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

Surgical Education

Morbidity and Mortality Conference

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Being a surgeon is more than just operating on patients. Life-long learning is a requirement of the profession. One of my favorite ways to learn is participation in the Morbidity and Mortality (M&M) conference which most departments of surgery conduct on at least a monthly basis. Although it is important to learn from your own mistakes, it is even better to learn from someone else’s mistakes.

The purpose of the conference is to discuss surgical complications (morbidity) and deaths (mortality) so that any mistakes, technical, judgmental, or systems based, can be learned from. Hopefully, mistakes made will not be repeated and the advancement of surgical knowledge can occur. The discussions are the hallmark of the conference and need to be open and critical. Truthful discussions are unlikely to occur if there is fear that the minutes could be used by plaintiff’s counsel in a malpractice action. Most states recognize a “peer-review” privilege which is equivalent to the attorney-client privilege; in most states, this privilege will protect the work-product generated from the conference.

In 2005, the United States Congress passed the Patient Safety and Quality Improvement Act. The main goal of this law was to encourage health care providers to present their errors without fear of reprisal. The idea was to improve the quality of care for all patients; this is an important public policy interest. The errors reported would eventually be listed in a database created by the Department of Health and Human Services. This database could be accessed and medical errors could be analyzed, to hopefully develop best practices that would result in a decrease in similar types of errors in the future. There are currently some databases available for review, but the product envisioned by the law has not yet been realized.

Discussions at M&M are often heated, personal, and critical. The presenter often gets very defensive and sometimes angry when questioned about their judgment and actions on the case being discussed. Only physicians are supposed to attend so as to keep the “peer review” privilege; even medical students are not supposed to be in the conference as the law does not yet recognize them as peers of the surgeons.

At programs which have a surgical residency, it is the resident who usually presents the case. As the story unfolds, various surgical attendings in the room will start to grill the resident as to his thought process or technical skills. The questions and innuendos are often nasty. Where I did my training, the attendings would advise us to fight back if we felt the attacks were unjustified. “Fighting back” often became “overly defensive” as it was not easy to disagree with an attending, many of whom were known as being among the best in the world.

I have advised my residents to maintain their composure no matter how angry or fearful they become. They must know the facts of the case and they must project confidence. This is also something they teach you in law school but there are no classes for how to present a case in medical school. I also advise them to own their mistakes, learn from them, and be resilient.

Presenting at M&M requires good communication skills. The case being presented had a bad result, a death or a significant complication. Under questioning, the presenter may become angry, frustrated, or indignant. These emotions are normal and expected, but they must not show it. They must maintain their professionalism and they must be truthful. No matter how stressed out they feel, they must remain calm, speak clearly, and be respectful to the inquisitors. After all, the attendings asking the questions have spent years acquiring the skills, knowledge, and experience to be in their positions.

I have noticed that several of the younger surgeons in the audience have their lap tops open and they have “googled” the entity being presented. Some have asked questions meant to put the presenter on the spot and, in my opinion, make the questioner appear to have more knowledge than they may have had a few minutes prior. This behavior is obnoxious, but that’s the way some surgeons are.

Some of the residents in the audience will try to get a quick course on the problem from their computers, but they are unlikely to put one of their colleagues on the spot; they are probably trying to prepare in case one of the attendings hits them with a question to see if they have been listening.

The “straw-man” argument is often used to try and discredit the presenter at this conference. This happens when a questioner changes the facts of the case in such a way as to make the presenter’s argument seem unreasonable. When presented with a “straw-man,” I advise the resident to point out the differences in the fact scenario in the hypothetical and then do their best to answer the question. This is another thing that they teach in law school that is lacking in surgical education.

Another thing they teach in law school is to stop talking when you are interrupted by a judge who wants to ask you a question. I have found this stategy to be very effective at M&M. If I am talking and someone interrupts, I immediately stop talking and I listen to the interrupter closely. This usually results in a period of silence where the whole room is waiting to hear what I was going to say. Being interrupted by a judge is accepted policy in court; it is rude if you are speaking at M&M.

Knowing the facts of the case is required but is not sufficient for a good presentation. The resident also needs to be up to date with the literature pertaining to the patient they are discussing. It is especially beneficial if they cite literature that has been written by one of the attendings who is sitting in the audience; this is actually not too difficult to do if it is a residency at a major university. The endgame is to keep cool, maintain professionalism, and be correct.

Presenting a complication or a death at the M&M conference can be a stressful experience. It is meant to be that way so that the resident can learn to think on his feet and be able to articulate an answer or a plan that is reasonable. If they cannot present well at M&M, it is unlikely that they will perform well when all hell breaks loose in the operating room with a real patient. Being grilled at M&M and learning how to handle this stress is an important part of becoming a surgeon.

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

Supreme Court Clarifies Venue Rules for Patent Infringement Suits

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During the course of my career, there have been numerous advances in both medical and surgical care. In fact, some of my own research has been used to change the management of some disease entities and has been used by others to make new medical devices. When I was a resident, I was advised by several of my attendings to never “make up” a new operation unless absolutely necessary. I have followed this advice but there were some extreme occasions where I had to think outside the box to save a a patient. These new ideas led to some basic research and then, as warranted, clinical studies.

During the early parts of my career, it never dawned on me to patent any new application and/or device; I was glad that something new that I had worked on could be used to help others. However, many medical schools, recognizing there may be economic reasons to patent new ideas, began to form groups to lay claim to intellectual property emanating from their employee’s research. It turns out that patent law is now a pretty big deal in medicine.

In law school, I took a course dealing with intellectual property. The topics covered included Trademark, Copyright, and Patent law. My undergraduate training in biomedical engineering made for a good foundation for this type of law as I was able to understand the science and math that were the underpinnings for Patent Law.

As for Copyright, I was surprised to learn that you could claim an ownership interest for anything you may have written and published in a “tangible medium of expression.” However, you should still register your work in case you ever need to bring a lawsuit for infringement since a registration within five years of the publication is considered prima facie evidence that the work is yours.

We are all familiar with the recent lawsuits emanating from the various “dot coms” suing each other for patent infringement. The financial stakes in this litigation can be astronomical. Previously, the location of the suits was critical as it could sway the outcome one way or another. A recent Supreme Court decision has changed this “forum” issue in hopes of leading to more uniformity in decision-making and cut back on the strategy of “forum shopping” by the interested parties.

