CALIFORNIA
PRESIDENT’S REPORT
From Action Report, a publication of the Medical Board of California
Sunset Review is a process undertaken by California’s Legislature every 4 years to scrutinize the activities of state regulatory agencies. The California Medical Board is currently undergoing this analysis, which is conducted by a joint legislative committee. The first step consisted of approximately 6 hours of committee questioning and responsive testimony by Board representatives and other interested parties in December. This is an opportunity for constructive interchange regarding regulation in the dynamic and complex health care delivery environment. It’s a kind of risk-benefit assessment and is especially useful to evaluate outcomes of policies and processes instituted by the Board subsequent to the previous Sunset Review.
Examples of questions posed by the committee and the Board’s answers were: “When was the last license fee increase, and does the Board see a current need for one?” Answer: “1993 and no.” “Is the Board concerned with and how do you account for the decline in disciplinary numbers over the past year as compared to previous ones?” Answer: “The Board has no disciplinary quotas; it responds to complaints. It remains vigilant as to license impropriety, and at present we see no evidence of large numbers of such events going unaddressed. A spate of unlicensed activity has occurred recently, and this is being vigorously pursued with measurable success. The concurrent number of malpractice claims does not lead to a conclusion that disciplinary cases are being missed. A low number of disciplinary actions might actually reflect an appropriate disciplinary posture in a high-quality practice environment. Conversely, a high number of license actions would definitely indicate a problem, either that of a low medical quality or of an over-disciplinary environment.”
Constructive critical review is useful for many reasons, not the least of which is the focus it may bring to specific issues, particularly if policies have existed long enough to allow outcome measures or trends to become apparent. Let us briefly apply this method to perhaps the 2 most impacting legislative acts dealing with health care delivery in California over the past quarter century, a 25-year “Sunset Review” of the Knox-Keene Act and MICRA. First, MICRA, the Medical Insurance Compensation Reform Act of 1975. The law was enacted in the wake of a malpractice premium escalation crisis that threatened to dramatically alter physician practice patterns and demographics. Passage required bold action on the protagonists’ part. A 25-year review demonstrates reasonable stability in the premiums that precipitated the crisis and a lack of evidence of individuals’ access to procedural or remunerative rights being significantly abridged, and certainly not to crisis proportions.
A comparison to the MICRA review is readily available.
A concurrent malpractice premium crisis existed in eastern Pennsylvania in the mid-70s, and the legislative response was the creation of a 2-component system for malpractice award remedies consisting of the liability carriers as well as a separate trust fund into which physicians paid in addition to their carrier premiums. Twenty-five years later the trust fund is insolvent, and 1,000 physicians in the region are facing 2002 without liability insurance. It is estimated that for 2001, the malpractice award payments in the city of Philadelphia will exceed the total amount for the entire state of California. Premium increases will average 25%, with some up to 400%. An 18-person orthopedic surgical group will cease doing surgery altogether and limit activity to office practice.
Similar effects are apparent in other states. It is estimated that in 2002 West Virginia will have zero neurosurgeons in clinical practice, the exodus due to fiscal pressures. The insalubrious impact of all of the above on the health care of citizens in these regions is obvious. Policies have consequences, and the comparative review is stark in its contrast in effects on practice patterns and demographics, and, ultimately, and most important, on the consumer’s access to health care.
The Knox-Keene Act of 1975 represented a sea-change in the prescription for a template for health care delivery in California. To no surprise, economics, this time exigencies in health insurance premiums, were the driver for the legislation. A 25-year “Sunset Review” is provocative, if not head-spinning. The architectural ambiguity of the 250-plus-page document is apparent in the first 20 pages, in which the following 2 mutually exclusive concepts are proffered. First, a fundamental tenet is expressed that for a health care delivery system to assure the highest quality of care, medical decision-making must be removed from the financial aspects of that care (so as to remove financial incentives from the mix). It is then expressed elsewhere that the Legislature intends on “helping to ensure the best possible health care for the public at the lowest possible cost by transferring the financial risk of health care from patients to providers.” The irreconcilable condition of these two notions has resulted in 25 years of increasing agitation by all stakeholders (which is everyone). And again, it is the recipient of health care services who is disadvantaged by the inefficiencies of the policy approach that is selected.
