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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 64, No. 10 October 2008


"Disruptive" behavior is the subject of the July 9 "Sentinel Event Alert" by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Such behavior undermines the "culture of safety," and meets the JCAHO definition of sentinel event: "an unexpected occurrence involving death or serious physical or psychological injury, or risk thereof."

This supplies needed support for the "critical spin linking" that the hospital bar has been promoting, to link "disruptive physicians" to patient safety and quality care, writes Lawrence Huntoon, M.D., Ph.D. The real goal: a culture of control.

The Alert implies that a disruptive physician is dangerous by constantly saying "disruptive and intimidating" [emphasis added] with the word "unprofessional" also generally placed in close proximity to these two, reinforcing the linkage. It also suggests that those who report or cooperate in investigations need "protection." "Suggested actions" include "zero tolerance" and an anonymous reporting/surveillance system.

Is This Disruptive Behavior?

Case 1. A nurse in a neonatal intensive care unit notices that the baby in the isolette next to her patient's is having subtle color changes, then suddenly turns blue-black. His pressure "bottoms out completely," but the cardiac monitor shows a steady 80 beats/min. His primary nurse yells for x-ray and for a doctor to come treat the baby for a pneumothorax. The nurse who had first noticed the problem tries to correct her: "It's the heart; there's no heartbeat." When the primary team doesn't listen to her, pointing to the electrical activity shown by the monitor, she pushes them away from the baby, screams for quiet, listens to the heart, hears no heartbeat, and begins chest compressions. When the chief neonatologist appears, she slaps a syringe into his hand and says, "It's a pneumopericardium. I know it. Stick the heart." He does; the baby's life is saved.

Case 2. A surgeon raises her voice during a code and tells a nurse to take her gloves off and cut tape for an endotracheal tube. An infant, the patient of another physician, is turning dusky, and rapid action is necessary.

Case 3. An obstetrician, during a difficult C-section, raises her voice and tells a nurse to put gloves on, put a hand in the birth canal, and push the baby's head upward. Although OB nurses routinely perform this maneuver, this nurse is just standing there.

In case 1, a nurse aggressively interfered with the care of somebody else's patient, not only yelling at people but shoving them aside, insisting that her opinion was correct. Instead of asserting, like the recent JCAHO Alert, that "Any behavior which impairs the health care team's ability to function well creates risk," the team talked about how the heart monitor had fooled them. In Gary Klein's book The Sources of Power: How People Make Decisions, the incident is an exemplar of expertise, a "permission story" on when it is okay to make a fuss, and a warning on how machines can mislead. That was in 1998.

Cases 2 and 3 recently came to the attention of the AAPS Committee to Combat Sham Peer Review, chaired by Dr. Huntoon. The sequence is: A nurse files an incident report. The chief of staff "investigates" and "confirms" the report. There is no due process for a "first offense," which results in "counseling." The second offense results in mandatory referral for "corrective action," with the first episode presented as evidence of a "pattern" of behavior. Cross-examination of the individuals involved in the first report is often not allowed; the report is accepted as "fact." In any event, the physician's attorney has no power to compel testimony, and hospitals put pressure on witnesses not to testify.

Disruptive behavior policies have "already been used to remove...physicians who have a different opinion from administration," says Jay A. Gregory, M.D., who chairs the AMA's Organized Medical Staff Section (AM News 8/18/08).

Is Disruption Harmful?

To disrupt means to break apart, split up, rend asunder: a very strong verb, used by hospitals in a highly pejorative sense.

The harmfulness, of course, depends on the object of the verb. Disrupting a criminal conspiracy, for example, would be good. And some disruptions are acceptable to hospitals.

When a 13 billion computer system called Connecting for Health disrupts emergency treatment and scheduled operations in the UK, all the risks fall on patients. But "teething problems are to be expected" and tolerated because of potential benefits (Telegraph 8/10/08).

Especially, it seems, if the benefit is a data system that would detect threats to a monolithic behemoth.

