the other area you would like to practice in?” And I very obligingly said, “Well, where do you have need?”

And they said, “Well, bankruptcy and health law.” And I said, “Okay. Health law?” So it really was just a matter of happenstance that I ended up practicing for a few short years in Boston as a health lawyer representing physician practice groups and hospital chains, doing some hospital merger work and this kind of stuff. Never med mal, but always kind of the business and regulatory side of medicine. And I decided after a few years of it that I really wasn’t enjoying it and that I didn’t want to be like the people I saw in that firm who were middle-aged when I got to be their age. And I talked to some friends and asked some old advisors about the kinds of stuff that I had really enjoyed while I was in school, which was things like political theory and philosophy and so on. And I finally settled on leaving law to go get a PhD.

So I went out to Berkeley to get a jurisprudence and social policy PhD, which is kind of like philosophy for recovering attorneys, really is what it was. And I went out there, and I was doing that, but to pay for my continuing habit of being in school, I worked part-time as a healthcare lawyer in some very large San Francisco law firms. And I was partway into my doctoral program thinking about what I wanted to write a dissertation about and so on, when it finally occurred to me that there was a space where my philosophy and political theory interests actually met my ongoing health law practice, and that’s when I really first turned my attention to bioethics. So then I ended up writing a dissertation that was on professionalism in medicine and the idea of professionalism compared to the idea of having a calling in your work.

And my first job after I finished my PhD was at the American Medical Association, which at that time was just setting up a new ethics division, and I became the secretary to their Council on Ethical and Judicial Affairs. So I worked on the code of medical ethics and worked with the council on some opinions about things that were happening at that time. Oregon, for example, was just doing medical aid in dying for the first time while I was there. And it was a delightful thing and did that for a few years.

And then my wife, who was also an academic, she and I went jointly on the academic job hunt, and we ended up here in Connecticut, with me at Quinnipiac and her at the School of Management at Yale, as you know. And I was at Quinnipiac for eight years, I guess, but I was always writing about bioethics and law issues at that time. And I was spending some time in some of the working groups that were affiliated with the bioethics program at Yale because I lived close by and knew a lot of the people who were involved. And then when Yale’s program in bioethics became a center, meaning that it actually added academic slots, I applied for one of them and I ended up getting it, which was wonderful. So I left Quinnipiac and became the deputy director of the center, and I’ve been here ever since. I think that was 2008.

Howard Forman: We are very fortunate for that, I would say.

Steve Latham: Well, and the first class that I signed up to teach was Bioethics and Law because I had been teaching that in my previous law school position. So I’ve been teaching Bioethics and Law to Yale undergrads in the Political Science Department since the first moment I came here.

Howard Forman: And how many students do you get in a class like that, just before I hand it off to Harlan?

Steve Latham: Right now I have about 280, and that number is determined by the number of TFs that Yale allows me to hire.

Howard Forman: Wow.

Steve Latham: I’m allowed to hire eight TFs and they do two sections each. So that comes out to around 280.

Howard Forman: And “TF” stands for “teaching fellow,” just for our listeners.

Steve Latham: Just before COVID, before Yale had restrictions on the number of TFs I could hire, I had a couple of years where I had about 485 students in that class each year. And it’s funny, it sounds like a lot. I mean, it is a lot. It’s a large class, but there’s essentially no difference between teaching a class with 200 students in it and teaching a class with 480 students in it because the grading and everything is done by the TFs and the lecturing to the huge crowd, it’s the same sort of methods that you use. But once you get over 80 people in the classroom, it’s all the same, from the front of the room anyway.

Howard Forman: Right, right.

Harlan Krumholz: Okay. Well, first off, Steve, it’s so great to have you on. What a great time for bioethics, but I can’t resist, since I’ve got two of the most popular teachers at Yale, to just ask this tangential question since I’ve been seeing this controversy at Harvard about grade inflation. So how many people in your class, what percent of your class get A’s?

