Click on the link below for the full decision.

LINK:

AAPS-NYSDOH decision

NY Judge Decides AAPS Case Goes Forward

American Board of Physician Specialties (ABPS)
IOM Report Ignites New Debate on Who Should Practice Emergency Medicine
Disposable Doctors 2: ER Docs Fight Back in NY
Disposable Doctors 1
PUMA MD
An ER Doc’s Top Ten List
United States Alliance of Emergency Medicine (USAEM)
“Tribal Thinking and the Ultimate Confounder”

The film MONEY-DRIVEN MEDICINE reveals how a profit-hungry medical-industrial complex has turned health care into a system that squanders millions of dollars on unnecessary tests, unproven and sometimes unwanted procedures and overpriced prescription drugs. Oscar-winning filmmaker Alex Gibney has teamed up with producers Peter Bull, Chris Matonti, and director Andy Fredericks to produce a film based on Maggie Mahar’s powerful book MONEY-DRIVEN MEDICINE.

After covering the health care industry for years as a financial journalist, Mahar wanted to write a book examining the system from the perspective of doctors and patients. The response from the doctors she contacted was overwhelming — five out of six called her back. The film brings their stories to the screen, portraying an industry where corporate profits often get in the way of care.

Links:

Moneydriven Medicine.org

Bill Moyers’ Journal

Nightline: Health Care Sound and Fury

from Fortune.com
By Shawn Tully, editor at large

NEW YORK (Fortune) — In promoting his health-care agenda, President Obama has repeatedly reassured Americans that they can keep their existing health plans — and that the benefits and access they prize will be enhanced through reform.

A close reading of the two main bills, one backed by Democrats in the House and the other issued by Sen. Edward Kennedy’s Health committee, contradict the President’s assurances. To be sure, it isn’t easy to comb through their 2,000 pages of tortured legal language. But page by page, the bills reveal a web of restrictions, fines, and mandates that would radically change your health-care coverage.

If you prize choosing your own cardiologist or urologist under your company’s Preferred Provider Organization plan (PPO), if your employer rewards your non-smoking, healthy lifestyle with reduced premiums, if you love the bargain Health Savings Account (HSA) that insures you just for the essentials, or if you simply take comfort in the freedom to spend your own money for a policy that covers the newest drugs and diagnostic tests — you may be shocked to learn that you could lose all of those good things under the rules proposed in the two bills that herald a health-care revolution.

In short, the Obama platform would mandate extremely full, expensive, and highly subsidized coverage — including a lot of benefits people would never pay for with their own money — but deliver it through a highly restrictive, HMO-style plan that will determine what care and tests you can and can’t have. It’s a revolution, all right, but in the wrong direction.

Let’s explore the five freedoms that Americans would lose under Obamacare:

1. Freedom to choose what’s in your plan

The bills in both houses require that Americans purchase insurance through “qualified” plans offered by health-care “exchanges” that would be set up in each state. The rub is that the plans can’t really compete based on what they offer. The reason: The federal government will impose a minimum list of benefits that each plan is required to offer.

Today, many states require these “standard benefits packages” — and they’re a major cause for the rise in health-care costs. Every group, from chiropractors to alcohol-abuse counselors, do lobbying to get included. Connecticut, for example, requires reimbursement for hair transplants, hearing aids, and in vitro fertilization.

The Senate bill would require coverage for prescription drugs, mental-health benefits, and substance-abuse services. It also requires policies to insure “children” until the age of 26. That’s just the starting list. The bills would allow the Department of Health and Human Services to add to the list of required benefits, based on recommendations from a committee of experts. Americans, therefore, wouldn’t even know what’s in their plans and what they’re required to pay for, directly or indirectly, until after the bills become law.

2. Freedom to be rewarded for healthy living, or pay your real costs

As with the previous example, the Obama plan enshrines into federal law one of the worst features of state legislation: community rating. Eleven states, ranging from New York to Oregon, have some form of community rating. In its purest form, community rating requires that all patients pay the same rates for their level of coverage regardless of their age or medical condition.

Americans with pre-existing conditions need subsidies under any plan, but community rating is a dubious way to bring fairness to health care. The reason is twofold: First, it forces young people, who typically have lower incomes than older workers, to pay far more than their actual cost, and gives older workers, who can afford to pay more, a big discount. The state laws gouging the young are a major reason so many of them have joined the ranks of uninsured.

Under the Senate plan, insurers would be barred from charging any more than twice as much for one patient vs. any other patient with the same coverage. So if a 20-year-old who costs just $800 a year to insure is forced to pay $2,500, a 62-year-old who costs $7,500 would pay no more than $5,000.

