Cover Yourself Now So You Don’t Have to Cover
Up Later
After 10 years on the board of a national malpractice
carrier, I was surprised that the “Residents’
Review” article “How
to Minimize Malpractice Exposure and Maximize Coverage
When Setting Up a Practice”
in the February 2003 NEWSLETTER lists Santa
Cruz, California, and Fargo, North Dakota, as cities
with “high rates.” Those two areas currently
have among the lower anesthesia premiums in the country,
and premiums there are less than half of higher risk
areas (such as Florida). I’d advise residents
to simply seek work where they want to live. You can
get sued anywhere nowadays.
While being honest and available to injured patients
and their families is good advice, emotional confessions
or detailed discussions about what you or someone else
might have done wrong can (and likely will) be used
against you in case of litigation. Based on claims reviews,
I offer my own additional suggestions to those just
starting out:
| 1. Don’t let surgeons push you around.
They may bark orders at you over the drapes, but
they are prone to developing complete amnesia
for that in the event of a claim. No matter how
precarious your job is, angering a surgeon is
always preferable to hurting a patient. |
| 2. If you can’t do something, just admit
it and move on. Major procedural misadventures
tend to occur on the umpteenth attempt. If you
have tried “numerous” times to locate
the internal jugular vein, consider stopping.
There are usually many other options — all
of which will occur to you right after something
really bad happens. |
| 3. When you practice, ask yourself if you personally
could defend your own care. We all cut corners
from time to time — “overlooking”
abnormal lab values or missing preoperative clearances.
Would you feel comfortable or able to defend your
own practices in court? If you stick to those
you could defend, it’s likely you’ll
never have to. |
| 4. Document meticulously. Your anesthesia record,
preoperative evaluation and informed consent are
legal documents that can make or break your case
in litigation. If at trial your records are sloppy,
illegible or incomplete, you’re going to
be really sorry. |
And I’d consider Santa Cruz. It’s lovely.
Ann S. Lofsky, M.D.
Board of Governors, The Doctors Company
Santa Monica, California Winning
Our Patients’ Trust
I read with interest your March
2003 “Ventilations” titled “A Public
Betrayal.” I agree with
you that we have an obligation, a sense of duty to
the public, and we should not let them down. Instead
of striking, we should win them to our side. Each
patient we visit or render service to is a potential
spokesperson for us. A small card explaining our case
and asking him or her to write to an authority supporting
our point of view is the best way to deal with the
crisis.
I am confident that patients look up to us and will
do all they can to help if they feel in their hearts
that we do all that we can to help them. We have always
been patient advocates, and I am sure they will reciprocate.
Please do not let anybody or any manmade law put a
wedge between us.
Ezzat I. Abouleish, M.D.
Galveston, Texas
Do Slow-Downs Strike
Out With Our Patients?
In your March
2003 “Ventilations” titled “A Public
Betrayal,” the interpretation
of physician action in support of tort reform as unethical
and “egocentric” demands more depth and
insight.
The recent work slow-down this past February by New
Jersey surgeons, obstetricians and primary care doctors
was an announced event. Hospital and physician staffing
for urgent and emergency care were fully in place, allowing
the unfortunate 6-year-old girl portrayed in your article
to receive appropriate care. Full-page ads in local
newspapers by area hospitals reminded local communities
of the ongoing availability of medical care during this
time and urged the public to voice support for liability
reform to prevent a further loss of physicians from
New Jersey due to unaffordable or unobtainable malpractice
insurance coverage. While an inconvenience to patients,
this was remote from an unethical or a harmful denial
of medical care. Through honest and open dialogue with
their patients, physicians across the state earned public
support for tort reform as evidenced by thousands of
patient petitions and telephone calls to the governor.
Your analogy to a striking police department is disturbing.
One malpractice lawyer interviewed by local news compared
doctors rallying for caps on malpractice awards to criminals
asking for reduced sentences for committing crimes.
While legitimate claims deserve reasonable compensation,
this shallow perception helps opportunistic personal
injury lawyers to exploit patients and win over jurors,
leading to the frivolous “jackpot” awards
for claims of malpractice.
Undoubtedly, the need for a unified political voice
advocating tort reform exists. This cause starts with
recruiting the public as done this past February in
New Jersey (and as you suggested in your June 2002 “Ventilations”).
Professional organizations provide medical information
to the public on topics such as pain options during
childbirth or minimally invasive obesity reduction surgery.
