All posts by Darryl S. Weiman, M.D., J.D.

Surgical Education

Educating Future Physicians

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The role of medical schools in educating our physicians of the future has undergone some significant changes over the last 25 years. For most of the twentieth century, many medical schools had their own hospitals and the faculty were tasked with teaching and research. Most of the clinical activities were focussed on the difficult cases and there was little incentive to see and treat more patients other than to generate income for research and teaching activities. The academic faculty were salaried and the salary was not related to the generation of clinical income.

Medical schools would often provide faculty to the the charity hospitals and Veterans hospitals where medical students and residents would get exposure to patients. Teaching and training was at a high level; the faculty could focus on the patients as could the trainees and there was no rush to see more patients. Care was thoughtful and teaching was meaningful.

Just a few decades ago, it was common for professors to have dedicated teaching rounds either in the mornings or in the evenings and often on weekends. Residents and medical students would present recent cases and there would then be questions, using the Socratic method, where care was discussed in detail. The trainees were taught to think like doctors. They learned professionalism, mainly from emulating their mentors. There was no rush to see more patients and there was no limit on the time spent with each patient.

Often, these teaching sessions were followed by actual rounds where the trainees and the attending would actually see, examine, and discuss the patient’s findings. The patients and their families would look forward to these sessions as they felt they were getting individualized attention by the “best” and they were fulfilling their role of helping to educate the future generation of physicians. It was a “win-win” situation.

When the government got involved in health care with programs like Medicare and Medicaid, physicians and hospitals learned there was money to be made under the “fee for service model.” The more patients seen and procedures done, the more income was generated. Third party payers followed the model of the government and costs skyrocketed.

As the costs of health care continued to rise, forms of managed care took on increasing importance to limit these rising costs. Medical schools and their teaching hospitals found that they were ill-equipped to compete in this type of market. In the 1990’s, it was thought that many medical schools along with their teaching hospitals would have to close as they were not competitive with the private and public hospitals. In an effort to survive, medical schools decided to expand their faculty practices.

Based on the recommendations of paid outside consultants, most of the medical schools decided to change their business model away from the scholarly model of research, teaching, and clinical care of the complex patient. The expansion of the clinical practice was done in two ways. The first was to have their academic faculty see more patients and they did this with financial incentives. The second was to join with public and private hospitals and use the clinicians in those facilities to help generate income to help keep the medical schools solvent.

The attending teaching rounds had to be shortened or even curtailed so that more time could be spent in seeing patients and generating more income. The education component was no longer valued and the teacher’s income was dependent on his clinical practice. Some schools would provide some salary support for educational activities and research but not nearly to the level as it was prior to the advent of “managed care.”

The medical schools supplied the hospitals with resident coverage and with clinical faculty whose credentials could be used as a marketing tool for the hospitals and practice plans. The new clinical faculty were given academic titles from the medical schools and they were given access to residents who would help take care of the patients so that the faculty could see more patients and generate more income.

With this new model predicated on generating more clinical income for the school and the hospitals, it was foreseeable that the scholarly activities related to teaching students and doing research would suffer. Clinical dollars were being spent to keep the medical centers solvent and subsidies ear-marked for research and teaching declined.

By the beginning of the twenty-first century, a career as an academic physician was becoming far less interesting. Funding opportunities for research were declining, teaching activities were not being rewarded, and income was being tied to clinical activities alone. In fact, many medical schools began to hire new faculty whose sole role was to practice medicine and generate clinical income. Investigator-teachers and clinician-teachers were no longer high priorities for medical school hiring even though they were essential for the schools to meet their original missions of research and education.

Sometimes, the missions of the hospitals and the medical schools conflicted. On these occasions, it was common for one or the other entity to hire their own providers without the shared input that was the original intent of the mergers. Since the academic titles bestowed were the province of the school as was the use of the residents, some new hospital hires found that some of their expected benefits were not forthcoming as promised. Also, the medical schools could not hire their own faculty unless they got buy-in from the hospital and practice plan up front; otherwise, the new faculty could find himself without a clincal venue in which to practice.

Older physicians like to think of themselves as the last of the “triple threat” clinicians; they have made meaningful contributions as health care providers, researchers, and teachers. Their younger colleagues are more likely to think of them as “dinosaurs” doomed to extinction. It does not matter who is right as we are still faced with the problem of young, bright, and dedicated medical students and residents who should be provided with the education and training they deserve.

It is time to recognize that we owe our future generations a dedicated medical workforce interested in advancing medical knowledge, teaching, and enforcing the standards of care our people have come to expect. We must resolve our conflict between medical education and the new environment of health care delivery dependent on generating income and cost containment.

The missions of the hospitals and clinics are different from the missions of the universities as it relates to a professional education. If we do not resolve this conflict, training physicians will become no more than an apprenticeship which is the way it was prior to the advent of university-based medical schools. Proprietary medical schools did not work very well in the past which is why the original Flexner report recommended a switch to university based medical education. If America is to continue providing the best health care in the world, educating future providers must be a high priority. The American Public deserves no less.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

In the Courtroom

The Standard of Care

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In order to prevail in a medical malpractice action, the plaintiff must show, by a preponderance of evidence standard, that the defendant owed a duty of care to the plaintiff, the defendant was negligent in providing that care, the plaintiff was injured, and the legal cause of the injuries was the negligent care. All four of these elements must be shown for the plaintiff to win.

The most compelling type of medical malpractice case is the failure to diagnose a life-threatening condition which results in the death of the patient. Myocardial infarction, aortic dissection, certain malignancies, and neurologic injuries represent these types of cases. If the provider can show that he considered these types of conditions and he took steps to make the diagnosis, then he will likely win even if the diagnosis is missed.