Second, the bills would ban insurers from charging differing premiums based on the health of their customers. Again, that’s understandable for folks with diabetes or cancer. But the bills would bar rewarding people who pursue a healthy lifestyle of exercise or a cholesterol-conscious diet. That’s hardly a formula for lower costs. It’s as if car insurers had to charge the same rates to safe drivers as to chronic speeders with a history of accidents.

3. Freedom to choose high-deductible coverage

The bills threaten to eliminate the one part of the market truly driven by consumers spending their own money. That’s what makes a market, and health care needs more of it, not less.

Hundreds of companies now offer Health Savings Accounts to about 5 million employees. Those workers deposit tax-free money in the accounts and get a matching contribution from their employer. They can use the funds to buy a high-deductible plan — say for major medical costs over $12,000. Preventive care is reimbursed, but patients pay all other routine doctor visits and tests with their own money from the HSA account. As a result, HSA users are far more cost-conscious than customers who are reimbursed for the majority of their care.

The bills seriously endanger the trend toward consumer-driven care in general. By requiring minimum packages, they would prevent patients from choosing stripped-down plans that cover only major medical expenses. “The government could set extremely low deductibles that would eliminate HSAs,” says John Goodman of the National Center for Policy Analysis, a free-market research group. “And they could do it after the bills are passed.”

4. Freedom to keep your existing plan

This is the freedom that the President keeps emphasizing. Yet the bills appear to say otherwise. It’s worth diving into the weeds — the territory where most pundits and politicians don’t seem to have ventured.

The legislation divides the insured into two main groups, and those two groups are treated differently with respect to their current plans. The first are employees covered by the Employee Retirement Security Act of 1974. ERISA regulates companies that are self-insured, meaning they pay claims out of their cash flow, and don’t have real insurance. Those are the GEs (GE, Fortune 500) and Time Warners (TWX, Fortune 500) and most other big companies.

The House bill states that employees covered by ERISA plans are “grandfathered.” Under ERISA, the plans can do pretty much what they want — they’re exempt from standard packages and community rating and can reward employees for healthy lifestyles even in restrictive states.

But read on.

The bill gives ERISA employers a five-year grace period when they can keep offering plans free from the restrictions of the “qualified” policies offered on the exchanges. But after five years, they would have to offer only approved plans, with the myriad rules we’ve already discussed. So for Americans in large corporations, “keeping your own plan” has a strict deadline. In five years, like it or not, you’ll get dumped into the exchange. As we’ll see, it could happen a lot earlier.

The outlook is worse for the second group. It encompasses employees who aren’t under ERISA but get actual insurance either on their own or through small businesses. After the legislation passes, all insurers that offer a wide range of plans to these employees will be forced to offer only “qualified” plans to new customers, via the exchanges.

The employees who got their coverage before the law goes into effect can keep their plans, but once again, there’s a catch. If the plan changes in any way — by altering co-pays, deductibles, or even switching coverage for this or that drug — the employee must drop out and shop through the exchange. Since these plans generally change their policies every year, it’s likely that millions of employees will lose their plans in 12 months.

5. Freedom to choose your doctors

The Senate bill requires that Americans buying through the exchanges — and as we’ve seen, that will soon be most Americans — must get their care through something called “medical home.” Medical home is similar to an HMO. You’re assigned a primary care doctor, and the doctor controls your access to specialists. The primary care physicians will decide which services, like MRIs and other diagnostic scans, are best for you, and will decide when you really need to see a cardiologists or orthopedists.

Under the proposals, the gatekeepers would theoretically guide patients to tests and treatments that have proved most cost-effective. The danger is that doctors will be financially rewarded for denying care, as were HMO physicians more than a decade ago. It was consumer outrage over despotic gatekeepers that made the HMOs so unpopular, and killed what was billed as the solution to America’s health-care cost explosion.

The bills do not specifically rule out fee-for-service plans as options to be offered through the exchanges. But remember, those plans — if they exist — would be barred from charging sick or elderly patients more than young and healthy ones. So patients would be inclined to game the system, staying in the HMO while they’re healthy and switching to fee-for-service when they become seriously ill. “That would kill fee-for-service in a hurry,” says Goodman.

In reality, the flexible, employer-based plans that now dominate the landscape, and that Americans so cherish, could disappear far faster than the 5 year “grace period” that’s barely being discussed.

Companies would have the option of paying an 8% payroll tax into a fund that pays for coverage for Americans who aren’t covered by their employers. It won’t happen right away — large companies must wait a couple of years before they opt out. But it will happen, since it’s likely that the tax will rise a lot more slowly than corporate health-care costs, especially since they’ll be lobbying Washington to keep the tax under control in the righteous name of job creation.