In TC Heartland v. Kraft Foods Group Brands, the United States Supreme Court held, that as applied to domestic corporations, the residence of the corporation will be the State of incorporation, for the purposes of the patent venue statute. In this case, the petitioner, TC Heartland was a company that was organized under Indiana law. They made flavored fruit drink mixes. The respondent, Kraft Foods, was a competitor in the same market and this company was incorporated under Delaware law even though its primary place of business was in Illinois.

The issue in Heartland v. Kraft was whether the plaintiff (Kraft) could bring a patent infringement lawsuit against another corporation in any district where the defendant corporation is subject to the court’s personal jurisdiction with respect to the civil action. There is a general venue statute, 28 U.S.C. section 1391(c), which states that , “[e]xcept as otherwise provided by law” and “[f]or all venue purposes,” a corporation “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.”

However, there is another law that deals specifically with patents. In 28 U.S.C. section 1400(b), “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” In a previous Supreme Court ruling (see below), the Court held that for purposes of section 1400(b), a domestic corporation “resides” only its State of incorporation.

In this case, Kraft sued TC Heartland for patent infringement and brought the case to the District Court of Delaware even though TC Heartland was not registered to conduct business in Delaware and had no meaningful local presence in that state. However, it did ship the allegedly infringing products to that state. Kraft felt it would be better to have the suit heard in Delaware rather than the home state of TC Heartland. Of course, Heartland preferred to have the case transferred to the Southern District of Indiana where it felt it would have a more favorable court.

Heartland argued that it did not reside in Delaware under the first clause of section 1400(b), and it also argued that it did not have a regular place of business in Delaware under the second clause of section 1400(b). The District Court rejected these arguments holding that the definition of “resides” will be that found in section 1391(c). Under this definition, Delaware could excercise personal jurisdiction over TC Heartland. On appeal, the Federal Circuit agreed with the District Court.

The Supreme Court agreed to hear the case as to the venue issue and ended up reversing the holding of the Court of Appeals. In a previous decision, the Supreme Court held that the word “reside[nce] in section 1400(b) has a particular meaning as applied to domestic corporations: for patent purposes, it refers only to the State of incorporation.” (Fourco Glass Co. v. Transmirra Products Corp., 353 U.D. 222, 226) In a complex legal argument, the Court stated that subsequent laws did not change the venue statute as it applied to patent infringement cases.

Heartland wins on the venue issue and it looks like the case will now be heard in the courts of Indiana; unless a settlement is reached beforehand. This holding will probably lead to more patent infringement cases being heard in Delaware where many corporations “reside” and where the courts are more favorable to the companies incorporated there. It should lead to fewer cases being heard in courts which have a history of being more favorable to plaintiffs such as in the Eastern District of Texas.

One issue that has not yet been addressed is whether the courts will adapt the “established place of business” clause to include the internet which is being used by many companies to conduct business especially in retail sales. If the internet is deemed to be an “established place of business,” then we are likely to see a return to forum shopping by plaintiffs in patent infringement cases.

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. 

Surgical Education

The Residency Match

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Becoming a physician is a long and difficult process. Although most people are aware of the competitive nature of getting into medical school and the long hours of study, class work, and laboratories that must be successfully navigated in order to graduate, they are not aware of the necessity of getting into and finishing a residency in order to get a medical license.

Graduating from medical school allows one to be called “Doctor” with all of the privileges associated with that degree, but there is more to do if one is to be licensed to practice medicine. The states require at least one more year after medical school whereby the graduate acts as a resident in a formal resident training program. Even those who want to be a general practitioner (GP) must go through a year of training and then must pass the third part of the United States Medical Licensing Exam (USMLE) in order to get a license. Most residencies require more than one year; for surgeons, most have to go through a five year program before they become “Board eligible” in their surgical specialty. In my case, I did five years in general surgey and later, two more years for cardiothoracic. So I was “boarded” in two specialties.

Senior medical students go through a matching process in order to get into a residency. First they must choose the type of residency they want, e.g., surgery, medicine, psychiatry, Ob-Gyn, pediatrics. They must then apply to a place that has a training program in their chosen field. Eventually, a computer will match the applicant to a program.

Based on the advice of Val Willman, then the Chairman of Surgery at Saint Louis University (my medical school), I did senior rotations at the University of Chicago and Northwestern University. I was hoping to increase my chances of getting accepted to those programs by letting them see what I could do in a hospital setting. I wanted to get back to Chicago, my home town, and these were good programs for surgery training. I also applied to Baylor in Houston, Rush, Loyola University, the University of Illinois, the Medical College of Wisconsin, and, of course, Saint Louis University.

I ranked the University of Chicago number one but felt my chances of getting into such a high-powered, prestigious place were very slim. Most of the residents I had met during my rotation there were from from very well-known medical schools such as Harvard, Hopkins, Yale, and the University of Chicago. I wasn’t sure they would give a slot to someone from Saint Louis University, but, I was advised to aim high and that’s exactly what I did.

I had a great set of interviews at Baylor and I felt that was where I would match. They seemed to be impressed with my undergraduate degree in Biomedical Engineering and they knew Dr. Willman who had written me a strong letter of recommendation. The Baylor program was run by Michael Debakey, a world renown surgeon. It was known as a demanding program. Residents rotating on the cardiac surgery service spent 2-3 months in the hospital and were not allowed to leave. In fact, there was a story told of a resident who went down to the parking lot to see his wife. He was fired the next day for exiting the hospital. I felt I could do well in that environment since I was not married. I ranked Baylor #2.

The day that the senior medical student learns where he will be doing his residency training is called “Match Day.” Usually there a few days before the match where students that have not matched are informed as is their medical school. The national residency slots that are still open become available for these unmatched students and a scramble ensues whereby the programs that have open slots are able to contact available students that they are interested in. If the student accepts the offer, that slot disappears. Slots that are still available undergo the same process in a precisely timed order and, again, available students are given offers. The process continues until all slots are filled and, hopefully, all medical students have a job lined up for the next year, at least.

The original matching is done with a national computer match. The students make a ranked list of their residency choices and the various programs make a rank list of the students they would like for their programs. The computer, through some mathematical magic, will link the students with a program in such a way as to get the best match for the student and the programs.