There are false positives and false negatives for all diagnostic tests and the courts recognize this. In general, expert testimony is needed to confirm or deny that the provider did what a reasonable provider would do if faced with the same or similar circumstances. Expert testimony is required because most people do not have the knowledge or experience needed to make decisions on standards of care by themselves. Under the law, an expert can be used to educate the trier-of-fact to better understand the evidence or determine a fact in issue.

In most states and in the federal courts, an expert witness must be qualified by knowledge, skill, experience, training, or education so that he can testify in the form of an opinion or otherwise. Before an expert is allowed to testify, the court must act as a gatekeeper to determine if the expert’s testimony will substantially assist the trier-of-fact. The factors that the court will use in making this determination are (1) whether the scientific evidence has been tested, (2) whether the evidence has been subjected to peer review and publication, (3) whether a potential rate of error of the evidence is known, (4) whether the evidence is generally accepted in the appropriate scientific community, and (5) whether the expert’s research in the applicable field has been conducted independent of the litigation. These factors come from the Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1994) holdings which relate to what an expert witness is allowed to testify about in a malpractice action.

Prior to Daubert, the federal courts used the “generally accepted” standard which originated from Frye v. United States 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held that novel scientific testimony is admissible in federal courts if the testimony had been “generally accepted” in the appropriate scientific community where it had originated; expert testimony must be based on scientific methods that were reasonably used and accepted. Most states then came on board with this standard and it had been used for over 70 years.

Most states and the federal Courts have adopted the holdings of Daubert but some have not. There are still 13 states which follow the standard of Frye.The Frye standard is a much easier to meet than Daubert. The courts that use the “generally accepted” standard reason that the jury should be allowed to rule on the relevance of the testimony and there should be no prior screening by a judge.

The “standard of care” is defined by statute in most states. For example, in Tennessee, it is “the recognized standard of professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time of the alleged injury or wrongful act occurred.” Most states do not have the community standard element that is in the Tennessee statute.

In medical practice, there are many conditions which now have recommendations for care and treatment. These recommendations come from committees comprised of recognized experts in the field. I was at a lecture for continuing legal education where a well-known plaintiff’s attorney stated that, as far as he was concerned, the “best practices” paradigms recommended by these committees were now the “standards of care” and any health care provider who did not follow the paradigms was committing medical malpractice. He was wrong.

Most, if not all, of the publicized treatment recommendations have a disclaimer which recognizes that it is up to the treating clinician to decided on the proper care of a particular patient. The law has not changed; the standard of care is still the care that would be provided by a reasonable physician who is faced with the same or similar circumstances. If a reasonable clinician would not have followed the committee’s recommendations, then the standard of care may still have been met.

Here is an example where the paradigm may not be the standard of care. Under the committee recommendations, a person who presents to the hospital with an acute coronary syndrome should be given morphine, oxygen, aspirin and nitrates. According to the above mentioned plaintiff’s attorney, a person not getting all elements of this treatment regimen would be the victim of malpractice. However, physicians would not give morphine to a person with a low blood pressure or to someone who is allergic to the drug. A patient who has severe chronic obstructive pulmonary disease may stop breathing if given supplemental oxygen. A person who has gastrointestinal bleeding or is allergic to aspirin should not be given that drug. We know from TV commercials that a person on Viagra or Cialis should not take nitrates as that could lead to a sudden dangerous drop in blood pressure.

Opposing attorneys will try their best to discredit the expert witness on cross-examination and they have many weapons in their arsenal to accomplish this goal. One strategy is to let the jury know how much has already been paid to review the medical records, study deposition testimony and answers to interrogatories, and how much is being charged per hour to do the reviews, give testimony at depositions, and testify at trial. The amounts can be substantial and many professionals make a significant income performing as an expert witness. If it can be shown that a particular witness has been paid a lot of money, then the jury may conclude that his opinion is being bought; the credibility of the witness will suffer accordingly.

Although there are many other ways to attack an expert on cross-examination, one of the best is to show the jury that he may not be an expert at all. This can be done by exposing weaknesses in the expert’s curriculum vitae. A national survey of 2.6 million resumes done in 2003 showed that 41 percent lied about their work experience and 23 percent lied about their credentials or licenses. A surprising 41 percent lied about their education (Thomas A. Buckhoff, Preventing Fraud by Conducting Background Checks, CPA J., Nov. 2003). Opposing attorneys now routinely check the backgrounds of medical expert witnesses and they will even look at social media sites to see if they can find some incriminating information that can be used to attack their credibility.

If it can be shown that the medical expert was willing to embellish on his qualifications, it is logical to assume he has embellished his medical opinions, also.

There are few trial lawyers that can show superior knowledge to the expert in the medical field under discussion. After all, they are lawyers and it is unlikely they have ever treated an actual patient. Book knowledge is just not enough to be a good physician and that is probably why it is called the “practice of medicine.” By practicing, you are hopefully improving your knowledge and skill as a physician all the time.

If the physician can show he used his best clinical judgment at all times while caring for the patient, he will likely win his case even if the results were not good. Physicians are forced to make judgments, some of which do not work out well for the patient. These decisions are made with the best data available; they cannot rule out every single diagnosis or provide perfect care. The courts and the juries recognize this and will generally rule in favor of the physician who has used his best judgment and done it in a timely fashion. The physician can be his own best medical expert witness in this regard.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

Affordable Care Act, In the Courtroom

You Can Have Your Cake

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The United States Supreme Court will soon have a decision on Masterpiece Cakeshop v. Colorado Civil Rights Commission. The decision is one of the most anticipated in the present term of the Court as it examines the rights of creative professionals to withhold their services based on religious objections. The Court must decide based on what seems to be a conflict of free speech and free exercise of religion, both provided under the First Amendment of the Constitution, and anti-discrimination law.

