key: cord-0008771-zhk82cor
authors: Watts, Clark
title: Erosion of physician autonomy and public respect for the profession()
date: 2008-07-09
journal: Surg Neurol
DOI: 10.1016/j.surneu.2008.05.005
sha: f01aa070c6b5ae0a77ce605dee40436152f5f8d2
doc_id: 8771
cord_uid: zhk82cor

nan

Erosion of physician autonomy and public respect for the profession At the beginning of the second half of the 20th century, physicians held an enviable position of autonomy and respect within the health care industry [16] . Except for casual oversight by the various state licensing boards, which addressed principally the accuracy of applications for licensure and relicensure, physicians generally were left alone to ply their profession. Most were in solo practice, or in small groups of 2 to 4 physicians. They were free to see patients who they wanted. They determined their fees, their working hours, and their need for continuing medical education. As independent contractors, for the most part, they were granted by hospitals a separate medical staff arrangement within the hospital environment, with separate bylaws, to oversee the delivery of health care within the hospitals. In all opinion polls, the public rated physicians as the most admired professionals.

In the first decade of the 21st century, applications to medical school are down, and physicians are seeking to retire at an earlier age because of low morale; there is one physician suicide per day in the United States [13, 19] . Headlines chronicle strident struggles between medicine and other health care providers over primacy in administering to the sick [7] . Nurses are seeking laws, which allow them to care for patients independent of physicians. Orthopedists and podiatrists are debating over where the foot ends and the leg begins. Physical therapists want to provide treatment independent of physician oversight. Optometrists wish to write prescriptions. Physicians find they have less control of their practice environments and no longer find themselves at the top of public opinion polls.

The questions are "what happened?" and "why review this topic now?" In inverse order, I believe after the present presidential campaign, we will see major efforts to revise the structure of the US health care system, and the changes advocated will have significant impacts on physicians and the way they practice [4] . To participate in the debate and to influence the outcome, physicians must understand where they are, and how they got there. "What happened?" will be the focus of the remainder of the essay. I believe the occurrence of 2 phenomena explain these changes in the position of the medical profession in our society. The first is a change in the economics of health care in which nontraditional market forces exerted themselves as a third party in the physician-patient relationship. The second change is an unprecedented intrusion into the health care delivery system by the federal government because of perceived inequities in the system that have evolved for the past half century. The impact on physicians by these changes has been substantial and has changed significantly the way medicine is practiced today. An outcome has been less interest in medicine by the relatively independent-minded and socially motivated individuals who made up the population of physicians in the past.

At the end of World War II, economic changes were put in place, which would ultimately influence the practice of medicine [16] . During the war, wages of the US worker were frozen to control inflation. To attract workers, employers had to offer benefits. Out of this need matured the personal health insurance plan, bought initially by the employer as an added benefit for the worker. After the war, with a roaring economy, individual citizens were able to afford these policies. They were indemnity policies, reimbursing patients for costs they had paid to physicians and other providers for their health care. Costs of health care began to rise. There was unrestrained rise in demand on the part of the public, partially because of the availability of affordable insurance. Increased technology played a role, initially in the pharmaceutical industry; antibiotics were introduced during the war and psychotropic drugs shortly thereafter. There were no constraints on the increasing fees of physicians and hospitals.

And then came the massive infusion of money into the system created by Medicare, which was introduced because many had been priced out of the market because of rising costs, especially elderly on fixed retirement incomes, such as Social Security [6] . The full history of Medicare and its impact on the US health care system is very complex and need not be told here. To participate, physicians eventually had to accept fee schedules demanded by the payor, the federal government, rather than those set by the physician. In addition, the physician had to be willing to accept those fees on all Medicare-eligible patients, not just those who However, restrictions on physician autonomy induced by Medicare do not stop with the fee structure. Rules regarding billing Medicare for services require accuracy, which can be daunting. A single error on form 1500 may result in failure to collect. A series of errors may result in a costly audit, with the government's concern of fraud paramount. Medicare is a multibillion dollar enterprise, and fraud within the program is significant [3] . Although the government does make a distinction between concerns over millions of dollars involving a pharmaceutical firm and thousands of dollars involving a large medical group practice, addressing fraud is of high priority with the government at all levels-a policy supported by physicians who decry the waste of all resources. Penalties are significant. Fines and suspension from the Medicare program are the usual sanctions physicians incur, but imprisonment is possible where egregious violations occur. The best defenses against a charge of fraudulent billings are correctness and a lack of intent to violate the law. Each practice, especially a sizeable group practice, should have in place a compliance program that spells out the office plan to insure accuracy and conformance with the rules and regulations [14] . These programs are complex, rather rigid, and costly, further limiting the physician's options in managing his practice.