We all knew what day the unmatched students would be notified so those of us who did not hear anything at least knew we were going to some program that was on our rank list. On the day of the match, the senior class all met in one large room and envelopes were handed out in alphabetical order. Since my last name began with a “W”, I had to wait till near the end to get my envelope. I opened the envelope and found that I had matched to my first choice—the University of Chicago. I was going back home to Chicago, hopefully for five or six years—the time required to complete the surgery program.

“…immune to ‘paper’ achievements; it was the process that held my interest.

…I was taught to think and act as a surgeon, to be open, empathetic, to handle very stressful situations no matter how exhausted I may have been. I am the result of what my mentors trained me to be.”

In becoming a physician, there are many memorable dates that stand out. Getting the first letter of acceptance to medical school, the day of medical school graduation where we all took the Hippocratic oath, match day when we learned where we would do our residency, the day we learned that we had passed our Boards. In order to become an independent practicing surgeon, all of these tickets had to be punched. All of the hard work, sacrifices, and hopes would not matter unless these requirements were successfully met.

In my case, passing the Bar Exam many years later was also important but by then I had become pretty much immune to “paper” achievements; it was the process that held my interest.

For me, my match day was 39 years ago. Having been subsequently successful on those other noted critical days, I never had to consider alternatives and for that I am thankful. I often have time for reflection where I remember those who directed me to medical school, those who helped me get into the residency program where several mentors helped to mold me both professionally and personally. I was taught to think and act as a surgeon, to be open, empathetic, to handle very stressful situations no matter how exhausted I may have been. I am the result of what my mentors trained me to be.

I hope that the young medical school graduates who have recently gone through the match have the same types of career and life satisfactions I have been fortunate to experience. Young doctors, go forth and make us proud.

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. 

Surgical Education

The Third Year of Medical School

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I recently received an e-mail from the surgery clerkship director at our medical school reminding us that we were not to overburden our medical students with busy work on the wards. In particular, the students were not to spend time helping the post-operative patients get up and walk even though early ambulation has been shown to enhance recovery. I thought back to my time as a medical student and then reflected on how medical education has changed over the last 40 years.

The first real clinical experience for a medical student started with the third year hospital rotations in internal medicine, surgery, pediatrics, psychiatry, and obstetrics-gynecology. These rotations are still pretty much what third year students do today. The role of the medical student was to meet the patient and perform a history and physical exam (H&P). This would involve talking to the patient and learning about the chief complaint—the problem that caused the patient to come to the hospital in the first place. Pertinent questions relating to the chief complaint were asked such as when the problem started, what care had already been tried, and risk factors. Other required elements of the H&P were the review of organ systems, the past medical history, the family history, and then a full physical exam.

After doing the H&P, the student would present his findings to one of the lower level residents where the H&P would be refined. The resident and the student would then formulate a differential diagnosis—a list of things that might explain the cause of the chief complaint—and then order tests to better define what the problem really was. Once a working diagnosis was made, a treatment plan could be started.

The history and physical was very important. We learned that if we listened closely and examined carefully, the patient would eventually give us a good idea as to what the problem was.

The student’s responsibility did not stop with just the H&P. The students had to gather the lab data every day—sometimes more than once a day. They had to keep their residents informed with results and any changes with the patient’s status. There was an unwritten rule that we were never to surprise our residents, especially when an attending was present. In other words, any new lab data, x-ray results, or changes in the patient’s condition had to be communicated immediately.

When I was a student, the blood work had to be ordered and drawn by us. Any intravenous lines, bladder catheters, and naso-gastric tubes had to be done by the student. Only if the student was unsuccessful, would the resident step in and help.

Students would take night call which we looked forward to. The nights belonged to the residents as it was rare for an attending to come in unless the patient was really sick or needed an emergency operation. However, even if an operation was needed, it was usually done by a Chief Resident so long as the attending surgeon trusted him.

In the operating room (OR), the student would mostly just watch although he would be scrubbed and at the table. If the student had impressed his chief resident and attending with hard work and good presentations on rounds, he would be allowed to do some things of a technical nature in the OR such as tie some knots of a placed suture or even suture the incision at the end of the case.

Knot tying was a very important skill that had to be learned and practiced, especially if you wanted to become a surgeon. At the end of a case, the nurses would let us take some unused suture material so that we could go home and practice. I used to sew banana peels back together and would spend hours tying knots around stationary objects in my apartment. It is the rare student who is willing to do this extra work now.

Today, it is also rare for a student to do blood drawing, vascular access, pulmonary toilet, or tube placement as the hospitals now have teams of technicians or nurses to do these things. It is rare for a student to ever draw blood, start an IV, or place an arterial line; things we would fight to do when we were students. As a result, these necessary skill sets are not being learned until residency and, in fact, I know that some physicians never learn to do these things; this is usually by choice as some are just not interested in these “hands-on” activities.

As for spending the night in the hospital, this is another rare experience for a medical student today. Ever since the Libby Zion case in New York, medical educators have gravitated to letting the students go home to get their needed rest. Even the residents have 80 hour work week limitations. These restrictions were unheard of when I was a student or during my residency.

The third and fourth years of medical school were wonderful times but I found my life was changing. My freedom was being taken away, especially on the surgical rotations. My personal needs were forced to take second place to the needs of my patients. I learned that when a patient developed a problem in the middle of the night, physicians must be willing to leave their warm beds, go see the patient and then do what is appropriate to ensure that their patient’s problem was addressed. This responsibility is one of the linchpins that makes the medical profession different from all others.

We “older” physicians sacrificed alot for our careers. Our personal and family responsibilities were always secondary to our patient’s needs. A night’s sleep and an uninterrupted meal were luxuries to be appreciated but never expected. A true surgeon is always on call for his patients and should never expect some “covering” person to be as invested in dealing with all problems that may arise.

The advent of duty hours, mandatory time off, fragmented care with multiple people involved with a particular patient, have not, in my opinion, led to better care. Unfortunately, I don’t see us ever going back to the way we educated the students in the past. Not good.

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

The Conundrum of Health Insurance

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I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person’s family and economic stability—taken from the Hippocratic Oath.

When the Obama administration began pushing for the passage of the Affordable Care Act (ACA), the claim was made that the Act would make health care better and more affordable for everyone. Since health care costs are now responsible for about 17.8 percent of the Gross Domestic Product (GDP), the goal of decreasing costs makes sense. However, the claim that increasing the number of people covered by third party payers would lead to a decrease in costs was difficult to understand.