The facts of the case are as follows. In July 2012, Charlie Craig and David Mullins decide to get married. It was to be a same-sex marriage which, at that time, was not recognized in Colorado. They planned to be married in Massachusetts and then have a reception at a Denver restaurant. In anticipation of the Denver reception, they went to Masterpiece Cakeshop in Lakewood Colorado where they hoped to purchase a cake designed for them by the bakery’s owner.

The bakery owner, Jack Phillips, was a self-professed cake artist who was known for his elaborate cake creations for weddings and other celebrations. He was also a devout Christian who had a history of not baking any goods for any Halloween or bachelor party (sexual in nature?) themes. Since Mr. Phillips had strong religious objections to same sex marriages, he refused to design a cake that would be part of either a wedding or a marriage. Interestingly, he was willing to make them baked goods for any shower, birthday, or other occasion that was not related to the wedding. He was also willing to sell them a cake off the shelf but he just could not participate in creating a new, unique cake for the reception itself.

Craig and Mullins filed a complaint with the Colorado Civil Rights Commission against Masterpiece Cakeshop alleging they were discriminated against based on their sexual orientation. Phillips argued that his artwork was a form of speech and he could not be compelled to participate in the expression needed to make the cake. He also argued that he could not be compelled to make a cake that would impair his free exercise of religion.

The case was first heard by an administrative judge who rejected both the free speech and free exercise of religion claims. The judge reasoned that since there was no particular design or message requested by Craig and Mullins, then there could be no free speech right to deny the request.

The original decision was confirmed on appeal to the state civil rights panel. This panel then ordered Phillips to design wedding cakes for any subsequent same-sex weddings so long as he does this for opposite-sex couples. He was also ordered to provide training for his staff in regard to the state’s anti-discrimination law.

The Colorado Court of Appeals upheld this decision stating that Phillips would not be conveying a message in support of same-sex marriage just because he was following the state’s law.

Phillips followed the ruling of the courts by choosing to stop making any wedding cakes at all. This had a significant effect on his business but it allowed him to follow his religious tenets.

Phillips appealed to the Colorado Supreme Court but they declined to hear the case. However, the Supreme Court of the United States granted a review.

The issue confronting the Court is the right of artistic individuals to create works of art that are consistent with their religious convictions. One of the main hurdles for this argument is to convince the Court that custom cakes made by a self-professed “cake artist” is truly an artistic expression. One of the amicus briefs in support of Phillips includes color photos of custom cakes made for numerous occasions. Since art is in the eye of the beholder it is hard to predict how the justices will rule on this argument.

Another brief coming from then Acting Solicitor General Jeffrey Wall argues that the First Amendment protects Phillps from having to participate in any ceremony that would violate his religious beliefs. This brief is narrowly written to include only the anti-bias law relating to same-sex marriages and is clear to exclude discrimination base on race. The brief states, “[a] state’s ‘fundamental, overriding interest’ in eliminating private racial discrimination—conduct that ‘violates deeply and widely accepted views of elementary justice’—may justify even those applications of a public accomodations law that infringes on First Amendment freedoms.”

Craig and Mullins contend that any business that makes a product and is open to the public must be willing to sell to any customer. Phillips was willing to sell any cake on display in the bakery but he was not willing to use his artistic skills to make a special one relating to the same-sex marriage.

The recent Supreme Court decision of Obergefell v. Hodges 576 U.S. (2015) held that all states must recognize and license same-sex marriages. This decision rested on the Fourteenth Amendment which the majority felt protected gay couples who were trying to get married and have those marriages recognized in all of the states. In dicta, Justice Kennedy did note that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” Will Kennedy decide that there may be a religious exception for artists who have religious convictions contrary to the written law? There is precedent for this holding in the Affordable Care Act where certain religious orders were exempted from having to provide birth control services in their mandated insurance coverage for their employees. Will the Court write in a religious exception for artists to allow them not to use their artistic skills for religious reasons?

The case is coming down as a conflict between the First and Fourteenth Amendments. Since this battle is dealing with a highly contentious social issue, I would predict that the Court will have a very narrow holding; it is likely they will rule only on a product based on artisitic expression and they may even limit it to artistic cake makers. If they are broad in their decision, then any store owner may decide to turn away customers for any reason so long as they can show that their product has some sort of artistic expression. This would likely lead to more litigation to clarify the decision.

Obergefell was a close decision with Kennedy coming down on the side of the majority. It is likely that he will be the one to cast the deciding vote in Masterpiece Cakeshop.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

In the Courtroom

Apologies May Not Be Enough

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Taking care of sick people can be a messy business and sometimes things don’t turn out as planned. When things go bad, the natural tendency of the physician taking care of the patient is to distance himself from the case; it is difficult to talk with the patient and the family when there is the threat of pending litigation.

Avoiding discussions of patient harm comes from the mindset that this harm is likely to result in a medical malpractice suit and it is best to not say anything that may be used for negative effect in the future, especially a statement that may be construed as admitting fault. In fact, it used to be common for malpractice insurers to encourage their physicians to “deny and defend” against any possibility of being accused of negligence in a possible lawsuit.

The thought of apologizing for a bad result was anathema; the apology may be the first indication that something has gone wrong and may be interpreted by the patient as physician negligence. Even if the apology could not be used as evidence of negligence, it may cause the patient to look for other evidence that they can use. Even without any other obvious evidence, the apology itself may be enough for the patient to file a suit and then look for other evidence during the discovery phase.

However, the lack of forthright communication may lead to anger which makes a malpractice lawsuit more likely in the long run. It is this theory that led many states to look at ways to increase physician-patient communication in hopes of decreasing the number of medical malpractice lawsuits. The goal was to resolve cases before they reached the level of litigation.

Under the theory that more physician communication may lead to a decrease in lawsuits, at least 37 states and the District of Columbia have enacted “apology laws” which encourage doctors to apologize to patients and their families whenever the patient has been harmed. Under these laws, the “apology” cannot be used as an admission of liability in any future malpractice action; these laws were meant to encourage physicians to show compassion and sympathy; when the patients saw that their physicians cared, the belief was they would be less likely to sue.

