Thursday, January 26, 2012

AB 378 - Lawyers in Love

Effective January 1, 2012 the California State Law prohibits physician self-referral  in the context of workers' compensation cases.  Physicians will no longer be able to own an interest in a company that supplies prescription drugs and medical devices/implants.  This law effectively reverses the existing California law and outlaws Physician Owned Companies (POC's) in the workers' comp space.  The primary focus of the law was to address the perceived abuses related to compounded drugs (steroids or human growth hormones) and medical foods the primary objective was to place checks and balances on physician self-referral when it comes to medical implants.  Many of you know that there is a growing trend across the country where workers' comp attorneys, physicians and distributors are collaborating to take advantage of workers' comp patients.

Section 139.3 (a) of the California Labor Code as amended by AB378 states the following;

Not withstanding any other law, to the extent that those services are paid pursuant to [the workers' compensation program], it is unlawful for a physician to refer a patient for pharmacy goods, whether for treatment or medical legal purposes, if the physician or his or her immediate family has a financial interest with the person or in the entity that receives the referral.

The statute also provides that no claim for payment shall be presented by an entity to any individual, third party payor, or other entity for any goods or services furnished pursuant to a referral prohibited under Section 139.9.  Violation of section 139.3(a) shall be a misdemeanor, and that the appropriate licensing board shall review the facts and circumstances of any conviction pursuant to the statute and take appropriate disciplinary action if the licensee has committed unprofessional conduct.  In addition, violations of this section may be subject to civil penalties of up to $5,000 for each offense, which may be enforced by the California Attorney General, the Insurance Commissioner or District Attorney.

It will be of interest to gauge the response from the many POC's and POD's that have infiltrated the California market from the East Bay all the way to Orange County.  All medical devices will contain an FDA required Rx only or similar label.  This prohibition applies to POC's that are supplying spinal impants and orthopedic devices.  Could other states be watching the outcome?  TSB wants to know has this been a long time coming?  With prohibition being enforced by the Attorney General for the State of California, the market is 2/3's of the way from completely banning POC's and POD's.  No matter what the outcome, TSB is sure that there will be some legal challenge to this law as it continues to evolve to eliminating POC's and POD's.  You know what JB would sing:

God sends his spaceship to America the beautiful
They land at six o'clock, and there we are the dutiful
Eating from TV Trays watching Happy Days
Waiting for WWIII while Jesus slaves
To the mating calls of Lawyers in Love







Saturday, January 21, 2012

MONEY BALL

On behalf of those that contribute to TSB and our many readers we would like to apologize for the delay in posting. Our objective was to reenergize our batteries for the 2012 campaign.  As for blogspot, we would like to ensure you that some of the changes that were initiated were not of our own doing.  Ever wonder why computer geeks do the things they do without ever notifying you? With that said, we send our condolences to those that have had trouble posting. Collectively, we have decided to initiate a website that will cover more than just spine.  What do you think?  We believe that with our tenure in general orthopedics, recon, trauma, biologics and spine this would be a more entertaining venue. Who knows maybe we can write another article on how stem cells can grow a real mustache.

Every now and then, one has to step back and put the fun back in spine.  Like the Energizer Rabbit, it keeps going, and going, and going, and quite frankly sometimes it just doesn't know when to stop. Even when it's at a standstill, it's still turning. What precipitated this blog was the screening of Money Ball, that team TSB attended. Team building, you've got to love it. If you ever get an opportunity to meet Billy Beane or hear him speak, he is truly thought provoking let alone entertaining, you know like having W come to your NSM, LOL. Or better yet, you could have some CEO get up on the podium and regurgitate some anecdotal leadership principles from some iBook, or, what some public relations firm wrote for them.  So, it got us thinking, and there's a scary thought,  why has this industry, let alone other industries evolved into such an us against them environment?  Is it the competition? Yes fellow bloggers,  there is mucho testosterone running around. Is it envy?  Is it a lack of corporate loyalty? Hmmm?  Is it a lack of understanding what it takes to build a business? Maybe you have all become the Street's prostitua.  Is it unrealistic expectations? Short-term thinking.. Are we self-immolating right before our own very eyes? Not only are you beating yourselves up, you are getting beaten up by your CEO's, hospitals, surgeons, rapetrax, vendor-rape, and the list goes on.  We have become so selfish and self-centered that Machiavelli and Sun Tzu would be proud of our behavior? They would love this atmosphere. How has this behavior affected our leadership? Too many people think these people are oracles and give way too much credit to the Lukianov's, Paul's, Orsingers, etc.  Maybe things have come much too easy for all of us?  Years ago, and yes young un's there is something to learn by living life, there was a fundamental understanding of how to build a business.  As previously stated, organic is a thing of the past whether we like it or not.  Is it because a lack of talent?  You be the judge.  How out of touch are some people? How many engineers actually spend time in the operating room Mr. CEO? All right, enough with the bitching. Let's just say there were rules by which we all understood we had to play by.  Even the CEO of the team and the Manager overseeing the team that he fielded understood each and every players ROLE.  But the one aspect that TSB truly sees lacking in our industry, is a fundamental disconnect between the rules and the respect that we had for one another.  Just read your comments.  What is it about the industry and the people that run it that make it so insane?