It is obvious that something has to be done to reign in the cost of health care in America. Health care costs were $3.2 trillion in 2015. This comes out to about $9,990 per person in the country. Despite the implementation of the ACA, the percent of GDP paid for health care has actually gone up; it was 17.4% of GDP in 2014.

Under free-market principles, costs will depend on what people will be willing to pay for a product that they desire. If the costs for health care are paid by someone else, it is reasonable to assume that market principles may not apply. If someone gets sick, they will want their doctor to do whatever is necessary, or not, to get them well. With this model, the only ways to decrease costs are to pay less to those that are providing the health care service, or restrict what will be paid for on the front end.

Unfortunately, health care has been mostly a fee-for-service model since the mid 1960’s. By doing more, the physicians were paid more. It has been estimated that one third of the procedures and one third of the tests were unnecessary; eliminating the incentives to doing tests and procedures will lead to significant cost reductions.

One of the most significant consequences of the ACA is that it forced more physicians out of private practice and into the employment of hospitals and clinics. As salaried employees, they are less likely to order unnecessary tests or do unnecessary procedures since their income will no longer depend on what they do; unless their contract has incentives for doing more and ordering more.

To contain costs, it would be a good idea to prevent the employer from coercing the provider to do more procedures and order more tests by tying remuneration to services billed. I’ll bet Congress can do that under its Commerce Clause powers. They could easily do this by capping payments based on the disease entities being treated. This would incentivise the providers to follow best practices and even look for better ways to care for chronic conditions in hopes of keeping the patient out of the hospital where costs are high.

A return to free-market principles also makes sense for the purchase of health care insurance. Letting people shop for the coverage they need for their family, without artificial goverment requirements for coverage that will never be used by that particular buyer, will lead to a decrease costs for the insurance and make it more likely that more people will be covered. Even young and healthy people should be willing to buy coverage for the possibility of a devastating injury or early onset cancer so long as the premiums are reasonable. After all, most people are willing to buy other forms of insurance such as auto, homeowners, and life even though they are unlikely to ever get a payout.

Patients with pre-existing conditions may have to pay more so there may need to be some premium support from the government. No one should ever be denied coverage no matter what their pre-existing condition is; this part of the ACA should be kept no matter what the new plan is.

Allowing people to buy insurance across state lines and keep insurance when they change jobs would also lead to a decrease in premiums and deductibles which would increase the number of people buying the health insurance.

Even with the return of free-market principles in the health insurance market, there will still be some patients, not covered by Medicare and Medicaid, who will still not buy insurance. However, these patients will still need to be given care if needed. After all, this is America!

For people who are not covered by Medicaid or Medicare and who do not have their own health insurance policy, there are safeguards already in place to make sure that they will be cared for in an emergency. Under the Emergency Medical Treatment and Active Labor Act, anyone presenting to a hospital that takes Medicare must be given an emergency screening exam and if that exam reveals an emergency medical condition, stabilizing treatment. By the time the patient is stabilized, the physician-patient duty will have been established so that further care must be provided under the State’s laws dealing with medical malpractice and the requirements of the various licensing bodies and specialty boards. Patients without coverage will be responsible for the costs, but it is unlikely that hospitals and providers will ever be paid.

Let’s not forget that most physicians in America who have graduated from American medical schools, have taken the Hippocratic Oath. Under this oath, they have sworn to do no harm and to take care of people regardless of their ability to pay. The physicians I know take this oath very seriously—I actually have a copy of the oath (written in the original Greek language) hanging on my office wall.

Couple the increase in people with third party payers along with requirements placed on the health care providers, the foundation has been set to decrease payments for health care itself. The added requirements of electronic health records (EHR), complex forms for billing—which led to the necessity of hiring knowledgeable coders, and the increasing complexity of health care laws relating to fraud, privacy, and proper documentation, all made it more difficult for the health care providers to maintain their incomes. It is now estimated that physicians spend 50 percent of their time filling out forms for billing and for performance measures which are required under the law. There must be some relief for the providers who are being squeezed from both ends or we are heading towards a perfect storm where we will not have enough health care providers to care for the ever increasing influx of patients.

For the people now on Medicare and Medicaid, let them keep that coverage but increase the number of providers willing to take care of those patients by allowing for tax write-offs for the cost of care not covered by the Medicare and Medicaid payments. Write-offs should also be allowed for patients without any coverage. Allowing for these write-offs will likely make the care less costly as the providers would be more willing to compete for these patients. There will need to be a bureaurocracy in place to adjudicate any discrepancy in the costs claimed and the write-offs allowed, but these discrepancies should decrease as more data on costs accrues over time.

Another way to help decrease the costs associated with health care is to require that those writing the laws be subject to the same laws they are requiring for everyone else. Since we are a nation of laws where everyone is supposed to be equal under the laws, this should already be in effect; for some reason that I have never understood, this is just not the way it is.

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. 

Uncategorized

Trauma On the Highway

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“Listen to him. He’s a surgeon!”

Two quick statements and the chain of command was established.

I had been out of medical school for over thirty years and was a practicing surgeon at the attending level for twenty-five and yet, I had never had the “opportunity” to deal with an emergency outside of my hospitals or office until that night.

My wife and youngest daughter were with me in the car as we drove down the interstate on our way home from shopping. It was early in the evening but it was already dark. Traffic was moving briskly as it was well past the rush hour. Even though the speed limit was 65, most of the cars, including mine, were cruising along at about 70.

A dark object passed me on the right and by its lights I could tell it was a motorcycle. The outline of the rider dressed in black from helmet to boots could be seen as he weaved in and out through the traffic as if we were stationary obstacles in a course.

“What an idiot,” Kathleen said as she also glimpsed him as he zoomed by. I was a little less judgmental, “At least he’s dressed right for his activity.”

Our conversation stopped as traffic was picking up; in the darkness I am not as comfortable as I once was in driving on the highway at those speeds. My daughter, Millie, listened to her IPOD. About a mile up the road, I noticed that things were changing rapidly.

Red brake lights were coming on and progressing back towards us like a slow wave. In anticipation, I took my foot off of the gas and slowed down. Several cars were now pulling off to the left into the emergency lane and, as I passed them, I noticed debris on the road. Several of the cars were damaged. As I crawled by, it looked like a chain reaction fender-bender with three cars now lined up off the road with what appeared to be minor, although undoubtedly expensive damage.

