healthy4u: contracts

Shut Up and Sell - the Corporate Physician's New Motto?

Evidence has been seeping into public view about the extent physicians who sign up to <a href="http://hcrenewal.blogspot.com/search/label/corporate%20physician">take care of patients as corporate employees</a> give up their professionalism. Shut Up... In April, 2013, Medscape published an <a href="http://www.medscape.com/viewarticle/781964">article</a> whose striking title was "Can You Speak Out Without Getting Fired or Being Labeled a Troublemaker?"  The answer was basically "no." <blockquote class="tr_bq">Physicians often see problems at their workplaces relating to patient quality of care, financial practices, mistreatment of staff, and other issues. But as more doctors take jobs as employees of hospitals, medical groups, and other large organizations, they increasingly face the same dilemmas as millions of other working stiffs. When they come across actions or policies that they don't think are right, they have to decide whether it's worth it to speak out and get labeled as a troublemaker -- or perhaps even get fired.  Across the country, a growing number of physicians are indeed losing their jobs -- and often their hospital staff privileges -- after protesting employment conditions. Such complaints may involve patient quality-of-care problems, short staffing, misallocation of funds, improper financial incentives, fraud and abuse, discrimination, overuse or withholding of medical services, or other misconduct, say organized medical groups, employment attorneys, and physician recruiters.</blockquote> Of course, physicians swear oaths to put the needs of their individual patients first, and doing so within a large organization might well involve protesting conditions and practices that may affect the quality of care or even endanger patients.  But woe unto physicians who try to fulfill their professional responsibility when doing so goes up against the top executives to whom the physicians must now report. <blockquote class="tr_bq">'We were naive when we went into this,' says Maria Rivero, MD, who with her professional colleague and significant other Derek Kerr, MD, filed administrative complaints against their long-time hospital employer in 2010. 'We thought if we just brought it to people's attention, they would fix the problem and leave us alone. But if you blow the whistle on high-level executives, you need to prepare to be harassed and lose your job.'</blockquote> Even working within the system to fix problems can lead to big trouble, <blockquote class="tr_bq">Still, the formal professional approach doesn't always work either. Cloyd Gatrell, MD, an emergency physician who was employed by EmCare, says that he and his wife Kathryn, a nurse, voiced concerns and presented data to executives at Carlisle Regional Medical Center in Pennsylvania in 2008 and 2009 on what they saw as inadequate nurse staffing levels that endangered patients. After getting no results, Dr. Gatrell contacted the state health department, prompting a state inspection that found insufficient staffing. In 2010, he was fired by EmCare at the request of the hospital, according to his 2011 lawsuit against the hospital and EmCare claiming violation of whistleblower protection laws. His wife was fired earlier, and she sued separately. The hospital issued a statement declining comment on the litigation. 'We're supposed to be advocates for patients, but being employed puts us in a precarious position in taking a position on patient interests that's against what the hospital administration favors,' says Dr. Gatrell, whose suit is in the discovery stage. 'I think a physician still has that responsibility.'</blockquote> Physicians who sign contracts with corporate employers, perhaps thinking that they will have less bureaucracy with which to contend and a more certain salary than they did in private practice, seem blissfully, or willfully unaware that those contracts may take away their ability to control their practices and stand up for their patients. <blockquote class="tr_bq">Still, federal and state whistleblower laws only provide protection from retaliation for physicians in certain situations, such as those employed by public entities or those who complain about civil rights violations or Medicare and Medicaid fraud and abuse. Otherwise doctors may have to rely on contract provisions or on state employment law, which may not offer much protection. [An anesthesiologist on the AMA Board of Trustees and his hospital system's board,] Dr. Annis says that the AMA's new statement of principles for physician employment -- which asserts that physicians should not be retaliated against by their employers for speaking out on patient care issues -- provides support for doctors when they raise legitimate professional concerns with their employers. He says it's best for physicians to work through their medical staff organization. But Dr. Gatrell points out that the AMA statement explicitly accepts that physician employment contracts may allow hospitals to strip doctors of their medical staff membership and clinical privileges at the same time they are terminated, known as a 'clean sweep' clause. 'If that's accepted by the AMA, the rest of the principles protecting physicians are meaningless," he argues. "If physicians can be fired without cause and then automatically lose their medical staff membership and its due process protection, how many will dare be a patient advocate?' Some experts advise physicians not to sign employment agreements with such onerous provisions. But others say that physicians often have little leverage to remove them. 'It's not an equal negotiating table,' says Dr. Gatrell, who's now working for a small urgent care practice.</blockquote> A May, 2013 <a href="http://www.medscape.com/viewarticle/782136">article</a> again in Medscape about the "4 Top Complaints of Employed Doctors," explained why physicians often see a lot they could or should protest to assure the quality of their patients' care, <blockquote class="tr_bq"> Some doctors report that hospital administrators treat them with a lack of respect. One female doctor said, also on condition of anonymity, that her biggest challenge on her job was 'how to handle nonphysician high school grads bossing you around when they function as your 'superiors' in your employer's organization. They manage their insecurities by bullying physicians and through passive aggressiveness, but always seem to gain the upper hand with those at the top.'</blockquote> These are the sorts of brilliant administrators often hired by brilliant top executives, maybe at a cheap price to keep the bottom line and <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">executive compensation</a> healthy..  Furthermore, given that as we have discussed, "<a href="http://hcrenewal.blogspot.com/search/label/financialization">financialization</a>" of hospital management often puts a bigger priority on short-term revenue than on quality care, as per one senior physician, <blockquote class="tr_bq"> 'physicians are being increasingly targeted when they get in the way' of hospitals' agendas</blockquote> To make more money faster, many hospital systems now seem to want physicians to only make referrals for lucrative tests and treatments within the system, even if some patients might be better served elsewhere, <blockquote class="tr_bq">The AMA recently issued guidelines for physician employment stating that 'a physician's paramount responsibility is to his or her patients.' Employers should not retaliate against physicians for asserting their patients' interests, according to these guidelines. 