Unfortunately, the data is mixed as to whether or not the “apology laws” have led to a decrease in malpractice lawsuits. A study done by Benjamin McMichael, a postdoctoral scholar at Vanderbilt’s Owen Graduate School of Management showed, “In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit.” (Sorry Is Never Enough: The Effect of State Apology Laws on Medical Liability Risk)

There are thirty states and the District of Columbia which protect partial apologies; these are apologies that do not contain any admissions of liability for negligent actions. There are seven states that protect full apologies; these are apologies that may contain statements or expressions of fault, mistakes, and liability. The seven states which are known to protect full apologies are Washington, Colorado, Connecticut, Arizona, Georgia, South Carolina, and Vermont, and It looks like Ohio has just joined this group.

In a recent decision, the Ohio Supreme Court (Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526), held that the State’s apology law included acknowledgements that the patient’s care may have fallen below the standard of care. The Court stated, “expressing apology is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgement that the patient’s medical care fell below the standard of care.”

The case of Stewart v. Vivian, came from a lawsuit filed against Dr. Rodney Vivian after the death of Mr. Stewart’s wife. The wife had committed suicide after being admitted to a psychiatric unit at a hospital in Batavia, Ohio. Even though Mrs. Stewart was on a suicide watch, she was still able to hang herself during a period when she was not being observed. When Dr. Vivian later spoke to the family, he expressed what he claimed were statements of sorrow but the family felt the statements also expressed more than just sympathy and should be allowed into evidence as an admission of liability. Dr. Vivian denied that his statements admitted any negligence but the family was willing to testify, under oath, that he did.

The legal issue centered on whether or not Ohio’s “apology law” included an admission of fault. If the court believed that the law did not include admissions of fault, then the family would be allowed to testify on what they believed Dr. Vivian told them during his “apology.” The trial court ruled that Dr. Vivian’s apology could not be submitted in evidence even if the apology had an admission of negligence.

On the malpractice case, the trial court ruled in favor of Dr. Vivian. The family appealed claiming that the Court should have let them testify as to what they felt was conveyed in Dr. Vivian’s apology.

On appeal, the 12th District Court of Appeals held that Dr. Vivian’s statements were properly kept from the jury because the law was ambiguous and the dictionary definition of “apology” may or may not include an admission of fault. This ruling seemed to conflict with a previous ruling from the State’s Court of Appeals in the 9th District which concluded that the law did not include an “admission of fault.” (Davis v. Wooster Orthopedics & Sports Medicine, Inc.). Since there was a split at the Appellate Court level, the State Supreme Court stepped in and resolved the issue by agreeing with the Appellate Court. In Ohio, the “apology law” now includes admissions of negligence and it was proper for the trial court to keep all of Dr. Vivian’s statements of sympathy from the jury, even if negligence had been admitted.

The states that do not have any apology laws include Alaska, Nevada, New Mexico, Kansas, Minnesota, Illinois, Kentucky, Arkansas, Mississippi, Alabama, New York, and Rhode Island.

Since not all states with “apology laws” include admissions of fault, it would be wise for a physician making an apology to know which rule applies to his State. It would also be prudent for a physician expressing sympathy, condolence, or an apology, to pick his words very carefully. He should also make a note in the chart reflecting his thoughts at the time of the conversation; what the family claims they heard may be different from what the physician may claim he was trying to express; usually when there is a fact conflict like this, it is a matter for the jury to decide. Dr. Vivian was protected under his State’s law. Other physicians may not be so fortunate.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

Affordable Care Act, Surgical Education

Not Enough Academic Faculty

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A friend of mine who is an Assistant United States Attorney recently called me to ask for help. He was trying to get a primary care provider and was unable to find any group in town that was willing to take on new patients. I was taken aback by this request since his insurance, as a federal government employee, was probably pretty good. Fortunately, I was able to make a phone call and get him an appointment with one of the groups in town; it is one of the perks of being in practice in the community for a long period of time.

The plight of this attorney made me reflect on the increasing mismatch between the ever growing patient population coupled with the rapidly rising patient population reaching the age where health care is often needed, compared to the number of health care providers.

A recent report from the Association of American Medical Colleges entitled The Complexities of Physician Supply and Demand: Projections from 2015 to 2030, predict that there will be a shortfall in primary care providers in the range of 7,300 to 43,100 by 2030.

Projected shortfalls in non-primary care providers is even more worrisome; the range predicted is between 33,500 and 43,100 with most of the deficit accruing from the surgical subspecialties. With our current methods of training new surgeons we are only able to keep up with the attrition rate of surgeons retiring or dying. With the United States population predicted to grow about 12% between now and 2030, this will amount to about 40 million more people with no increase in the number of surgeons that can take care of them.

It can be argued that increasing the number of Nurse Practitioners and Physician Assistants can help with the patients needing primary care providers. However, these providers cannot do what surgeons do. In the population over 65, which is projected to grow by 55% by 2030, many operations are needed on an urgent or emergent basis. There may not be enough trained surgeons to meet the needs of our country. We either need to train more surgeons or admit that some patients who need surgery will not be able to get it.

I am painfully aware of how difficult it is to convince bright college students to consider medicine as a career. Even my two daughters have told me that they are just not interested in working day and night as I have done. Nor are they willing to make the sacrifices necessary to get the education and training required for the profession. It seems that many students who may have been interested in a career as a physician or other type of health care provider are now looking at careers in investment banking, law, business, or the computer sciences.

Recent data shows that the average retirement age for a surgeon has dropped to 57 years. Many explanations for this drop are being given, but the most likely reasons relate to the increased overhead costs emanating from the Affordable Care Act (ACA) coupled with the decreases in payments being given by the third party payers. There comes a point where the hard work of being a physician just does not seem to be worth the income earned. Of course, there are many non-financial rewards of helping someone who is sick, but these rewards are not be enough to pay the bills of staying in practice and raising a family.