Steve Latham: I think it’s pretty high percentage. I think we have... I don’t know the percentage offhand, but I think it’s probably under a third of the students who get a grade below an A-minus. And it’s a very rare student who gets a grade below a B. And normally when they do, it’s because something else is going on with them.

Harlan Krumholz: All right, let me get to my–

Steve Latham: Sure.

Harlan Krumholz: ... topic I want to kick off with you, which is I’m going to take the topic of death because it seems like it’s an area that you are increasingly focusing on these days. And we think we know what death is, but do we? And so people believe, well, isn’t... dead is dead. I mean, don’t we know what deaths are? But increasingly, I think medicine showing that death’s a process, not a moment. Cells, organs, and systems shut down at different rates. And what we call “irreversible” may be in a way a choice. And it depends on what we’re willing to try to reverse. So I think this is where people may start to feel a little uneasy because we think that death is a moment, a clear line. You’re alive, and then you’re dead, but in medicine, this is changing.

And so you’ve written that irreversibility isn’t just about what’s biologically possible, but what interventions we choose not to do. And that’s a different way of thinking about death. So I wonder if you could explain what you mean by that and help us understand your sort of view on this about how the patient’s wishes come into this. And of course, you were part of a really historic study that brought a pig back from the dead. And so I think this is all kind of amazing, and I’m really curious about where your head’s at on this now.

Steve Latham: Sure, sure. So I guess the place I would start is that the big problem we’re having now in bioethics, and this is a particularly an issue in the transplant world, is that our legal definition of death in the United States, which is basically the Uniform Determination of Death Act, which is a kind of standardized definition of death that 30-some-odd of the U.S. states have adopted and others have versions of, it defines death as being either heart lung or being brain death. And in each case, it says that your cardiopulmonary system has to stop completely and irreversibly, or there has to be complete and irreversible cessation of function of the whole brain, including the brain stem. So in both cases, it says “complete and irreversible.”

And there just aren’t that many things that are irreversible anymore. There certainly aren’t as many as there used to be. So in the heart lung death space, in order to make organs as fresh as possible when we transplant them, people are declaring people dead by cardiopulmonary standards and then clamping off their heads so that blood doesn’t circulate into the brain, and then using our resuscitation technology to restart the heart and lungs so that the organs they want to harvest for transplant are kept oxygenated until the time for transplant comes. Meanwhile, they say the patient remains dead because the head has been clamped off. So the patient is declared dead with heart lung standards and then is allowed to remain dead by cutting off circulation to the brain while the heart and lungs are restarted.

Well, the definition of death in the law says “complete and irreversible” and you just reversed it. And this is causing a lot of controversy. It’s seeding a little bit of mistrust in some of the patient communities because they’re thinking, “Well, wait, are those patients really dead who you’re taking these things from?” And on the brain side, as you mentioned, I’ve been involved with a neurolab, Nenad Sestan’s neuro lab at Yale that invented a technique to perfuse pig brains initially postmortem with a kind of an artificial blood. And what they found was, even if they started six hours after the pig had died, if they hooked up that brain to their machinery and circulated this artificial blood through it, it could restore a lot of the metabolic functioning of all the different cell types in the brain and allow you to use that brain as a platform for discovering drugs for brain disease, for example.

So a few years ago, we would have thought someone who had been without any circulation to their brain for six hours, we would have assumed that that was complete and irreversible cessation of all brain function, but it’s not. We can reverse a lot of it. But I will say now there’s a Yale spinoff company for whom I do some ethics advising, and they are doing this with human brains now.

Harlan Krumholz: Wow.

Steve Latham: They’re getting human brains from people who have signed up to be organ donors, and when it turns out that they’re not eligible to actually donate organs for transplant, they or their families, often their families, give consent for their brain tissue to be used in research, and they are told that their whole brain is going to be surgically removed and given for research. And we get these human brains anywhere from nine to 15, even 17 hours postmortem, and they can be perfused. And once again, as with the pig brains article that came out a few years ago, we get a restoration of a lot of cellular function and enough metabolic restoration that we can use these brains as platforms to try to discover new drugs for Parkinson’s and Alzheimer’s.

