Faith, Hope, Charity, and the Jackpot Mentality

Physician Defend Thyself

Imagine you are in a rural Emergency Department on a quiet night. The radio crackles. It’s EMS giving a report to the charge nurse. You overhear “snowmobile,” “Loss of consciousness on scene but patient now alert and combative,” “Open fracture of the left femur,” and “Possible ETOH.”

The patient arrives and the history from the paramedics is typical, that is, typical dirtbag typically drinking, typically lost control of his snowmobile after typically saying to his buddies, “Hey watch this!” Somewhat atypically, however, ran his snowmobile into the side of a barn fracturing his femur on his way through.

You evaluate and stabilze the young daredevil who is otherwise uninjured except for minor cuts and abrasions, put the leg in traction, and start the appropriate antibiotics because the end of his fractured bone was sticking out of his thigh when he arrived.

It is time to call an orthopedic surgeon. You don’t just put a cast something like this.

“Good morning, Dr. Smith. Sorry to wake you up but this is Dr. Bear at the County Hospital Emergency Department. I’ve got a 25-year-old gentleman, snowmobile versus barn, with an open mid-shaft fracture of the left femur but otherwise without significant injuries. We have him in a traction splint and his distal pulses and sensation are intact. On the way through the barn he dragged the end of his broken femur through approximately fifteen feet of cow manure and I’m afraid it was about thirty minutes before his drunken friends decided that he probably wasn’t going to walk it off.”

“How’s he doing now? Fine. He’s fully alert and oriented and threatening to sue everybody in the place. Can you come in and see him?”

If you were an orthopedic surgeon, would you come in, especially as you can come up with quite a few good excuses not to?

Don’t answer yet.

First of all the patient does not have insurance. People riding their snowmobiles drunk on a weekday at 3AM never do. It’s axiomatic. He also has a major injury and he is a setup for all kinds of post-operative complications. Not only is he likely an unrealiable patient and will not comply with his medication or follow-up but the jagged end of his bone was dragged through cow manure, rat turds, hay, and every kind of bacterial goodness that you can imagine. The odds of osteomyelitis (infection of the bone) which even the best antibiotics that the taxpayers can buy might not cure are high. The leg might never heal or it may require mulitple revisions to remove and replace infected hardware and bone.

Now consider that the orthopaedic surgeon is of a new breed, operating primarily out of a privately owned surgical center where he can fill his OR slots with hip and knee replacements on insured, compliant, pleasant elderly people or tendon repairs on insured, healthy young atheletes. Coming in to care for this patient is going to set him behind on his schedule, maybe forcing him to cancel some cases or some clinic appointments for his paying customers. Since he doesn’t need to maintain privileges at the County Hospital they have no hold on him and it is only the tenuous grip the Hippocratic oath has on his heart that could compell him to come in.

I say tenuous because not only is the Hippocratic oath not legally binding but it doesn’t even apply in this situation, a case where before the physician “Can do no harm” he first has to symbolically lay hands on the patient by accepting him, thus establishing the sacrosanct doctor-patient relationship. This is not just a techincality. The entire world is not your patient, only your patient is….which should be obvious. If this were not the case, I would have to hang a big sign in front of my house saying “Here There Be a Doctor” and treat anybody who happened to drop by. It would sort of be like EMTALA gone crazy, at least crazier than it has already become.

EMTALA, or the Emergency Medicine Treatment and Active Labor Act mandates (without providing funds, hence the unfunded mandate par exellence) that every patient who presents to the hospital, regardless of their ability to pay, be provided with a screening exam, appropriate medical care to stabilize them, and transfer to a hospital that can provide the appropriate level of care. It sounds reasonable enough but in practice, the law has become the portal of entry into the hospital for anybody with any medical complaint whatsoever, emergent or not. What was originally intended to stop the practice of “patient dumping” has now become a highly inefficient system of charity care.

The key thing to note here is that EMTALA applies to hospitals, not physicians. Because the “takings clause” of the Fifth Ammendment prohibits the government from seizing an individual’s property (in this case the doctor’s work) without just compensation, no law may compel you to work for free…or even work at all if you don’t want to. Emergency physicians see every patient without regard to ability to pay because it is part of their usual and customary duties to see everybody who come through the doors and are compensated by the hospital. An orthopaedic surgeon who has no contractual obligation to the hospital, on the other hand, has no such obligation.

Which brings us back to the Hippocratic Oath and the sense of duty we all feel as physicians to provide care to everybody and devil take the hindmost. Unfortunately, while the legislature is quick to give rights and privileges to patients, it is a little more deliberative when it comes to ennumerating their responsibilites and limitations. Our patient is going to be very grateful, once he becomes sober, for any help he receives. And yet, when he finally goes home and perhaps walks with a permanent limp or just decides that his job at the local plywood mill is too depressing, he will look up to see the gleaming eyes of the legal predators circling his fire and from then on, the orthopedic surgeon is a marked man.

He may never be sued but the risk is so great of providing free care to a population with poor compliance, poor follow-up, and a jackpot mentality reinforced continuously by lawyer’s television advertisements, that even providing this care will force his skittish malpractice carriers to increase his premiums or even cancel his coverage althogether.

So at the very best, the orthopedic surgeon will lose a little bit of his time and some of his sleep, things that most of us don’t really object to losing if there is a clear need. At the worst, however, he can be dragged through the humiliation of a malpractice suit which, even if he is held harmless, will still tarnish his reputation and while it works its way through the courts can damage his abiity to maintian his credentials. It can cost him directly in increased malpractice insurance premiums which, in some states, are as high as $200,000 per year for surgeons. And it can cost him indirectly in lost revenue from work he could have done, the very real concept of “opportunity cost” which most people who don’t work don’t understand.

All of this for a bad outcome which may not have been possible to avoid.

So would you come in?

63 thoughts on “Faith, Hope, Charity, and the Jackpot Mentality

  1. Hell No! Especially if I am not on any contractural “call Panel” with the hospital. If I am on a contractural call panel I will find some excuse to find that he needs “higher level of care” and transfer.

    The irony is that this type of case would be happily done when I was doing mission work in a third world country because the persone would be grateful and not a bastard who would look to sue me and claim disability to obtain public benefits for life as a reward for stupidity.

