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The Prejudiced Patient

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 on February 17, 2016. 

Maintaining My Surgical Certification

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 on February 17, 2016. 

Trauma On the Highway

“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 on February 17, 2016.