The best solution is to move to a let-freedom-ring regime of high deductibles, no community rating, no standard benefits, and cross-state shopping for bargains (another market-based reform that’s strictly taboo in the bills). I’ll propose my own solution in another piece soon on Fortune.com. For now, we suffer with a flawed health-care system, but we still have our Five Freedoms. Call them the Five Endangered Freedoms.

from The Guardian UK

The NHS has become the unexpected target of those opposed to Barack Obama’s healthcare reform proposals. Republicans and rightwing commentators in the US have made strong allegations about the failings of Britain’s health system. Denis Campbell and Girish Gupta put those claims to professionals in the health sector

guardian.co.uk  Tuesday 11 August 2009 

The claim

Ted Kennedy, 77, would not be treated for his brain tumour if he was in Britain because he is too old – Charles Grassley, Republican senator from Iowa.

The response

Untrue, says the Department of Health. “There is no ban on anyone of any age receiving any treatment, ” said a spokesman. “Whether to prescribe drugs or recommend surgery is rightly a clinical decision taken on a case by case basis.”

The claim

 Government health officials in England have decided that $22,750 (£14,000) is what six months’ life is worth. Under their socialised system, if a medical treatment costs more, you’re out of luck – Club for Growth

The response

The National Institute of Health and Clinical Excellence (Nice) decides whether new drugs represent value for money for the NHS in England and Wales.

It replied:

“This is a gross misrepresentation of how Nice applies health economics to try and address the central issue: how to allocate healthcare rationally within the context of limited healthcare resources. Nice assesses the cost of a treatment in terms of a cost-utility analysis which takes account of the quality adjusted life year – the amount and quality of extended life it is hoped the patient will gain. The current ceiling is £30,000 but exceptions are made.”

The claim

 In England, anyone over 59 years of age cannot receive heart repairs, stents or bypass because it is not covered as being too expensive and not needed – an anonymously authored, but widely circulated, email, largely sent to older voters

The response

Totally untrue. Growing numbers of patients over 65 with heart conditions are having surgery, including valve repairs and heart bypass surgery, says Professor Peter Weissberg, the British Heart Foundation’s (BHF) medical director. For example, the average age at which people have a bypass operation has risen from 58 in 1991 to 66 in 2008.

The claim

 Breast cancer kills 46% of its targets in Britain, compared with 25% in the US; prostate cancer kills 57% of the Britons it strikes, compared with 25% of American victims; Britain’s heart attack fatality rate was 19.5% higher than America’s in 2005 – Pacific Research Institute, a San Francisco-based thinktank

The response

Breast cancer does claim more lives, proportionally, here than in the US. According to the 2002 Globocan database run by the World Health Organisation’s cancer advisers, 19.2 of every 100,000 Americans die of the disease, but 24.3 per 100,000 here die. On prostate cancer, a Lancet Oncology global study last year found that 91.9% of Americans with the disease were still alive after five years compared to just 51.1% in the UK. With heart attacks, 40% of Britons who suffer one die from it compared to 38% in the States – nowhere near the difference claimed.

The claim

In Britain, 40% of cancer patients are never able to see an oncologist; there is explicit rationing for services such as kidney dialysis, open heart surgery and care for the terminally ill – Conservatives for Patients’ Rights

The response

 ”The claim that 40% of cancer patients are never able to see an oncologist comes from a 15-year-old study which is completely out of date. Since then we have had the Nice Improving Outcomes Guidance series and the NHS Cancer Plan for England, which has increased the number of cancer consultants and established specialist multidisciplinary teams,” said Duleep Allirajah of Macmillan Cancer Support. However, “some people with serious kidney failure are unable to obtain dialysis on the NHS and die”, said Tim Statham, chief executive of the National Kidney Federation. “Some parts of the NHS can’t cope, because patient numbers are increasing by 6% a year, which is a huge burden. Of about 100 renal units in the UK, probably 20% are working at 100% capacity or above,” he added.

 The claim about open heart surgery is not true, said the BHF’s Weissberg. “There’s no explicit rationing. Some people don’t get treatment, but those decisions are made solely on the basis of clinical criteria and their risk of dying. We only operate on people who are likely to benefit and not die.” The three main political parties agree that Britain provides good quality end-of-life care but that access to it can be patchy, depending on location and the patient’s condition. The government is working to improve the situation.

 The claim

In the UK, breast cancer survival rates are 11% lower than they are here in the United States – Sue Myrick, a Republican congresswoman from North Carolina

The response

 If anything the gap is wider than Myrick says. Breakthrough Breast Cancer cite two recent studies from Lancet Oncology. One says that 83.9% of women in the US diagnosed with breast cancer between 1990-94 lived for at least five years compared to 69.7% in the UK – a 14.2% difference. The second showed that, among women diagnosed with the disease in 2000-02, 90.1% in the States survived for at least five years whereas in England it was 77.8% – a 12.3% gap.