Let's look at corporate loyalty.  Recently over dinner, TSB had a conversation with a CEO about whether the so-called "negative employee attitude" was the product of inherent corporate deficiencies, or an individual personality trait?.  I am sure 99% of you can guess what his answer was?  Voila!  It's always the employee.  Have you ever met a CEO or senior manager whom was honest enough to admit that he had an ugly baby? HOUSTON WE HAVE A PROBLEM.  So I asked, what are the company's responsibility to it's employees?  Is it just providing the individual a job and benefits?  What happens in a relationship when one person perceives that they do not do anything wrong, or they do not listen, or do not communicate effectively?  If corporations are truly people (Mitt's Witt, or is it Nit Wit) why is it that corporations suck at understanding the human element in business? If corporations are truly people, then why do they suck at managing people? So, TSB proceeded to pose questions that many of our readers experience on a daily basis in spine.  Here's a sample of our discussion;

How responsive are you to the market, your customers, and your sales peoples needs?  A timely execution and focus results in success. Untimely execution results in well.....your untimely execution, or a staggering company. Can you name a few? Ever work for a CEO who insisted that there was nothing wrong with the product?  You know the old expression, "while Rome burned Nero fiddled." You can't make Beef Wellington out of BS.

Have you set realistic goals and objectives?   There is a difference. Goals are about effort, while objectives are about attainment.  How many of you work for management teams that have delusional expectations, and then hold you accountable for their ineptitude?  What would be the point of providing you with a objective that is UNATTAINABLE, and then hold you responsible for it?  

Do you listen with an open mind?  Years ago people didn't have books written on management, leadership, strategy, tactics and execution, yet somehow they managed to succeed.  Could it be that common sense no longer exists? Did it die?  Today, confusion reigns.  How did yesteryear's companies flourish without Drucker, Covey, Kotter, Menkes, or Maxwell?  Unfortunately, too many people read these books and then begin to believe that the company, or their employees are their laboratory, spewing out anecdotal quotes thinking that this will motivate when the problem lies within the corporation.  Leadership goes beyond academic intelligence, and contrary to what is written in books sometimes one has to look beyond the individuals magnetism or charism.  Do you want style or do you want substance? 

Do you provide your employees with what they need to be successful? If a carpenter does not have the right tools, how can one build a house on a foundation?  This goes back to the adage that one cannot make Beef Wellington out of BS.

Do you make promises that you cannot keep?  Haven't we all heard this before?  The companies that respond win, the companies that BS their customers LOSE.  Just look at who are the contenders and who are the pretenders.

Have you ever participated in an anonymous 360?  This is TSB's favorite considering how fragile and insecure most of the CEO's and senior managers are in this industry.

So how does this tie into MONEYBALL.  The companies that have succeeded in many respects are like Billy Beane.  Individuals who are or were willing to step off the ledge, take a chance, learn from their mistakes while at the same time keep life in perspective, yet understand that there is a human element to any venture. They realized what it takes to build a great product, go against the grain, and that doesn't mean stealing other people's IP.  But let's give credit where credit is due, behind every Billy Beane there is a Paul Podesta and without Paul's genius, Billy and the 2002 Oakland Athletics would have never accomplish what they did.  The most memorable moment in the movie comes when one of Beane's scouts confronts him, telling him that he was in over his head, that he doesn't understand that "this is the way its been done in baseball for years (sound familiar)." This is exactly what this blog has been about, this continues to do it the same way because for some ungodly reason, are you listening you brilliant investors and BOD's, you think you have a formula and it works regardless of the situation or environment, but its just not that simple.