With the consolidation of hospital and insurance plans, American medicine is dominated by very powerful players. But top- heavy power is not secure. It needs the help of government and its allies such as JCAHO to manage risks. The giants are correct about the risks to their dominant position.

"Disruptive technologies always start at the bottom," writes Clayton Christensen, coauthor of The Innovator's Prescription: a Disruptive Solution for Health Care. Toyota disrupted General Motors and Ford, starting with the very basic Corolla. And the sparkplug is an individual.

Big hospitals fear exceptional physicians. Big insurers worry about losing control over the mass of customers who seldom incur a large medical bill (see p. 2).

Two types of monumental change are possible in the next few years: the "safety" of rigid conformity, enforced by the destruction of "outliers" or the disruption of financially unsustainable monsters and a new outbreak of freedom.

Insurers Fear Disruption

Health plans have fired a warning shot at the brokers who sell their products: "Stop efforts to save employers money by combining two different types of insurance products, or you could be kicked out of the sales network."

Employers have also been threatened with loss of coverage if they combine high-deductible plans with self insurance to help workers cover the deductible. Fewer than 4% of workers ever exceed the deductible (Sacramento Bsns J 8/22/08).

Some concierge physicians, including Steven Knope, M.D., have been told they may be violating an insurance contract. Dr. Knope does not bill insurers for any of his 120 concierge patients, but he continues to see 100 Blue Cross members who did not join his concierge practice. Contract termination would not harm him financially, Dr. Knope said; Blue Cross would only be hurting its subscribers (Arizona Republic 9/5/08).


Medical Bankruptcy

The idea that half of all bankruptcies are caused by medical debt has become part of the folklore, writes Linda Gorman, who debunks evidence for this assertion at www. john-goodman- blog.com, Apr 2. David McKalip, M.D., also presents "The Real Deal on Medical Bankruptcy," Consumer Power Report #143, Sep 5, 2008. This is a timely response to frightening claims by Divided We Fail, a joint effort of AARP, unions, the National Federation of Independent Businesses (NFIB), and the Business Roundtable.

On www.DividedWeFail.org, it is claimed that "23% of Americans have difficulty paying medical bills, and millions go bankrupt every year because of medical costs."

Would universal coverage help? The bankruptcy rate for those under age 55 has fallen since 1991, while the rate for those with Medicare has increased 125% (ages 65-74) and 433% (age 75 or over). Total bankruptcies in 2007: 822,590.

From an analysis of 2003 Delaware court data, considered more reliable than survey data, Ning Zhu of UC Davis in a September 2008 report concluded that moral hazard plays a part in at least some bankrupt households, which over-consume knowing that they only have to bear part of the true cost of their purchases. An increase of one standard deviation in the ratio of mortgage debt or credit card debt to household income increases the risk of bankruptcy by 88% or 190%, respectively, while medical conditions increase the rate about 50% from the baseline. Overspending increases susceptibility to adverse events. Even though medical costs have increased, they are less important in the decision to file bankruptcy than 20 years ago.


Government Bankruptcy

The U.S. may have reached "Smith's threshold," writes Gerald P. O'Driscoll, Jr. In The Wealth of Nations, Adam Smith wrote that there has never been a single instance of sovereign debts being repaid once "accumulated to a certain degree."

"Washington is quietly repudiating its debts" through "pretend payments" with inflated dollars. "Anyone who works, saves and invests is exposed to confiscation of his capital and earnings through inflation" (Wall St J 8/22/08).


AAPS Calendar

Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.


A Deflation Threat?

The conventional view of government monetary policy is that officials try to inflate the money supply at a rate that will keep us in a safe zone between a double-digit inflationary boom and a deflation bust. The assumption that the lines between boom and bust are parallel is based on misunderstanding, writes Richard Maybury (Early Warning Report, September 2008). The lines converge, and the safe zone is narrowing. Each injection of new money creates more malinvestment, more disruption of business and spending and investing decisions. Eventually, any injection large enough to avert a depression triggers runaway inflation. [We've been through the Great Depression; remember that World War I was once called the Great War.]