The claim

 The British healthcare system is infamous for denying state-of-the-art drugs to cancer patients – National Center for Policy Analysis

The response

Nice has recently reformed its procedures after a series of controversies over the unavailability of certain cancer treatments. “The vast majority of new cancer drugs are made available to patients with notable exceptions, such as the likely rejection of several new kidney cancer drugs,” said Allirajah of Macmillan Cancer Support. “However, the Nice process does need reforming to ensure decisions are made more quickly and patients’ quality of life is taken more into account.”

The claim

 The British NHS “does not allow” women under 25 to receive screening for cervical cancer – Jim DeMint, Republican senator from South Carolina

 The response

 The NHS invites women in Wales, Scotland and Northern Ireland to attend for cervical cancer screening from 20 upwards. But in England screening for the disease starts at 25. That policy was recently reviewed and remains unchanged.

from the New York Times Editorial Page

Published: July 25, 2009

The health care reform bills moving through Congress look as though they would do a good job of providing coverage for millions of uninsured Americans. But what would they do for the far greater number of people who already have insurance? As President Obama noted in his news conference last week, many of them are wondering: “What’s in this for me? How does my family stand to benefit from health insurance reform?”

Many crucial decisions on coverage and financing have yet to be made, but the general direction of the legislation is clear enough to make some educated guesses about the likely winners and losers.

WHAT ARE THE ELEMENTS OF REFORM? The House bill and a similar bill in the Senate would require virtually all Americans to carry health insurance with specified minimum benefits or pay a penalty. They would require all but the smallest businesses to provide and subsidize insurance that meets minimum standards for their workers or pay a fee for failing to do so.

The reforms would help the poorest of the uninsured by expanding Medicaid. Some middle-class Americans — earning up to three or four times the poverty level, or $66,000 to $88,000 for a family of four — would get subsidies to help them buy coverage through new health insurance exchanges, national or state, which would offer a menu of policies from different companies.

IS THERE HELP FOR THE INSURED? Many insured people need help almost as much as the uninsured. Premiums and out-of-pocket spending for health care have been rising far faster than wages. Millions of people are “underinsured” — their policies don’t come close to covering their medical bills. Many postpone medical care or don’t fill prescriptions because they can’t afford to pay their share of the costs. And many declare personal bankruptcy because they are unable to pay big medical debts.

The reform effort should help ease the burdens of many of them, some more quickly than others. The legislation seems almost certain to include a new marketplace, the so-called health insurance exchange. Since there will be tens of millions of new subscribers, virtually all major insurers are expected to offer policies through an exchange. To participate, these companies would have to agree to provide a specified level of benefits, and they would set premiums at rates more comparable to group rates for big employers than to the exorbitant rates typically charged for individual coverage.

Under the House bill, the exchanges would start operating in 2013. They would be open initially to people who lack any insurance; to the 13 million people who have bought individual policies from insurance companies, which often charge them high rates for relatively skimpy coverage; and to employees of small businesses, who often pay high rates for their group policies, especially if a few of their co-workers have run up high medical bills. By the third year, larger businesses might be allowed to shift their workers to an exchange. All told, the Congressional Budget Office estimates that 36 million people would be covered by policies purchased on an exchange by 2019.

IS THERE MORE SECURITY FOR ALL? As part of health reform, all insurance companies would be more tightly regulated. For Americans who are never quite certain that their policies will come through for them when needed, that is very good news.

The House bill, for example, would require that all new policies sold on or off the exchanges must offer yet-to-be-determined “essential benefits.” It would prohibit those policies from excluding or charging higher rates to people with pre-existing conditions and would bar the companies from rescinding policies after people come down with a serious illness. It would also prohibit insurers from setting annual or lifetime limits on what a policy would pay. All this would kick in immediately for all new policies. These rules would start in 2013 for policies purchased on the exchange, and, after a grace period, would apply to employer-provided plans as well.

WHO PAYS? Current estimates suggest that it would cost in the neighborhood of $1 trillion over 10 years to extend coverage to tens of millions of uninsured Americans. Under current plans, half or more of that would be covered by reducing payments to providers within the giant Medicare program, but the rest would require new taxes or revenue sources.

If President Obama and House Democratic leaders have their way, the entire tax burden would be dropped on families earning more than $250,000 or $350,000 or $1 million a year, depending on who’s talking. There is strong opposition in the Senate, and it seems likely that at least some burden would fall on the less wealthy.