A legislative review of the quarter century under the Knox-Keene Act reveals an ever and exponentially increasing number of reactive legislative efforts attempting to counteract side effects of the mother statute. This phenomenon rose to a crescendo in 1996 when the legislature created a task force to spend a year of investigation and analysis to culminate in a report to the Governor with problems delineated and suggestions for remedies for the ills discovered. Over 100 bills relating to this alone were authored and then bottlenecked for the year of review. An entire new government agency was created in one reactive adaptation. Currently one law “might force (the) state to regulate doctor fees.” In a CMA “lawsuit against the 7 major health plans... the court of Appeals ruled that physicians have no legal recourse when they get paid nothing for millions of dollars of necessary medical care provided to health plan enrollees when the health plans’ intermediaries go bankrupt.” And yet, with all of the above reactive chaos, the competition among health plans remains on cost, not quality. So, as a “Sunset Reviewer” of 25 years of the Knox-Keene Act, I would ask whether a threshold amount of reactivity might have been crossed as to trigger a new look at the original legislation.
Timely, constructive, critical review is a good thing. Perhaps the legislature should use it more.
KENTUCKY
PHYSICIAN PROFILE ADDED TO KBML WEB SITE
From the Kentucky Board of Medical Licensure Newsletter
On December 20, 2001, the physician profile went online on the Kentucky Board of Medical Licensure Web site at www.state.ky.us/agencies/kbml/. The profile contains name, license number, practice address, practice county, area of practice, type of practice, year licensed in Kentucky, medical school, year graduated, and disciplinary actions in the past 10 years, if applicable.
In addition to the physician profile, the Board’s Web site contains policy statements and guidelines, a direct link to the Kentucky Medical Practice Act and Regulations, monthly disciplinary actions, disciplinary procedures, continuing medical education information, application forms, physician assistant information, demographics, and other topics of interest. The Board receives many favorable remarks about the KBML Web site, and to date, has had over 43,000 visitors since its creation in 1999. The Web site has provided a valuable service to the public as well as to physicians practicing in the state. Physicians wishing to make a factual change to their profile may use the “Change of Address Notice” included in each newsletter.
NORTH CAROLINA
AVOID TREATING FAMILY MEMBERS
From Forum, a publication of the North Carolina Medical Board
Most physicians enter the medical profession because it provides them with the training and opportunity to help people in need. It seems natural, therefore, that physicians might be tempted to take a professional role in providing medical care to those persons dearest and closest to them: their own families. Indeed, studies suggest many physicians regularly provide medical care for their family members. The instinct to take a professional role in providing medical care to a loved one, however, should be weighed against the overwhelming evidence from professional organizations, academic literature, and regulatory bodies that uniformly declares the treatment of family members to be professionally unwise and ethically problematic.
The North Carolina Medical Board issues Position Statements on professional and practice issues to provide guidance for physicians. While the Board’s Position Statements are not legally binding, they provide clearly articulated and useful advice and reflect the Board’s general view of what constitutes acceptable professional behavior.
The Board’s statement, Self-Treatment and Treatment of Family Members and Others with Whom Significant Emotional Relationships Exist, clearly states that:
“… except for minor illnesses and emergencies, physicians should not treat, medically or surgically, or prescribe for themselves, their family members, or others with whom they have significant emotional relationships. The Board strongly believes that such treatment and prescribing is inappropriate and may result in less than optimal care being provided.”
The admonition against treating close family members is longstanding and nearly ubiquitous. It is contained in the American Medical Association’s first Code of Ethics, adopted in 1847. The current AMA Council on Ethical and Judicial Affairs and the American College of Physicians’ Ethics Manual echo the board’s warning against physicians treating family members.
Ethical and professional objections to a physician treating his or her family members are based on the danger that the physician’s personal feelings for his or her patient/family member will undermine rather than enhance the care the family member receives. Personal feelings and fears might compromise a physician’s professional objectivity and judgment, leading him or her to either over-or-underestimate the seriousness of the patient’s condition.
For example, fearing the worst, the physicians may over-diagnose a condition, subjecting the patient/family member to a series of unnecessary tests, treatments, fears, and risks. Conversely, the physician reluctant to face the possibility of a seriously ill family member may dismiss prematurely a viable but more serious diagnosis. These tendencies may be aggravated in that the potential informality associated with treating family members sometimes leads to less scrupulous adherence to traditional protocols of history-taking, physical and diagnostic workup, and record-keeping. Moreover, family members are frequently examined outside the traditional office setting, without the appropriate support and proper equipment and resources.
Personal connections also may complicate the way in which the patient/family members and physician interact. Physicians with familial connections to their patients might be less likely to ask potentially sensitive, but clinically relevant questions or to perform intimate, but necessary, examinations. Similarly, patient/family members may be less likely to disclose personal facts. Frequently, the very advantage of speaking to an unrelated physician is that information will be kept from family members. The personal distance may enhance disclosure. On one hand, some patients, especially children, may be less likely to refuse and question treatment recommended by a family member who is a physician. On the other hand, older family members may doubt the insight and wisdom of a younger, albeit professionally trained physician/family member, and, as a result, be less compliant.