'In any situation where the economic or other interests of the employer are in conflict with patient welfare, patient welfare must take priority,' the AMA says. The guidelines also call for employers and employed physicians to disclose to patients any agreements or understandings they have that restrict, discourage, or encourage particular treatment or referral options. Nevertheless, employed physicians are often expected to refer patients within their own groups and send tests to a hospital laboratory or imaging center. Hospitals may tell employed surgeons which kinds of joint implants to use, and according to a New York Times article even whether to implant defibrillators in Medicaid patients. It's unclear how often any of this is disclosed to patients. 'What we doctors say is that we're ethically bound to our patients because we took an oath, and that's what our license is based on,' says Linda Brodsky. 'But many hospitals say, 'No, you're employed here, and what we say goes.'</blockquote> Note that so far there seems to be little evidence that the AMA guidelines about physician employment are being honored other than in the breach.  It is also disappointing that the leadership of the medical society that represents internists seems so unworried, <blockquote class="tr_bq"> David L. Bronson, MD, President of the American College of Physicians, disputes Brodsky's assertion that hospitals tend to squelch doctors who criticize leadership for policies that they believe harm patient care. In fact, he says, healthcare organizations may identify outspoken physicians as potential leaders, 'as long as they're collaborative and trying to solve problems, and not just be a thorn in the side of everyone they know. Organizations are looking for physician leaders, and physicians who can collaborate and not just be adversarial can go far inside organizations.'</blockquote> I would guess, having seen so many examples of <a href="http://hcrenewal.blogspot.com/search/label/generic%20management">generic management</a>, <a href="http://hcrenewal.blogspot.com/search/label/mission-hostile%20management">mission-hostile management</a>, management that seems more <a href="http://hcrenewal.blogspot.com/search/label/financialization">focused on the money than patient care,</a> and management that seems to be able to <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">make itself rich</a> without evidence that it has done anything noteworthy to uphold hospitals' clinical missions, that hospital systems that promote physicians who are willing to speak out against hired executives are vanishingly rare. And Sell In June, 2013, Beckers Hospital Review published an <a href="http://beckershospitalreview.com/hospital-physician-relationships/teaching-doctors-how-to-sell.html">article</a> suggesting that now hospitals are going beyond just pressuring employed physicians to refer potentially profitable patients within the system, and now are pressuring physicians to act as salespeople to their colleagues, <blockquote class="tr_bq"> A few hospitals are beginning to train their employed physicians to "sell" the hospital, which involves asking referring doctors in the community to send patients their way....  the pressure to bring doctors into sales is mounting.</blockquote> The author, the former publisher of Modern Healthcare, made a remarkable argument based on a definition that seems wildly optimistic, <blockquote class="tr_bq"> Customer service lies at the core of salesmanship. The Business Dictionary defines salesmanship as satisfying customer needs through a sincere and mutually beneficial process aimed at a long-term relationship.</blockquote> Of course, skeptical physicians used to exposure to the sales tactics pharmaceutical and device companies use (look <a href="http://hcrenewal.blogspot.com/2007/05/fool-me-once-shame-on-you-fool-me-twice.html">here</a>, <a href="http://hcrenewal.blogspot.com/2008/03/what-drug-reps-really-care-about.html">here</a>, and <a href="http://hcrenewal.blogspot.com/2008/04/more-about-cynical-world-of-drug-reps.html">here</a>,  for example) might wonder why the author did not discuss such marketing tactics as the employment of half-truths and biased information, and the use of emotional appeals to trump reason and logic. That the author was serious was shown by his list of seven pointers for hospitals seeking to transform its employed physicians into marketers. Of course, physicians who are already "key opinion leaders" employed by drug and device companies, whose marketing executives may think. that "key opinion leaders were sales people for us," (see <a href="http://hcrenewal.blogspot.com/2008/06/key-opinion-leaders-were-sales-people.html">this post</a>), might not be fazed by now being asked to market their own hospital.  Never mind about Principle II of the <a href="http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.page?">AMA Code of Ethics</a> <blockquote class="tr_bq">II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.</blockquote> The Moral of the Story We have previously discussed various aspects of the travails of the brave new world of the <a href="http://hcrenewal.blogspot.com/search/label/corporate%20physician">corporate physician</a>.  Physicians and other health professionals who sign on as full-time employees of large corporate entities have to realize that they are now beholden to managers and executives who may be <a href="http://hcrenewal.blogspot.com/search/label/mission-hostile%20management">hostile to their professional values</a>, and who are subject to <a href="http://hcrenewal.blogspot.com/search/label/perverse%20incentives">perverse incentives</a> that support such hostility, including the potential for huge <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">executive compensation</a>.  Physicians seem to be willing to sign <a href="http://hcrenewal.blogspot.com/search/label/contracts">contracts </a>that underline their new subservience to their corporate overlords, and likely trap them within <a href="http://hcrenewal.blogspot.com/search/label/confidentiality%20clause">confidentiality clauses</a> that make blowing the whistle likely to lead to extreme unpleasantness. It is disappointing that even medical societies that ostensibly support physicians' professional values have been afraid to warn against such employment, or do much to help physicians trapped within it. Physicians who go to work for big corporations have to realize that they may be forced to put corporate executives' vested interests ahead of their patients.  Patients whose physicians work for big corporations must realize that their health care will now be corporate, with all that entails.   As I have said before, we need to challenge the notion that direct health care should ever be provided, or that medicine ought to be practiced by for-profit corporations. I submit that we will not be able to have good quality, accessible health care at an affordable price until we restore physicians as independent, ethical health care professionals, and until we restore small, independent, community responsible, non-profit hospitals as the locus for inpatient care.