The brains do not wake up. For our listeners, the brains that are hooked up to the perfusion machines cannot wake up or wonder where they are or anything because the amount of energy that they get from the perfusate, while it’s enough to restore cellular function and metabolic activity, it’s not enough energy to get neurons to actually fire. We never see any electrical activity in these brains when they’re monitored with EEGs. So we’re not getting anything like thought or experience or sensation going on in the brains. And they’re also, as a matter of fact–

Harlan Krumholz: And you could say, how do you know?

Steve Latham: Well, we know because they are monitored by EEGs. It used to be we monitored all of them. Now we continually monitor a random sampling of them because we never see any electrical activity. And there aren’t really any theories of consciousness that involve no electrical activity in the brain. There are, there are, but they are the same theories that would attribute consciousness to trees of a certain kind. So we know that the brains aren’t feeling anything or experiencing anything or waking up in any way, and that’s because they don’t have enough energy. But also as a matter of belts and suspenders, the perfusate also has propofol in it, an anesthetic–

Harlan Krumholz: That’s so interesting.

Steve Latham: ... that functions by preventing neurons from firing. So we know there’s no activity. But the whole point of raising this to respond to your original question is a range of things that we used to think were impossible in terms of reversing damage, reversing heart stoppage, getting people breathing again, getting people’s brains functioning partially again, these things have all become possible so that the old-fashioned legal definition of death doesn’t apply to anyone anymore.

Unless you do one of two things. One is, you say, “We really don’t mind removing organs from people who don’t meet the technical definition of death as long as they’re not conscious and they don’t want to be cured and they’re volunteering to give up their organs.” If they’re not dead because there’s still some hormonal activity happening in their brain or they’re not dead because we are keeping their heart pumping while we harvest the organs, that would be okay. So there are some faculty in bioethics who say we should give up on the so-called dead-donor rule and be allowed to take organs from people who don’t meet the legal definition of death but who are never going to regain consciousness and who want their organs to be used to save other people’s lives and so on.

You could do that or you could do something that I’ve advocated for, which is to say, “What’s irreversible?” Everything is irreversible if the patient says, “I don’t want you to try to reverse it.” So if the patient says, “Don’t bring my brain back to metabolic activity,” then you don’t do that and then the patient’s dead. Or if the patient says, “Don’t restore circulation in my body,” you don’t do that, and then the patient’s dead because their condition is irreversible because the patient has said, “Don’t reverse it.”

Howard Forman: What is the role of an ethicist in a clinical setting or a clinical research setting? How do you interact without taking on a supreme responsibility around decision-making?

Steve Latham: Ethicists who join in these conversations at the bedside have to think of themselves maybe as clarifiers and facilitators. If they contribute anything, it’s useful questions, clarifying questions, perhaps. Sometimes a good thing that the ethics committee does, and I’ve seen this at numerous times actually, is force conversations into the uncomfortable zones. If a member of the treatment team and a family member are at the bedside, it’s very common that terrible news is not delivered unambiguously. The nurse or the doc at the bedside is apt to say something like, “Well, in these circumstances, it would be very unusual if the person recovered.”

In the ethics committee meeting, when the family and the treatment team are having a disagreement about what to do with the patient, it might often be somebody who is neither treating the patient nor a family member who turns to the doctor and says, “Doctor, is this patient going to leave the hospital alive?” And makes the doctor answer that question. And when the doctor says, “No,” the whole family goes, “Huh? Nobody actually said that to us.” So very often what happens in ethics committee meetings is clarifying conversation, including clarifying difficult conversation.

Harlan Krumholz: To jump in a different direction here, Steve, a lot of things of Howie and I debate over time have to do with public health interventions and this tension between what some public health officials and experts would want to happen in the world and what actually happens and the kind of push- and pullback on that. You’ve written about this in sort of an intellectually rich way about that. No single political theory can really tell us what the right thing to do is. And so instead... let me see if I get this right. Instead of relying on theory, we’re really making decisions on which values we prioritize. And in a situation like the pandemic, we’re constantly balancing things like individual freedom and collective safety, and health may be a baseline value, but maybe not necessarily the ultimate goal of life. It may vary by individuals.