Ahead, cars were coming to a complete stop. In my lane, cars were pulling to the right emergency lane and progressing slowly.

Shortly thereafter, we saw the problem.

The motorcycle was sprawled on the highway, separated from its jockey by about thirty yards. A small crowd was gathering around the driver and it appeared that they were trying to help him so that he could walk off and get out of traffic.

“I’m getting out!” exclaimed Kathleen. “They’re going to kill that guy!”

My stomach turned as she opened the door and jumped from my slow moving SUV. I was sure that some car behind us would not slow down and would wipe out my wife and several of the other bystanders.

I inched my car up to the crowd. I was hoping to act as a shield so as to protect my wife and the crowd as well as use my headlights so that we could better see what was going on.

“Millie,” I said, “I want you to lock all the doors after I get out. Don’t leave the car and I’ll be right up ahead if you need me for anything.”

I got out of the car, thus shedding my steel cocoon. Now I, too, was at risk. My daughter, obviously frightened, followed my orders.

Kathleen was rapidly gaining control of the situation. The injured rider was now back on the ground; Kathleen was applying traction to his head to try to prevent a severe cord injury which could occur if the neck was broken. She was also controlling a scalp laceration—which, by the amount of blood on the pavement—had been bleeding briskly.

As I did a primary exam, I was relieved to find that he was breathing well on his own. He had a pulse and he was alert enough to answer some questions. “What’s your name? How old are you? Where does it hurt? Do you have any allergies or medical conditions we need to know about?”

His head and left arm were hurting him.

My physical exam was inadequate, but it was the best I could do in light of no stethoscope and only the illumination provided from cars stopped behind us.

Two other samaritans joined us. They were nurses. I told them I was a surgeon. They had some rubber gloves which I put on. Unfortunately, it was too late for my wife whose hands and clothes were already soiled from her efforts to control the bleeding from the scalp.

A firetruck arrived and the captain directed it to pull up perpendicular to traffic right behind my car whose light we were still dependent on. Two ambulances came next. I directed the paramedics to immobilize the neck and back and splint the left arm. These guys were pros. They recognized that Kathleen and I knew what we were doing and they followed our directions. Within ten minutes of their arrival, the victim, now a patient, was bundled and ready for transport.

The police arrived and were re-directing traffic off of the interstate. They took our statements and started their investigation. With several damaged cars and a destroyed motorcycle, they had a lot of work ahead of them.

The nurses had chlorox wipes and Kathleen was doing her best to get cleaned up. We went back to our car where Millie let us in. Even in the dim light we could see that she was shaken.This was my sensitive child who epitomizes the saying that “still waters run deep.” It would be a while for her to absorb and reconcile the events of the evening.

The next morning, I made rounds at the trauma center and learned that the patient had started to seize shortly after arrival the night before. A CT scan showed a rupture of the frontal sinus into the front of the brain. He was now in the operating room undergoing a crainiotomy to repair the damage. He was destined to make a full recovery.

That night Millie wanted to talk; it was as if she was trying to come to grips with the facts that her parents were not strangers to dealing with life-threatening emergencies. On the one hand, she was in awe that we could deal with massive trauma and save a life, but, on the other hand, she was upset as the stress of the situation was overwhelming for her twelve-year-old self.

Millie was used to us being assertive, “bossy” if you will, within the confines of our family.

“Do your homework! Get off the computer. Turn off the IPOD. No TV!” These were the orders she was used to hearing and, rarely, were they obeyed on the first request. To have her parents actively take over a highway trauma scene with the police, paramedics, and firemen on site, and the people involved deferring to the commands of her parents was, at least eye opening, and perhaps, life-changing.

Millie is still Millie, but the incident led to some changes. She listens to us more closely and she is less likely to ignore us as we advise, request, order, and cajole. She knows we are her parents, but she now realizes that we are, perhaps, something more.

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

Getting Sued For Malpractice

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I was a new attending in Cardiothoracic surgery at the Medical College of Pennsylvania in Philadelphia when I was sued for medical malpractice for the first time. I was shocked; then angry; then hurt. The case involved a lady in her 60’s who was undergoing a cardiac catheterization when the coronary artery closed down. Closure of a coronary during an angioplasty does not happen very often, but it is a known complication and the results can be devastating. It was early evening and I was on call.

When I first laid eyes on this patient, she was already intubated and an intra-aortic balloon pump had been placed by the cardiologists taking care of her. Obviously, there was no opportunity for me to form any kind of physician-patient relationship with her prior to going to the operating room as she was at risk for dying if we did not re-establish blood flow to that portion of her heart quickly.

Fortunately, the operation went well. We did a three-vessel coronary bypass and she came off of the heart-lung machine nicely. The intra-aortic balloon pump came out the next day and she weaned easily from the ventilator.

The hospital course was uneventful and she went home a week after the operation. So far so good.

I saw her in follow-up a week later. Her wounds were healing well and she was feeling fine. This was a good “save”. I saw her in the office one more time about a month after the operation. Since she was still doing well, we sent her back to the cardiologists for management of her rehabilitation; this is routine after heart operations.

About a year later, I was served with a malpractice suit. Apparently, she developed a Bell’s palsy about two months after the operation. A Bell’s palsy is a facial nerve paralysis which is thought to be viral in origin. The disorder varies in severity but this patient had a drooping of the eyelid and was unable to close a corner of her mouth; both bothersome but not life threatening. Even though her palsy resolved over a few months, someone convinced her that I must have done something wrong otherwise this would not have occurred. It is possible, even likely, that the operation may have affected her immune system for a period of time and this may have contributed to development of the palsy, but there was no breach of the standard of care on my part.

My malpractice carrier found me a defense lawyer who would start me on my legal education. I learned that Philadelphia was one of the most litigious areas of the country and surgeons were often sued for any adverse outcome even if the outcomes are known complications that can occur even in the absence of negligence.

I was advised to not take the suit personally but, of course, I did. This lady was on death’s door when I first saw her. She had a good and timely operation and she was doing well in routine follow-up. The Bell’s palsy was unfortunate but it was not due to any medical negligence. It did not matter. I had to suffer through the process where I had to answer interrogatories from the plaintiff many of which implied that I was a terrible surgeon. Even though the suit was eventually dropped, I had to spend hours reviewing the medical records and educating my attorney so that he could mount a competent defense. Explaining the nuances of heart surgery to a non-physician can be challenging but this had to be done so that the attorney could have the knowledge to counter the claims of the plaintiff.