Patients have become consumers and active participants
in their care (probably not popular in Hippocrates’
medical practice). Topics such as reimbursement and
medical liability belong in patient education.
As anesthesiologists, it is in our better interest not
to preach (neither publicly nor in the halls of our
hospitals) to the people with whom we work side by side.
While cases were not boycotted, we displayed a consistent,
empathetic tone toward our surgical colleagues regardless
of personal opinion toward the work slow-down. To forget
the public in this cause and point a moral finger at
our fellow surgeons and obstetricians who provide our
operating rooms and labor/delivery suites with patients
every day would certainly be the ultimate “betrayal.”
Medicine will ignorantly be reduced to a story about
“cops and robbers.”
Michael Block, M.D.
Hackensack, New Jersey Editor’s
Reply - The information provided by Dr.
Block not withstanding, physicians walk on a delicate
balance beam when using work slow-downs to rally public
attention and support. While New Jersey’s action
was organized well, can the public really separate striking
by doctors and by union workers? Walking a picket line
in whatever form is paid for by giving up a little of
one’s public respect and trust. That point should
be factored into the cost-benefit ratio of protesting.
— M.J.L.
So We’ll Lose
Our Reimbursement — Who Medi‘cares’?
With all due respect to Mark J. Lema, M.D., Ph.D.
(March 2003 “Ventilations”),
the ceremonial oath sworn to by medical school graduates
was written by an ancient Greek who practiced around
400 B.C.E.; hardly a benchmark for the tumultuous times
in which well-intentioned physicians find themselves
today. In my state of Florida, it is not error or negligence
that might prompt a malpractice lawsuit. Under “Bad
Faith” law, the severity of disability alone prompts
emotional juries to make multimillion dollar awards
for pain and you-know-what!
Isn’t it time for the medical profession to provoke
an emotional response from the voting public in order
to awaken politicians to the fact that medical practice
as they have known it will soon return to the days of
the “Father of Medicine?”
Incidentally, 70 percent of federal employees are covered
by fee-for-service plans under the Federal Employees
Health Benefit Program Demonstration Project (FEHBP).
This is a dirty little secret that is never revealed
in discussions of fair treatment for our profession.
Twenty-five billion dollars is funded yearly for FEHBP
and covers members of Congress (bless their altruistic
souls), federal employees (your neighborhood mailman)
and their dependents, 9 million in all!
We must fight by all legal means possible for a return
to fee-for-service. If it requires a break with tradition,
so be it. We cannot survive in high-risk specialties
under a tort system that benefits attorneys and terrorizes
physicians. Strike if need be. You have nothing to lose
but your Medicare reimbursements.
Burton Rubin, M.D.
Alva, Florida Sea
of White Coats Makes an Impression on Washington Lobbyists
I personally take offense at your March
2003 “Ventilations” called “A Public
Betrayal.” Specifically,
when writing, “This form of striking can be
disguised as a rally where all physicians leave town
for a day to petition the government or to attend
a national conference,” you seem to imply that
physicians shouldn’t meet together en mass to
call attention to the myriad problems associated with
rising malpractice insurance premiums. I realize your
example does state “all” physicians in
a town, but to most readers, I doubt that was clear.
I just participated in a physician rally in Raleigh,
North Carolina, that was held to call attention to
the problem of rapidly rising malpractice insurance
premiums in our state and the shrinking number of
malpractice insurance carriers. This is beginning
to create access problems for patients in rural areas
to vital physician services such as obstetrics and
emergency care. The rates are rising so fast that
soon it may be difficult to attract new physicians
to even more populated areas.
More than 3,000 physicians from all over the state
came to speak to their local legislators and attend
a rally. Most wore white coats. What a sight it was!
The legislators were overwhelmed that we would take
the time to come and speak with them. They stated
that doctors usually sit back and don’t get
involved, and because of this, patients suffer. In
our state, the trial lawyers’ lobby is very
powerful. Because of our attendance, a tort reform
bill hopefully will be passed that will continue the
excellent access to all types of medical care that
our state’s citizens have.
At no time was this considered a work slow-down or
strike. The attendees were clearly still a minority
of doctors in our state, and I’m sure no patient
suffered. I had four partners who were working while
I was in attendance.