  2. Hmmmm. If I had a full panel of patients that had operations starting in the early AM, and it’s already nearing that point, it’d be a no for sure. Otherwise, I’m not entirely sure.

    I am rather glad that my state caps the malpractice insurance’s payout at $1 million (anything above that is paid by a state-operated fund, not the physician’s insurance), because it would certainly suck to get sued by that miscreant.

  3. The politician solution to this isn’t going to be making the EMTALA situation any less retarded, it’s going to be restricting surgicenters so the ortho surgeon in this case has no choice but to come in and bend over. It’s already started in some states.

  4. I would have the patient transferred. Bottomline, I don’t care how the patient is now, a femur fracture is a high energy injury and needs a formal trauma evaluation that a level 1 or 2 center can provide. If I had to see the patient to meet EMTALA so be it, but I wouldn’t take care of him after the initial screen, I would recommend transfer.

  5. I’d give him Ted Kennedy’s private telephone number.

    Then go back to sleep.

  6. I certainly agree with the decision to transfer. But even some level 1 and 2 centers are having a hard time retaining specialists, especially neuro and spine.

  7. Eric, the concern is not for litigation per se but the effects the threat of litigaton have on how we practice medicine and our indirect costs.

    One of these indirect costs is malpractice insurance. Seeing as an OB-Gyn in Florida (who does obstetrics) can easily pay almost a quarter of a million dollars a year for malpractice insurance, I don’t see how I am overstating anything. Obvioulsly her insurance company thinks litigation is a pretty big risk.

    For your information, a typical OB salary is in the 250K range. The OB-Gyn pays more for insurance than she receives (or gives herself) as a salary. Somebody is paying and it is her patients.

    THe cost of defensive medicine is also estimated to be between one quarter to one third of all medical expenses and I suspect, just from what I know, that it is higher than that.

  8. No offense, Eric, but this is the typical lawyer doublespeak. I have never claimed that the awarded damages in medical malpractice suits are responsible for the high cost of medical care. However, defensive medicine, the cost of CYA documentation, and the cost of malpractice insurance certainly are.

  9. I’m not especially litigious, nor am I looking for a big payday, but I would like to do something about the family practice doctor that killed both of my elderly parents in the space of one year.

    My father developed shortness of breath; his chest x-ray came back from the radiologist with the note “Invasive mass seen in lower left lobe; recommend further study”, and the good old family doc filed it away without comment or action. 6 months later, dad gasped out his last in a nursing home with “palliative care” ordered by the family physician. Mom collapsed at Dad’s funeral with a transient ischemic attack — Doc Welby upped her blood pressure meds but kept this 84 year old woman on Premarin (he’d had her on hormone replacement therapy for 30 years!!). Her blood pressure stayed high, she stroked out a coupled of weeks later, and I sat by her bed in the hospice for a couple of weeks waiting for her body to catch up to what had happened to her brain.

    I talked to a lawyer about it, not because I wanted big bucks, but because I felt this “doctor” was a menace to his other patients. I was told that because my parents were in their 80’s, the other side would be able to successfully argue that they would have died of something or other any minute anyway, and that the couple of years of life they had left if their doctor hadn’t been incompetent would have been worth crap because they were so elderly. I was told that bringing the case was pointless, a waste of my time, something that would ruin me financially and emotionally, and that I’d be better off dropping it. (Imagine a lawyer turning down a malpractice case!)

    There really are bad bad docs out there, and there should be some approachable way of calling them to justice for the real harm they do. This physician ignored a radiologist’s suggestion that there was an invasive tumor on an x-ray and continually prescribed high doses of Premarin for three decades to an elderly woman with high blood pressure and high cholesterol.

    How to address this, Dr. Bear? How to weed out the bad ones?

  10. The other thing is, I skimmed your blog and came across an article detailing a lawsuit involving a plaintiff who essentially tripped on a curb.

    Win or lose, fair or not, the fact that our legal system has evolved where lawyers discuss and courts try cases of people tripping over a curb shows you how far out of whack things have gotten.

    The problem is that the law (through personal injury cases, product liability, and medical malpractice) makes us all pay the high cost of trying to live in a zero defect world.

    In other words, it’s not the gross negligance (bridge collapsing from improper structural bolts, poison in the toothpaste, wrong leg amputated) that divert so much productive capital to the non-productive sector but the little pissant things against which it is almost impossible to defend (uneven curb, no safety lable on a product, and a missed diagnosis in a patient that never followed up and didn’t fit the clinical picture of the diagnosis to begin with).

  11. Every few years or so, CMS (the medicare payment body) has voted (unsuccessfully) to mandate ER call for any physician who accepts Medicare dollars. If this was to pass, that orthopod from your post, if he took Medicare, would be forced to take care of the snow mobile patient.
    And that is coming soon to a theater new you. .

  12. Bad and negligant doctors should lose their license to practice medicine. I will get behind any lawyer who sues a physican to take him out of medical practice because the doctor is incompetant instead of demonstrating his true motives by asking for a huge settlement of which he will collect the lion’s share. But I ask you, how is a large malpractice award payed for not by the doctor in question but by his insurance company going to change what happened to your parents?

    In other words, nobody believes that doctors should be untouchable, just that the threshold to sue is too low and there is no penalty, for example, for a lawyer filing a “shotgun suit” naming as defendants every physician mentioned in a chart…and some charts are multi-volumed and thirty plus pounds.

  13. Panda, you drive a valid point. If I was the ortho I probably wouldn’t come in. It doesn’t seem worth it after all is said and done.

  14. Elisa,

    Sorry about your parents. I know it is hard to separate reality from emotion. Maybe there was some negligence seen with the knowledge of hindsight, but don’t overstate it by using such terms as “killed” my parents.

    Your father (who a assume to be 80 something)with the “invasive mass” might have lived a very miserable six months longer with surgery, radiation, and chemo. “Filing it away” may have been a big favor.

    As far as your mother goes, premarin was very acceptable and standard practice for that time period. Also did your mother check her blood pressure regularly to see that the new medication was controlling it adequately? And at 84 years she lived 14 or so years longer than the average person. Old people have strokes without HTN or premarin. You do not know that there is cause and effect.