Shut Up and Sell - the Corporate Physician's New Motto?

Evidence has been seeping into public view about the extent physicians who sign up to take care of patients as corporate employees give up their professionalism.Shut Up...In April, 2013, Medscape publ…

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26 Jun 2013

The Rise of the Corporate Physician, and the "Metastasis of Big Corporations"

Public discussion has raised more questions over the last few months about physicians taking care of patients as corporate employees.  More Physician Practices Taken over by Large Corporations This year, more stories have appeared about large corporations taking over physician practices.  In February, there was an account of efforts by competing nominally non-profit health insurance company Highmark and nominally non-profit hospital system UPMC in Pittsburgh in a "race to gobble up private physician practices," <a href="http://triblive.com/x/pittsburghtrib/news/health/s_783579.html#axzz28uYAnXKh">per the Pittsburgh Tribune-Review</a>.  In March, the Washington Post <a href="http://www.washingtonpost.com/national/health-science/doctors-in-private-practices-are-now-joining-hospital-staffs/2012/02/14/gIQAEFz07R_story.html">featured</a> a first-person account of what it is like for a physician in a private practice to try to hold out against the trend towards corporate practice.  In May, the Los Angeles Times<a href="http://articles.latimes.com/2012/may/22/business/la-fi-davita-healthcare-partners-20120522"> noted</a> how for-profit dialysis provider Da Vita purchased a large, but already for-profit operator of physician groups.  In October, Reuters <a href="http://www.reuters.com/article/2012/10/08/us-unitedhealth-takeover-amil-idUSBRE8970E120121008">reported</a> how the recently announced acquisition by giant for-profit insurance company UnitedHealth of the biggest Brazilian for-profit managed care company will result in UnitedHealth owning an operating a Brazilian network of hospitals and clinics. Concerns about Concentration of Market Power and Prices In an increasingly financialized country, the media has featured concerns that the trend towards corporate physician practice might result in increasing market power for a few large corporations, and hence increased prices.  For example, in August, Anna Wilde Matthews <a href="http://online.wsj.com/article/SB10000872396390443713704577601113671007448.html">reporting</a> for the Wall Street Journal, noted <blockquote class="tr_bq"> Hospitals say the acquisitions will make health care more efficient. But the phenomenon, in some cases, also is having another effect: higher prices.  As physicians are subsumed into hospital systems, they can get paid for services at the systems' rates, which are typically more generous than what insurers pay independent doctors. What's more, some services that physicians previously performed at independent facilities, such as imaging scans, may start to be billed as hospital outpatient procedures, sometimes more than doubling the cost.   The result is that the same service, even sometimes provided in the same location, can cost more once a practice signs on with a hospital. Major health insurers say a growing number of rate increases are tied to physician-practice acquisitions. </blockquote> As Ms Matthews also <a href="http://online.wsj.com/article/SB10000872396390444433504577649523985288422.html">reported</a> for the Wall Street Journal, state regulators are beginning to worry about acquisitions of doctors' practices by hospital systems may drive up prices. <blockquote class="tr_bq">California's attorney general has launched a broad investigation into whether growing consolidation among hospitals and doctor groups is pushing up the price of medical care, reflecting increasing scrutiny by antitrust regulators of medical-provider deals. </blockquote>Concerns about Care Quality Concerns about whether physicians who must practice under the command of corporate executives will be able to put patient care ahead of corporate interests are also appearing, but not yet as prominently. For example, Steve Twedt, writing for the Pittsburg Post-Gazette in September, <a href="http://www.post-gazette.com/stories/business/news/patients-may-suffer-as-doctors-switch-practices-health-systems-654855/">looked into </a>whether the multiple practice acquisitions by the area's two biggest ostensibly non-profit health care corporations might affect patient care.  He first noted "competition between Highmark and UPMC for doctors, and health care overhaul that is steering doctors into larger systems...."  Then he suggested that this has lead to marked discontinuities in patient care when physicians switch employment, <blockquote class="tr_bq">Out of the blue, people will learn their doctor has left a practice with little or no explanation, and without a forwarding address. When a physician effectively disappears, the cause usually is tied to the physician's employment contract, says a local health care attorney.</blockquote>These cases of apparently vanishing physicians may be due to the contracting practices of physician employers, particularly large health care corporations.  The lawyer Mr Twedt interviewed explained, <blockquote class="tr_bq">most physician contracts now contain clauses that prohibit doctors from soliciting patients if they leave a practice. While it's not always clear what constitutes 'solicitation,' it generally means departing physicians cannot contact their patients to invite or entice patients to follow them to their new location. They also cannot take their patient list with them, since that is property of the practice. 'I would imagine the doctor wouldn't contact them because he can't, or he doesn't have their address,' said Mr. Cassidy. Contracts also often require that doctors cannot practice medicine within 10 miles of the previous practice office, and sometimes the required distance is even greater. Nor can they give out information about the practice they're leaving. Violating these contract terms could mean a financial penalty, such as loss of severance pay.</blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">Finally, and most troubling, cardiologist blogger Dr Melissa Walton-Shirley<a href="http://blogs.theheart.org/melissa-walton-shirley-blog/2012/9/16/will-everyone-be-anointed-with-the-oil-of-hospital-acquisition-god-help-us-all"> recounted</a> in some much more colorful language some consequences of cardiology practices which were acquired by large hospital systems.  She noted...</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">Referral Decisions Influenced by Management Edicts, but Maybe Not Patients' Needs</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">Physicians may be</div><blockquote class="tr_bq"><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">sweating bullets over whether they are going to hit their benchmarks to retain their salaries. My anxious friends are now calling me for more referrals and more practice support.  They take any transfer I give them.... </div></blockquote>They may <blockquote class="tr_bq"> morph from human flesh into a Rubik's cube of relative value units (RVUs), the formula through which all future salaries and bonuses are calculated.</blockquote> Resulting Loss of Continuity <blockquote class="tr_bq">Independent cardiologists opened office doors to find their patients who were anticipating decisions on timing of defibrillators, caths, or medical therapy had undergone testing at other facilities. Those tests were interpreted by cardiologists who were in no way connected to their care, their referrals to unfamiliar testing venues now incentivized by hidden contractual microformulas. They were evaluated far away from the familiar eye of their long-time cardiologists. </blockquote> Summary Back in the day, most physicians who took direct care of patients did so out of practices they or other physicians ran and owned.  The majority of physicians who took care of physicians as employees worked for the military or the Veterans Administration, or took care of patients only part-time as faculty of medical schools.  In a country increasingly prodded by market fundamentalism, the last few years has seen a major change in health care:  more and more physicians are taking care of patients as employees of large corporations, more often for-profit.  I should add, though, that the recent push towards corporate practice was not just due to market fundamentalism, but also seems to in part be due to provisions of the recent attempt at US health care reform, the Affordable Care Act, which called for care by large organizations called accountable care organizations (ACOs).   However, like some other major changes in health care in the US over the last few years pushed by the increasing dominance of large corporations, this one happened without any rigorous assessments of whether the benefits for individual patients or public health would outweigh the harms, and justify the costs.  Justified by the realization, now mostly forgotten, that health care is nothing like an ideal free market (look <a href="http://hcrenewal.blogspot.com/2010/08/how-fallacy-of-perfect-health-care.html">here</a>), direct health care used to be almost entirely provided by health care professionals, often working in small, non-profit community hospital settings.  In fact, the American Medical Association used to condemn the corporate practice of medicine.  In addition, the corporate practice of medicine used to be illegal in many US states (look <a href="http://hcrenewal.blogspot.com/2009/06/why-did-us-physicians-give-up-their.html">here</a>). We have changed all that, without too much thought, and without any rigorous assessment.  Now it seems increasingly likely that these changes are just increasing health care costs, and probably will cause worsening patient care and will worsen patients' and the public's health.  As Dr Melissa Walton-Shirley wrote more vividly, <blockquote class="tr_bq">Monopolies never meant to be planted in gardens so small grew like bull thistles, literally overtaking all the good things that small community medicine had to offer. They are now barely recognizable small towns with the crabgrasslike metastasis of big corporations....</blockquote> Will there be time to rethink this headlong rush before our health care options are restricted to that provided by one of a few huge corporations?   True health care reform would reverse the trend to organize health care within ever larger, more bureaucratic, more monolithic, more dominant organizations.  Such reform is unlikely to happen until we see the nadir produced by the current bandwagon.