Many Americans reflexively reject the idea of any new taxes — especially to pay for others’ health insurance. They should remember that if this reform effort fails, there is little hope of reining in the relentless rise of health care costs. That means their own premiums and out-of-pocket medical expenses will continue to soar faster than their wages. And they will end up paying higher taxes anyway, to cover a swelling federal deficit driven by escalating Medicare and Medicaid costs.

for full article, go to: NYTimes.com

photo by Phillip Toledano from the New Yorker

from New York Times Editorial June 13, 2009

Doctors and the Cost of Care

Published: June 13, 2009

There is disturbing evidence that many do a lot more than is medically useful — and often reap financial benefits from over-treating their patients. No doubt a vast majority of doctors strive to do the best for their patients. But many are influenced by fee-for-service financial incentives and some are unabashed profiteers.

All Americans are affected. Those with insurance are struggling to pay ever higher premiums, as are their employers. If the government is going to help subsidize coverage for the millions of uninsured, it will need to find significant savings in Medicare spending, at least some of which should come from reducing over-treatment. In the long run, if doctors can’t be induced to rein themselves in, there is little hope of lasting reform….

A glaring example of profligate physician behavior was described by Atul Gawande in the June 1 issue of The New Yorker. (His article has become must reading at the White House.)

None of the usual rationalizations put forth by doctors held up. The population, though poor, is not sicker than average; the quality of care people get is not superior. Malpractice suits have practically disappeared due to a tough state malpractice law, leaving no rationale for defensive medicine. The reason for McAllen’s soaring costs, some doctors finally admitted, is over-treatment. Doctors perform extra tests, surgeries and other procedures to increase their incomes….

Dr. Gawande’s reporting tracks pioneering studies by researchers at Dartmouth into the reasons for large regional and institutional variations in Medicare costs. Why should medical care in Miami or McAllen be far more expensive than in San Francisco? Why should care provided at the U.C.L.A. medical center be far more costly than care at the renowned Mayo Clinic?

When President Obama speaks at the annual meeting of the American Medical Association on Monday he will need all of his persuasive powers to bring doctors into the campaign for health care reform. Doctors have been complicit in driving up health care costs. They need to become part of the solution.

The Cost Conundrum by Atul Gawande in the New Yorker

P.L. Dobkin, PhD from: Curr Oncol. 2009 March; 16(2): 4–6.

Correspondence to: Patricia L. Dobkin, Department of Medicine, McGill Programs in Whole Person Care, McGill University, 546 Pine Avenue West, Montreal, Quebec H2W1S6. E-mail:patricia.dobkin@mcgill.ca

New York State Senator Suzi Oppenheimer recently introduced an amendment to the Education Law (Bill no. S3964), which would prohibit a medical doctor from stating that he or she is “board certified” unless:

1)      the board or association is a member of the ABMS (American Board of Medical Specialties) or AOA (American Osteopathic Association) or

2)      the board is approved by that physician and surgeon’s licensing board or

3)       is a board with an ACGME approved postgraduate training program that provides complete training in that specialty or subspecialty.

The claimed justification for the bill, is “to eliminate bogus boards and provide truth in advertising protection for patients.” The only state with similar legislation is California, which was enacted in 1990.

If passed, this bill places serious and unnecessary restraints on physicians who are members of boards or associations who are not members of ABMS or AOA such as the American Board of Cosmetic Surgery, the American Board of Facial Plastic and Reconstructive Surgery, the American Board of Sleep Medicine, the American Board of Physician Specialties, and the American Board of Spine Surgery. 

One wonders why Senator Oppenheimer feels this bill is necessary right now, almost 20 years after the California bill was enacted. Is there a sudden epidemic of “bogus boards” in New York state requiring this bill to protect the public? Or rather, is this a reaction to rumored settlement talks in the lawsuit filed by the American Association of Physician Specialists vs. the NY Department of Health on the use of the term “board certified” on the NY-DOH physician website for physicians.

Title of Bill: An act to amend the education law, in relation to statements of specialist by a physician.

Text of Bill S3964:

State of New York

In Senate

April 7, 2009

Introduced by Sen. Oppenheimer– read twice and ordered printed, and when printed to be committed to the Committee on Higher education

An ACT to amend the education law, in relation to statements of specialty by a physician

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

1 section 1. Section 6527 of the education law is amended by adding a new

2 subdivision 8 to read as follows:

3  8. A licensed physician may include a statement that he or she limits

4  his or her practice to specific fields, but may only include a statement

5  that he or she is certified or eligible for certification by a private

6  or public board or parent association if that board or association is an

7  American Board of Medical Specialties member board or a member board

8  the American Osteopathic Association, a board or assocation with equiv-

9 alent requirements approved by that physician and surgeon’s licensing

10  board, or a board or association with an Accreditation Council for grad-

11  uate Medical Education approved postgraduate training program that

12  provides complete training in that specialty or subspecialty.