Maybury has turned his velocity of money estimates (AAPS News, August 2008) down three notches, but thinks today's Fed's bias is toward hyperinflation.

By the measure of how many dollars are needed to avert recession (now $2 trillion?), "virtually the whole economy is malinvestment." Hardly anything is at the right price, Maybury writes. In other words, the price system, the regulatory mechanism of a free market, has been massively disrupted.


Tracking a "Never" Event

Betsy McCaughey, former lieutenant governor of New York, has declared that the only acceptable rate for hospital-acquired methicillin-resistant S. aureus is zero (Wall St J 8/14/08). Checklists, nonpayment for treatment, and class- action lawsuits are the proposed solution.

Robert Hamilton, M.D., thinks that hospitals' 15-20 year problem with MRSA won't be solved by punishment: there's more involved than negligent hospital staff, such as antibiotic usage and foreign material as in prostheses and grafts.

In the UK, infection control efforts were disrupted by the inability of Cerner's Millennium care records system to cope with its superbug monitoring system for 18 months. Manual workarounds had to be developed. MRSA flags disappeared, or if entered erroneously could not be removed. Only MRSA and hepatitis A and B can be flagged; a C. difficile enhancement was turned down because of cost (E-Health Media 8/14/08).


"[E]agerness to appear intelligent...is a fairly recent development among conservatives.... English Tories whom Mill dubbed as the original stupid party did not share this desire.... [S]tupidity, as many of them no doubt hazily realized, was their best defense against the inroads of clever madmen intent on turning their world upside down men like John Stuart Mill, for example,...who was willing to throw out the solid heritage of the past in pursuit of the latest fad, dubbed by him 'experiments in living'....

"Stupidity has been...the best defense mechanism against the ordinary conman and the intellectual dreamer, just as Odysseus found that stuffing cotton in his ears was his best defense against [the] beguiling but fatal song of the sirens."
Lee Harris, www.tcsdaily.com 12/27/07

A License to Steal

In 1935, the U.S. Supreme Court agreed to hear three cases concerning the cancellation of gold contracts. In the first two, the Court declared that the federal government was entitled to cancel the private contracts because the perpetuation of gold clauses would have amounted to the "attempted frustration" of "the constitutional power of the Congress over the monetary system of the country."

In the third case, Perry v. United States, a man who had purchased with gold a U.S. bond payable in gold was seeking payment either in gold or in the equivalent in paper currency. The face value of the bond was $10,000, but it would have taken $17,000 in inflated currency to satisfy the contract.

The Court declared that the plaintiff was entitled to his gold, since the government was obligated to keep its promises. But in not paying in gold, the government did him no wrong because it was now illegal to own the gold!

Speaking for the minority, Justice McReynolds wrote: "For the government to say, we have violated our contract but have escaped the consequences through our own statute, would be monstrous. In matters of contractual obligation, the government cannot legislate so as to excuse itself." [But so it did.]

The dissent concluded: "Loss of reputation for honorable dealing will bring us unending humiliation; the impending legal and moral chaos is appalling." (Thomas E. Woods, Jr., "The Great Gold Robbery of 1933," http://mises.org/story/3056)


Florida Supreme Court Rules for Medical Staff

In Lawnwood Medical Center v. Randall Seeger, M.D., the Florida Supreme court upheld the lower courts (AAPS News, February 2007) in finding a special law unconstitutional.

"Because the HGL [St. Lucie County Hospital Governance Law] grants Lawnwood almost absolute power in running the affairs of the hospital, essentially without meaningful regard for the recommendations or actions of the medical staff, we conclude that the HGL unquestionably grants Lawnwood 'rights,' 'benefits' or 'advantages' that fall within the definition of the term 'privilege'...."

Florida, like 14 other states, has a constitutional prohibition against granting a privilege to a private corporation. This was a case of first impression in defining its meaning.

The AAPS amicus brief is posted at www.aapsonline.org.


