and with that, the NY Appellate Court, seemingly sealed the dismissal of ABPS’s suit against NY-DOH, forcing a possible showdown before the U.S. Supreme Court.
The Appellate Court, gave short shrift to the strong arguments made by ABPS’s lawyer, Mr. Michael Sussman, easily finding for NY State, without reasoning or gravitas.
Not that the Court needed a reason. You see, actions by this or any state, wherein the regulation(s) involve health education and welfare and not race, gender or nationality, gets subject to a legal analysis called, “rational basis”. And DW wants you to know that “rational” is used loosely, we mean really loosely, we mean even, irrationally.
Here is what occurred;
(1) New York has a physician website that lists doctors as emergency medicine board certified IF they did a residency in emergency medicine, no problem there,
(2) an organization called ABEM [The American Board of Emergency Medicine, owned by the American Medical Association] lobbied New York to list MDs with its certification as board certified, whether or not they had done a residency in emergency medicine.
(3) the ABPS [American Board of Physician Specialties, certifies experienced ER doctors who have done residencies such as surgery, family practice and internal medicine AND have at least 5 years experience in emergency medicine practice, not owned by the AMA, having a patient first position] sued because except for the emergency medicine residency requirement, their ER doctors meet and exceed the criteria, permitting the ABEM non ER residency trained to be able to advertise themselves as board certified.
(4) ABPS contended that if the ABEM/AMA doctor did not do a residency s/he should not be listed on the State’s website following the rule. But that if such a doctor certified by its competitor could be listed, then ABPS doctors should be listed as well.
(5) It is even simpler, ABPS said there should be a site where all ER docs should be listed, and in fact the State could list the certifying board, and whether or not an emergency medicine residency was done. ABPS believes that the best ER docs are residency trained in a relevant specialty and experienced with more than five years practice and does not accept the AMA tenet that three (3) years of emergency medicine is enough. Some hospitals agree and have even added another 4th year. However, that still does not trump greater than 5 years of experience.
A simple and rational argument; if the rule says, you have to be emergency medicine trained to be board certified in new york, ABPS argued, then why are non emergency trained ER docs listed as certified. Was it simply because they had grandfathered certification by the AMA?
All that seems simple enough. And yet, the courts in New York, ruled against the ABPS essentially aiding and abetting the business of the AMA/ABEM, on the basis that New York’s action was “rational”- The sort of irrational technicality that only lawyers and judges can understand. the sort of irrationality that allows criminals to get away with their crime(s).
DW asks, when did New York get into the business of aiding and abetting bad actors who seek to destroy competitor organizations with complete disregard for patient welfare issues, such as adequate access to Emergency Care?
DW has learned that there are hospitals in upstate New York, that don’t have and cannot recruit any ER doctors. Moreover, superior ABPS ER physicians are excluded from the Emergency Medicine workforce because of the AMA’s predatory action; now assisted by the state.
DW wonders who the Court would prefer seeing if they had an emergency: a physician trained in a relevant specialty e.g. surgery, medicine, family practice, anesthesiology, pediatrics, with at least 5 years experience as an ER attending such as the ABPS certified physicians; OR, a physician who only completed a three (3) year residency in emergency medicine but was certified by the ABEM/AMA. If the court is confused, ask the patients in Upstate New York, or indeed throughout the state.
PATIENTS PREFER EXPERIENCED AND EXPERT PHYSICIANS, THAT’S JUST COMMON SENSE.
Unfortunately, as we all know “common sense” isn’t so common, and as it turns out, in NY state, “rational” isn’t rational either.
INCIDENTALLY, A RECENT NATIONAL STUDY HAS SHOWN THAT EM RESIDENCY TRAINING DOES NOT IMPROVE QUALITY OF CARE. (see EM Residency Training and Quality Measures)
What were the judges thinking? CLEARLY, THEY WEREN’T THINKING FOR THEMSELVES BUT MERELY CHOSE TO LISTEN TO AMA/ABEM TO THE DETRIMENT OF THE PEOPLE OF NEW YORK.