13.  S  2. this act shall take effect on the sixtieth day after it shall

14   have become a law.

Justification:

This bill is aimed at those physicians who have claimed to be “Board Certified” by so-called “boards” that require a large payment and send a diploma by return mail.  It would help to eliminate bogus boards and provide truth in advertising protection for patients.  California has enacted similar legislation.

LINKS:

Contact Sen. Suzi Oppenheimer

News from AAPS vs. NY-DOH

(from Emergency Medicine News Volume XXXI, Number 2 February 2009)

A recruiting letter from Team- Health has raised the hackles of leaders in Vanderbilt University Medical Center’s emergency medicine residency program, and has even drawn a demur from the president of the American College of Emergency Physicians.“It was sent out by one of those big agencies,” said Keith Wrenn, MD, the director of the emergency medicine residency program at Vanderbilt University School of Medicine in Nashville. “By recruiting people who have not been trained in emergency medicine, they are undermining the whole board certification process.”

In the letter that began “Dear Primary Care Resident,” Dr. Dukes wrote: “Physicians who are trained in primary care specialties such as Family Practice and Internal Medicine are in a position to take advantage of the opportunities available in Emergency Medicine.” He noted that only 1,100 doctors graduate from emergency medicine residencies in the United States each year, a number that falls short of meeting the demand.

“Therefore, primary care physicians will be needed in the foreseeable future to staff the nation’s Emergency Departments,” Dr. Dukes wrote. “ECC’s experience over the past 27 years reveals that Primary Care trained physicians are well equipped to perform superbly in the Emergency Department,” noting that they have the “people skills”needed to “get along with patients, hospital staff, and attending physicians.”

The letter continued: “We have immediate opportunities available in several of our departments for Primary Care Residents to work directly with an experienced Emergency Medicine Physician. Residents are compensated while receiving on the job training.”

David Lawhorn, MD, the president of the Tennessee chapter of American Academy of Emergency Medicine, did not dispute that more emergency physicians are needed, and he said the number of emergency medicine residency slots should be examined. “But he said one of the significant differences between primary care and emergency medicine is that primary care physicians begin to lose many of their procedural skills, such as intubations or central lines, due to the demands of the office-based practice. “It is in these critical care areas that the emergency medicine-trained physician stands out and performs confidently, knowledgeably, and routinely. In the United States today, we are like a hybrid of primary care, office surgery, and critical care intensivist. It is clearly very disheartening for the trained emergency medicine physician who loses his emergency medicine job to someone trained in another specialty,” Dr. Lawhorn said.

Yet he acknowledged Dr. Dukes’ dilemma. “It is absolutely true that we in the United States will need physicians other than EM residency-trained physicians to continue to staff emergency departments across the country for several years to come. Even if EM residency programs were able … to fill all the slots, the problem would still exist with the many, many rural hospitals,” he said. “I suspect that ECC of TeamHealth has a significant number of these small rural EDs with which they have contracted to provide services, and thus put themselves in a position to fill the EM slots with any viable physician they can find.”

The reluctance of many emergency medicine-trained physicians to work with contract management groups also constrains supply, Dr. Lawhorn said. He noted that the letter implied contract management’s difficulty in filling EM slots with residency trained, board certified emergency specialists, adding that this will persist because of the contract management companies’ “necessary strategy for survival of getting the contract first and then figuring out how to fill the positions needed for coverage.”

But beyond the recruitment message of the letter is a bigger issue for the future of emergency medicine, Dr. Lawhorn said. “It is so close and obvious that it can be hard to see. Step back a bit, and you will see a large corporation in the business of selling the highest quality, lowest cost emergency care to the hospitals with which they contract. And now they are looking to other specialties to fulfill that role. What other board specialty in the United States has large business-run corporations that sell themselves as the leaders in that specialty that then turn around and recruit the residents from other specialties to fill their needs so that they can maintain contracts and keep their revenue streams?” Dr. Dukes said he sees no proble with recruiting primary care residents.“If you look at emergency medicine, what makes an emergency physician? A core of knowledge and technical skills,” he said. “I think these physicians have been proven to do as good a job as anyone in the emergency department. For these physicians to start in emergency medicine, they need to have the ability to work in the department along with another experienced physician. Once they get trained in family practice or internal medicine, they need some orientation in an emergency department along with training in advanced life support and other programs to work a solo shift. The letter was for primary care residents to offer them a position as a second physician usually working in the fast track alongside an experienced emergency physician.”Acknowledging that a Dec. 2, 2008, Institute of Medicine report (http://www.iom.edu/cms/3809/48553/60449.

aspx) on residency hours would include moonlighting in the numbers of hours resident is allowed to work, Dr. Dukes said ECC is open in its dealings with residency programs. “We usually take a few people in the third year with the knowledge of the program director. We also work with some physicians in emergency medicine fellowships,” he said.