With the ever-increasing rise in cost of health care came the birth of managed care, also a very complex subject with a huge impact on physician autonomy. This system of care, rather system of payment for care, was developed by the insurance industry to abolish the passive indemnity programs of insurance and replace them with a proactive system designed to control not only the payment for health care but also the volume of care delivered [20] . Through separate contracts with patients and with physicians, managed care entities controlled who would receive care and by whom. By requiring physicians to obtain approval for the services they ordered before the delivery of those services, they inserted themselves into the physician-patient relationship and influenced the decision-making processes of physicians.

Physicians countered in 3 ways. Some refused to enter into contracts, but these were few in number. Physicians tried to organize in unions, but the courts rejected these efforts because physicians were considered supervisors in the hospitals and in their offices; supervisors are prohibited from unionizing. Furthermore, in an era of declining union membership, generally, the public was not supportive. Physicians tried collective bargaining but came up against antitrust constraints against competitors organizing for this purpose. Belatedly, physicians began organizing their practices around the group model to overcome these concerns; belatedly, because the managed care model they were fighting began to lose acceptance by the public as it did not hold down costs, and its proactive policies regarding physician decision making were offensive to patients [15] .

Both these restrictions on physician autonomy, inability to unionize and antitrust constraints on negotiating fees with managed care entities, are based upon federal statutes that have been upheld by the courts, leaving little room for the medical professional to maneuver. However, physicians continued to look to the general business model for ways of maintaining control of their practice environments, with additional change within the profession; medicine become commercialized, with the full complicity of physicians. Advertising became part of the health care culture. Doctors participated in the creation by lay magazines of lists of "outstanding" physicians. An industry developed to help physicians create "business" plans, to include marketing schemes, some jointly with hospitals. Furthermore, physicians began to build and own hospitals [10] . Physicians became health care providers. Hospitals became health care facilities. Patients became consumers; caveat emptor.

In the 3-way struggle with the managed care industry, patients began to blame physicians for the problems they encountered. One reason for this development was that the physician was more visible to the patient than the managed care clerk who was denying care under the policy. However, there was another factor, more subtle, brought on by the physicians themselves. Early in the widespread use of private health insurance, patients had trouble applying to the insurance companies for reimbursement; they did not understand the forms and the information required. So the offices of the physicians began to provide the information. Then they began to communicate with the insurance companies on behalf of the patient. In due course, they began to take responsibility for the entire task, requesting assignment of benefits to the physician, thus ensuring the physician would get paid sooner. Eventually, the patient assumed that this was a responsibility of the physician. Finally, the patient began to believe the physician and the insurance company worked together, and any dereliction on the part of the insurance company was imputed to the physician. This perception on the part of the patient carried over into the managed care era and was reinforced by the awareness of the patient of the contractual relationship between the insurance company and the physician. In addition, the experience the insurance industry gained working with physicians was useful as it developed the rules of the managed care era; they learned the physicians would be passive (ie, risk-averse [2] ) with regard to change as long as their patient and revenue streams continued.

As noted, laws related to unionization and antitrust activity frustrated physicians as they tried to deal with the changing economics of medical practice. But these laws, when enacted, were not aimed at physicians and their practices but at the business community in general; physicians encountered them when they began adopting the business model for their practices. However, there are laws, which have been enacted to directly impact physicians and their practices. Some were enacted to bring certain segments of the population into the main stream of the health care system. Others were designed to remove incentives for physicians to base their decisions upon considerations of enrichment, where physicians could, and did, benefit monetarily from their therapeutic decisions beyond payment for their services to their patients. Most laws are federal and have been tied to the availability of Medicare; physicians and hospitals that receive federal funds through the delivery of health care to Medicare beneficiaries are subject to these laws. Most were enacted seemingly without regard to the direct impact they would have on the practice of medicine.

Examples of this legal conundrum are the Stark laws. They were enacted after congressional hearings revealed that physicians with financial interests in entities of ancillary services such as laboratories or imaging centers were more likely to order tests involving these services than physicians who did not have such interests, thus increasing the cost of health care. The laws prohibit such financial interests in these services except under very complex rules of exception [18] . Physicians, in attempting to acquire such interests, made use of the rules of exception to craft business arrangements, which may qualify under legal loopholes. The government countered with ever-increasing limitations on this activity by, to date, releasing at least 3 rounds of tightening regulations. These prohibitions are not seen in other lines of business outside the health care industry and have certainly limited the scope of services physicians may offer in their practices. What should be more disturbing to physicians is the statement these laws make regarding the trustworthiness of the medical profession in the eyes of the public as registered through the actions of their elected representatives.