Another recent survey from the Association of Academic Health Centers (AAHC) revealed that impending faculty shortages may lead to a crisis in training the next generation of health care providers. Without enough teachers, there will not be enough trained health professionals to take care of the patients flooding the system. This will add to the impending shorages described above.

The influx of “Baby Boomer” patients is not the only problem. A recent article in the Wall Street Journal (WSJ November 21, 2017, VA Chief Wants More Private Health Care) describes a new strategy where veterans will be allowed to seek care in the private sector instead of using the VA’s hospital system. This may lead to 10 million more patients seeking care in an already over-stressed system where getting an appointment to see a provider is already very difficult. There is no data to show that VA physicians will migrate to the private sector to help ameliorate the shortage in providers.

There are several reasons which may account for this lack of faculty. First, the level of interest in academic careers is decreasing among those who are now entering the health professions. There are significant disparities between the salaries of those who go into private practice, industry, and academics. The cost of getting a medical education is high and the debt facing recent graduates is a driver to choose a private practice career instead of an academic one. The average debt for a graduating medical student in 2015 was $180,000!

Of those who participated in the AAHC survey, 20% reported that they will have to make changes in their training programs in order to make ends meet. There will be fewer training programs for radiology, rehabilitation medicine, allergy, pediatric pulmonary medicine, anatomy, and pharmacology. There will also be cut-backs in medical school class size and other residency training programs. Of all the strategies listed by the survey participants, “limiting student enrollment” was most often cited.

Of major concern, a decrease in nursing school enrollment was listed most often as the area where cutbacks in enrollment would be made. In a hospital setting, you have to have the nurses to take care of the patients. Physicians cannot admit patients to beds that are not staffed by nurses.

It is clear that we need to train more health care providers if we are to adequately care for the anticipated rise in the number of patients needing care. It is also clear that we just do not have enough teachers to adequately train the people looking to go into health care as a profession.

Hiring physicians from other countries is an option, but steps will need to be taken to assure that those providers have the education, knowledge, and training that we have grown to expect in our system.

Since most of the training of the health care work force is dependent on funding from the government, there needs to be ongoing communication from the schools and the government to come up with a strategy to build and sustain our health care educational pipeline. This is a national interest and yet, not much is being written about it in the national press. It is time for this pending crisis to be brought forth in the public arena so that our children and their children will not be left with too few physicians, nurses, and other ancillary health care personnel to take care of them when they need it. This problem will not be fixed overnight.

 

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

In the Courtroom

Different States; Different Suits

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It is commonplace to hear advertisements both on television and radio where some legal firm is looking for clients who may have been injured by some “bad drug” such as a blood thinner which may have caused a bleeding problem, a faulty medical device such as meshes used for hernia repair, or for patients who may have developed mesothelioma from exposure to asbestos. The more clients they can get to sign up with their firm, the larger the possible settlement will be. Since these lawyers are usually working on a contingency, their share of the settlement is likely to be very large.

A recent Supreme Court decision will now make it more difficult for these plaintiff attorneys to reap a single large payday; instead, they will have to litigate in each state where a group of patients may have been harmed or they will need to bring the suit where the manufacturer is incorporated or where it is headquartered.

In Bristol–Meyers Squibb Co. v. Superior Court of California, San Francisco County, Et. Al., a group of plaintiffs, many of whom were California residents and some who were allegedly injured in other states, brought suit claiming that they were injured by Plavix, a blood thinner. The legal issue centered on the State’s jurisdiction for the nonresident plaintiffs. Bristol-Meyers Squibb (BMS) tried to get the nonresidents’ claims removed from the suit because of lack of personal jurisdiction in the State. The Court ruled that there was enough activity by the defendant to allow for general jurisdiction by the California Courts. In order for general jurisdiction to attach, it must be where the defendant corporation is deemed to be at home. This could only be where the defendant is headquartered or incorporated. Since BMS was incorporated in Delaware and headquartered in New York, general jurisdiction should not have attached so the Court got this legal issue wrong and BMS appealed.

The Court of Appeals agreed with BMS and found that California did lack general jurisdiction but the Court went on to hold that California did have specific jurisdiction over the claims brought by the nonresident plaintiffs. In order to have specific jurisdiction, the defendant needs to have a connection with the forum and the specific claims at issue. Was the connection enough to force BMS to defend itself in California for the injuries claimed by plaintiffs who were not injured in California? Previous jurisprudence seemed to require that there must be a connection between the forum and the specific claims at issue. How could the claims of nonresidents be connected with BMS activities in California?

The California Supreme Court felt that BMS’s contacts with the State were enough to allow for specific jurisdiction over the nonresidents’ claims because these claims were similar to the residents’ claims and because BMS had sufficient activities in the State to support jurisdiction. They relied on the fact that BMS had contracted with a California company, Mckesson, to distribute Plavix nationally.

The United States Supreme Court took the case on appeal and they held that the California courts did not have this specific jurisdiction because the suit of the nonresidents did not “arise out of or relate to the defendant’s contacts with the forum.” The Court held that the contract with Mckesson was just not enough to force BMS to defend itself against the nonresident plaintiffs.

The decision in Bristol–Meyers Squibb does not say what will need to be done if there is more than one defendant each headquartered or incorporated in different States, but the logical conclusion is that there will need to be separate suits for each defendant. This may make comparative fault issues very difficult to decide and is likely to lead to crossclaims and counterclaims. This will likely increase the costs of litigating these types of cases.