Treating physicians must sometimes play the role of mediator, negotiating between and among family members to help them understand and resolve difficult clinical and emotional questions. Here, too, familial connections can be a handicap rather than a benefit. Familiarity and interlocking loyalties can confound the already challenging issues of confidentiality, decision-making capacity, informed consent, and the host of issues surrounding end-of-life care. While the Board’s Position Statement clearly discourages physicians from treating their family members, providing such care may be appropriate in some limited circumstances. In emergencies, minor illnesses, and in isolated settings in which no other appropriate medical care is available, physicians may legitimately treat a family member. In those cases in which a physician must provide emergency care for a family member, the patient’s/family member’s care should be transferred to another physician as soon as it is practical. The Board reminds physicians who treat family members for emergency or minor illnesses that they “must prepare and keep a proper written record of that treatment, including but not limited to prescriptions written for controlled substances and the medical indications for them.” Abiding by the long-standing warnings against providing medical care to family members does not mean abandoning loved ones in their time of need. Instead, physicians can best help family members by referring them to qualified and appropriate health care professionals.
OREGON
DON’T PRESCRIBE LESS – CHART BETTER
From Forum, a publication of the North Carolina Medical Board
During the coming months, Oregon is expected to be in the media spotlight on the issue of prescribing controlled substances, particularly for dying patients.
In the fall of 2001, US Attorney General John Ashcroft issued an opinion that the federal Controlled Substances Act prohibits physicians from prescribing medication under the state of Oregon’s Death With Dignity Act.
Oregon’s state Attorney General Hardy Myers filed suit in federal court, challenging this opinion. Hearings are expected to be held in the spring of 2002.
Increased media attention on prescribing privileges may potentially heighten physician concerns about the prescribing of controlled substances. In other states, such as Utah, the number of morphine prescriptions decreased following civil investigations and the conviction of a physician for the alleged morphine overdoses of several patients. Many believe that the specter of investigation can deter some physicians from appropriate prescribing. Nurse practitioners, who recently gained Schedule II prescribing privileges, also may be susceptible to such pressures.
Oregon data highlights this potential. Oregon Health & Science University’s (OHSU) Center for Ethics in Health Care has tracked a range of markers in end-of-life care in Oregon for more than a decade from a variety of sources. These include:
declining in-hospital death rates;
rising rates of advanced-care planning;
use of Physician Orders for Life Sustaining Treatment (POLST);
increasing rates of hospice referral; and
overall rates of morphine use
These markers of quality end-of-life care have shown steady improvement, with one exception. Family reports of moderate or severe pain in dying hospitalized patients increased in late 1997. Family reports of pain did not change for loved ones dying in long-term care facilities or at home.
In 1998, we sent a survey to physicians and nurses throughout Oregon, asking them to help us better understand the factors that contributed to this finding. Although results suggest that respondents viewed more than one factor as responsible for the increase in family reports of pain, two-thirds thought physician prescribing of inadequate pain medication was a partial explanation. Physicians who thought reduced physician prescribing was a partial factor rated fears of the Oregon Board of Medical Examiners (OBME) and the US Drug Enforcement Administration (DEA) as the most likely explanations for decreased physician prescribing.
It is important to note that the OBME’s position is that physicians should make every effort to relieve the pain and suffering of their dying patients and that narcotics should not be withheld because of a fear of hastening death. In fact, the OBME has disciplined a physician for inadequate use of pain-relieving medications in dying patients.
In light of upcoming events, these data raise grave concerns and call on all of us to take a more active role in public discussions about pain medication. We must work together to ensure that patients, particularly those who are dying, will continue to receive appropriate medication to control their pain and suffering regardless of what is occurring in the political arena.
The message we share with all of our colleagues statewide is simple: Don’t prescribe less for dying patients and those with terminal diseases – chart better. We encourage you to resist the fear of possible negative consequences to prescribing controlled substances when addressing suffering in the dying. Instead, spend a few extra minutes to clearly document the need for medication in the patient’s medical record. For example, in a patient with metastatic prostate cancer, you could document your orders to increase pain medication with the following: “Patient has metastatic cancer to the bone and bone pain has substantially increased. Morphine doubled to control pain.” You could use this approach for other symptoms (e.g., dyspnea) that require controlled substances for optimal symptom alleviation. The brief progress note should clearly indicate your intention to control symptoms with the order to administer or adjust the dosage of a controlled substance.
The best defense is a good offense. Careful documentation adds clarity to any questions regarding your motives in prescribing controlled substances. Thorough documentation, rather than a change in prescribing practices, is an appropriate response for all health care professionals in Oregon. This is particularly important in a climate in which the media may soon bring its spotlight back to the issue of controlled substances and seriously ill patients.