This patient’s operation was done at night. Patient’s can get in trouble at any time and we physicians are trained to take care of them; sleep is lost, meals are missed, family functions go on without us. Being a physician is a calling. We know what we are getting into and we do it willingly. Most of us love what we do and we know that being sued for medical malpractice comes with the job; but it is very unpleasant.

As for cardiothoraic surgeons, four years of medical school followed by 6 to 8 more years of surgical training seems to be losing its attraction. Today, in America, we are fortunate if we can finish training 80 cardiothoracic surgeons a year. This is not nearly enough to meet the demands of the specialty for the near future. We are still uncertain of the impact of the “baby boomers” on the need for cardiothoracic services, but we know that this population is scheduled to peak in 2030; there will be an influx of 13 million people at the right age for cardiovascular disease.

With the population rising and the number of trained cardiothoracic surgeons falling, the American Association of Medical Colleges is predicting a shortage of 1500 surgeons right at the time when they will be most needed. I think that these projections are optimistic.

There are new medications to treat atherosclerosis, diabetes, and hypertension and there are new devices being developed which allow non-surgeons to stent open occluded coronary arteries and even place new heart valves. These medical advances may mean that we will not need as many surgeons in the future but we would be better served if we “plan for the worst and hope for the best.”

As long as medical malpractice premiums continue to rise and remuneration for being a physician continue to fall, it is foreseeable that there will be less surgeons in the future. This shortage is likely to become a political issue. I doubt that the government will be willing to send the patients out for care to other countries (”medical tourism”) but they may be willing to hire foreign doctors some of whom will not have the same type of training that our Boards now require.

Or we may be heading to a health care system that rations care. Patients of a certain age may not be allowed to have the operation they may need. How sad. I never thought that rationing of care would happen in my life-time, but I think that the infrastructure is already in place to do just that.

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

Informed Consent

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The issue of informed consent is one of the theories that Plaintiff’s attorneys often use in pursuing a medical malpractice action. The legal dimensions of this theory find their origins in the Law of Battery whereby any unpermitted contact or offensive touching is considered to be a personal indignity. This personal indignity is not allowed. It relates back to a right of privacy that, although not explicitly stated in the Constitution, the Justices believe to be in there somewhere.

Under its police power, a State is allowed to make laws meant to ensure the general welfare. Laws relating to “informed consent” come from this power; the doctrine has evolved over time relating to previous court decisions and legislative enactments.

In 1992, the American Medical Association recognized the physician’s duty to provide sufficient information to the patient so that the patient could make an informed decision as to the treatment plan. They wrote this into their Code of Ethics. The Code specifies that the physician must disclose what a reasonable patient would need to know in order to give an informed consent. This requirement is now referred to as the “patient-centered” standard and is the law in Tennessee. However, most states do not use this patient-centered standard and have instead opted for what is called the “professional disclosure” standard.

Using the “professional disclosure” standare, the physician must disclose what a reasonable physician would disclose under the same or similar circumstances. Note that this standard may not provide the patient with the information he might need to make an intelligent decision. Also, this standard would require a medical expert witness to educate the jury as to what information the reasonable practitioner would need to provide under the circumstances of the case. In the “patient-centered” standard, the jury could decide what is reasonable on their own.

So what constitutes “informed consent”? In Tennessee, informed consent depends on what a reasonable patient would need to know to come to a reasonable decision as to what may be done to his body. The appropriate information that would be needed is a question for the jury and does not require expert testimony. The jury should be able to decide on their own if the patient was given the appropriate information to make a reasonable decision.

The question of what should be discussed with the patient may require expert testimony on the subject. The expert will need to opine on what a reasonable practitioner would need to discuss with the patient so that the patient would have the appropriate information to make an informed decision. Case law has clarified this issue. The practitioner must discuss the diagnosis and the nature of the condition; the reasons for the proposed treatment or procedure; risks involved and prospects for success; alternative methods of treatment along with the risks and benefits of such treatment. The practitioner must also tell the patient if the treatment or procedure is experimental. Whether the information given is sufficient will depend on the risks involved, the nature of the treatment, and the standard of care applicable to the person obtaining the consent. During the process, the patient must be allowed to ask questions and have these questions answered by the provider.

Does the hospital have an independent duty to obtain informed consent? It does not. What does the hospital know anyway? The courts recognize that only the practitioner is competent to explain the procedure or the planned course of therapy to the patient.

However, the hospital may be liable for a physician’s breach of the duty to obtain informed consent. This would occur in the situation where the provider is an employee of the hospital or the hospital controls the provider’s practice is some way. If the hospital knows that the physician is not fulfilling his duty to obtain the consent, it could have some liability. The hospital can protect itself by having a policy which would have some sort of mechanism such as disciplinary action or sanctions, to ensure that the physicians have an incentive to go through the consent process in a reasonable way.

What about the consent form itself? Most hospitals require the patient to sign a document affirming that consent has been given for the planned procedure. Is this document consent in and of itself? Obviously not. By law, consent still lies in the conclusion of the discussion between the patient (or his legal representative if the patient is unable to give consent himself) and the health care provider. However, the document is evidence that the consent process did occur.

In many hospitals, the nurses are assigned the responsibility of having the patient sign the consent form. It seems that this assignment by the hospital may be construed as the hospital assuming the duty of obtaining the consent; but this is not the case. The court cases that have addressed this issue have decided that the consent forms were not designed to replace the informed consent process required of the practitioner who will be performing the procedure. In other words, the hospital cannot gratuitously assume the provider’s duty to obtain consent.

The hospital may perform the ministerial act of documenting such consent, but the practitioner must still be the one to go through the process of obtaining the consent himself. Absent the assumption, the hospital will not be liable for lack of informed consent because the hospital cannot assume this “non-delegable” duty. In general, the courts do not want the hospitals to get involved in issues that lie at the heart of the doctor-patient relationship. This serves as a warning to the practitioner that having someone other than himself go to the patient to get the consent forms signed may come back to haunt him if he does not in some way document that he, himself, went through the process with the patient.