In a dissenting opinion, Justice Sotomayer stated that this decision will make it much more difficult for plaintiffs to hold corporations accountable for conduct that is uniform around the country. She wrote that it “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U.S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured.” In essence, Sotomayer believes the decision will overturn the holding of International Shoe which allowed States to go after corporations that did substantial business in their State. However, the holding still allows the States to have jurisdiction, but they can only fight for those who were injured in their State. It looks like International Shoe will still have a role in this type of litigation.

With this decision, plaintiffs will only be able to bring a legal action in the State where they were injured or in the defendant’s state of incorporation or where the defendant is headquartered. This means that actions which could have been decided in one court may now have to be divided with each interested State litigating the same type of case in their own jurisdiction. This division of cases could lead to very different results and will significantly add to the costs of the firms who are bringing suit in the first place; court costs, expert witness fees, time spent by the lawyers dealing with each court, will be multiplied by the number of States in which there are plaintiffs alleging injury.

In general, plaintiff’s attorneys do not like to bring suit in the defendant’s home State as they feel those courts are more likely to be favorable to the corporation. It is common practice for plaintiffs to bring suit in a forum which they feel will be more receptive to their cause. Bristol–Meyers is likely to make forum shopping by plaintiffs more difficult.

Of course, plaintiffs can try to start a “class action” on a national level, but that has a whole set of rules that can be difficult to meet. This is especially evident when different plaintiffs are looking for different remedies or when there are different attorneys looking to represent different plaintiffs.

With the decision in Bristol–Meyers Squibb, plaintiffs will no longer be able to consolidate a legal action in a State in which only some of them have been injured. This will hold even if the plaintiffs who were injured in different States are suing the same company for the same type of conduct that is alleged in the forum State. In the future, the only type of mass action that will be allowed will have to be brought on the defendant’s home turf. This will be to the disadvantage of the plaintiffs who would prefer the case to be heard by a more favorable State court and will make it more difficult for the plaintiff who may have to deal with a jurisdiction far from his home State.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

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The Prejudiced Patient

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What are physicians obligated to do if a patient refuses medical care based on the assigned physician’s racial, color, gender, religious, or national origin identity? Typically, the patient’s wishes are honored; but is that the right thing to do?

As physicians, our primary concern is the health of our patient. Evidence based medical practice shows that the physician-patient relationship is dependent on trust, mutual respect, forthright communication, cooperation, and participatory decision-making. The patient must be able to speak candidly about personal, maybe even embarrassing conditions and he must be willing to submit to a physical exam. These two conditions are linchpins to good care. To this end, the American Medical Association has consistently maintained that the patient’s right to choose his physician is a prerequisite of optimal care and ethical practice.

Physicians are not required to change a patient’s perception of the world. The Hippocratic Oath (which most physicians take in one form or another) directs them to do what is best for the patient. If the patient is unwilling to follow a physician’s advice, even if based on racial or other invidious prejudices, then he may be clinically harmed. As such, it makes medical sense to accede to the patient’s request.

There is a constitutionally protected liberty interest in refusing unwanted medical care. The law of Battery and the Doctrine of Informed Consent allow the competent patient to make choices for his medical care; this includes rejecting a doctor assigned to his case for any reason.

In 1986, the Emergency Medical Treatment and Active Labor Act (EMTALA) was signed into law. This Act requires that a hospital must provide a screening exam for any patient that presents to the facility. If the screening exam finds an emergency medical condition or active labor, then the hospital must provide stabilizing care so long as it has the capability to do so. A patient’s rejection of an assigned physician does not allow the hospital to avoid the EMTALA obligations so the hospital must provide another physician to take care of the patient.

The Civil Rights Act of 1964 (Act) was enacted to prevent discrimination based on race, color, religion, ethnicity, and national origin. Unfortunately, the Act gave no clear direction on how to deal with physician choice of a prejudiced patient. However, Titles II, VI, and VII of the Act may provide some guidance.

Title II of the Civil Rights Act prohibits customer preference discrimination. The argument can be made that patients are not customers or else they “would always be right.” The Act specifically applies to hotels, motels, restaurants, theaters, gas stations, bars, recreation areas, and places of entertainment—all affecting interstate commerce. Hospitals were specifically left out. When a law has such specificity, the courts uniformly rule that the law will not apply to other entities. Only Congress, not the courts, can give the law such added reach. Congress has not added hospitals to this Title for over fifty years.

Title VI of the Act covers hospitals and it targets actions against patients. The law addresses denial of health care, benefits, and services to patients. This law has never been used to address the prejudiced patient issue, but, even if it did, only the funding agent (such as the Federal Government, Medicare and Medicaid, or other third party payers) was given the legal standing to enforce the law. Third party payers are unlikely to bring a suit against a single prejudiced patient as the costs would far outweigh any perceived benefits.

Under Title VI, the Supreme Court has previously held that only intentional discrimination is forbidden—this is a high bar to prove in a legal action.

Title VII is the primary federal statute addressing employment discrimination; the employer may not discriminate based on race, color, religion, sex, or national origin. It is unlikely that the patient will ever be construed as the employer in this type of setting. A patient’s racial preference in the hospital setting is very different which probably explains why this Title has never been used to combat this invidious prejudice.

The case of Chaney v. Plainfield Healthcare Center, Seventh Circuit Court of Appeals (2010), 612 F.3d 908, dealt with the Civil Rights Act and patient choices. This case dealt with a nursing home resident who made a racially discriminatory request with respect to nursing assistants who were assigned to bathe her. The court ruled that this type of discrimination is not allowed. However, the facts of Chaney are clearly different from the situation where there is a physician-patient relationship and the health of the patient may be affected. There is no case that I could find that used Chaney as a basis to ignore a patient’s invidious prejudice against an assigned physician.

A physician’s primary concern is the well-being of his patients. That care is optimized if the patient buys in to the care being offered and the recommendations being made by the physician. If the patient does not have confidence in his physician, for whatever reason, he is not likely to follow the course of recommended care; he may be harmed by this action. Physicians are not the enforcers of social justice and they are not the political correctness police, especially if these roles may harm the patient.