Other laws have added to this constriction of autonomy. The Americans with Disabilities Act prohibits, in public accommodations, discrimination against people with disabilities [1] . It is responsible, for example, for the modification of streets, sidewalks, and building entrances for wheel chairs. Hospitals and the offices of physicians are considered public accommodations. Thus, physicians cannot refuse to accept as patients, people with covered disabilities because of the disabilities. An example would be a person who is deaf and needs a translator. The physician cannot refuse to see the patient simply because he does not have a translator; he must provide one, even if the cost is not reimbursable. Another example is illustrated by the neurosurgeon who refused to accept and operate on a patient for a herniated lumbar disc because he was positive for human immunodeficiency virus. After lengthy proceedings, during which the neurosurgeon convinced the court that the patient was at added risk for infection with surgery, the action against the neurosurgeon was dismissed.

The Antikickback amendments to the Medicare laws prohibit payment for referrals of patients for Medicare services, even if the "payment" is in the form of discounts for volume, with exceptions similar to those of the Stark laws [12] . For example, a large group of neurosurgeons, because of the volume of spine surgery they perform, lease space in their offices to a distributor of spine braces to store inventory, which is then immediately available for use. This is a very common practice in ordinary business and makes sense for both the neurosurgeons and the supplier. However, if the lease price is not fair market value, if it is based upon volume of inventory used, if the practice is able to buy the individual braces at a discount and then resale them at a profit, or if any other arrangement between the office and the supplier is established, one purpose of which is to induce the neurosurgeons to use the product, then it is a prohibited transaction, even if the use of the product is medically justified. The neurosurgeons may not bill Medicare for the braces.

Of major concern to neurosurgeons is the Emergency Medical Treatment and Active Labor Act or EMTALA [8] . This law was enacted because of complaints that hospitals were transferring unstable patients from their emergency departments to other hospitals because of the inability of those patients to pay for services in the first hospital; this practice was called dumping. Congressional hearings revealed a number of cases, some of which ended in the deaths of patients including women in labor, hence the title of the law. The law requires that every patient entering an emergency department be screened for the presence of an emergency condition and then stabilized before transfer, regardless of ability to pay. This is a law directed in the first instance at hospitals, not at physicians. However, neurosurgeons are involved because they are essential in the stabilization element of the required services and are to be available on call to provide those services. This on call requirement is not part of the law. It is a requirement of medical staff privileges at the hospital. Once the physician accepts on call responsibilities, he becomes an agent of the hospital as far as the law is concerned and will be held to the standards of the law, as will the hospital. This means he must respond as needed by the hospital to fulfill its obligations under the law. If he fails to do so, he will be subject to the penalties prescribed by the law, which may be fines and loss of participation in Medicare. The law covers all patients, not just Medicare patients, as long as the hospital is open to Medicare patients. And there are no provisions in the law for physicians to be paid for their services.

These changes in the US health care system, which have restricted physician autonomy, have also adversely affected the public's respect for the medical profession for one major reason. The physician is the most visible member of the system. He is responsible for initiating costs by his orders for services. He is the one unavailable in the busy emergency department or on the weekend to approve the renewal of a prescription. Thus, when the system breaks down, he is the one the patient looks to for redress, not to the hospital or the drug company-both without human representation known to the patient. He is the one who is responsible for moving patients through the system; thus, he is the one impacted most by laws enacted because of public dissatisfaction with the system. Rules aimed at decreasing costs and increasing access to the system impact the physician's practice directly by limiting the ability of the physician to control his fees and the patients he sees. Of course, the physician is theoretically not without recourse. He can reject Medicare and managed care plans, and the patients and income related to them. Although some have gone this route, most have not because it is not feasible, especially in sections of the country where the ratio of physicians to patients is high [9] .

EMTALA is an example of the Machiavellian understanding by policy makers of the place physicians occupy in the health care delivery system. And it is understandable why its enactment has created the belief by neurosurgeons they are being required because of their skills to accept responsibilities and liabilities without fair compensation and with limited negotiating powers, requirements of citizenship unique in our society. To be impacted by EMTALA, however, the physician must voluntarily join a medical staff and promise to adhere to the bylaws and derivative rules of the medical staff. These bylaws and rules are agreed to and amended by the physicians who are members of the medical staff. Some jurisdictions have treated these bylaws as a contract between the medical staff and the hospital-a contract the individual physician enters into voluntarily.