    Erica nicely demonstrates why doctors have litigation fears. The poor family doc who guided them through decades of care is called a “killer” because he was not magician against old age and disease.

  15. Panda Bear and Jerry both have great points. How often are law suits brought with the intention of “removing” a physician from practice? Even if the family doc was COMPLETELY responsible for the death of Elisa’s parents (which I’m not saying one way or the other), what effect will a punitive financial settlement have on his practice? Likely his liability insurance goes up, and he passes it on to the next consumer who he provides substandard care to. This is an interesting discussion to follow!

  16. Having been in private practice for 5 years, this is a daily occurrence at smaller community hospitals. The hand surgeons and ENT want to use the hospital for referrals and operations, but don’t want to be obligated to the ER for free care at any hour of the day. If as an ENT you accept to see someone with a throat mass, you will be obligated to see them for months for their follow-up care. So seeing a patient in the ER is not a 20 minute visit

    The financial problem behind all of this is who will pay the physician? The government has decided not to make a decision and is hoping hospitals can force doctors to provide free care. I hope every doctor in the US grows a spine and refuses to work for free. When 30 high school drop outs at Wal-Mart are made to work overtime for free it is a national disgrace. When highly trained professionals are made to work for free it is expected. Where is the logic in that?

  17. again, well said. this is something we deal with in my practice everyday. our practice mentality is we do not refuse care. we are university center and are therfore a dumping ground for a lot of unwanted patients secondary to insurance, complications, and general bad karma. my practice is about 60-70% some form of medicaid (no medicare).

    i think that everyone in the community with their surgery centers and MRI scanners thinks that the universities can take this and have no problem. the problem is it hurts the overal system. most of those “city” hospitals are closing and many of the smaller university programs are becoming straped for cash because of the poor payor mix.

    i wish that my fellow brotheren would see beyond the dollar signs and give good patient care to everyone. but i see to often the patient without insurance tranfered and the patient with insurance kept. i do feel this is a 2 tiered patient care system. i don’t know how to make this any different.

  18. In the case of the (possibly) negligent family doc, that’s the sort of thing you should take to the state medical board. In today’s sue happy environment, the state boards are getting more involved to put a stop to things like that.

    Panda, great article as usual.

  19. Good points brought by everyone. Perhaps a midway solution is to put a cap on how much physicians pay out, after which they can lose their license? This way, it prevents the money grubbers from coming while still taking bad doctors out of the equation? Would that work? Lawyers wouldn’t get a huge paycheck for malpractice but they would still get paid for their work.

  20. We had an attorney from our law school come speak to us about tort law. She presented a study out of Harvard. In examining 100,000 hospital inpatients, 125 experienced an adverse event for which they pursued a malpractice claim. Of the 125 claims, 60 received compensation. Now, of the 60 that received compensation, 35 were actual victims of malpractice. Now tell me, how can you justify a system where HALF of the claimants awarded were NOT victims of malpractice. Exactly, you can’t. Jury awards are a coin flip and malpractice does NOTHING to keep the bad seeds out of practice.

  21. Elisa/Erica[?] and va hopeful doc dont get it.

    Jerry on the other hand, hits the nail in the head!

    For reality’s sake, Elisa, how long do you really expect your parents to live? They were not “killed” by the family doc. If anything, your dad was served well by the doctor for not subjecting him to CTs, bronchoscopy,and procedures ad nauseum that could easily bring on pneumothorax, exsanguination hemoptysis, and the ravage of chemo or radiation therapy – if his QOLife would even qualify after all the misery of the work up! The family doc did not play God either…he let God do His work. If people dont die early of cardiovascular disease in the old industrialized USA, they die with or by complications of malignancy. Get a grip. If everyone died in their sleep without misery, “dying in sleep” will not be a popular subject of tales, lore and jokes that people want to talk about. The point is, this is minority occurrences, that people still find interesting enough to talk about; otherwise, if it was so common, it would be blase’ and boring. Century old men and women would be so many, Smuckers will not be able to herald their unique existence and achievement any longer.

    For once this instance, the lawyer who advised against litigation, at least appeared to have acted ethically. By discouraging the lawsuit in the terms narrated, at least s/he implied that there won’t be too much recovery considering the ages of the parties involved. Though subtle, at least s/he did not deny this fact. But s/he did not really refuse a malpractice suit, s/he was just pragmatic about it.

    On the subject of litigation and jackpot mentality…very few realize that doctors not only help get the real sick a better life…medical care and industry have become the primary source of living by those on the dole; or ancillaries who will pretty soon be on the dole, after getting very well educated by the “patients” and clients practicing the art.

  22. I met an attorney today who specializes in protecting doctors’ money. He advised setting up two companies: Panda Bear, MD, PA and Panda Bear Properties, LLC. All of your medical work should be through Panda Bear, MD, PA. You would hire yourself out as a company. The company would have no holdings except for a little money in the bank, some medical equipment, and maybe malpractice insurance. The second company, Panda Bear Properties, LLC, would own your house and car. You would pay rent to the properties company and would technically not own anything. If you are ever sued, the lawyer would have to bring action against Panda Bear, MD, PA. You would personally not get sued. And since you don’t own anything, there becomes disinterest in suing someone when there’s nothing to collect. That attorney I spoke with today also suggested that these dummy companies should be chartered in either Hong Kong or Belgium to make lawsuits extra difficult for any ungrateful bastards that try to sue.

  23. EMTALA does apply as a controlling legal authority to require the orthopedist to come in. Since the Orthopedist a) participates in the medicare program and b) has agreed to serve on the hospital’s call schedule, EMTALA requires him to repond in person to ER calls or face the infamous $25,000 fine per incident. The fifth amendment does not apply since the government is not “taking” but setting compliance with EMTALA as a condition of participating in the Medicare program. If it were otherwise, the ER docs could turn the uninsured away by the same principle.

    So you could, if you were feeling like a real dick, go ahead and report the orthopedist to the local branch of the OIG. You’d better have documented the hell out of the case, though, gotten a witness to the surgeon’s refusal to respond, and not be real interested in keeping your spot on the hospital’s medical staff. “Problem doctors” who make trouble have a funny way of getting their privileges denied at the next renewal cycle.