Given all that we’ve been through and given the fact that we continue to face these issues of vaccines and who should take them and what people want to do, how do you, from your bioethical lens, conceptualize this tension and how do we ultimately begin to resolve it? Because we do think that people have personal autonomy, that they should be able to choose over themselves. And now I’m talking about situations where maybe we’re not talking about herd immunity or what the society may say, you’re doing something that’s going to affect your neighbor, but we are often saying that this is the best approach for health and a lot of people are making other choices.

Steve Latham: Yeah. It’s a very difficult problem and it’s a problem that has lots of different roots, but I think you’re right, both in questions about what kind of death a person wants to have and also questions about what kind of life a person wants to have and what kinds of risks a person wants to face and what kinds of medical or treatment burdens a person wants to take on or to impose on their family members. Those are all of them fairly intensely personal questions and the patient has to be, I think, the final arbiter of that.

But what we need to do as a sort of matter of social agenda and politics is to make sure that the person who is making those decisions has access to the best possible information and is being advised by people whose advice is coming sort of predictably out of their role so that what your doctor is telling you to do is the thing that in that doctor’s opinion is going to be the best for your health and that what the caregiver is trying to do is ease the life of the person who’s getting the care. So I think people have to approach these issues with their particular role very heavily in mind and with the aim of giving individuals and family members the best possible information for making the individual choices they have to make. But I would put a pretty heavy-handed caveat on that because there are choices that you make that are not only self-affecting and that are other-affecting.

So I don’t really have a problem, for example, if someone has to be housed for a period of time while they’re taking antibiotics for their tuberculosis so that they don’t spread it to other people, even if they don’t want to do that voluntarily. I also don’t have a problem with some kinds of medical interventions for children over the parent’s objection because physicians have a duty to do what’s in the best interest of the child and parents are not always the best arbiters, especially in specialized areas, of what is in the best interest of the child. Having said that, though, for example, I think parents can decide not to vaccinate their children. There are problems with herd immunity that attend that, but I do not like it when I hear that pediatricians will stop seeing parents who refuse to vaccinate their children because I think, again, we have to think about the role that the pediatrician has.

If you cut the parents off from medical advice of any kind because they make a decision that you don’t approve of with regard to vaccination, then you are taking away from them at least a channel into better information about their child’s health and care and so on. So I don’t like that kind of punishing approach to parents who don’t want to vaccinate their kids.

Howard Forman: I thought maybe we can end on a lighter note. There’s not that much that is light in biomedical ethics, but what among the future options with AI and all the other innovations that you see around us gives you the greatest hope in healthcare right now? Or what gets you excited?

Steve Latham: Gosh, there’s a lot of really interesting innovation in cancer right now. I mean, we’ve already done incredibly well with all kinds of therapies for cancer, but CAR T seems to have much broader applications than we thought it had. There are some really interesting innovative drugs for cancers and a wide range of therapies. That’s probably the area where I have the greatest optimism. I am quite worried about public health and that goes with, you mentioned at the start that I also teach environmental ethics sometimes. And the health effects of heat waves and of flooding and of increased storm activity are being felt and are going to continue to grow. And I worry very much about that because that requires great big political public solutions and big system-wide solutions rather than just the inventiveness of a wonderfully entrepreneurial single scientist somewhere. And I worry about our current political inability to address great big health problems.

Howard Forman: We are not great with collective action.

Steve Latham: We are not.

Howard Forman: Back to Harlan’s point. Yeah.