What the movie also teaches us is that the art of arbitraging is unique in that one profits from the simultaneous sale and purchase of an asset in order to profit from a difference in cost. Timing is everything. Maybe the spine market can learn something from its inefficiencies.  Ever work for a company that pissed money into the wind?  TSB is sure that many of you have.  Considering that pricing has deviated substantially from what was once considered the norm, how do we ensure that pricing along with our livelihoods does not continue to erode and you do not perish? Fluctuation in pricing in the spine market has resulted in decreasing profits across the board.  Why would someone want to underwrite another IPO when we don't even know what will happen with healthcare in this country?  In addition, this has placed a tremendous strain on start-up and early growth stage companies.  Who will survive and who will perish? If INFUSE has been battered and bruised, do those stem cell aficionados believe that there isn't a plan percolating for them?  

But the gift of giving will continue as you walk the aisles of CNS, AANS and NASS take a look around and ask yourself, what's new?  Where are we going?  Are we making things better? Are the patients really benefitting from all these procedures?  Are the outcomes getting any better? Hey what happened to the total disc market?  Or, has it all come down to the almighty dollar?  Who knows, maybe the Chinese will teach us that they can copy our implants and technology and sell them at a cheaper price around the world and even in the U.S.. Don't believe it, ask the Koreans. Unfortunately for many of you, it comes down to who is running the company, do they have the cash to make things happen, have they surrounded themselves with their friends because of their insecurities, and then you'll know where your organization is going.  So as we springboard ourselves into another year of fun and games, TSB wants to know will you make a difference, or will it be business as usual.  To paraphrase a line in the movie, "many are called, but few are chosen."





Sunday, January 8, 2012

7 Habits.......of Highly Unsuccessful People

On January 2, 2012 Forbes magazine published an article entitled "7 Habits of Highly Unsuccessful People." The interesting aspect of this article is that many of us have experienced the consummate CEO that was successful at first, and then.................well you can fill in the blanks. What TSB thought was enlightening is that there have been many individuals in spine that have fallen victim to their own success. TSB encourages everyone to read this article. Here are the 7 Habits;

THE CEO AND THEIR MANAGEMENT TEAM SEE THEMSELVES AND THEIR COMPANY DOMINATING THE MARKET

THERE ARE NO CLEAR BOUNDARIES BETWEEN PERSONAL AND CORPORATE INTERESTS

THEY THINK THEY HAVE ALL THE ANSWERS

THEY RUTHLESSLY ELIMINATE ANYONE WHO ISN'T COMPLETELY BEHIND THEM

THEY ARE CONSUMMATE SPOKESPERSON OBSESSED WITH IMAGE

THEY UNDERESTIMATE OBSTACLES

THEY STUBBORNLY RELY ON WHAT HAS WORKED FOR THEM IN THE PAST

How many of us have experienced an individual or individuals that have fallen prey to one if not all of these categories? Exhibiting confidence is an important element when factoring what drives success. Yet at times, is there a fine line between what is truly attainable and what is fantasy? As an industry, we hear many of the successes, but do we ever learn from the failures? Do we take the time to understand the relationship of causation to effect? How many truly understand leadership? What TSB has learned is that instinct and experience plays a much greater role in leading the right way, than reading some motivational book. Anecdotal quotations will only take you so far, and sooner rather than later reality catches up to you and bites you in the old arse. If you haven't experienced it, how can you understand the challenges and needs of your team? If you've ever been an athlete, you know that relying on your god given abilities will only take you so far and then you have to draw the line between inspiration and perspiration. Whenever someone sets goals, the objective is to make them attainable. How many leaders still live on fault line thinking 20% growth or even 50% growth in a shrinking market? Don't believe it, you be the judge. TSB wants to know, who do you think is a great leader in the industry and who needs some schooling?

Sunday, January 1, 2012

Breaking Up Is Hard to Do!

On December 30, 2011, David Sell of the Philadelphia Inquirer reported that Synthes had fired the first salvo in an attempt to make a statement regarding non-competes and corporate raiding against three former Synthes employees, and the Almighty Stryker.  The three former California employees are accused of allegedly breaching their confidentiality agreements and violating patents.  As to what this confidentiality and  these patent violations pertain to leaves much to the imagination.  If the accused are AO/ASIF consultants what could they possibly know?  The confusion surrounding this story is that Stryker hired them to sell nails, screws and plates to fix broken bones and then goes on to state that it is mostly related to spinal ailments.