  24. public aid doc,

    I agree that, were I 80-something with cancer, I’d probably just let it take me. However, it was not that FPs decision to make. As much as we (including me personally) wish for the good ole paternalistic days every so often, that’s not how its done anymore. I think that FP could easily have said “listen man, you’ve got a tumor. We can do lots of unpleasant procedures and treatments that might give you another year or so. Or, we can just make you as comfortable as possible.”

    I’m not saying the guy should be sued, but withholding information like that from a patient is not allowed, last I checked.

  25. Shadowfax, the point is that the orthopedic surgeon will come in (because he is on the call schedule) but after a while he’s going to relinquish his priveleges and that will be that.

    The lack of specialist coverage is a problem even in big cities.

    The hospitals, for their part can’t just say, “Good riddance,” because they need paying customers in their ORs as much as the orthopedist does in his and are themselves under a lot of pressure to grant privileges without call.

    It is all a subset of the larger problem, that is, the overwhelming drive in the entire western world to make somebody else pay for medical care.

  26. Dangit Panda, your last comment said what I was going to say. 🙂

    The ortho will come in this time. He’s on the call schedule. He’s decided ahead of time to participate.

    BUT–he now has no reason to be on the call schedule. Why should he? He’s got income from another source. He doesn’t need the hospital anymore. The hospital does need the ortho, though, and that’s where things may just get interesting.

  27. I’ll take a crack at a few responses, but I am time-limited:

    No offense, Eric, but this is the typical lawyer doublespeak.

    Actually, the parts I quoted are the law that will be read to the jury.

    The other thing is, I skimmed your blog and came across an article detailing a lawsuit involving a plaintiff who essentially tripped on a curb.

    Win or lose, fair or not, the fact that our legal system has evolved where lawyers discuss and courts try cases of people tripping over a curb shows you how far out of whack things have gotten.

    That was an appellate court decision (not my case) that I discussed to show that such cases are not the “lottery” that recent mythology presents them to be. Bad cases will be dismissed, and this one was.

    …for a lawyer filing a “shotgun suit” naming as defendants every physician mentioned in a chart…

    This might sometimes be unavoidable for two reasons: One, a common defense strategy is to blame the “empty chair” at trial. The doctor that was sued tries to blame the doctor that wasn’t. But if they are both in the courtroom, that can’t happen.

    Second, the statute of limitations might force the issue if, for example, your expert can pinpoint the negligence, but has a hard time figuring out who gave the order or administered the treatment, etc. Physicians, as you all know, aren’t exactly known for their penmanship. By the time the discovery process gets you to depositions so you can ask that question, the statutory period may have expired.

    Even if the family doc was COMPLETELY responsible for the death of Elisa’s parents (which I’m not saying one way or the other), what effect will a punitive financial settlement have on his practice?

    Punitive damages in med mal cases are exceedingly rare. In fact, I don’t know of any that have sustained appellate review in New York where I practice. If they are rare here, I presume they are rare elsewhere.

    They are also rarely sought for two reasons: Insurance doesn’t cover it, so getting a punitive award that can’t be collected isn’t worth anything. And two, juries hate to bring back verdicts against doctors to start with, so this just makes a hard job even harder.

    I will get behind any lawyer who sues a physican to take him out of medical practice because the doctor is incompetant instead of demonstrating his true motives by asking for a huge settlement of which he will collect the lion’s share.

    In New York, the contingency fee starts at 30% and decreases to 10% for larger cases. The attorney must be prepared to invest hundreds of hours and tens of thousands of dollars of his/her own money for a significant case, for a fee that will only come years from now and only if he/she is successful. The penalty for poor case selection is personal bankruptcy.

    I failed to mention it in my first posting, but I enjoyed the article. I leave the last word on my comments (if any) to owners of the site…


  28. More doublespeak. The problem is that you buy the premise, in this case that the litigious nature of our society is a good thing and that you are providing a public service which you are most certainly not. In fact, while I don’t dislike lawyers and would love to have a good one if I needed him, the cost to society of being “overlawyered” far exceeds any benefit.

    And you are again willfully ignoring what I said, viewing my blog like many of my critics through the lens of your own bias. I repeat, I have never said that the direct cost of damage awards or even malpractice insurance is solely responsible for the escalating costs of medical care. But the defensive medicine we practice, most of it not even necessary from a medical point of view, and the incredible paperwork burden in part created by the need to protect ourselves from legal jeapordy certainly does. (The other part is created by the complex system of cost-shifting otherwise known as insurance paperwork.)

    Anecdotaly, I know for a fact that at least half of the patients we admit could be sent home and asked to follow up the next day as much cheaper outpatients (stress tests, etc.) except that the fear of being sued by a lawyer representing a responsible adult for whom an appontment was made and whose only task would have been to show up but who neglected this responsibilty is so great that we would rather maintain a huge staff in a hospital and shoot the works than take the risk.

  29. Panda,

    As a medical student I really enjoy your blog. You articulate what I have beeen thinking for so long.

  30. Seems to me there are several issues here: first, Emtala does mandate (though conscience also requires) that the orthopedic surgeon at least examine the patient before transfer. Yes, the orthopedist probably knows he does not want to take this case, and that if there is the high probability of a poor outcome he is at least going to want that poor outcome to occur at the best facility in the vacinity, but he will feel better about himself if he has done so. There is also the slight possibility that he will decide to keep this patient and that this patient will turn out to be precisely the patient who has something to teach him, about orthopedics or occasionally about life itself. Gold sometimes appears in the ugliest of rocks.
    Regarding the physician whose parent’s were “killed” by the family physician: in the words of Atticus Finch “Scout, don’t judge another person until you have lived inside his skin-step inside and walk around for a while before you decide to do that” or words to that effect.

  31. EMTALA does not apply to a physician who does not have privileges at the hospital. That’s the point. There is no reason at all for many specialists to maintain privileges because the hospital is no longer the only game in town.

    The ironic thing is that it would seem to be easier to pass the equivalent of a “Good Samaritan” law to protect specialists who see charity patients than to construct a byzantine set of laws to force them to.

