Archive for March, 2009

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

 By Ruth SoRelle, MPH






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 (

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)
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