On The AMA: Leading Lambs to Slaughter

On Tuesday, April 18th, I got the following e-mail from the American Medical Association (the closest thing to a nationwide "union" that physicians have):

"Dear Dr. Johnson,

On May 2, the U.S. Senate will vote on S. 22, The Medical Care Access Protection Act of 2006, a comprehensive bill to stop the medical liability crisis in our nation.
As you know, personal injury lawyers are driving up the cost of health care and driving good doctors out of medicine. America’s broken medical liability system must be fixed—and you can help!

When Congress returns from Spring recess on May 2, the U.S. Senate will vote on S. 22. This crucial legislation will improve access to health care by implementing reasonable and effective health care liability reforms designed to reduce the cost of defensive medicine and improve access to quality care for millions of Americans. S. 22 is based on Texas’ highly successful “stacked-cap” medical liability reform law, which has already reduced premiums by 22 percent. It provides for reasonable limits on non-economic damages and ensures that patients, not personal injury lawyers, are compensated for their injuries.

On May 2, the U.S. Senate will vote on this essential legislation, but it won’t pass without your help! Call or e-mail your senators and urge them to pass S. 22, The Medical Care Access Protection Act of 2006. Tell them to keep their promise to America’s patients and physicians!
Together we are stronger."

I am, by choice, not a member of the AMA.

I believe that this so-called physician “advocacy” organization long ago got way too top-heavy and too "old" (like the big unions) and, in the process, sold out the younger members of our profession . . . including many in my not-so-young-anymore generation of physicians. In the early and mid-nineties (with many of us in debt up to our eyeballs) physicians came out of training to be cannon fodder for the businessmen and lawyers and insurance companies – all of whom assured us that they could “help” us, and our patients, lead better lives . . . that they would let us “just practice medicine” and stay out of our way, while they took care of “the business”. At the time, it made sense, because I certainly didn’t have any business training (after umpteen years in school). And, at the time (having trained at an institution that I consider one of the best), I trusted hospitals – especially the “non-profits” – to have the public’s best interest at heart. And if perchance, one did encounter a bad apple, there were highly-respected institutions like the NC Medical Board and JCAHO and the AMA out there to protect the little guy.

You could say I was idealistic . . . and naïve. You could say I was an idiot. There are a lot of idiots practicing medicine.

As an aside, I had never intended to come back to Asheboro. Greensboro maybe. Winston or Raleigh perhaps. But never Asheboro . . . not after what had happened to me there as a child. But somehow, word got back to me (while I was living and working in New Orleans) that “there was a new sheriff in town” at Randolph Hospital – and that the hospital was determined to turn things around – especially in Pediatrics. So I flew in for an interview. New hospital administrators had sold the Board of Directors the concept of a hospital-owned practice as a mechanism of recruiting and retaining physicians (particularly sub-specialists) to the area. And I bought it too . . . hook line and sinker. The rest is history. I plan to post more on my recruitment experience later. But I don’t feel like going to that memory today.

Back on the subject of the all-knowing & do-gooding American Medical Association, this latest e-mail on tort reform legislation intrigued me, so I immediately went to the US Senate website, to check out the bill (S.22). I could not pull anything up. I then followed the AMA links on the e-mail. Nothing. Finally I schlepped over to the Library of Congress website (that cataloges all legislation). Nothing again. The Government Printing Office doesn’t have a copy.

So, let’s get this straight. The AMA wants me to call my Senator or Congressman to support a piece of legislation that I have not read or seen. The AMA has not supplied or linked the text of the legislation for me to see or read. But I, as a physician, am supposedly so desperate for malpractice tort-reform that I will blindly do whatever the mighty AMA wants me to do.

Malpractice ort reform is a complicated subject (another post I’m saving for rainy day). Legislation “reforming” the process must be well-informed and carefully thought out. And it should suffer the input and oversight of practicing physicians – not just the lawyers who really run our advocacy & oversight organizations (who do you think comes up with this stuff?).

Not reading legislation before you endorse it is the way bad laws get passed. Welcome to the AMA's idea of advocacy. This e-mail made me want to hurl.