  32. Like I said he may come in to fulfill EMTALA if the E.R. doc demanded it and he is on the call schedule, but he doesn’t have to take care of the patient. All he has to write down is is high energy injury, LOC, open femur fx, needs trauma evaluation, recommend transfer to a trauma center because his medical demands far outdistance those that can be provided at this facility. You don’t want the orthopod taking care of a missed liver lac or ruptured spleen and the ER doc sure as heck won’t be rounding on the patient either to ensure it doesn’t happen. CMS may force him to take call eventually as another poster stated, but he doesn’t have to take care of the patient. All he has to do is evaluate him. BIG difference.

  33. va hopeful dr says:

    “I agree that, were I 80-something with cancer, I’d probably just let it take me. However, it was not that FPs decision to make”

    How do you know that the FP didn’t discuss with another, closer, relative to the patient? I encounter internal family conflict every day, dealing with elderly nursing home residents. Goes like this:

    Patient w/CHF is short-of-breath and febrile. given lasix +/- antibiotics. chest xray ordered. fearful radiologist hedges his bet & reads “infiltrate and/or effusion, cannot rule out mass – clinically correlate – follow-up study advised”. Patient gets better in the short-term, but has gradual decline physically & mentally over next few months, and eventually dies peacefully without heroics.

    Next comes conflict, if it hasn’t started already. The patient was demented, oldest son wanted palliative comfort measures only and specified such; his sister (erica/elisa) doesn’t agree, wants agressive measures, and makes everyone’s life hell, ante- and post-mortem.

    SOMEONE must be at fault when a 90-year-old dies.

    I remember when my mother-in-law was actively dying in an ICU at a hospital in long island. Everybody agreed – no heroic measures. But hospitals are so afraid of this crap that the ICU attending made us meet with the hospital’s lawyers to document everything – this even though i’m a doctor and understood how poor her prognosis was.

    Sounds to me like the FP practiced good medicine, rather than subjecting this poor man to an army of specialists, procedures, and misery.

  34. Maybe this is a stupid question, and maybe I’m an idiot for letting myself continue to be uninformed. But I’m going to risk ridicule and ask anyway.

    About ER doctors complaining about “uncompensated care”. Okay, I will admit that I thought that they were paid by the hospital. But am I wrong? Is it that you ER docs bill the patient separately from the ER– and that is when the patient does or does not pay, possibly making it “uncompensated care”? Is that what ER docs are terming “uncompensated care”?

    Forgive me if this is a stupid question which should be obvious, but I never researched the issue on compensation. But now I am interested and want to know the specifics.

  35. I love the irony of the guy being able to afford a snowmobile (not to mention booze) but not insurance!

    Not quite sure why my insurance premiums and taxes out to take care of this guy. He’s supposedly and adult until he hurts himself and then suddenly everyone else is responsible for him.

    Lest I seem to heartless, I’ve suffered a fracture of the femur (car crash).

  36. Most EM physicians work for groups that have a contract with the hospital. Because EM physicians alone among doctors have to take every patient regardless of ability to pay (unlike, say, Family Practice Physicians who can charge patients up front if they just walk into the office) the reimbursement for the group depends on the “payer mix.” If the ED is in an area where a low proportion of the patients have insurance (because nobody ever pays their emergency medical bill)the hospital usually pays the group a certain amount to offset this as they would otherwise be unable to convince anybody to staff their ED.

    The amount kicked in by the hospital is usually not enough to offset losses from providing free care.

    Important concept: If I am an auto mechanic and you don’t pay me for fixing your car, this is a loss. Same with physicians. If I spend thirty minutes of my work day providing my skill and knowledge and do not get payed, that is a loss no different than that endured by an auto mechanic except the law protects the auto mechanic from this kind of theft.

    This is what we mean by uncompensated care.

    In areas where the payer mix includes a large proportion of insured patients, the group may just bill and collect like any other group of private practice physicians. But EDs in this setting are huge money-makers for hospitals (which is why Emergency Services are advertised on Billboards) so the hospital still may kick in a little.

    Some EM physicians work as employees of hospitals for a regular salary.

  37. In response to those who postulate that the family physician caring for my elderly parents acted properly and even “practiced good medicine”, my comment is that aside from high blood pressure, neither parent had any significant comorbidities, both were still unretired, one working as a State Labor Relations Arbitrator and the other working as the coordinator of the volunteer program at the hospital where she was taken after her stroke.

    The FP in question was a social acquaintance of both parents who had treated them for the odd flu and fever for more than 30 years. They frequently went to charity events together. He knew they were active, he knew they had a long life expectancy.

    Under what rules is it acceptable to prescribe HRT for three decades, knowing as we do now the risks associated? After active 84 year old Mom had a TIA and reported it to him (I was there, I took her) he only upped her blood pressure meds and did nothing else, kept her on the Premarin. Not even a recommendation for daily aspirin. Astounding. When the x-ray showing a lung tumor came back from the radiologist with a note for follow-up, 85 year old Dad was working full time as an Arbitrator and volunteering for charities on the weekends. A surgery would have saved him from the outcome — the tumor not only grew, it destroyed two of his ribs and wrapped around his spinal cord causing intense pain and partial paralysis… for no reason except a bad doctor’s failure to diagnose.

    Justify *that* if you can.

    Okay, my rant is done. Sorry, Dr. Bear.

  38. Okay, I get it about the “payer mix” and the hospital compensating the ED doc group to allow for an area having a low proportion of patients with insurance, and thus money to pay their bill. However, I wanted to know the “whole story”—and so I asked one of my best buddies, an ER doc I worked with for years, who works near a large city. He told me thus:

    (Beginning of his quote)”In physician owned groups like the one that just took over such-and-such hospital, the doctors now each get paid depending on the revenue they generate. (But before that particular physical group took over the ER department, we used to get a flat hourly fee.) So it can vary depending on the situation.

    Generally speaking, if the ER volume is higher, you can earn more by getting paid by the patient instead of by the hour, but–in my career, I have always gotten paid by the hour and still do. I don’t care if they are on Medicaid, Blue cross, or indigent, I get the same amount of money. I actually like it that way because you tend to do what you need to do and discharge the patient. The other way you tend to order more and do more because you know you will get paid more for that patient. That is, if they are a paying patient–and usually you know.” (End of his quote.)