AAPS Joins Amicus for Shammed Physician

Shall physicians control the quality of care in hospitals or shall this be turned over to hospital owners and administrators? This is the key question raised in Gil N. Mileikowsky, M.D., v. West Hills Hospital Medical Center, et al., now before the Supreme Court of California.

West Hills terminated Dr. Mileikowsky's hospital privileges on the sole authority of a hearing officer, who summarily terminated the peer review hearing to which the doctor was indisputably entitled, as a discovery sanction.

The amicus brief authored by the American Association for Justice (formerly the Association of Trial Lawyers of America) and joined by AAPS argues that: "If physicians are not sufficiently independent and protected against retaliation, they cannot serve as advocates for quality care nor act as a brake on the hospital's drive for profits."

A physician that a hospital calls "disruptive" is not necessarily a bad physician, the brief argues. Indeed, "it is not uncommon to find that a disruptive practitioner is, in fact, highly intelligent, clinically superior, even medically outstanding." Hospitals are using such pretexts to "dispatch mavericks, whistleblowers, and other nonconformists."

As a prior Court held, "Considerations of harmony in the hospital must give way where the welfare of patients is involved, and the physician by making his objections known, whether or not tactfully done, should not be required to risk his right to practice medicine."

The brief may be read on www.aapsonline.org.


ISMA Studies Sham Peer Review

The Indiana State Medical Assn House of Delegates referred a 2007 resolution opposing sham peer review, authored by AAPS member Roger E. Jones, M.D., to the Board of Trustees. A task force found that peer review was of strong interest but did not find a current widespread problem or crisis. An ISMA survey elicited 384 responses. Of the 14% who participated as a subject/reviewee in peer review, 26% said they witnessed misuse or abuse. Of the 54% who participated as a reviewer, 12% said they witnessed misuse or abuse. The ISMA says it will continue to focus on the issue.


FTC Sued over Use of History

The Native Essence Herb Company of New Mexico has sued the Federal Trade Commission to strike down guidelines that prohibit the company from posting on its website historical use information, much of which was taken from federal government websites. The lawsuit was filed by Richard A. Jaffe, Esq., author of Galileo's Lawyer. He argues that FTC guidelines violate the First Amendment.


Internet, Tax Law Used against Health Fraud

The decades-old strategy used to convict Al Capone is being used against doctors in the California Fraud Interdiction Program a stroke the FBI describes as "brilliant." The 50 Crook Project has identified 50 doctors to whom Medicare paid $122 million in allegedly false claims over 3 years (an average of $800,000/yr per doctor).

Los Angeles Assistant District Attorney Albert H. MacKenzie recommends that the IRS conduct searches on any provider who has received a minimum amount, say $100,000, from Medicare. He has created a network of thousands of insurance companies, self- insured entities, associations, and Medicare or Medicaid offices, from which he can obtain the gross amount paid to each suspect over the past 6 years. If the suspect has failed to file with the California Franchise Board or has underpaid taxes, this creates probable cause so prosecutors can obtain a search warrant for homes and offices, which often leads to still more charges of money laundering.

Even if all the illegal income is reported, all deductions for things like employee salaries and rent would be disallowed.

Physicians, dentists, lawyers, and owners of medical facilities have been convicted and sentenced to prison terms up to 15 years and restitution of more than $20 million.

Restitution is rarely collected in full because multi- million dollar fraud rings quickly wire the money out of the country or convert it to cash, MacKenzie said (BNA's HCFR 8/13/08).

Or could it be just that the doctor is now destitute?


Expedited Snooping. Several employees of Sparrow Hospital in Lansing, MI, were fired or disciplined for accessing the governor's electronic medical records without authorization (AM News 9/1/08). The EMR has made this type of snooping much easier. Previously, the snooper would have to go to the rack and pull the chart, probably attracting notice. Now snoopers can simply log on at the terminal of their choice. These employees were caught by a routine audit. Computer-savvy snoopers, however, probably would not be caught. And one wonders whether they would have been punished had the patient not been a high-profile politician.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


A Secret Weapon. Perhaps we would better prepare today's pre-meds for their professional futures by cutting their dosage of egghead chemistry and adding a few straight shots of pure science fiction: Brave New World, 1984, and Levin's This Perfect Day, about a world dominated by one central computer....