For too long, physicians have been silent about medical
and patient-care issues. Yes, letting our medical
societies’ lobbyists work behind the scenes
is needed, but so are public displays such as the
one I just attended. Unfortunately, your editorial
leaves the casual reader with the impression that
even this type of rally is wrong to attend.
I think your editorial needs some clarification.
Warren G. Mills, MD
Statesville, North Carolina
Editor’s Note: Please don’t
take it personally as I did not write the editorial
with you in mind. Did the patients who were not served
that day also support this show of force? While anesthesiologists
are in essence chained to the machine and surgery
continues in the absence of some, who covers specialists
that may not have convenient backup coverage? Finally,
the word “all” is a pretty well-defined
term. A rally by many with adequate hometown coverage
should not be opposed by anyone. It’s our right
to assemble. I have, however, heard discussions among
doctors to use a rally as a disguise for a strike;
clearly unethical in my mind.
— M.J.L.
Rallying Our Forces
Is Not a Strike in Disguise
While I agree with you that physicians should not
add to the problem of limiting access to quality medical
care, I strongly disagree with the assumptions you
made in
“A Public Betrayal”
in your March 2003 “Ventilations.”
You assume that a one-day visit to the state capital,
as was recently done in North Carolina, actually limits
access to care.
First, consider the number of physicians (including
anesthesiologists) who meet each year at annual meetings
or legislative conferences. Do these gatherings represent
a betrayal of public trust? I can assure you that
the percentage of anesthesiologists on the job in
North Carolina was higher on April 8 than it is during
the ASA Annual Meeting.
Secondly, and more importantly, would we be doing
our patients a better service by sitting idly without
attempting to focus on the problems facing our ability
to practice? Is the public better served when we reduce
our practice volume or leave medicine permanently?
When doctors no longer practice, access is denied.
I agree with you that we are stewards of a public
trust. I don’t agree that a rally at a state
capital for a day is a betrayal of our patients. Doing
nothing, however, is.
H.A. McCulloch, M.D.
Charlotte, North Carolina
Editor’s Note: There have
been reports of angry physicians using rallies as
a form of striking. My comments read as follows:
“It seems that physicians are making
threats to ‘strike’ or, euphemistically
speaking, to participate in a work slow-down. This
form of striking can be disguised as a rally where
all physicians leave town for a day to petition
the government or to attend a national conference.
The end result diminishes or eliminates timely services
for urgent or emergency care and places innocent
citizens at risk.”
If the intent of the North Carolina Medical Society
was to cause a work slow-down, then this statement
applies to you. If, as you say, there was no intent
to inconvenience patients, this statement doesn’t
apply to your colleagues. Not all rallies are strikes
in disguise. I didn’t think I needed to state
the obvious.
— M.J.L.
‘Greener Pasture’
Syndrome Wilts Whole Field Eventually
You do appear to understand the level of financial
burden placed on physicians involved in the malpractice
liability controversy. However, physicians deciding
on whether or not to move to (temporarily?) greener
pastures should not simply be divided into those who
can move and those who cannot.
When faced with these financial difficulties, many
physicians make the decision to stay so that they
may fight for the quality of care of their patients.
The American Medical Association and state and county
medical societies could not provide the type of immediate
relief (i.e., tens of thousands of dollars per physician)
needed to allow these doctors to maintain their practices.
One family practitioner with whom I trained was forced
to close his practice when his expenses, including
over $80,000 in malpractice, exceeded his collections.
For some, the work stoppage was the only choice before
leaving town. When the steel mill was having financial
difficulty, the people in town fought together to
make it better. Now the medical care system needs
fighting for. Running to another town is not the answer.
One of the physicians involved in the work stoppage
in the northern panhandle of West Virginia chose to
stay for his patients. Some of the patients he takes
care of he has known for 30 years or more (he is only
39). He knows he can provide care for them as well
as anyone. When this physician was presented with
a child in the emergency room with a possible appendicitis,
he applied for emergency privileges so that the patient
would not have to be transferred to another facility
or accept anything less than quality medical care.
More than likely, the patient’s family did not
know that he did this (ultimately, the patient did
not need the operation). But the family trusted him.
His colleagues and I (his brother) know that when
faced with the dilemma of how to honor his Hippocratic
Oath while experiencing overwhelming financial problems,
he has chosen, in more ways than one, to “do
no harm.”
Antonio M. Licata, D.O.