    Uh…the sentence where he says “you tend to order more and do more because you know you will get paid more for that patient if they are a paying patient” is quite enlightening. Does this mean…that an ER doc will get paid MORE for ordering more tests (“generating revenue”) for patients that they know are INSURED? And does this mean that in hospitals where ER docs are paid a “flat hourly fee” that they’re going to get the same money whether the patients pay their bills or not?

    Hmmmm…..I will admit I am a little more jaded now about the issue of “uncompensated care” because it appears to me now that ER docs have a little more control over their income than I previously thought. I’m not saying that it’s right for patients not to pay their bill, but at least I feel like I’ve heard another side to the story. (Which I like to get…)

  39. Emergency physicians do not, repeat not, get paid more for ordering more tests. They get reimbursed based on the Level of Care, essentially how they code the visit. The more severe the presenting complaint, the higher it is coded because it will require more of the physician’s time. This is not a scam and is tightly monitored by Medicaid and insurance companies to make sure you are not “upcoding.”

    The key to prospering as an EM group is to get paid for the work you do at the appropriate level, neither higher (upcoded) nor lower (downcoded) and to get reimbursed correctly for procedures.

    You can go to jail or pay huge fines if the CMS auditors find a pattern of upcoding.

    And, while I am no expert, I have never heard of an EM physician using ability to pay as a criteria for what tests to order or who to consult except when it is to look out for the interests of the patient, for example prescribing him a low cost generic medication if you know he can’t afford the nicer but more expensive medication.

    But EM physicians have to generate revenue just like any other doctor and they do this by seeing paying (insured) customers. Once again, the payer mix determines how much, if any, the hospital has to reimburse it’s EM groups for their services.

    Yes, EM physicians who work on contract or who are employees of a hospital get a flat hourly fee regardless of the number of patients or the level of care they see.

    But I think you missed the point of the original article. The orthopedic surgeon (or neurosurgeon, hand surgeon, ENT, Oncologist, etc) will most certainly not get paid for coming in to see an uninsured patient. He has nothing to gain and everything to lose.

    As for Emergency Medicine, it is part of our usual and customary duties to treat the poor and most of us don’t mind patients like the one in the article. It’s all the same. Our malpractice rates and pay take this kind of guy into account…but EM is kind of different from all the other specialties.

    This article, in case I wasn’t clear, is about the difficulty of getting specialty coverage and how the current legal environment ends up hurting the poor a lot more than it helps the lucky few who strike it rich in malpractice Powerball.

  40. BHN,

    When Panda talks about a “contract” an ER group has with a hospital, it usually, at least in my locale, does NOT include ANY payment whatsoever from the hospital.

    There ary many different types of payment arrangements, but I think ours model is very common. Our group sees patients. A bill goes out to the patient or insurer. Hopefully, payment eventually comes back (in our case about 29% collection rate). We divide it up amongst ourselves according to hours worked. We pay ourselves an “hourly salary”, but it must be backed up by actual collections.

    We have chosen NOT to pay ourselves individually based on what the individual doc billed because then that could lead to “cherry picking” for certain types of patients when more than one of us is working.

    I absolutely agree with Panda that we do not get paid more for ordering more tests and studies. In fact, the opposite is true. Studies take time. Our income depends on patients we see. More studies and time decreases our ability to see more patients.

    Nursing pay models where you are an employee of the hospital is very different and always a frustration for hospital based physicians who are self employed. A very lazy nurse gets paid the same as a very hard working efficient nurse. Being lazy, or exceptional does not affect his/her salary. A self-employed lazy physician will starve, or get kicked out of his physician group.

  41. Elisa,

    Your parents have died and you are bitter, therefore against better judgement I will engage you only because you have accused someone of “killing” your parents who cannot defend himself from his perspective. I have been in the business of conflict resolution a long time to know that here are two sides (or at least two perspectives) to every story.

    If your father had a fatal perioperative MI, or post-sugical PE would you still think the proper decision was made to do cardiothoracic surgery on a 85 year old man? Do you also know that the “tumor” you describe had probably already begun its invasion to his ribs and spinal cord when it was seen on chest x-ray and that surgery would have done nothing for that?

    Say your mother’s physician aggresively lowered her blood pressure, discontinued premarin, and put her on ASA and Plavix — and she had a “hot flash” in the face of marginal BP, resulting in a syncopal episode, hit her head, leading to a fatal subdural hematoma, or perhaps she developed a fatal GI bleed. (very common scenarios) Would you then think all the right decisions had been made?

    Also, since you seem knowledgeable and took your mother to her appointments, and did not agree with the treatment, did you raise your questions with the doctor and ask for his rationale? (maybe there is a very good one)…. Or if you did not agree, did you take her for a second opinion?

    Also, before you went to talk to a lawyer did you ever talk to the physician to see what his rationale and explanation was? The reason I ask is because I have been sued many times over the years. They have all been without any merit. Yet, in every single case the very first time I heard about a problem was when I was given a certified letter from a lawyer. The whole thing could have been avoided if someone asked for explanation or clarification a year before the certified letter arrives. However, once lawyers are involved, any frank discussion ceases.

    Panda’s original post deals with the willingness of physicians to treat someone with risk. Once again, I maintain that the perception among public that someone must be accountable for every bad outcome, reinforces the point that taking care of high risk patients ( which includes ANY 85 year old and drunk snowmobilers) is risky, and probably not worth it.

    You also reinforce another important point for physicians, which is to never treat friends and social aquaintences, because sometimes a degree of objectiviey gets lost and no good deed goes unpunished.

  42. Wait a minute, Jerry, your “example” has a major flaw. You say that:

    “Nursing pay models where you are an employee of the hospital is very different and always a frustration for hospital based physicians who are self employed. A very lazy nurse gets paid the same as a very hard working efficient nurse. Being lazy, or exceptional does not affect his/her salary. A self-employed lazy physician will starve, or get kicked out of his physician group.”

    But wait a minute–you just said above that physician groups will add up the money they receive and “divide it up among the doctors according to the hours they worked”—calling that an “hourly salary.”

    Fine, I get it. But the two issues are not the same. The pay rate you describe is NOT the same as the situation in which nurses are paid hourly wages by the hospital. A “lazy nurse” paid an hourly rate may work the same amount of hours as an efficient, “non-lazy”, nurse—BUT….no matter how LAZY or how EFFICIENT either of those nurses work, their salary will NEVER VARY, whereas the physician group’s wages (of which you speak) MAY VARY depending upon how many patients PAY, right?