What if there is no consent form in the chart signed by the patient? Most plaintiffs’ attorneys will say, “If there is no consent form, then there was no informed consent.” The form will be evidence that the consent process did occur. Without the form, the practitioner may have to prove that the process did occur in another way. He can do this by writing an appropriate note in the chart. Obviously, this note should be dated prior to the time of the surgery or treatment. He can also do this with oral testimony of witnesses or his own oral testimony under oath at a deposition or in trial. He can also provide evidence with a written statement in an affidavit.

In summary, getting an informed consent in the medical setting is a process whereby the health care practitioner discusses the procedure or treatment plan with the patient. The discussion should provide the patient what he needs to know to make a reasonable decision as to what he will allow to be done to his body. Going through the process is not as easy as you may think.

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

Health Care Reform

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Both Republicans and Democrats agree that health care costs are too high and that there are too many people that are not covered by health care insurance. Both the Affordable Care Act (ACA) passed during the Obama administration and several plans being discussed by the Republicans have remarkably similar goals. If the Republicans follow through on their promise to “repeal and replace” the Affordable Care Act, then they must carefully tailor their plan to (1) decrease costs of health care, (2) allow everyone to have access to some form of health insurance, (3) allow patients to have choices in tailoring their individual plans, (4) place an emphasis on preventative care so as to keep more patients out of the hospital, and (5) have some form of medical malpractice tort reform. They should also do what they can to keep the parts of the ACA that garnered good feedback.

There were several good ideas imbedded in the Affordable Care Act. For example, pre-existing conditions could no longer be used to deny a person health care coverage. Small businesses (defined as a business with less than 50 employees) were given tax credits for up to 50% of employee premiums. The cut-off age for young adults to be covered by their parents insurance was raised to 27. This was especially good for recent college graduates who were finding it difficult to get jobs in the depressed economy.

The ACA also decreased the “donut hole” by 50%. The previous hole limited prescription medication expenditures over $2,700.

Lifetime caps on health insurance expenditures were to be eliminated by the ACA. Previously, insurers could cut off patients whose bills exceeded a certain amount. With the ACA, insurers had to keep paying for health care so long as the patient was not dead. This clause has taken on more importance with the McMath case which I wrote about last month (this case described a patient who was deemed to be dead in California but alive in New Jersey).

Under the ACA, all insurance plans had to include preventative care without co-pays by 2018. Preventative care is important in keeping patients with chronic conditions out of the hospital where the costs are highest.

At this time, it seems clear that the Republicans have the votes to repeal the Affordable Care Act. There are several models being presented as to what they will replace the Act with and it is now worthwhile to look at some of these ideas. Whichever plan they choose, it would be wise for them to keep the good aspects of the ACA in place.

Here are some thoughts on what a new health plan might incorporate.

Most Republican plans will eliminate the community rating where everyone in a community are charged the same premiums. The community rating was needed to keep premiums down for people with pre-existing conditions but it forced others to pay higher premiums. Also, mandatory benefits in the ACA health plans forced people to pay for benefits they would never use. The Republicans argue that people should not have to pay for plans mandating care for such things as in-vitro fertilization, cosmetic surgery, and abortions. The ACA required this coverage so that the higher premiums could be used to off-set the costs of the patients who needed these benefits and other benefits that few would use.

There are several other ideas that are being discussed to make health care insurance more affordable. For example, vouchers of $5,000 for the purchase of health insurance with tax-free dollars would allow people to shop for policies that would meet their budget and needs. This would not require a large bureaucracy; it would only require people to process the forms and police the system for fraud. People would have a vested interest in their health care policy and, hopefully, the free market would decrease the costs. The use of vouchers would be a good way for those with pre-existing conditions to purchase policies without having everyone else pay higher premiums for coverage for things they would never need.

Currently, the states regulate health care insurance. This leads to large cost disparities. If people could cross state lines to buy insurance, then they could shop for the best deals to meet their needs. I believe the Commerce Clause would allow the Congress to pass a law to allow for this. This would probably lead to an overall decrease in premiums as the insurers would have to compete with more companies in other states.

Another way to cut health care costs is to put people in charge of their own routine care. One way to do this is to let people set up health savings accounts where tax free dollars are used to pay for routine care. Medical providers will have to compete for these dollars by offering the best service for the lowest price. Once the free market is back in play, drug companies, hospitals, and providers will not be able to raise prices without losing patients.

The health savings accounts should not be used for over the counter remedies and there would be tax penalties for those patients who make non-medical withdrawals.

Premiums for health insurance should be tax deductible. If companies can do it (and they can) then individuals should be allowed to do this also. This would allow most of the 176 million enrolled in company owned plans to buy their own insurance and force the companies to compete by offering supplemental tax free compensation to allow the consumer to buy more insurance if they see the need. This would be another way to allow those with pre-existing conditions to get coverage without having everyone else pay higher premiums.

Health coverage should be portable. Employees should be able to control their own health plans and should be able to take these plans with them from job to job. This would force employers to treat their workers better since the worker would not be locked into the job for fear of losing their health care insurance.

Health care insurance should be like other insurance i.e., auto, life, home, and fire. The plans would be private property and they would allow for maximum choice. They should be flexible and creative allowing the consumer to buy a policy they deem necessary to meet their needs. This would remove big business, labor unions, and politicians from the health insurance business and let the free market control the costs.

Updating Medicare by allowing each senior an actuarial determined $250,000 to purchase some form of elder care insurance would encourage older patients and their care-givers to shop for their own health care. Again, it is hoped that the free market would lead to decreased costs as this patient population would be empowered to look for the best deals.

Allowing the states to cover their own Medicare and Medicaid populations would encourage better management that is state specific. Each state would be given a set amount every year based on their Medicare and Medicaid population. The states could then experiment for better ways to improve care and decrease costs. Successful programs could be emulated by states that are not as successful.

Unfortunately, under the Affordable Care Act, many providers stopped seeing Medicare and Medicaid patients as the costs exceeded the payments. Costs and payments must be brought into alignment so that the providers will be willing to care for all patients in the system.

If the government would allow charitable care to be tax deductible, health care providers would be more inclined to treat the low income or uninsured patient. This would be much cheaper than having these patients rely on the emergency room for their primary care. It would also lead to a predictable continuity of care which would be beneficial for the patients and the providers. Providers who have patients for the long term are more likely to reap the benefits of managing chronic conditions in the “out of hospital” setting.

