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?