In most hospitals, the medical staff bylaws are subservient to the hospital bylaws, with the governing body of the hospital (eg, Board of Trustees), the final arbiter of practice within the hospital. However, aggressive medical staffs, through their leadership, have influenced the way hospitals have imposed their responsibilities upon the medical staff. They have accomplished this by recognizing a fundamental fact of negotiating-parties to a contract must have comparable negotiating power. All hospitals have legal counsel, some in-house; most medical staffs do not. They rely on hospital lawyers; they should not. The hospital lawyers write the rules and regulations, which define the relationship between hospital and medical staff to decrease hospital liabilities, with no legal representation of the medical staff. This has further reduced physician autonomy and has contributed significantly, for example, to the adversarial nature of hospital peer review of physicians, which is carried out according to hospital rules written by hospital lawyers for the purpose of lessening hospital liability at the expense of physician independence [17] .

It is my belief that the changes in the health care industry seen in our society for the past one-half century that have diminished physician autonomy and reduced public respect of the medical profession took place without meaningful opposition by medicine because physicians did not want to engage in the political and economic battles that would ensue should physicians resist; Ausman [2] has chronicled this position well. Physicians should seriously study the lessons he details because there is more to come. Health care reform is clearly on the radar screen of all the presidential candidates and the public [4] . I do not know what additional demands will be made of physicians. However, some states have given us a hint. For example, Maryland has approved legislation that gives the governor broad emergency powers in the case of a pandemic similar to that which could have occurred with severe acute respiratory syndrome (SARS). Health care workers who do not respond to the governor's call for mobilization, whether public employees or physicians in private practice, could be disciplined and even lose their licenses [5] . This law has yet to be implemented or challenged. One might argue that it puts unreasonable demands on physicians in their "pursuit of happiness" and must be unlawful (ie, unconstitutional). However, the US Supreme Court has acknowledged the states have immense leverage under their police powers to protect the public health [11] .

Physicians, even with diminished autonomy and public respect, still hold a pivotal, even lynchpin, position in our health care system. Significant changes in the system cannot be made without bringing about change in the practices of physicians and their lives. Some of these changes will be based upon the assumption that because physicians have been provided and have accepted, by licensure, a unique status in our society, society can make demands of physicians it could not make on others, and because of the professionalism of the physician, these demands will be accepted. The question for the physician is how far these assumptions can be taken. The physician who works in a pandemic puts himself, and his family, at risk. Today, does licensure require the physician accept those risks for himself, and his family? More basic, will the public's representatives expect him to devote a considerable portion of his youth preparing for the profession, only to find financial reward insufficient to provide for his family a quality of life commensurate with its sacrifices, and a work environment in which suffocating bureaucratic constrictions overcome professional fulfillment?

It is my belief that in the near future, physicians will have an opportunity to address these issues as they confront proposed laws, which may advance or reverse trends catalogued here in. We cannot expect a return to the 20th century. We can teach lawmakers that a system of health care that permits the payor to intrude into the physician-patient relationship is not helpful to that relationship; it breeds physician discontent, patient cynicism, and mutual disillusion. We should also teach that those laws, which encouraged the substitution of the values of the business model of medical practice for those of the professional model, should be reexamined. It may not be possible to conduct precise cause and effect analyses regarding the erosion of physician autonomy and public respect for the profession, but it is clear dissatisfaction with the US health care system has paralleled that erosion [9] . Any reform of the system must work with that conclusion; the primacy of the physician in reform efforts should be without question. Vigilantibus et non dormientibus jura subveniunt.

Austin, TX 78705, USA E-mail address: cwattsmdjd@msn.com

Americans with Disabilities Act

Why physicians do not want change

Health care fraud

Health care in the 2008 presidential primaries

Potential penalties for health care professionals who refuse to work during a pandemic

Empowered by insurers and states, nonphysicians push practice limits

Don't like what they sell?

HHS: specialty hospitals violate Medicare rule

Medicare Anti-kickback Statute. 42 USC 1320a-7b(b)

Doctors who kill themselves

Office of Inspector General, Department of Health and Human Services. 65 Fed Reg 59434

The end of managed care

The second transformation of American medicine

Modern peer review: hazardous to your professional health

Stark: a legal prohibition of physician referrals

The falling-down professions

The managed care blues and how to cure them