Centerville, Ohio
It’s Medicare, Not
Medicare Patients
Medicare’s atrocious reimbursement and rules
are strangling the quality out of health care in this
country. Numerous letters and articles all lack a
solution that was effective and politically viable.
Not accepting Medicare or Medicare patients takes
aim at the wrong target. Medicare patients are as
much victims of Medicare as we are. (My fate as a
future Medicare patient is more worrisome
than my fate as a Medicare physician.) And
political lobbying is little more than expensive whining.
Remember, each of us voluntarily signed a contract
with Medicare. Their “rules” and fee schedules
are not laws but negotiable contract terms. We need
to make a contract revision something like this:
“Whereas Medicare’s current fees for
anesthesia services would barely be adequate to
secure the services of a plumber,” and
“Whereas these inadequate fees are almost
solely responsible for our group’s inability
to recruit and retain sufficient staff to care for
all of our patients,” then
“According to the termination terms of our
agreement, as of [insert date] a revised contract,
signed and attached, describes the new terms under
which physician is willing to continue to be a Medicare
Provider. The only revision is that as of [insert
date] Medicare’s fees shall be regarded as
the partial payment that they have long been. As
of [insert date], physician shall, when appropriate,
bill Medicare subscribers usual and reasonable fees
for professional services rendered.”
Note that this turns the tables on who is and who
is not willing to participate. We are demonstrating
our willingness and eagerness to care for Medicare
patients. If the Centers for Medicare & Medicaid
Services refuses this reasonable contract revision,
then they can bear the burden of explaining to the
public why they are refusing to help these thousands
of patients pay their reasonable medical bills. We
will need to do a little preemptive public relations,
and the illustrious Michael Scott will need to tune
up the language for us a bit. Then we agree on a date
and do it. If we fail to unify behind some plan like
this, then we deserve to continue being treated as
we have been.
Let’s do a survey to find out how many of us
might be willing to do something like this.
Peter M. Lucas, M.D.
North Bend, Oregon
Hypocritical Oaths in
Alabama AA Testimony
During my career in anesthesia, now spanning some
33 years, I have worked with several anesthesiologist
assistants (AAs) and physician-assistant anesthetists,
all of whom I found to be extremely competent. Therefore,
I read with interest the accounting of the Alabama
and Texas experiences with AAs in the
March 2003 ASA NEWSLETTER.
I happened to be a faculty member at the University
of South Alabama at the time when John Miller, M.D.,
the chair of anesthesiology at the time, was instrumental
in providing input to the Alabama Board of Medical
Examiners regarding language by which AAs must be
allowed to practice in Alabama. The feedback he obtained
regarding the nurse anesthetist input to those proceedings
in Alabama was most interesting.
I would encourage anyone and everyone in ASA to obtain
copies of the Alabama nurse anesthetists’ testimony
regarding those proposed rules. It sounds very much
like the ASA testimony regarding [lesser] training
and qualifications of nurse anesthetists, which all
nurse anesthetist organizations completely refute
at every opportunity. However, there seemed to be
no reluctance for the Alabama nurse anesthetists to
use exactly the same arguments concerning a competing
group of anesthesia practitioners. It makes for very
interesting reading.
David A. Cross, M.D.
Belton, Texas
Trying to Keep Nonphysicians
From Taking Our Jobs
I am currently finishing my CA-3 year of anesthesiology
training, and I will soon be starting a combined critical
care/cardiothoracic anesthesia fellowship. I love
the field of anesthesiology but have become quite
disillusioned with the current state of our specialty.
The March
2003 ASA NEWSLETTER regarding
anesthesiologist assistants (AAs) represents some
of those reasons.
I have no comprehension of why ASA could support the
creation and development of AAs. We already have nurse
anesthetists, which is another issue unto itself.
Isn’t that what the nurse anesthetist is supposed
to be — an assistant for the physician anesthesiologist?
Why open the door to another quasi-health professional
field for AAs? Already there have been great political
battles between anesthesiologists and nurse anesthetists,
and I am disgusted by it. Nurse anesthetists have
shown nothing but arrogance, greed and a complete
disregard for patient safety by their demands for
independent practice. Anesthesiology is a field of
medicine, and it should be practiced by medical doctors!
Just this morning, I had breakfast with an Irish-trained
colleague. She echoed my disdain for these new inadequately
trained nonphysicians trying to do our jobs. We are
one of the only countries on the planet where medicine
has actually allowed nonphysicians to perform anesthesia.