The Rise of the Corporate Physician, and the "Metastasis of Big Corporations"

Public discussion has raised more questions over the last few months about physicians taking care of patients as corporate employees. More Physician Practices Taken over by Large CorporationsThis year…

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10 Oct 2012

The Perils of Physicians Practicing as Corporate Employees: the Contract Trap

A seriously chilling cautionary tale corroborated some of my <a href="http://hcrenewal.blogspot.com/search/label/corporate%20physician">previously expressed fears</a> about the perils of physicians practicing as corporate employees.  It unlikely venue was the April 25, 2011 issue of Medical Economics.  The article, not yet on the web, was "Selling to a Corporation Poses Challenges," by Todd R C Neely. Here is how the case started: <blockquote>A start-up company with a new medical treatment became a publicly traded corporation. The company's top managers were not physicians; they were finance and business experts familiar with the ways of Wall Street. To meet the corporation's goals and Wall Street expectations, the company used stock sale proceeds to aggressively market itself to doctors and buy established physician practices around the country. It quickly captured market share, exponentially raised the number of patients by the practices it owned, and developed substantial revenue streams. The physicians who sold their practices thought that selling would be a win-win situation for them and for the corporation. As marketed to them, the company would handle the business aspects of owning a medical practice - the ubiquitous paperwork, employee issues, and all the rest of the nonclinical task so distasteful to doctors. The physicians would spend all their work time practicing medicine using the latest technology. Benefiting from the company's promotion to the public, they would see an increase in their patient base. They would receive a base salary and, most significantly, a percentage of the profits of their practice.</blockquote> But here is how things turned out: <blockquote>Everything was great until the end of the first year. The physicians expected large payments from their practices' increased profits, but the large bonuses never came. </blockquote> What went wrong? The physicians were so blinded by the marketing pitch that they apparently never read the fine print: <blockquote>In negotiating the sale of the practices and the employee contracts, the doctors had not required the company to specify in writing what expenses the corporation would charge an individual practice and what accounting rules would be followed. So the corporation charged the practices for marketing, accounting, human resources, financing, and other services, wiping out the profits of each practice.</blockquote> The contracts were apparently designed by the corporation to favor all its interests (which should not have been surprising), but was accepted as is by the physicians: <blockquote>The contracts specified in precise terms the physicians' responsibilities, noncompete provisions, confidentiality, dispute resolution and the like. But although the contracts stated the corporation's initial responsibilities - mainly making payment on the negotiated purchase price - it phrased the company's other obligations in remarkably vague terms, or, astonishingly, did not specify them at all. The company was to make its 'best efforts' to accomplish certain goals, but the contract left the phrase 'best efforts' undefined. The phrase turned out to be quite malleable. The company's other responsibilities were to be determined at a later, unspecified time. The company's best efforts always turned out to be whatever efforts it chose to make.</blockquote> It was a trap,baited by marketing, into which the physicians neatly fell: <blockquote>Many sought legal advice and were told they had no legal resource. The noncompete clauses - fair provisions under the contract terms to which the physicians thought they were agreeing but that were disastrous under the terms (or lack thereof) of the actual contract - were broad, tight, specific, and ironclad. Many of the physicians even were barred from practicing medicine within the geographic area in which they lived. And under the equally ironclad confidentiality clause, the doctors could not publicly discuss their situations or, for that matter, anything else of significance about the corporation; if they did, they would be subject to high fines and penalties. What had appeared to the doctors as a mutually beneficial situation turned into a nightmare for them. They lost their practices and money and took years to recover. They had no legal recourse. They could not even warn others. The corporation could, and did, continue with impunity.</blockquote> Note that it is now obvious why the article was so vague about the identity of the corporation and the physicians it ensnared, and why it took so long for even such a vague version of this story to surface. The confidentiality (and probably anti-disparagement) clauses made it hazardous for anyone who signed these contracts to be forthright witnesses.  Obviously, the willingness of corporations to employ such clauses means that there may be many more cases like this out there, hidden behind the veil of contractual restrictions on free speech. We previously discussed how physicians often seem willing to blithely sign contracts without fully understanding them, thereby sacrificing their economic well-being and core values.  Here is another striking case of this phenomenon.  We previously attributed this tendency to <a href="http://hcrenewal.blogspot.com/2007/10/physicians-learned-helplessness.html">learned helplessness</a>.  The author of this article, however, suggested  that physicians were victims of carefully targeted marketing based on psychological manipulation.  It was meant to capitalize on three major factors: physicians' naive belief that everyone involved with medicine is interested in helping people by behaving rationally and logically; physicians' over-confidence in their ability to avoid failure (presumably including failure due to ignorance or misinterpretation of legal contracts); and physicians' feelings of entitlement.  In addition, the physicians seemed (probably foolishly) unaware that corporate executives are not interested in physicians' core values: <blockquote>Unlike physicians, the corporation and its top executives, non-doctors all, were involved in the practice of medicine solely to make money; the medical practices, and the very practice of medicine, were just commodities [to them].</blockquote> This observation corresponds with numerous observations about how leaders of health care organizations may ignore, or be expressly<a href="http://hcrenewal.blogspot.com/search/label/mission-hostile%20management"> hostile</a> towards physicians' core values. Thus, while the article went on to give some straight-forward advice about negotiating combined practice buy-out and corporate employment agreements, it becomes obvious that the main lesson is: physicians should not practice medicine as corporate employees. They should not sell their practices to and become employees of for-profit corporations as a way to practice medicine.  Otherwise, rather than being practitioners, they will end up as medical assembly line workers for bosses who only care about the revenue they generate. Physicians who have already inadvertently, foolishly, or under duress signed contracts that could threaten their professionalism and their patients' welfare need to do the right thing and challenge these contracts.  , or else there will soon be nothing left of the medical profession, and no one left to ethically care for patients.  With each new anecdote, it becomes clearer that the corporate practice of medicine will end up exploiting physicians and patients alike. So there is also a main lesson for patients: you should not go to doctors who are corporate employees, or practices or clinics that are run by corporations. If you do, you will end up being used only as a means for the bosses to make money. At a policy level, if we do not stop the corporate practice of medicine, we will all end up as increasingly unhealthy cogs in the corporate health care machine.