The law of Battery and the Doctrine of Informed Consent are on the side of the prejudiced patient as are the requirements of EMTALA. The accomodation of the patient’s racial and other prejudices is not the type of invidious discrimination that the Civil Rights laws were enacted to prevent in other settings.

There are sound medical, ethical, and legal reasons to accede to a patient’s prejudiced choice of physician. We have honored the patient’s choice in the past and we should continue to honor their requests in the future; at least until the law directs us to do otherwise. The patient may be wrong in his demands, but it just does not matter.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

Affordable Care Act, Surgical Education

Free Legal Advice

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I am a lawyer but not an attorney. According to the Black’s Law Dictionary, a lawyer is a person who is licensed to practice law. I attended and graduated from the Cecil C. Humphreys School of law at the University of Memphis and I passed the Bar Exam for the State of Tennessee. I have even been sworn in by the Supreme Court of Tennessee so I am truly licensed to practice law in this state.

On the other hand, the legal definition of an attorney is a person who practices law. Notice that the legal definition does not even require licensure. I do not practice law so I do not fit the definition for being an attorney. It is not surprising that most people do not know of this legal distinction; I have even been in court where it became obvious that even the lawyers did not know the difference. I make my living as a surgeon and have done so going on 40 years.

Since it is common knowledge at our medical center that I have a legal education, I am often asked legal questions by my medical colleagues. These questions usually relate to medical malpractice issues, informed consent doctrine, medical ethics such as end of life issues and futile care, and contracts. Whenever approached for such legal advice, I first acknowledge that, even though I am a lawyer, I do not practice law. This disclaimer is important because I do not want to ever be accused of malpractice as a lawyer; it is enough that I have to deal with possible medical malpractice on a daily basis. I pay a significant premium for medical malpractice insurance and have no desire for similar payments as a practicing attorney.

When residents or fellows are finishing up their programs, they look for jobs and, eventually decide to take a position. For most, it will be their first job as a attending with the rights and privileges and pay commensurate with that position. Many will be given an employment contract which, for a physician, can be difficult to understand. For those who come to me for advice, the first thing I recommend is that they hire an attorney who is familiar with contracts dealing with physician issues. This true legal advice may be expensive but it is worth it. It would be a mistake for a physician to review the documents on his own as the legal language may be difficult to understand and it may have clauses that may come back to haunt him in the future.

There are three main areas that I look at if I am reviewing a contract; compensation and other benefits, termination clauses, and restrictive covenants.

When I review contracts for these young doctors, the first thing I look for are the terms for employment. How long is the contract for? Is there an automatic renewal or will written notice be required? Is the salary spelled out and is it guaranteed for the terms of the contract or is it dependent on income generated?

Since the Affordable Care Act went into effect, the overhead costs of a medical practice have gone up significantly. An electronic health record (EHR) is now required to practice and they are expensive. The documentation requirements for payment and quality improvement, also required under the law, usually mean that people will need to be hired for to keep the medical records up to date; it is just too time consuming for the physician to do everything himself. I once was considering joining a private practice group but the negotiations broke down when I learned my overhead costs would be $30 thousand a month.

Because of the overhead costs, most physicians have left private practice and joined hospitals or clinics which pay for this infrastructure. The physician becomes an employee under contract and the pay is usually good for the first term of the contract, usually for two years. However, the payment may go down significantly or the physician terminated if he does not generate an income to justify the salary over the term of the contract.

Other compensation issues to consider are bonuses, how are they calculated; benefits, such as vacation time; costs of continuing medical education, and malpractice insurance. If joining a group, the contract should be clear on what needs to be done to become a partner; is there a “buy-in” fee? It is common for the employer to keep renewing the physician’s contract but then terminate before he can become a partner. This does not seem fair, but the employer is out to make a profit and the mission of taking care of patients may not be the primary goal.

There are usually termination statements and it is important to note if the termination can only be “with cause” or “without cause”. If termination can be without cause, the employer can terminate the contract for any reason. This is harsh and it would be wise to have a notice requirement of 3 to 6 months so that there will be some time to look for another job. It is nice to have income while looking for a new position.

If the contract can be terminated “with cause” it is important that the reasons for termination be spelled out. Reasons for termination such as loss of a state license, inability to obtain Board certification, loss of medical malpractice insurance, or a felony conviction are understandable for termination. The new attending should be aware of vague terms such as “disloyalty to the practice” as this is open to wide interpretation and may lead to high legal bills if the clause is invoked and the court is asked to decide what the term means.

There is usually a non-compete clause, often termed a “restrictive covenant.” This clause is meant to keep the new attending from stealing patients from the group if he decides to leave within a set time-frame. No new employer wants to set up a new practice for a new hire only to have that hire leave and take those patients with him to a new, competing practice. Many states do not allow restrictive covenants as they have deemed that to be a restraint of trade and anti-competitive. Even states that do allow for these non-compete clauses will usually have limits on the prohibition of setting up a competing practice; these limits are related to duration and the distance from the original practice.

If there is a restrictive covenant, the new attending should be aware of the time and distance restrictions as they may not allow him to take on another potential job in that area, even if he has been successful in growing the practice. Physicians who sign a contract with a non-compete clause would be wise to hold off on buying a home in the area until he is certain that his relationship with his new employer is likely to be long term.

There are other issues emanating from employment contracts such as severance pay, reimbursement clauses if you leave the group early, and what happens to income coming to the group after termination. All can be complicated and further justifies the hiring of a competent contract lawyer. If any of the contract issues become grounds for future litigation, having an attorney to fight for your rights is worth the costs. It is also beneficial if it is the same attorney who has been with you from the beginning.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

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Maintaining My Surgical Certification

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After graduating from medical school, the would be practitioner is still required to complete a residency in one of the medical specialties before going into practice. These residencies range from 3 to 5 years or more. After completing the residency, there is then the requirement to take, and pass, a certification exam administered by the Board responsible for the residency program. In my case, I became certified in Surgery, and then, after completing another residency in Thoracic Surgery, became certified in that specialty, also.