I personally think effective and fair tort reform is not going to happen until we reform the process of medical peer review. For if you ever wanted an example of bad legislation that doomed good doctors to economically-driven-Salem-type-witch-hunts, just take a close look at the “Health Care Quality Improvement Act of 1986 (HCQIA) ” . This legislation was passed in knee-jerk fashion in response to a lawsuit (Patrick v. Burget) that went all the way to the US Supremes. A physician who tried to hang out his own shingle was attacked by his competitors - under the guise of peer review. And he successfully sued the hospital for conducting malicious (bad-faith) peer review. Hospitals were frantic – something had to be done to prevent doctors from filing these lawsuits. And a badly-flawed law was born.

A fairly comprehensive review of HCQIA, the “blanket immunity” it affords hospitals, and its unforeseen consequences to doctors, is posted on the Semmelweis International website (I’m not a member of Semmelweis, but it’s a good source for information on this topic). The bottom line is that HCQIA has made it virtually impossible for doctors "disciplined" for the less-than-honorable-reasons that abound in our day & age to fight back. Hospitals control the board . . . and if you're in the way of the practices they own & operate, LOOK OUT. You're economic road-kill.

In very simplistic terms, HCQIA assumes that all hospitals and their agents/officers act in “good faith”. Moreover, it does not define “bad faith”. The law also makes a joke of a physician’s rights of due process (particularly where the "protected property right" of a doctor's hospital privileges is concerned). As a physician, if you find yourself ensnarled in one of these messes, you might as well strap yourself to the chair and dunk yourself.

Take this legislation - and compound it with North Carolina's "Right to Work" laws (which never envisioned or considered the rights & responsibilities of employed physicians), and a doctor so ensnarled is totally hosed.

As an example, some doctors hosed by this system have told me I was "lucky". I “just” got fired . . . but not. Because I would not just take the money, sign the "gag clause" and run, I stayed "exclusive" to the Randolph Medical Associates payroll for six months (your tax dollars at work), but fired and practiceless nonetheless. It's hard to see patients when you're banned from the building - and legally stupid to do anything related to hanging out your own shingle when you're still technically "employed' by the hospital-owned practice (that wants you to "just go away" anyway). Rumor and innuendo swirled - and I was on the wrong end. With the equivalent of a contractual black-magic trick, three years of hard work building a practice I could be proud of went down the toilet in five days. On the other hand, Randolph Hospital had no good reason or just cause to yank my hospital privileges. In fact, until I sued them (a year after RMA fired me), the hospital brass was very careful not to touch them. Even when they did, hospital attorneys recommended a slime-ball maneuver to “accept” a staff resignation I had withdrawn – without troubling themselves to tell me this was under consideration (so much for due process). I ultimately got nowhere suing hospital officials for “slander” because (1) HCQIA affords them special status – as I had no access to board or peer review meetings in which my situation or the case was discussed, and (2) a local judge decided that a hospital official telling a doctor’s patients that she’s not “a team player” is not detrimental to her professional reputation.

Luckily, I had three more claims that did survive summary judgment.

However, on the flip side of “Health Care Quality Assurance”, the hospital could damned well drop the “libel” bomb on me – for truthfully and confidentially reporting what had happened to me (not to mention a patient) to the government I served – when the government asked me for feedback. The hospital ultimately ran silently screaming from that lawsuit. But I still had to spend a small fortune defending it.

None of this makes any sense. Physicians do a poor job of policing themselves anyway (it's never "fun") . . . so let's blindly support a bad law that allows good physicians to get hosed and not-so-good ones to fly under the radar . . . a law (originally designed to encourage the free exchange of information between doctors - and thereby help patients) that hospitals have managed to twist into (1) a weapon to trash potential competitors and whistleblowers and (2) a blanket liability shield. Now the AMA wants the public to “just trust us” and buy into tort reform?

The AMA knows HCQIA is a bad law and has done NOTHING to correct the problem. The fat-cat leadership (retirements plump from the days when the "money flowed in") has watched hundreds, if not thousands of doctors swirl in the deep quicksand of this law - in what some have called a silent epidemic - and has done ABSOLUTELY NOTHING to help them.

This is why I choose not to pay dues to the AMA. And it is why I will be reading the fine print of any federal legislation BEFORE I support (or reject) it.

There is NO DOUBT we are in dire need of malpractice tort reform. But it needs to be responsible and fair. And whatever gets passed needs to be thoroughly vetted for the long-haul.