The Perils of Physicians Practicing as Corporate Employees: the Contract Trap

A seriously chilling cautionary tale corroborated some of my previously expressed fears about the perils of physicians practicing as corporate employees. It unlikely venue was the April 25, 2011 issu…

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02 May 2011

"Cogs in the Corporate Machine" - More on the Plight of Corporate Physicians

We discussed last week some of the perils of the latest trend towards the corporatization of medicine, practicing physicians becoming employees of hospital systems, including for-profit corporate systems.  A <a href="http://www.medscape.com/viewarticle/737543">recent article</a> in Medscape Business of Medicine included a striking anecdote about the life of a corporate physician. Controlling Referrals by Contractual Provision It started with the revelation that some employed physicians may sign contracts that obligate them to refer patients within the corporate system, even if that is not in their best interests: <blockquote>Victoria Rentel, a family physician in Columbus, Ohio, joined a hospital-owned group several years ago. At first, nearly everything went fine. There were a few glitches: she'd occasionally order tests or consults at competing facilities, either for patient convenience or because of health plan coverage. When the hospital's administrators found out, they told her it was a violation of her contract; but that didn't stop her because she knew the hospital never enforced this provision.</blockquote>A Non-Compete Clause, Even for a Laid-Off Physician It also included the observation that corporate physicians may be abruptly laid off. Worse, being laid off means having to leave town, because apparently even laid-off physicians are still obligated by non-compete clauses in their contracts: <blockquote>Then, out of the blue, she was informed that the hospital was going to close her practice within 45 days. She knew this wasn't her fault; the recession had hit the hospital hard, and it was laying off nearly half of the primary care doctors in her group. Still, it was a hard pill to swallow. Making matters worse, her contract's noncompete clause prohibited her from going to work for any of the other healthcare systems in town. To avoid legal sanctions, she joined the student health service at Ohio State University.</blockquote>Signing Contracts Without Understanding Them The article's introduction emphasized the problem of physicians signing onerous contracts, perhaps without fully understanding them or without getting adequate legal advice: <blockquote>Many other physicians -- especially those who, like Rentel, were previously in private practice -- complain about their jobs. In some cases, it's because physicians rushed into the arms of a hospital without looking carefully at their contracts or asking the right questions during their job interviews.</blockquote>Cogs in the Corporate Machine The introduction ended ominously: <blockquote>Ultimately, the loss of control over their own professional lives is what irks employed doctors the most if they used to be in private practice. But some doctors also get the sinking feeling that they've become cogs in the corporate machine. 'The reality is that when you work for a hospital system, you're a service line,' says Rentel. 'And because primary care reimbursement is relatively low, you're a service line that feeds more lucrative service lines.'</blockquote> Oddly enough, after that striking beginning, the article peters off into a discussion of some "gripes of employed physicians," which either soft-pedaled or failed to include the issues listed above. The specific issues, and the general response of physicians to their role as corporate wage slaves deserve further consideration. Signing Bad Contracts First, the notion that physicians frequently sign contracts, particularly such important contracts as their own employment agreements, without reading them, without clearly understanding them, and without obtaining competent legal counsel is very disturbing.   A physician who signs a contract without reading it, understanding it, and getting competent legal advice about it is at best naive to the point of foolishness.  My late father, an attorney, done told me to "never sign a contract you haven't read and understood."  Contracts are - surprise - enforceable legal documents that may involve surrendering important rights.  One should never sign a contract without being satisfied that its benefits outweigh its harms. It could be that physicians who so blithely sign contracts are exhibiting <a href="http://hcrenewal.blogspot.com/2007/10/physicians-learned-helplessness.html">learned helplessness</a>.  Maybe they feel somehow pressured to apparently voluntarily agree to doing something that ultimately will harm them.  I am not sure that simply declaring on a blog that we will have to unlearn our helplessness if we are ever to save medicine and health care will do much to solve what may be a fairly deep problem.  But we must do so. In addition, contracts are valid if entered into voluntarily.  It may be that some physicians truly sign contracts under duress.  Those contracts may not be valid, and could be challenged if they were so signed (again, if physicians are willing to unlearn their helplessness enough to get the counsel of a competent attorney.) Stopping "Leakage" Possibly Unethically, Maybe Illegally? The physician in the example above apparently had a contract provision which was violated simply by referring patients to competing facilities.  This appears to be an extreme way for a hospital to deal with the problem of "leakage," that is, the financial problem to the hospital caused when patients are referred outside the system.  Note that we discussed (<a href="http://hcrenewal.blogspot.com/2011/02/new-steward-health-care-will-superbowl.html">here</a> and <a href="http://hcrenewal.blogspot.com/2011/02/send-mercenaries-guns-and-money.html">here</a>) the example of a for-profit hospital system with a large number of physician employees pushed to choke off "leakage" of patient referrals outside the system. Although leakage may pose financial problems for hospitals, fighting leakage may lead to ethical problems.  Physicians are supposed to decide how to manage patients, and specifically to decide where to refer patients in the patients' interests, not just to keep money flowing to the health care system. "Leakage reduction" may possibly threaten physicians' first commandment, to make decisions to maximize benefits and minimize harms to individual patients, before all other considerations. Worse, in the example cited in the Medscape paper, the leakage reduction was apparently implemented not by just trying to persuade doctors to keep patients within the system, but by a contract provision that somehow forbade referrals out of the system.  That may have not only been unethical, but it could have been illegal.   The "<a href="http://quitamguide.org/stark-law-limitation-on-certain-physician-referrals">Stark Law</a>" (Title 42, Chapter 7, Subchapter XVIII, Part E, Section 1395 of the US Code) generally prohibits basing referral decisions on payments.  Full-time employed physicians are exempt from some of its provisions, but only if the physicians' "amount of remuneration under employment" "is not determined in a manner that takes into account (directly or indirectly) the volume or value of any referrals by the referring physician."  Therefore, were the contract referred to above to have forbidden outside referrals on pain of termination or reduction in remuneration, it could potentially violate this law.  There have been rumors that physicians have been pushed to sign contracts that could so violate the Stark Law, but the published example above makes this a real possibility. Physicians ought not to sign contracts that seem to limit referrals under penalty of pay reduction or termination, which may be both unethical and illegal.  Any physician presented with or who has signed such a contract ought to consult a competent attorney. If hospitals and hospital systems are trying to force physicians to make referrals based on the hospitals' financial advantage instead of in the best interests of patients, that is reprehensible.  If these organizations are trying to do so via contractual provisions, this deserves investigation, including investigation by the relevant law enforcement agencies.  Don't Be a Corporate Cog This article underscores my previously expressed <a href="http://hcrenewal.blogspot.com/2011/03/rise-of-corporate-physician-end-of.html">fears</a> about how making physicians into corporate employees may remove the last barriers preventing patients from becoming corporate financial cannon fodder.  Physicians' most central professional value is to put patients' interests first.  Practicing physicians who practice as corporate employees are at risk of being pressured, or even threatened under the cover of contract enforcement to put their corporate employers' revenues ahead of patients' interests.  Physicians should not let their patients, and their own values be so threatened.  Physicians who have inadvertently, foolishly, or under duress signed contracts that could threaten their professionalism and their patients' welfare need to do the right thing and challenge these contracts, or else there will soon be nothing left of the medical profession, and no one left to ethically care for patients.