Dr. Dukes said he recognized the controversy over this issue in emergency medicine. “I know AAEM does not recognize the AAPS board,” he said. “That is kind of bad. How are we ever going to get board certified physicians in all these hospitals if they are not graduating enough emergency medicine-trained physicians each year? For physicians who don’t have the same training but have excellent training in primary care and are doing the same rotations as emergency residents, how can they get certified?”

Dr. Wrenn of the Vanderbilt residency program said Dr. Dukes is seeking to employ physicians who completed primary care training but now want to practice another specialty. Such people can seek retraining and board certification through the American Board of Emergency Medicine, he said, although no federal funds support it.

“I am not sure as a specialty that we have done the best we can to send emergency physicians to the rural areas,” said Dr. Wrenn, also the vice chairman and a professor of emergency medicine at Vanderbilt. “We need to address that, but it needs to be addressed by board certified people, not those who have not been trained.”

Excerpt from AAPS letter to EM News:

” BCEM, along with Team Health and others, recognizes that there are too few emergency medicine residency trained physicians to meet the growing needs of our nation’s communities, particularly rural emergency departments. The 1,100 physicians who graduate from Emergency Medicine residencies each year in the U.S. falls short of meeting the need which exists…

AAPS’ Board of Certification in Emergency Medicine (BCEM) provides primary care residency trained physicians practicing full time in Emergency Medicine, a valid and critical option to demonstrate that they can perform confidently, knowledgeably and safely.  BCEM has certified and recertified thousands of well qualified Primary Care residency trained physicians working in Emergency Medicine. BCEM Diplomates continue to increase in numbers…

At no time is BCEM’s option to board certification in Emergency Medicine designed to diminish Emergency Medicine residency training. Instead, BCEM’s focus is to provide a legitimate and recognized option for Primary Care residency trained physicians to demonstrate competency and to become certified in the specialty of Emergency Medicine.

BCEM has, and continues to, welcome the opportunity to meet and discuss effective methods that EM residency trained and non-EM residency trained physicians, including Primary Care residency trained physicians, can employ and engage to work together to provide care to the Moms, Dads, and families who present themselves each year to our nation’s ERs..”

Robert J. Geller, D.O., FAAEP

Chairman, BCEM

 Link: Supply of Board Certified EM Physicians Unlikely to Meet Country’s   Needs

Misconceptions in the Emergency Medicine community regarding the now legendary case of “Daniel, et al. vs. ABEM” have been running rampant. Chief among these are:
1. that Dr. Daniel and AAPS were working together in this case
2. that the end of the Daniel case vindicates ABEM and that no antitrust violation occurred
3. that the end of the Daniel case means that for now and the future, only EM residency trained physicians can practice Emergency Medicine

Before explaining why these are misconceptions, let us first read what actually happened in “Daniel et al. vs. ABEM”
(Excerpted from “Antitrust: Emergency Medicine Physicians Lack Standing to Bring Antitrust Action” by Sarah Gasper in American Journal of Law and Medicine)
Background:
Dr. Gregory Daniel and 175 other named plaintiffs, along with approximately 14,000 members of the proposed plaintiff class were physicians who currently practice or who have practiced emergency medicine and who would be eligible to take the ABEM exam if the practice track still existed.18 Plaintiffs alleged that by closing the practice track and placing a premium on ABEM certification, ABEM, CORD, numerous hospitals, and various individuals associated with these organizations unlawfully restrained trade and monopolized the market for ABEM-certified and ABEM-eligible physicians.19 Specifically, plaintiffs argued that the defendants conspired to limit the pool of eligible applicants, thus creating an artificial shortage of ABEM-certified and ABEM-eligible physicians, with the end goal of demanding super-competitive pay.20 While other boards certify physicians in emergency medicine,21 the plaintiffs asserted that the ABEM certification is the most prestigious, that some hospitals only hire ABEM-certified physicians, and that some hospitals base compensation and promotion decisions on ABEM certification. As a result, plaintiffs asserted they receive “substantially less remuneration than ABEM-certified physicians” and that they continue to suffer loss of income.23 Furthermore, plaintiffs assert that they have been denied positions solely by reason of not being ABEM-certified or ABEM-eligible and that some were discharged, demoted, and assigned to undesirable work situations due to the lack of ABEM certification.24 Finally, plaintiffs claimed that CORD had a specific interest in keeping the formal residency training as the required path to ABEM certification.25