As physicians, we have a duty to uphold the high standards
of medical training that are required for physicians
to practice anesthesiology. I am sick and tired of
American medicine opening the doors of increasing
responsibility to poorly trained nonphysician professionals
such as nurse practitioners, nurse anesthetists, physician
assistants and now AAs. If these quasi-health professionals
want to practice medicine, they should go to medical
school!
I am also quite disturbed by the current state of
anesthesiology in the United States. We have collectively
all but given up the subdiscipline of critical care
medicine, a field that we developed! In most of Europe,
anesthesiologists are intensivists. It’s no
wonder that many surgeons here regard us as nothing
more than operating room vent jockeys! The time has
come to take back our field and to make anesthesiology
a comprehensive, respectable medical profession once
again!
John C. Klick, M.D.
Brookline, Massachusetts
Anesthesiologist Assistants
— Another Trojan Horse?
We’ve traveled this road before when there existed
a “shortage” of nurse anesthetist providers
and a concomitant ignorance of the complexities of
safe anesthetics. The fact that 90 percent or more
of the procedures were completed in an uneventful
manner only enhanced the idea that anesthesia was
no “big deal” and almost anyone could
safely administer it to patients.
Only after a few of our esteemed colleagues became
involved did we realize the true depth of the problem.
It is this direct involvement of the physician in
the process that has yielded our continuing march
toward “safe” delivery of these noxious
agents. Following the example of pioneer anesthesiologists,
will we soon see “pilot assistants” take
over the more mundane portions of a flight plan in
a Boeing 747? Shouldn’t we have the most highly
trained professional involved at the most basic level
of care to recognize and correct a “train of
errors or omissions” early in the sequence to
break the process? Piloting a complex aircraft and
administering a complex anesthetic procedure are very
similar beasts.
AAs do not address the true origins of the shortage
of well-trained physician anesthesiologists. Only
fair reimbursements will do that. Witness the number
of hospitals that now financially support anesthesiologists
to be available for tough Medicare cases. Where
adequate reimbursements exist, there is no shortage
of anesthesiologists to do the cases.
Now that our ASA leadership has endorsed the concept
of AAs, anesthesiologists will begin to “supervise”
two, three or four AAs doing the mundane, boring work
while physicians engage in the more “heady”
tasks of our profession. How long before AAs begin
to think that they do not “need” us 90
percent of the time and try to launch out on their
own, at full billing rate, of course, stating they
are just as “good” as us? Does this sound
familiar to the ASA leadership?
Joel E. Colley, M.D.
Scottsdale, Arizona
Editor’s Note: Despite
the passionate tone of this letter, there are certain
realities that must be considered:
• Anesthesiology cannot train enough
physicians to exclusively treat the estimated 30
million to 40 million anesthetics yearly.
• Billing for everyone is decreasing, and
only a few areas are currently enjoying “adequate”
reimbursement.
Combining knowledgeable nonphysician providers
with physicians is the most efficient way to provide
safe care while attending to nonbillable perioperative
activities and to conduct the clinical trials that
advance our specialty.
— M.J.L.
Reader Doesn’t Recognize
Society Anymore
After reading the March
2003 issue of the NEWSLETTER,
which was concerned with anesthesiologist assistants,
I am confused. I thought that I was a card-carrying,
dues-paying member of ASA, but the content of this
NEWSLETTER seemed to show that I was in error. Has
the Society morphed into the “American Society
of Teachers and Managers of Ancillary Anesthesia Providers”
without my knowledge?
Those who advocate and wish to promulgate these types
are free to do so, but must they hijack the Society
that I, for one, have supported for 40 years? The
fawning attention given to anesthesiology substitutes
usurping the content of an ASA publication was a complete
surprise. If the Society has moved “beyond”
me, then you should have given me some warning, and
I could have saved my dues.
ASA needs to come clean with the membership on this.
If you want to have an organization that takes on
the responsibility of anesthesia services for the
world, then start another entity. But this thing of
ours is for anesthesiologists — it’s right
in the name.
Leslie E. Soper, M.D.
Las Vegas, Nevada
Erratum
In the May 2003 “Letters to the Editor”
section, the letter “ASA Needs to Bite the Bullet
on Hired Gun Issue” was mistakenly attributed
to John J. Overdyk, M.D. The actual author was Frank
J. Overdyk, M.D. We apologize to Dr. Overdyk for this
error.
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