The Affordable Care Act had no provisions pertaining to tort reform. Most Republican plans recognize that tort reform is critical if health care costs are to be decreased. Malpractice insurance is costly. For some specialties, premiums can be over $200,000 per year and these costs are transferred to the patients. Defensive medicine as a strategy to defend against potential malpractice claims raises the cost of health care for everyone. Estimated costs for defensive medicine is about $124 billion per year and each year, this estimate is going up.

Some states limit the payment for non-economic damages in a malpractice suit in an effort to control malpractice premiums. Some states may soon try to take malpractice claims out of the hands of juries by using alternative forms of resolution such as Health Courts.

Limiting attorneys’ fees is another strategy being looked at to decrease the costs of malpractice premiums but attorneys are lobbying against this; since many legislators are themselves attorneys, this will be an uphill battle.

The ACA was over 2000 pages long and was very complex. The Republican plan should not try to fix everything at once. They should start with some laws that are understandable and allow some choice for the patients. The providers also need some protection to keep all the cost cuts from falling on their shoulders.

No matter what elements are incorporated in a Republican plan, it looks like they recognize the fundamental fact that optimal health care is a very personal experience between the patient and his provider. This experience must be affordable and patient centered. Patients should be allowed to pick and keep their provider. The constant switching from one plan to another from year to year which often lead to new providers who did not have an on-going relationship with the patient was not good health care. It is no surprise that the ACA was struggling to meet its mission. I look forward to studying the details in the proposed Republican plans. I think everyone should be as interested as me.

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. 

Surgical Education

Becoming a Physician Requires a Peripheral Brain

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It is very difficult to become a medical doctor. First, you have to go to college and take the necessary prerequisites. These prerequisites include chemistry, physics, organic chemistry, and English. Many medical schools, but not all, require calculus; none of these are “easy A’s”. It is no longer necessary to get an undergraduate degree but most applicants to medical school have graduated. There are programs which allow matriculation into medical school after two years of undergraduate training; these students are usually accepted into an accelerated program right out of high school. Some medical schools will take exceptional students after three years of undergraduate school.

When applying for medical school, most applicants take the Medical College Admission Test (MCAT) which is not easy. It helps determine who will be successful navigating the difficult medical school curriculum. Only about a third of the applicants get into an accredited American medical school.

Medical school itself is also difficult. The first two years are devoted to the basic sciences such as anatomy, physiology, biochemistry, histology, neurosciences, cellular biology, pathology, pathophysiology, pharmacology, medical statistics, genetics, embryology, and some form of Community Medicine. The books for these courses are thick and heavy and a superficial learning will not work. Most of these courses have associated laboratory time which are scheduled but may require extra work at night and during weekends. I spent many nights and weekends with my cadaver and my microscope and was fortunate to pass.

Didactic learning continues during the clinical years and the books associated with the clinical rotations are also massive. Not only are the students taking care of actual patients, they must read and study about the various disease processes. This self-study takes up most of the student’s free time both in the hospital and at home. The point I am trying to make is that the amount of material that must be learned is tremendous and it is increasing every day.

The growth of medical knowledge has been exponential during the time frame of my career. It has been estimated that, today, medical knowledge doubles about every 3.5 years (Peter Densen, MD, “Challenges and Opportunities Facing Medical Education,” Tran Am Clin Climatol Assoc. 2011, 122: 48-58). It has been estimated that by 2020, medical knowledge will double every 73 days (Peter Densen, MD). With the vast amount of medical knowledge necessary to provide competent care, it is not surprising that physicians are looking for new ways to access up to date knowledge. The wise physician knows that he can no longer rely on what he learned in medical school and during his residency as the journals are replete with new information relating to physiology, pathophysiology, pharmacology, genomics, and clinical care pathways.

Computers are now being used as are Electronic Health Records so that templates can be made to advise the physician taking care of a particular patient as to what tests to order, consults to obtain and treatment options. As an aside, IBM has Watson which is being used in a medical setting to provide this knowledge and I am sure there are other companies building their own computers to do this work. I used to think that Watson was not named appropriately since it was Sherlock Holmes who was the really smart one. It took an upper level executive at IBM to inform me that Watson was named after the founder of IBM, not the literary character.

It has become commonplace to see young physicians in training access their hand held devices during rounds so as to have current and credible information relating to their patient’s disease process. This allows them to better answer the questions presented by the attending physician and, in fact, it helps them educate the attendings as to the latest information. I am not so technologically adept and I look forward to this new information coming from the residents as it helps me keep up to date myself.

Whether under the Affordable Care Act or under whichever plan the Republicans are considering to replace it, a shift of care must occur to high value, non-hospital, preventative and maintenance care. The goal is to keep the patient out of the hospital where the costs are highest.

As the care of patients shifts away from the hospital setting and more into out-patient clinics and even into the patient’s home, non-MDs become more important in the provision of care. In fact, as the patients and their families take on more of the care themselves, then the “provider” of care takes on a very different meaning from when we relied mostly on physicians. Not surprisingly, the knowledge base of these non-MD providers varies widely. It has been estimated that Americans visit their physician on the average of four times a year. Assuming the visit lasts about 15 minutes, then the total time of direct medical education of the patient is only about an hour a year. Can we really expect the patient to keep up with the latest advances in medical care by doing his own research and learning? I doubt it.

If the patient is going to take on a major role of providing his own health care, it is not surprising that there will be large gaps of medical knowledge among the general population. If it is difficult for physicians to keep up to date, how can we expect nurses, physician assistants, pharmacists, pharmacologists, or patients to do any better?

Through the years, I have ceased to be amazed by how many health care providers fail to keep up with the advances in medical care; they do not go to meetings for continuing education and it is obvious they are not keeping up with the journals. I am also not surprised by how poorly some of these providers take care of their patients. If time is not spent on meaningful study to keep up with the new developments in our field, then there is no way to know how best to take care of the patients.

For someone entering the health care field today, even more so than when I graduated medical school, he must have dedicated time for study; that is the only way to keep up. Although hand held electrical devices—often referred to as “peripheral brains”—will be helpful, they will not be enough. With looming shortages projected for surgeons and some other medical specialties, more clinical time will need to be spent in taking care of the patient load. This will decrease time spent in continuing education, time spent for relaxation, and time spent with families. This does not look good for health care providers. Of more importance, it does not look good for the patients.

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.