Synthes charges that Michael Russell allegedly used Synthes medical devices to complete a surgery on behalf of Stryker.  If the device in question was an implant, and for those of us in the industry, when the terminology device is used, it usually means an implant, why would Synthes care?  The last time TSB noticed, no one was billing for instruments per se in a surgery, therefore, what's the big deal? Unfortunately, there was no comment from Synthes attorney Anthony Haller, incredible that the old Wyss meister still has his trusty relic Tony at his side.

So TSB has to ask our readers, is this a case whereby Synthes is attempting to enforce a non-compete and are utilizing the typical legal tactic of piling on accusations in the hope of intimidating these former employees from pursuing their right to work?  Isn't this the United States, or will we be mandated to acquire a work visa to be employed in this industry?  TSB has not met too many salespeople that had, or were privy to confidential information, let alone violating patents.  The truth is that companies in this industry are so desperate to preserve market share and revenue that they enforce these ridiculous non-competes.  If your products are good, why worry.  If your surgeons are loyal customers, why worry?  But then again, when your product portfolio no longer has the technological advancements that you were once known for, isn't it time for litigation and threats. And then there's Stryker.  Back in the late 80's and early 90's Stryker become known for these shenanigans and old habits die hard.  So you know what Neil Sedaka once sang in early 60's;

Don't take your implant business away from me
Don't you leave Orsinger in misery
If you go, then Synthes will be blue
'Cause breaking up is hard to do

Remember when you held me tight
You covered those IM nailing cases thru the night
Think of all that we've been thru
"Cause breaking up is hard to do

Saturday, December 31, 2011

2012 New Years Day Readers Poll

Is Osseon the next company to fall? Word coming out of the New England area is that there is trouble in paradise, could this be the next company in financial trouble? Ultimatums are a terrible way to have a relationship, usually ends up in divorce court, and this ain't Judge Judy the Nudie that we are talking' 'bout. So, what's the buzz tell us what's a happening. Where's OTW when you need all that insight? TSB wants to know, and so does the market, do they have legs or are they running on borrowed time? Who's next?

Saturday, December 24, 2011

Merry Christmas to All

As the Silly Season is upon us, TSB would like to wish all our readers, including the Cheetah Nation, a peaceful and joyous holiday season.  Liberate yourselves from the insanity that you subject oneself to for at least a few days,  it will be therapeutic.  Hug your kids, love your significant others, and keep things in perspective.  Closing those PO's this week will only get you inches closer to $1 Billion, or your bonus.  Contrary to a minority opinion,  those that contribute to our blog love this industry, we even like Nuvasive, but when you're news, you're news.  If you learn anything this coming year, keep "Da Noise" that exists in this crazy industry to a minimum.  Some would call it balance.  Some should actually try it, it works. Whatever you believe, TSB knows that our blog provides a heuristic venue to explore and investigate the many recesses that exist in this crazy industry.

So in the spirit of the holiday season, and yes my judaic friends that does include hanukkah, last year you whined about us not giving you a shout out.  Have a healthy and happy 2012 (shhh! don't tell anyone that we're devout capitalists), and while we're at it, can someone remind the POTUS that the shamash is always the first candle lit, an amateur Jew at heart looking for votes.  Until then, Merry Christmas to one all, Ho! Ho! Ho! Santa's got to go, he's got to deliver toys for all his spine girls and boys.

Team TSB

Come Dasher, Come Dancer, Come Prancer, Come Vixen, Come Comet, Come Cupid, Donner and Blitzen, lastly Rudy we're on our way.