    So far, guys, I’ve heard of many ways an ER doc gets paid, which are thus:

    1) Flat hourly fee (thus, no actual “uncompensated care” of patients);

    2) A stipend given by the hospital to the ER doc group to compensate for a high amount of non-insured, non-paying patients (thus, some amount of “compensation” IN ADDITION to salary);

    3) A physician’s group receives payment based upon on how much “income it generates” (i.e. tests, etc.) of “paying patients”;

    4) A physician’s group which divides up the money it actually receives in payment which it then “divides up” among the doctors depending upon how many hours they work;

    I’m getting more confused by the minute. And to think, I used to think everybody was paid in the same way…

    What I am wanting to know is this: Model No. 4 is, so far, the only model that I’ve seen in which physicians actually perform “umcompensated” care, right?

    Are there other “models” of which I am unaware?

  43. I don’t think you read my post. The orthopedic surgeon who comes in to treat an uninsured patient is not being compensated by the hospital for his time.


    Nobody is going to pay him anything for the consultation, the operation, the post-operative management, or the follow-up or, more importantly, for the risk he now assumes.

    Same with any physician who does any charity care whatsoever which is what most “call” in most EDs is.

    I don’t know what is hard to grasp about that model.

    Also, whenever an EM physician’s group that is working on a billings/collection model doesn’t get paid, their care is uncompensated. Seems clear to me. (That is, by the way, why an aspirin costs ten bucks in the hospital. Everybody subsidizes the freeloader.)

    Now, if you tell me, “Well, doctors make enough money so it doesn’t matter,” well, there is nothing to discuss. Might as well say that nursese make too much money.

  44. And I repeat, EM physicians do not generate dishonest income by sticking it to the insured by ordering loads of unnecessay tests and studies. First of all, it is illegal (for physicians to get “kickbacks” and also unethical. Second, the insurance companies will not reimburse for flagrantly unnecessary tests. Doctors chaff at bureaucrats dictating care but ordering an MRI for every headache patient ain’t gonna fly and it shouldn’t, either.

    Just from my limited experience, I have never seen or heard of anybody getting less than the standard of care based on ability to pay. It just doesn’t happen. On the other hand if there is no dermatologist in town who takes charity patients, for example, the patient is out of luck if they need a referral but that’s not my fault as an EM physician.

  45. BRN,

    Bingo! I think you ARE understanding me right. The idea of an hourly salary in the two examples are very different. That was my point. The nurse employee is “guaranteed” an hourly salary. My “hourly salary” depends on whether we ACTUALLY earn it or not. In the big picture, your hourly salary is diminished by the burden of uncompensated care.

    Believe me, there is a thousand different ways ER physician groups can decide to split up the pie. The pie has to come from somewhere so there is always uncompensated care, even in a model where a physician is employed by the hospital and is payed a salary. If there wasn’t uninsured/nonpaying patients then a higher salary could be offered!!

    The federal mandate of EMTALA requires that we see any patient until stabilization, but does not make any provision for payment. A study in JAMA a few years ago estimated that ER physicians on average provided 138K in uncompesated care annually. Very distantly were Internists, Cardiologists, and Orthos.

    Take an tru example from my shift today at a private community hospital. A 44 year old illegal alien heroin addict with a h/o HIV is found ALOC in the bushes. Circumstances are unknown. She has a fractured ankle, severely dehydrated, is in rhabdomyolysis, acidosis, renal failure, anemia, etc…… Nurses can’t get an IV so I need to do a central line. She needs an LP. I reduce her ankle fracture and splint it. She demands a good 2 hours of my time to stabilize her. She gets admitted to the ICU. Lets breakdown who will get paid here:

    Nurses who care for her: regular hourly salary

    Hospital: nothing

    Admitting Internist: a small stipend for taking call negotiated from the hospital. He will probably care for her for the next week

    Consulting Ortho: same as the internist. May have to do surgery on her.

    Me and my ER physician group: zippo, nothing, nada.

    This is why hospitals and ER’s close.

    Could this patient sue me if there is a bad outcome? Yes.

    By the way. My malpractice insurance, billing, dictation, and other overhead costs is around 35$ per patient. It cost me 35$ to resuscitate this patient and save her life, and expose myself to an HIV needlestick !!!!

  46. Jerry and Happyman – thank God there are still sensible professionals like you!
    Jerry, you articulated almost every point how to have properly proceeded with these cases. Few people realize that just because Nancy Snyderman said in her pompous Nightly News / Today Show advise segments to “consult your doctor” when the 180 degrees happened on HRT, that just the same, you cannot take the woman off of their HRT precipitously – damned if u do,damned if u don’t…and better taper… But a lot of Elisa’s believe this to be so…

    Next time I encounter a bitter patient’s relative like Elisa, I hope to have real professional persons on my side. Darn if a doctor like va hopeful doc, testifies with the presumptions s/he listed; it is this kind of hedging that gives the public doubts in their mind about the good intentions of doctors. how else could the layman think of a doctor “killing” a patient?

  47. BHN,

    As Panda already has discussed, I would have to quibble with your model number 3 asserting that EM physicians “generate income” by doing tests.

    I usually don’t even know a persons insurance status before I have decided what kind of work up they will need.

    Lab tests don’t generate anything billable.

    Radiographic studies generally don’t generate anything billable. Interpreting plain films in the abscense of a reading radiologist might be billable. Also, I am usually trying to talk patients out of x-rays that they think they need, which I know they don’t. Some bedside ultrasound tests I can bill for. But if you are pregnant, bleeding and having lower abdominal pain, don’t you want to know right away that you don’t have an ectopic?

    I can bill for procedures such as laceration repair. Should I just leave them open instead? Or just leave the dislocated shoulder dislocated?

    And no ER doctor does things such as chest tubes, central lines, lumbar punctures just to generate a bill. That is crazy.

    I think you might be misinterpreting what your ER doc friend says about “generating an income”. “Generating” does not mean “making up”. “Generating” means billing for what you are actually doing taking care of patients. In his model a quicker, more efficient physician would get paid more than the slow doc working by his side. In the model used by my group to divide up the pie, we would just fire the lazy inefficient doctor.