"Cogs in the Corporate Machine" - More on the Plight of Corporate Physicians

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09 Mar 2011

Stifling Whistle-Blowers: Old and New Approaches

We have frequently discussed the <a href="http://hcrenewal.blogspot.com/search/label/anechoic%20effect">anechoic effect</a>, how it is just not done to discuss certain topics, particularly those related to the adverse effects of bad (ill-informed, incompetent, self-interested, conflicted, or corrupt) leadership and bad (opaque, unaccountable, mission-hostile, unethical) governance of health care organizations.  We have discussed many possible causes of the anechoic effect, but one particularly obvious cause is the silencing of dissenters and <a href="http://hcrenewal.blogspot.com/search/label/whistle-blowers">whistle-blowers</a>. Three recent stories illustrate old and new tactics to reinforce the anechoic effect. A Classic Case - ValleyCare Medical System Nurse Fired <a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/23/BA6H1EJ0NA.DTL">From the San Francisco Chronicle</a>, <blockquote>An Alameda County jury awarded more than $344,000 in damages this week against ValleyCare Medical System for refusing to rehire a Castro Valley operating nurse who claimed the hospital was retaliating against her for complaints she made about patient safety issues, including concerns about surgical equipment left inside patients. Kristeen Klaas, a 15-year veteran at ValleyCare and a registered nurse for more than 30 years, sued the hospital system, which has services in Pleasanton and Livermore, after she quit in distress in May 2008 and hospital managers failed to respond to her request to be rehired days later. The 54-year-old Klaas, who now works at Alta Bates Summit Medical Center in Oakland and San Leandro Hospital, had brought numerous safety complaints about the Pleasanton hospital to the attention of ValleyCare's management over the two years prior to her resignation. Klaas complained about a fellow nurse who brought a dog into the operating team's break room and jumped rope with an electrical cord in the operating room, as well as a surgical technician who brought a rifle into the operating room office to sell. She also complained that a tip of a surgical instrument went missing during a surgery and was never found, and that an instrument was left in a patient because the hospital did not have a formal policy of counting instruments after surgery. She also accused a supervisor of forging her signature on a performance evaluation after she refused to sign an evaluation that was backdated to comply with state regulations.</blockquote> Here is the tactic allegedly used to silence the whistle-blowing nurse: <blockquote>On her last day on the job, Klaas got permission from her supervising nurse to leave work because she was in distress after a colleague, the subject of three of her complaints, screamed at her. 'She realized, for the patient's safety, she couldn't continue to go forward that day in the operating room because she was so upset,' he said. But then a supervisor called her at home and accused her of leaving without permission, prompting Klaas to resign, he said.</blockquote> This is the classic, rather blunt way to do it: just make the would-be truth-teller's job experience so miserable that she quits. Now we will present two examples of a more subtle approach, one directly from health care, one at least from a sphere with major health care implications. A New Approach: A Contract Preventing Communication "Inimical" to a Pharmaceutical Company's Business This case was documented by a personal narrative by Marc Lipsitch, a Professor of Epidemiology and the Harvard School of Public Health, <a href="http://chronicle.com/article/The-Hidden-Risk-to-Academic/66050/">published in the Chronicle of Higher Education</a>, <blockquote>I received a request from a large pharmaceutical company to assist in the design of a clinical trial, and the proposed terms seemed to require that I sign away my right to criticize the product. One provision would prohibit me from entering into 'any agreement or relationship to render services as ... adviser or consultant to, any other individual, firm, or corporation that would be inimical to or in conflict with' the aspects of the company's business covered by the agreement. Another would forbid me to engage, in any capacity, directly or indirectly, in "any business," with or without compensation, relating to the class of products under discussion—not just for the term of the contract, but for the year after as well. Those provisions could restrain me from providing candid advice to a regulator, a government official, or the editor of a peer-reviewed journal about the class of products on which I was consulting, even if the advice were based on publicly available information. I objected to those terms, as did a colleague who was offered the same arrangement.</blockquote> Prof Lipsitch also noted that government research funding agencies and universities may not provide any protections to their faculty against such agreements. He also noted that the contract he was asked to sign was not one of a kind: <blockquote>Discussions with my colleagues suggest that the problem is not limited to one pharmaceutical company ....</blockquote> We and many others have frequently discussed the conflicts of interest that may be generated by physicians or health care academics having financial relationships with industry. The Institute of Medicine's definition of conflict of interest (in a health care context) found in its report, <a href="http://www.iom.edu/Reports/2009/Conflict-of-Interest-in-Medical-Research-Education-and-Practice.aspx">Conflict of Interest in Medical Research, Education, and Practice</a>, is: <blockquote>Conflicts of interest are defined as circumstances that create a risk that professional judgments or actions regarding a primary interest will be unduly influenced by a secondary interest. Primary interests include promoting and protecting the integrity of research, the quality of medical education, and the welfare of patients. Secondary interests include not only financial interests....