Tuesday, December 20, 2011

The Culture Club

As the year winds down, the "2011 Year in Review" has brought to light many of the problems that continue to exist in the spine.  What we have learned over the last few years is that our recidivistic nature supersedes our ability to execute. TSB loves to quote Einstein's definition of insanity for the obvious reasons. Management in spine companies are fused in a time warp.  They have forgotten where they came from and how they got there, regardless of what you believe, money and power can have a way of obfuscating reality. Dilution or is it delusion occurs. The eventual outcome is that many of these leaders forget what it took to get out of the box, or never understood what out of the box really meant. Considering that out of the box means moving in diverging directions which could potentially result in novel or innovative ideas, the fact remains that when you become the Street's bitch, you eventually lose the eye of the tiger or sometimes the eye of the cheetah. Shareholder value, that becomes your focus, don't believe TSB, just sit in on a Stryker or NuVasive call. Just look at Steve Jobs, love him or envy him, he was a visionary, an outlier, albeit in a completely different industry.  It was always about the product.  Yet, whatever the inevitable, some of us will leave the industry in a wooden box, while some will leave in a gilded box. The difference is that a gilded box influences others to believe that you were successful, because money is still perceived as a sign of success and power, sometimes even anointing one to sainthood.  Regardless, what the Street has predicted for our industry, many continue to live in the past.  What worked at Medtronic, J&J, Zimmer, Synthes, or Stryker in the roaring eighties and nineties has outlived its usefulness. The battlefield terrain has changed. The rules of engagement have change and the question remains do the generals have the ability to adapt and survive? Getting your testi's handed to you can be a humbling experience, just look at Nuvasive's recent demise in the stock market. How long does Alex and his minions plan on riding XLiF and neuro-monitoring? As one of our commentators suggested, the stock for this company is a highly manipulated stock. Isn't that a barometer of the lack of confidence that investors have in a company that once touted their innovation and responsiveness as cheetah like? How quickly Lukianov forgets, but then again, isn't some of this about smoke and mirrors? One can only ride the propaganda machine that your public relations company spits out on your behalf so long and then, it's game time. Yes, there are isolated exceptions, whereby some companies are showing growth. But in the larger picture, they are small companies generating growth by shear will, while some do it by buying business a la POD's and POC's. But, as far as the big boys go, or those that want to grow up, let TSB quote one of our favorite philosopher's Paulie "Walnuts" Gualtieri, "fuggedaboutit." Organic development is something the food industry has learned to capitalize on, the spine industry has lost focus and direction with how it arrived at this fork in the road, vis-a-vis INNOVATION and CAPITALIZATION, and we have no one to blame except ourselves. Where are the emerging technologies? The readers are correct when they poke fun at and criticize the industry leaders. Many can thumb their smug noses, but time eventually catches up with you, just take a visit to the graveyard of spine. Stability, not volatility and movement have reigned over the years, and then for some reason a school of thought emerged that if you are not growing by leaps and bounds, a sudden change in direction will solve your growth problems. It would be interesting to identify when this mercenary attitude become prevalent.  Just look at some of the companies within the industry, they are a revolving door. Are the expectations unrealistic?  You be the judge.

Consolidation is not a thing of the past, it is the future.  No fellow readers the days of start-ups will not disappear.  But, it has become difficult to launch anything unless it is truly an emerging technology.  Many smaller companies are finding this out the hard way.  Access to capital as in the pre-2008 bubble burst is long gone, and with that, so are the excessive valuations. Not only are many of you attempting to figure out how to survive in the battlefield, you are also dealing with leaders that still want to fight in a conventional war.  In today's market place, the sales representative or manager that has the ability to preserve and sustain your customer loyalty and revenue is much more valuable, than the gunslinger that rides into town and promises you the world, for the obvious reasons. There are no magic bullets. In addition, they are a hired hand, until the next deal comes along regardless whether its a distributor or surgeon. The tenured sales rep or manager at your company knows what the challenges are that must be addressed in order to maintain your business, the question is does anyone on your executive management team listen and have the cojones to execute, or, does it fall on deaf ears?  Is your company listening and being responsive to your battlefield needs?  Do you have the ability to be pro-active rather than reactive?  But then this has been our point all along.  Are you better off than you were two years ago?  Maybe that's why we all laugh at the industry. How do you sell when you have no samples, no marketing collaterals, no bone models, an inadequate training program not just on the clinical issues, but on the environmental issues that you are challenged with on a day-to-day basis?  Think how absurd it is when company executives claim that they don't want to be like the company that they previously worked for, yet surround themselves with the same people that they worked with at that other company?  Create a new culture?  Highly unlikely.  More like an attempt to catch lightening in a bottle by copying that culture because you think you can do it better, and then one day you wake up and you realize that you are no different than the company that you claim you did not want to be like.  You've become the 4,000 pound Gorilla that has an inability to innovate because everything becomes an exercise in accounting, you need to have meetings because everyone needs to cover their ass or wants to be heard, so all that execution that you once told the market you were capable of doing better and faster has come down to a grinding halt.  The result is that you start losing customers.  You know the people that will only tolerate your BS to a point and then shut you down by moving to another company or product.  Surgeons are customers, and an unhappy customer means you're in trouble.  So as Jethro Tull once sang,

Happy and I'm smiling walk a mile to drink you water
You know I'd love to love you and above you there's no other
We'll go walking out while others shout of war's disaster
Oh, we won't give in let's go living in the past

Once I use to join in every boy and girl was my friend
Now there's revolution, but they don't know what their fighting
Let us close our eyes outside our lives go on much faster
Oh, we won't give in let's go living in the past

TSB wants to know what you think.