  48. Jerry you make a great point and it is one of the things that bugs me the most when people state that our “broken” system is almost entirely from physicians doing unneeded tests and procedures. I don’t know what I should do exactly. Should I stop getting CT scans of acetabulum, tibial plateau and calcaneus fractures and just fly by the seat of my pants when I operate? Or better yet should I not even get an Xray since if I do surgery its obviously not needed. Maybe I could break off a few tree branches, get a roll of duct tape fashion a splint and have them be on their way to follow up in a couple of months. The more I read some of these blogs the more I am convinced that those that complain the loudest about the current system and cost know the least about what it actually takes to take good care of a patient.

  49. No worries. I hate med-mal lawyers as much as the next guy, so you will never find me up on the witness stand as one of those “expert witnesses”.
    But seriously now, is it too much to ask for the FP to have talked with the family about what he found and what he was doing about it? I think most reasonable people would be fine if the family doc said “Listen, the x-ray showed this big mass in your lung. Once it shows up this clearly on the scan, there really is little we can do. I’m so sorry.”

  50. I truly do thank you guys for explaining things to me. I did understand what you told me and appreciate your patience. I feel I am a hell of a lot more educated about the whole issue of “uncompensated care” than I was before. And also, I have a hell of a lot more sympathy for y’all’s predicament than I did before—especially the call guys.

    And my mischevious streak can’t resist (since jerry brought up the topic) of talking about those dratted “lazy nurses”, heh! I swear, when I worked ER they were the bane of my existence (and the docs’). And at most ER’s, management will claim that there is no system in place to monitor this problem.

    Ahh, but there is, as I made very plain one time at an ER I worked at. It takes a little time to do the stats but there they be, for all to see on paper….

    I asked the management to do an audit of all discharge charts of ER patients for one month. I told them to simply count the nurse signatures (which shows the performance of tasks) of the following:

    1. Procedures which docs have ordered (Iv’s, IM’s, dsgs, etc);
    2. Discharge process signature.
    3. “Room turnover” (every nurse is assigned a certain set of rooms and you can check to see how many times a nurse “turns over” his/her room and readies it for a new patient)

    The amount of signatures and room turnover will show you who’s doing the most and moving the fastest (or the slowest).

    I’m the type who believes that it’s a team effort in the ER—and the docs need the nurses to get off the dang cell phone and cigarette and get busy….

  51. Not only can care be “uncompensated”. It can actually cost money for a specialist to treat. Not all emergencies happen at 2:00 although it seems that way. If it happens during office hours and you have to cancel appointments that ends up costing the specialist to take care of an ER patient. Would anyone else pay money for the opportunity to work?

  52. “I’m the type who believes that it’s a team effort in the ER—and the docs need the nurses to get off the dang cell phone and cigarette and get busy…. ”

    BHN: with your newfound enlightenment about uncompensated care, and conscienciousness…your sassy colleagues might compliment and encourage you to go to med school!
    But then, your kind is rare and needed not just in ER’s but in other practice settings as well. In my decade long practice, I could count on fingers of my 1 hand the number of nurses who came to work, to really work with knowledge, ability and genuine concern. It used to be only cigarettes and coffee…now we got the cell phones too!

  53. With reference to EMTALA. We are currently reviewing the medical staff bylaws at the facility where I have staff privileges. Current legal concensus is that EMTALA applies to hospitals and health care facilities. It DOES NOT apply directly to individual physicians. What many facilities have done is to make ER call a mandatory requirement in order to qualify for staff privileges in effect creating a serfdom by extortion. How many X-ray techs, nurses, emts, and administrators do you see NOT getting paid for coming in after hours or being on call?

  54. “Current legal concensus is that EMTALA applies to hospitals and health care facilities. It DOES NOT apply directly to individual physicians.”

    It most certainly does if you are ON the “call panel”, and of course if you are the ER doc

  55. It’s not just that we live in a litigious society, but that we (first-world peoples? Americans?) are so spoiled. Americans today have so many more second chances, guarantees, choices, and control—all good things to be sure, but with an unfortunate side-effect: entitlement.

    Think of the crazy home loans you can get! The banks will let you buy a house you can’t afford! You can buy a house you can’t afford!

    I remember my grandmother refusing an anti-cancer drug after her mastectomy. She couldn’t afford it, and other things (such as grandpa’s heart medication) were more important to her. (Naturally she refused help from the family.) In short, she had to prioritize. She had to find a place and say “the buck stops here.” She had to make a tough decision.

    Does anyone do that anymore? Does anyone live with the consequences of their actions anymore? I’m not exalting or defending my grandmother’s choice, I’m just using it as an example.

    Do we have a right to a new liver? Do we have a right to that orthopedic surgeon to fix our broken leg?

    I don’t know, I’m asking.

  56. In regards to EMTALA,W A Wilk is correct it is a hospital obligation to cover its call roster. Once a physician agrees to or is listed on a call roster, then (s)he is obligation also under EMTALA. What as W A Wilk says: “It DOES NOT apply directly to individual physicians. What many facilities have done is to make ER call a mandatory requirement in order to qualify for staff privileges in effect creating a serfdom by extortion.” occurs, then the MD has been coerced to be under EMTALA.

    Not on a call roster to ever be called? Then that individual MD cannot be in violation of EMTALA.

    Be aware that many states are moving to make accecpting M’Care, M’caid, and EMTALA coverage a part of licensure!

    In my community, many family MDs have gone to ‘courtesy’ staff and ‘sold’ their ER calls to hospitalists anyway. It is the new patient they do not know with new acute illness that are their big malpractice risks. Ol’ Man Smith who they have been seeing for 20 years is VERY unlikely to sue when compared to the case PB started this all with for discussion.


  57. To the more knowledgeable among us.

    Has there ever be a discussion of legislation prohibiting any non-paying non-insured patient from suing? Or equivalently, a non-paying patient that sued would only be capped at awards equal to their medical costs, thus physician would at worst break even? Just a thought

    Are uninsured patients who visit the ER billed and then fail to pay, or are they just sent on their way?

    Thanks for any responses.

    This is one of the most thoughtful articles I’ve read in a long time. Cheers.

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