Currently, there are at least 24 approved medical specialty boards of the American Board of Medical Specialties (ABMS) and 18 approved medical specialty boards of the American Osteopathic Association (AOA). Most practitioners have to undergo a recertifying exam by their specialty boards every 10 years. These exams are not easy. They require focused study, a detailed application process, and then, a proctored exam. I have maintained both of my certifications. I orginally certified in Surgery in 1984 which means I have recertified in 1994, 2004, and 2014. My orginal certification in Thoracic Surgery was 1992; the recertifications were in 2002 and 2012.

The concept of maintenance of certification (MOC) was to ensure that physicians would work to keep up with advances in their fields, improve their delivery of care, and commit to the necessary lifelong learning needed to practice competently. Studies show that board certified physicians provide better quality of care than those who are not certified. Other studies show that the quality of care of a practitioner decreases as time elapses from the time of their initial certification. This is probably related to new knowledge and new clinical skills needed to keep up with modern practice. An argument has been made that there are ways other than that provided by MOC exam requirements which can help the practitioner keep up and there is no data that the MOC exam fulfills this goal, but it is currently the way the boards want to do it.

As for the legal field, in my State, lawyers are required to do 15 hours of continuing legal education every year in order to maintain their licensure. This is far easier than the requirements for MOC for Surgery or Thoracic Surgery. In fact, once you pass the Bar Exam for your State, no further exams are required. However, if a lawyer wants to practice in another State which may not have a reciprocity arrangement with the original State, another Bar exam may have to be taken and passed. No Bar recertification exam is required for lawyers.

For years, many hospitals, insurance carriers, and medical licensing boards, have used board certification as a necessary requirement for licensing and privileging. Historically, it was up to the Boards to decide the standards needed for assessing clinical competence of their members. It seemed that society was comfortable in letting the medical profession regulate itself; this was probably based on the assumption that the profession had the knowledge, expertise, and training to best understand what their members needed to know in order maintain a lifetime of professional competence.

Through the years, it has become more difficult to maintain certification. The costs are high and the knowledge requirements may not be indicative of an individual’s practice. For example, a thoracic surgeon like myself who mainly does heart surgery, may not keep up on the latest developments of laparoscopic colon resections (which I am unlikely to ever do), yet, the recertifying exam may have questions related to this topic. As for costs, I am required to write a check every year to one of my Boards and this money will go to defraying the costs of the looming recertification exam. These costs come to several thousands of dollars over the 10 year period.

Because of the issues of cost and relevance, many Boards are looking for new ways to evaluate a clinician’s on-going continuation of medical education. For example, the new Director of the American Board of Surgery, Dr. Jo Buyske, is making a reassessment of MOC her top priority after she takes office. She is putting together a task force to look at new ways to assess high value and practice relevant continuing education for surgeons and hopes to have a new MOC process in place by 2018.

Continuing medical education from self-study, taking courses, participating in research, and quality improvement programs are being looked at for relevance and rigor so as to keep the maintenance of certification meaningful. So far, self assessment has not been shown to assure quality of care and more clinical experience in and of itself does not result in improved outcomes. Some form of independent examination is probably needed. Perhaps some of the anguish associated with taking the exams can be alleviated by decreasing the costs and letting the practitioner generate income from his employing hospital or clinic for doing the necessary work to maintain the certification.

The rising costs and questions of relevance relating to the recertification exams has resulted in some pushback and many physicians have lobbied their state legislatures to take a stand against using certification as a necessary credential for hospital or health plan privileging and licensing. For example, Texas recently passed a Bill (SB 1148) which was intended to prevent managed care plans from “differentiating between physicians based solely on a physician’s maintenance of certification in regard to: (1) paying the physician; (2) reimbursing the physician; or (3) directly or indirectly contracting with the physician to provide services to enrollees.”

In Tennesse, my home state, Senate Bill No. 298 states that medical board re-certification will not be required to practice in this state. Similar laws have been passed or proposed in Alaska, California, Florida, Georgia, Maine, Maryland, Massachusetts, Michigan, Missouri, New York, North Carolina, Ohio, Oklahoma, and Rhode Island.

Obviously, there is a significant number of physicians who just do not want to keep taking the exams required for MOC. However, looking for relief from politicians can be problematic.

Letting the state legislatures get involved in questions previously the purview of the Boards is setting a dangerous precedent. Self-regulation in the medical profession has been working well for a long time; standards were set for medical school admissions, medical school curriculum, requirements for granting a medial degree, standards for residency training programs, and guidelines pertaining to competent medical practice i.e., maintaining a medical license. The patients want their physicians to be board-certified and it seems like they prefer some form of periodic recertification; most physicians willingly do this; even though we would like to see the costs decrease, we understand that the Boards need to get income in some way.

State legislatures are ill-equipped to oversee our re-certification programs. By doing away with the significance of what “maintenance of certification” means, the public may perceive this as a nefarious way for the medical profession to lower its standards. This is not a good public relations action and in light of the difficulties the medical profession is facing with new legal requirements, requirements of third party payers (including the government), this not a battle we need to be facing at this time.

It is time for the state legislatures to stay out of the recertification process for physicians. Physicians are still reeling from the effects of the Affordable Care Act with its increases in administrative requirements, decreases in patient contact, and decreases in compensation. Doing away with the recertification process might cause the public to think that their physicians are more interested in maintaining their privileges than in maintaining their standards. This could result in further diminution of the physicians’ stature in our society. This would not be good. Let the certifying boards to their jobs.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016.