Affordable Care Act, Surgical Education

Not Enough Academic Faculty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

In the Courtroom

Different States; Different Suits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Prejudiced Patient

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Affordable Care Act, Surgical Education

Free Legal Advice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Maintaining My Surgical Certification

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.