Court Decision:
In declaring that the plaintiffs lacked antitrust standing, the Court noted that even if a private party is injured by a violation of antitrust laws, the party must still have standing to bring a claim.37 The Court identified four relevant factors for determining antitrust standing38 and focused on two: the alleged antitrust injury and efficient enforcement of these claims.39 The plaintiffs here alleged financial injury due to ABEM restricting the number of eligible physicians that take the certification exam, which in turn limits the number of such doctors and allows the certified doctors to charge higher costs.40 However, as the Court summarized, the plaintiffs’ “theory of injury is not simply that ABEM-certified doctors command supercompetitive remuneration; their injury is the inability to do likewise.”41 The plaintiffs did not attempt to remove the residency track requirement, nor did they allege that they would have received the same pay but for ABEM’s domination of the market.42 Rather, the plaintiffs sued “only to restore-temporarily-the practice track as an alternative to residency training so that they can qualify for the ABEM exam, after which they are satisfied to have the certification door shut on any other test applicants.”43 The Court noted that the plaintiffs could not state an antitrust injury “when their purpose is to join the cartel rather than disband it.”44
In addition, the Court noted that even if the plaintiffs did have a viable antitrust injury, these plaintiffs are not the best enforcers for the alleged antitrust violation.45 As the District Court below found, these plaintiffs “have no natural economic self-interest in reducing the cost of emergency medical care.” 46 The Court emphasized that the relief pursued by the plaintiffs here is to gain entry into an exclusive arrangement that they otherwise seek to maintain in order to share in the supercompetitive remuneration allegedly made possible by ABEM exclusivity.47 Furthermore, the Court noted that both the individual emergency care patients, who rarely choose their emergency doctors, and the hospitals, who act both as consumers who pay for the emergency care and as suppliers of the residency training, are an unrealistic class of plaintiffs.48 On the other hand, the government and private health care insurers, who compensate hospitals for most emergency care, do have a direct and undivided economic interest in reducing the costs of emergency medical care as well as the necessary legal sophistication to challenge an antitrust violation.49 Ultimately the Court concluded that health care insurers would be the best enforcer of this antitrust challenge.50

Judge Katzmann concurred in part and dissented in part with the majority’s holding. While he agreed with the majority’s conclusions on personal jurisdiction, he believed plaintiffs had antitrust standing and would thus transfer the case.51 Katzmann found plaintiffs allegations sufficient to “allege losses stemming from a competition-reducing aspect or effect of the defendant’s behavior” because they allege that the defendants unreasonably restrained them from competing in the ABEM-certified market of physicians and consequently, the plaintiffs suffered financial losses.52 In addition, he argued that the plaintiffs’ remedy would actually benefit consumers because an increase in the number of ABEM-certified doctors could result in lower salaries for those doctors in general and thus lower costs for the consumers.53 Katzmann also disagreed with the majority’s conclusion that plaintiffs only want the practice track to be an option temporarily, indicating that the plaintiffs stated that they wanted the exam to be open to all class members, who, presently or with passage of time, would meet the practice track criteria.54 In sum, the plaintiffs did not seek to earn “super-competitive” wages, nor was their request for relief “inconsistent with their allegations that (1) prohibiting practice-track physicians from taking the certification exam is illegally anti-competitive and (2) the plaintiffs have suffered antitrust injury as a consequence.”55

***While this case does not rule affirmatively either way as to the allegation that closing the practice track was an antitrust violation,the second Circuit speculates that health care insurers, and not doctors, would be efficient enforcers of such an allegation.

It should be obvious from the above that misconception #1, that “Dr. Daniel was working with AAPS in the case” is completely untrue. In fact, AAPS had absolutely nothing to do with “Daniel et al. vs. ABEM”. Statements made by persons such as Dr. Antoine Kazzi, former president of the California Chapter and AAEM Board Director in EM News (“AAEM: Board Certification Under Attack in Florida” Emergency Medicine News:Volume 26(9)September 2004pp 1,46) and others stating this association reveal at the very least careless ignorance of the facts.
Misconception #2:
It should also be clear from the above that the decision in “Daniel et al. vs. ABEM” in no way, shape, or form vindicates ABEM’s actions. In fact, the decision states that upon reviewing the evidence, ABEM may very well be guilty of antitrust violations, however health care insurers, and not doctors should be the ones who should bring that claim to court. Judge Katzmann, who dissented in the opinion, argued that the plaintiffs’ remedy (allowing career EM physicians to take the ABEM certification exam) would actually benefit consumers because an increase in the number of ABEM-certified doctors could result in lower salaries for those doctors in general and thus lower costs for the consumers.

Misconception #3
that the end of the Daniel case means that for now and the future, only EM residency trained physicians can practice Emergency Medicine

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