Are those who ballyhoo electronic records as the panacea really concerned about patient treatment? Or has someone designed a surreptitious weapon for the control and domination of tomorrow's MDs? If all goes according to plan, every deed, thought, and key-stroke of future physicians will flow directly into huge pools of data, to be sifted, churned, probed, prodded, judged, and graded, without once being touched by human hands.... Having never won an argument with an electronic gizmo, I have little doubt that UniComp, the all-knowing computer, will soon be running the show.
A.E. Miller, M.D., Blackfoot, ID from IMA Newsletter, www.idmed.org


Newspeak. We must resist the terms "disruptive" or "impaired" physicians. These are keywords of Soviet-style manipulative propaganda. Common sense needs to return. Sadly, there are physicians who are as they were called in the past alcoholics or addicts. Often, they need help more than punishment. But today drunks, if convenient for authorities, may be allowed to practice, but abstinent physicians, if inconvenient for administrators, may be referred to "Addiction Recovery Centers."
Walter Borg, M.D., Lafayette, LA


EHR in the Real World. The electronic health record was supposed to increase productivity and revenue, but it has not. It has required resubmission 3 or 4 times over 6 to 8 months to get reduced and bundled payments. What a waste of $70,000! Moreover, when the computer dumps 3 hours of data entry, I have to do it all over again!
T.A. O'Connor, M.D., Milwaukee, WI


Patient Spies. I wrote to the AMA to express my outrage over the AMA's support of fake patients spying on doctors. According to a June 12 Associated Press story, the ethics council of the AMA is urging doctors to endorse hospitals' practice of hiring undercover patients to grade their health care experience. It is this de-professionalization of medicine that prompted me to leave clinical practice in my mid-50s, and to resign from the AMA. Hired spies are commiting fraud and wasting resources and doctors' precious time.

AMA Communications Coordinator Rashida Carter replied that reports such as the one on "secret shoppers" are discussed in the House of Delegates. This one was referred for further work to the Council on Ethical and Judicial Affairs.
Elizabeth Kamenar, M.D., Mountaintop, PA


Universal Reality. Many people want the government to take care of them; however, the only way to achieve universal coverage is for everyone to be in a Medicaid-style program. This is not sustainable. The message we need to deliver is: "Congress has made a promise it can't keep: Medicare. They will use politics, corporate cronyism, rationing, and cookbook medicine to fool you into believing they are delivering on their promises. The best hope for access to medical care is more individual ownership and control of medical financing."
David McKalip, M.D., St. Petersburg, FL


The Key to the Solution. Fixing the current morass will be very difficult, but it must start with bringing the market back to the patient and the doctor. We must get the third party out of the middle; this requires taking control of the data. The data belongs to the patient and is not for sale. But the AMA is involved in the sale of data; for example, it works with SureScripts. Would it relinquish this source of revenue?
Marcy Zwelling-Aamot, M.D., Los Alamitos, CA


Taxes v. Deficits. Taxes are the oxygen of government (and government regulation). Too much government is the main threat to productivity, liberty, and the pursuit of happiness. You must hold the line on taxes, or the entire economy grinds to a halt. The national deficit, on the other hand, is implicitly controlled by self interest in the international bond markets. If the U.S. government, which promises to pay based on the strength of its tax collections, tries to borrow too much, the cost goes up. If it tries to borrow more, no one will give it their money for its worthless paper. End of government expansion. A real cynic would ask which has a more negative effect on productivity: spending it on debt service, where it goes from taxpayers to private citizens, or spending it to fund yet another expansion of Medicaid.
Linda Gorman, Ph.D., Independence Institute, Golden, CO