</blockquote> Thus the concern is that a faculty member,for example, who is paid to consult for a drug company might tend to favor the company, its products, or policies to its advantage in his or her clinical teaching, scholarly talks and writing, or public policy opinions. That might happen even if the consulting work is technical or scientific and not directly related to the particular topic about which communication might be influenced. However, the situation described by Prof Lipsitch is much worse. Were he to have signed the contract, he would have been constrained by this legal agreement from writing or saying anything "inimical to or in conflict with" the company's business. Last week, a similar, but more wide-spread example surfaced (pardon the pun) in a domain that is at least related to health care. Another Version of the New Approach: the BP Consulting Contracts Making Any Communication Between the Company and the Consultant Confidential Originally <a href="http://www.bbc.co.uk/news/world-us-canada-10731408">reported by the BBC</a>, <blockquote>The head of the American Association of Professors has accused BP of trying to 'buy' the best scientists and academics to help its defence against litigation after the Gulf of Mexico oil spill. 'This is really one huge corporation trying to buy faculty silence in a comprehensive way,' said Cary Nelson. The BBC has obtained a <a href="http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/22_07_bp_contract.pdf">copy of a contract</a> offered to scientists by BP. It says that scientists cannot publish the research they do for BP or speak about the data for at least three years, or until the government gives the final approval to the company's restoration plan for the whole of the Gulf. It also states scientists may perform research for other agencies as long as it does not conflict with the work they are doing for BP. And it adds that scientists must take instructions from lawyers offering the contracts and other in-house counsel at BP.</blockquote> Here are some examples of the wording of<a href="http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/22_07_bp_contract.pdf"> the contract</a> as obtained by the BBC about confidentiality. <blockquote>Confidentiality. All communications (including non-public information disclosed in such communications) between you (and your agents), BP Attorneys and/or other BP representatives in the course of your performance of the BP NRDA Services are deemed to be incidental to the rendering of legal services and are to be privileged and confidential. You shall maintain a strict confidentiality of such non-public communications and information unless or until a person from whom you are authorized to take instructions informs you in writing that this restriction is no longer applicable to any particular non-public communications and information. In the event you are required to disclose such privileged and confidential non-public communication and information by an order entered by a court or by similar judicial process, or by a judicial or administrative subpoena, you shall notify a person from whom you are authorized to take instructions as soon as practicable, and you are required to cooperate with BP if BP decides to seek relief from such required disclosure, including commencement of a legal or administrative proceeding to prevent or limit disclosure of such privileged or confidential information.</blockquote>Here is the description of those from whom the signer of the contract must take orders. <blockquote>Instructions. You agree to take your instructions only from me, from other lawyers in my firm, from Brian Israel or other lawyers in the Arnold & Porter law firm, and from Donna Ward or other in-house counsel at BP (collectively 'BP Attorneys').</blockquote> Note that the contract defines privileged, confidential information as any communication between BP and its representatives and the contract signer. Thus, to make something confidential, all BP would have to do is mention it in a communication. It appears that this would allow BP to render off-limits any topic it chose. Also, since by the same mechanism, it appears that the contract itself, once signed, would also become privileged and confidential. Summary I submit that ideally medicine and health care ought to be a very transparent calling.  Physicians are obliged to keep confidential the information disclosed to them by patients, enabling the patients to trust physicians sufficiently to provide them the accurate information needed for optimal care.  However, it is hard to think of much other information or communication in health care that ought to be kept secret, (other than the processes used by commercial firms to manufacture drugs or devices.)  Yet as health care becomes more of a business and less of a calling, businesspeople's proclivity to keep as much as possible secret to avoid giving any advantage to a competitor has become more influential.  Furthermore, those leading big organizations have realized that it is easier to maintain their power if they can keep their mistakes, if not misconduct secret.  So businesspeople's proclivity to mount overwhelming legal defenses of their interests may lead to persuading or fooling people who might be inclined to delve into such mistakes and misconduct to sign contracts to keep them silent through confidentiality clauses, requirements to protect privileged or proprietary information, non-disparagement clauses and the like.  The result will be better coddled self-interests, but more opacity that is inimical to good patient care, teaching, research, and public policy discussion. To truly reform health care, we need more transparency.  To produce more transparency, we need constraints on contracts that inhibit needed clinical, teaching, research and public policy communication. Meanwhile, as my father, who was an attorney, done told me: "don't sign a contract you don't understand, and don't sign a contract giving away any right you need to keep."