Harlan Krumholz: This has been a terrific session. Howie, I’m going to just slip in one more thing, I hope you don’t mind. So one of the things you’ve also talked about is the conscientious objector. Actually, with so much coming out and guidance about, depending on what institution you’re in or what rules there are or what’s going on, and what’s the role of a clinician who’s loyal to the individual patient in going around the rules that are being set? Now it could work in both ways. I mean, there could be rules where we’re vaccinating everyone and the person’s objecting. There could be rules where they say we’re not offering abortion to anyone. But the conscientious objector thinks that... now the clinician thinks that there is an obligation to make sure they understand options of going other places. And I have found this to be a challenging, also, area within medicine these days where doctors aren’t—no longer just solely in a position where they can act as advocates for the individual in front of them but are being told what they can and can’t say or what they should and shouldn’t do.

And you’ve written about this, you’ve thought about this. I wonder if you could just share your view on this.

Steve Latham: My concern with this goes back to my AMA days when there were some states that wanted to put language in physician’s mouths about, for example, about abortion. For example, they wanted them to be forced to say during the abortion consent process that a fetus of a certain age would feel pain during the abortion even though because of the timing that they picked in their statute, they were objectively wrong about that. I do very much object to control of a physician’s speech by statute. I really think that physicians, even if they’re not permitted to provide certain kinds of therapies to their patients, should be able to tell their patients about the existence of those therapies and perhaps tell them that those things could be obtained elsewhere, like across the state border. And that’s true these days, not only of abortion counseling but of things like counseling for gender-affirming care and other kinds of medical counseling.

I don’t think doctors should be forced to provide treatments that they don’t believe in providing. I’m happy that there are conscientious objection components of our medical aid in dying laws, so no doctor has to be involved in a patient’s voluntary choice to die. And the same thing with abortion. I don’t want doctors to have to be involved in performing abortions if they don’t believe in them. But on the other hand, I don’t want them to be told to be silent about things that they genuinely think are in their patient’s best interests.

Harlan Krumholz: No, that’s great. That’s great. What a great episode. Thank you so much for joining us.

Howard Forman: Yeah, you have a depth of knowledge that is.... It’s amazing that you don’t have a clinical background based on how much that you actually know. It’s fantastic to listen to you talk about this.

Steve Latham: Well, when you teach bioethics, you end up hanging out with a lot of doctors. So maybe it’s just osmosis.

Howard Forman: Well, we are so lucky to have you on the podcast. We’re lucky to have you at Yale, and I look forward to having you back.

Steve Latham: Well, thank you. This has been a great pleasure.

Harlan Krumholz: Yeah, that was a super interview.

Howard Forman: He’s so smart.

Harlan Krumholz: Really enjoyed Steve. He’s a great resource.

Howard Forman: He’s very smart. Yep.

Harlan Krumholz: All right, let’s get to one of my favorite parts about the podcast. What’s on your mind, Howie?

Howard Forman: All right. So I want to spend a few minutes on something that touches on a theme that we constantly come back to on the show, getting the facts right before we get to even think about the politics. You may have seen there was a STAT News story this past week that said that CMS Administrator Dr. Mehmet Oz, accused New York’s Medicaid program of massive fraud. He claimed five million enrollees were receiving personal care services, nearly three quarters of the state’s entire Medicaid population. CMS has since acknowledged the real number is closer to 450,000 and admitted it misidentified how New York applies its billing codes, off by a factor of 10. This episode illustrates something that constantly gets lost, the difference between fraud and improper payments. Fraud is obtaining something of value through willful misrepresentation. Improper payments are payments made in the wrong amount or to the wrong party.

And while all fraudulent payments are improper, not all improper payments are due to fraud. Many are billing errors or documentation problems that resolve on review. That distinction matters enormously for policy. Okay. Now the enforcement picture. Despite what politically charged announcements might suggest, the systems for investigating both Medicare and Medicaid fraud are real and functioning. Every state runs a Medicaid fraud control unit. In fiscal 2024, those units obtained 1,100 convictions and generated nearly $1.4 billion in recovery, returning $3.46 for every dollar spent. On the Medicare side, DOJ opened over 800 criminal healthcare fraud investigations in 2023 and secured over 476 convictions, recovering $3.4 billion. And in both programs, this is overwhelmingly a provider-side problem, not patients gaming the system. Here’s what I want you to sit with. All of that activity—real, consequential billions recovered—is dwarfed by a problem that gets far less enforcement attention.

The IRS projects the gross tax gap reached $696 billion for tax year 2022, nearly three times the highest estimate of federal healthcare fraud. Yet the IRS audit rate for individuals fell from 0.89% in 2010 to just 0.29% by 2019, with the steepest declines among the highest earners who drive most of the gap. Enforcement spending and inflation adjustment dollars dropped 26% over that same period. We have built serious enforcement infrastructure around healthcare fraud, and it works. We have allowed tax enforcement to atrophy for decades. Both deserve scrutiny, and the accusations we level should at least be grounded in arithmetic. Getting to the truth in health and healthcare means following the numbers wherever they lead, and we’re going to keep doing that.

Harlan Krumholz: Howie, I know this was something that kind of aggravated you, to sort of see this misrepresentation, which may have been an honest mistake, but they should have corrected it. And when you say that it’s on the providers, are these just bad actors or are they people gaming the system to... I mean, there are two kinds of things happening that I see, which is a Medicaid mill. Somebody’s actually manufacturing all this stuff and they get into trouble. There’s another one, which is that people are just pushing the limits.

Howard Forman: I think both. Yeah, both. I think there’s examples of people that go out there and see a patient in their home and are able to arrange for additional services for them that they don’t really need, and that’s fraud. And then there’s the absolute fraud where patients that were never even seen are having catheters delivered to their homes and the bill goes out. And this is extraordinary. We’ve talked about a couple of these over the years.

Harlan Krumholz: Yeah. This is also where I expect AI, it’s going to be AI vs. AI. You ever remember Mad Magazine with Spy vs. Spy?

Howard Forman: Yes.

Harlan Krumholz: This is going to be AI vs. AI, where the fraud’s going to get more clever, but so are the surveillance efforts. And we’ll have to see. But I’m sure this is an area that I think on the government side that AI should be very helpful at, to be able to determine anomalies and what is it that’s going on.

Howard Forman: I just want for our listeners though to understand that part of what prompts me about this is the One Big Beautiful Bill Act is trying to root out Medicaid fraud by creating enormous barriers for people and going after poor people. The IRS, on the other hand, is not making efforts to go after rich people. It bothers me a lot.

Harlan Krumholz: Oh, that’s really well framed. Thank you, Howie. Thanks. That’s a great topic. You’ve been listening to Health & Veritas with Harlan Krumholz and Howie Forman.

Howard Forman: So how did we do? To give us your feedback or to keep the conversation going, email us at health.veritas@yale.edu or follow us on any of social media, including our distinct Instagram account.

Harlan Krumholz: And we’re still in the middle of our listener competition and challenge. Put down a comment. Just send it to us. Tell us what you think. Give us a bone. We’re looking for feedback.

Howard Forman: We really, we appreciate the feedback.

Harlan Krumholz: It helps people find us.

Howard Forman: Health & Veritas is produced with the Yale School of Management and the Yale School of Public Health. To learn about Yale SOM’s MBA for Executives program, visit som.yale.edu/emba. And to learn about Yale School of Public Health’s Executive Master of Public Health program, visit sph.yale.edu/emph.

Harlan Krumholz: Thanks to our superstar undergraduates, Gloria Beck, Tobias Liu, Donovan Brown, to our outstanding producer, Miranda Shafer. And I’m always just thanking goodness that I get to work with the best in the business, Howie Forman, every week.

Howard Forman: I appreciate you too, Harlan, very much, and our entire team. And stay tuned next week when we send Tobias Liu off for graduation and celebrate him.

Harlan Krumholz: And do a little mini-interview with him. That’ll be a lot of fun.

Howard Forman: That will be.

Harlan Krumholz: All right. Thanks, Howie. Talk to you soon.

Howard Forman: Thanks, Harlan. Talk to you soon.