Stifling Whistle-Blowers: Old and New Approaches

We have frequently discussed the anechoic effect, how it is just not done to discuss certain topics, particularly those related to the adverse effects of bad (ill-informed, incompetent, self-intereste…

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26 Jul 2010

Turning Patients into "Dialysis Dollars"

As we have discussed in previous posts (<a href="http://hcrenewal.blogspot.com/2007/12/relman-in-jama-on-threats-to-physicians.html">here</a> and <a href="http://hcrenewal.blogspot.com/2009/06/why-did-us-physicians-give-up-their.html">here</a>), prior to a US Supreme Court decision in 1975, physicians (and other professionals) were left free to set up and enforce their own codes of ethics. Until about 1980, the US American Medical Association (AMA) stated, <ul><li>"in the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients"</li><li>"the practice of medicine should not be commercialized, nor treated as a commodity in trade"</li></ul> The Supreme Court decision was widely construed as meaning that any promulgation by US professional organizations of ethical regulations that constrained any economic practices of their members was a violation of anti-trust laws. Thus, in 1980, the AMA dropped their prohibitions against the commercialization of medicine, and nobody, it appeared, tried to change the anti-trust law whose provisions the court interpreted. A vivid example of how physicians and patients may be caught in the cross-fires among health care corporations in this brave new era of commercialized health care was provided by a <a href="http://www.denverpost.com/commented/ci_12830453">recent report </a>in the Denver Post: <blockquote>News that Fortune 500 company DaVita Dialysis is moving its headquarters to Denver socked its competitors like a punch in the gut. To its rivals, the kidney-care giant is a bully armed with high-powered attorneys who use lawsuits as tools to intimidate. DaVita executives counter that they are simply strong competitors — they act as aggressors only when doctors or nurses or other dialysis companies break promises and double-cross them. Either way, a string of DaVita-filed lawsuits around the country — with two major battles boiling in Denver and Colorado Springs — shed light on the ruthless competition over dialysis patients in an industry that costs Medicare alone more than $8 billion per year. For years, DaVita's competition in Colorado's two largest cities was almost nonexistent. The mud began to fly last year when the second-largest group of Denver kidney doctors, called nephrologists, ended their exclusive affiliation with DaVita and partnered with a Massachusetts dialysis company entering the Denver market. Near the same time, the largest nephrology group in Colorado Springs dumped DaVita in favor of Liberty Dialysis, which recently opened two dialysis centers in the city. DaVita quickly sued doctors in both cities, plus a nurse battling breast cancer who quit her job at a DaVita dialysis center and took one with Liberty. The hostility between the companies is so intense, it's seeping down to the patients. 'With everything that is going on, you feel like you are becoming sort of a dialysis dollar,' said Julie Estes, a 53-year- old Colorado Springs woman who spends three days a week, four hours at a time, hooked to a dialysis machine in order to stay alive. DaVita says it 'paid millions' in 1998 to the doctors of Western Nephrology in Denver to retain them as medical directors of six dialysis centers in the metro area for 10 years. The doctors signed non-compete agreements, promising not to join forces with DaVita rivals or steal any of the California-based company's nurses. Patients are free by law to choose any dialysis center they want. But dialysis companies bank on the fact that snagging the most popular kidney doctors in town to serve as medical directors of their centers will bring in the most patients — and the most dollars. Every dialysis center is required by federal law to have a medical director to oversee the care of patients and the water purification system used to flush toxins from the blood of people with failing kidneys. It's a side job, separate from a nephrologist's practice, that some estimate takes only a couple of hours each week. Companies and doctors declined to say what salary comes with the job, but estimates range from $20,000 to $200,000 per year depending on the competitiveness of the market. After 10 years with DaVita, when they believed the non-compete agreement was about to expire, Western Nephrology doctors began making plans to become medical directors of shiny-new American Renal Associates dialysis centers opening in Denver with a flat-panel TV and heated, massage chair at every dialysis station. Four of the new centers are within 3 1/2 miles of existing Da Vita centers. The non-compete agreement that Western Nephrology doctors had signed for DaVita prohibited them from having relationships with competitors within a 35-mile radius. DaVita contends in its lawsuit that it found out about Western Nephrology's 'secret campaign' because the dialysis company they were working with applied for Medicare billing numbers for five new centers in the Denver area. In its counterclaim, American Renal Associates accused DaVita of violating federal antitrust law — the company had controlled at least 80 percent of the Denver market. DaVita lagged in updating its dialysis centers until competition was imminent, according to court records. And the claim accused DaVita of 'filing legal actions that are objectively baseless' merely as an 'anticompetitive weapon.' </blockquote> "Ruthless competition," "lawsuits as a tool to intimidate," "double crosses," flying mud, patients who feel like "dialyis dollars," non-compete agreements, medical directors paid according to "the competitiveness of the market," "secret campaigns?" - is this any way to run a health care system? As Dr Arnold Relman pointed out (see our previous posts linked above), through the 1960s there was some consensus that health care does not function like a pure market, partially because patients cannot function like steely-eyed consumers. They do not have enough information about the benefits, harms and costs of their possible choices. They have trouble understanding the ambiguity and uncertainty of the medical context. And most important, they may not be capable of the cold cognition the free market model requires, since they may be dealing with choices whose potential outcomes prompt extreme emotions, and in many cases, they may be too frightened, sick, or cognitively impaired to make fully rational choices. In particular, patients with end-stage kidney disease, requiring dialysis to maintain life, seem very different from some ideal, coldly cognitive consumers. So what in the world are they doing caught up in these sorts of disputes? I submit that real health care reform ought to help physicians and other health care professionals renew their professionalism, and put the provision of health care (and health education and clinical research) back in the hands of people who view these activities as callings, not purely as ways to get rich. Meanwhile, when you are a patient, be prepared to be treated merely like a source of revenue. PS - Please note that, as we have <a href="http://hcrenewal.blogspot.com/2009/03/meet-new-boss-same-as-old-boss-health.html">posted</a> before, the new US "czar" for health care reform is a former member of the board of directors of DaVita.

Turning Patients into "Dialysis Dollars"

As we have discussed in previous posts (here and here), prior to a US Supreme Court decision in 1975, physicians (and other professionals) were left free to set up and enforce their own codes of ethic…

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17 Jul 2009

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