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Aug 27 2015

Who is responsible for quality of care in an era of diminished provider autonomy?

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I entered the practice of medicine at a time when physicians could more or less count on being masters of their professional domains. Most either worked in solo practice, where their authority was absolute, or in group practices with the expectation to eventually earn partnership. Both settings afforded the almost unquestioned ability to make independent decisions about patient care. Of course, being in control of care also meant being willing to assume responsibility for care-associated outcomes, good and bad.

Today, decisions about patient care are increasingly subject to factors outside the treating provider’s control, creating challenges for licensees and the Board alike. This evolution in health care delivery presents this quandary: How can the NCMB effectively hold individuals accountable in situations where the licensee’s true impact on patient care cannot be easily determined? The answer is neither obvious nor simple.

We practice medicine in an environment where managed care policies dictate which studies, procedures and medications should be used. Economic and regulatory pressures have led more licensees to choose hospital or corporate employment (just over a quarter of physicians work in practices owned in part or in full by a hospital or health system, according to a survey by the American Medical Association released in July) over partnership or solo practice. With this comes increased pressure to follow corporate, system or department protocols that may conflict with provider judgment. The trend toward team-based medical practice, despite its many potential benefits, also dilutes the physician’s ability to control decisions about care. Finally, the prevalence of electronic health records and system communication breakdowns add additional layers of complexity that can lead to mistakes and poor care.

Frequently, Board review of a disciplinary case suggests some factor outside the licensee’s control played a significant role in the case. The NCMB’s mission is clear: we have a duty to protect patients. But the circumstances of these cases are not clear. Sometimes Board Members conclude that a poor outcome is truly more of a team failure or system failure, but we do not regulate teams or health systems. The Board licenses individuals and its disciplinary process is designed to hold individuals accountable. At times it seems that we are trying to fit a proverbial square peg in a round hole.

I’ll share some examples of the types of cases that regularly challenge the Board:

When following established protocols fails patients
    Case study: A licensee treats a patient who presents in the hospital emergency room with symptoms suggestive of a serious underlying medical problem, but test results do not meet thresholds established in hospital protocols for admission. Protocol recommends discharge to home and follow up as an outpatient. The patient is discharged home. The patient’s condition worsens, and they present to another emergency department the following day with similar symptoms and die within 24 hours of admission.
    Discussion points: Health care institutions have written and unwritten policies for managing patients and resources. These guidelines are in place to ensure consistent quality of care and prevent overconsumption of resources. A licensee is in the difficult position of having to follow policy while having the skill and intuition to tailor care to meet the unique needs of their patients. When licensee judgment runs counter to established policy, what responsibility does the licensee have to buck the system? The clinician members of the Board understand that it’s not reasonable or realistic to expect licensees to argue for exceptions every time their gut tells them that, this time, the protocol isn’t right and the patient does need to be admitted. The Board does expect licensees to learn from bad outcomes and work constructively with department and system administrators to make changes that improve care. At the same time, we appreciate this is only possible when department and system administrators are willing to work with the licensee to make necessary changes in policies and procedures.

    Case study: A licensee accepts a position with a medical practice that manages a large population of chronic pain patients. The practice follows a written protocol that directs opioid prescribing and other aspects of patient management. The protocol does not meet accepted and prevailing standards of care. A patient’s family members file a complaint, after the patient is admitted to the hospital for opioid poisoning.
    Discussion points: It’s difficult to come into an established practice group and question the way things are done. At the end of the day, however, licensees are held individually accountable for practicing care that meets accepted standards. If you agree to follow established protocols, you have a responsibility to ensure you will still be able to provide quality care. If you discover that you cannot, finding an employment situation that does is the best way to protect yourself and your patients. If it comes to it, the explanation of, “I was just following my practice protocol” will not prevent the Board from voting to take action, if warranted.


Complications of the healthcare delivery system
    Case study: A licensee performs emergency abdominal surgery on a patient with a burst appendix. The patient lives alone and will require outside assistance with recovery and follow up care. The licensee orders home health services for the patient during discharge planning, but home health is not in place when the patient is discharged home, and antibiotic therapy is not continued as directed by the licensee. Two days after discharge, the patient calls for an ambulance after developing a fever, shortness of breath and chest pain. The patient is diagnosed with abscess, sepsis and pneumonia and is readmitted.
    Discussion points: This is the sort of case we often refer to as a “system failure.” Who is ultimately responsible for the bad outcome? Should the licensee be held accountable for ensuring that orders have been properly executed or is his or her duty discharged simply by ordering the correct course of treatment? In these types of case, one approach the Board might use is to hold the licensee accountable (by issuing a Public or Private Letter of Concern, for example) while acknowledging the system failures that contributed to the poor outcome.

    Case study: A licensee who practices family medicine sees an established patient with a remote history of depressive illness for a routine visit. The licensee’s practice recently implemented an electronic health records system and the licensee is using a scribe to handle documentation of the visit. The licensee takes the patient history and conducts an examination and no issues are noted. Later that night, the patient presents in a hospital emergency room with an acute grief reaction and an acute overdose of Tylenol. Later, the patient tells the licensee that she is going through a painful divorce and had been feeling down for weeks prior to her check up, but did not feel comfortable bringing up the divorce and related feelings in the presence of the scribe.
    Discussion points: This is an example of one way that changes in the health care delivery system (routine use of EHR and medical scribes) have the potential to impact care in unpredictable ways. Licensees must strive to remember that patients are as affected by changes to the health care delivery system as the providers who are struggling to adapt to new processes and tools, and be sensitive to their patients’ needs.


Where do we go from here?
I’d love to say that the Board has discovered a foolproof way of analyzing complex cases that always results in determining who is accountable in a way that is fair to both licensees and to patients. However, that just isn’t the case. I can tell you that the Board is fully cognizant that the traditional model of holding licensees responsible as “captains of the ship” regardless of extenuating circumstances outside the licensee’s control is not always appropriate. We recognize that the health care delivery system has changed and that we cannot ignore how this impacts the licensee’s control over outcomes and other aspects of care. We also recognize that the NCMB’s traditional processes need to evolve to match modern circumstances. This will not happen overnight and it will not happen easily.
For now, I and my colleagues on the Board consider the facts of each case and do the very best we can to come to a resolution that holds the licensee accountable for decisions and actions that he or she can reasonably be held responsible for while noting the influence of external factors. This is an uphill battle, but one that must be aggressively pursued to ensure that the NCMB is able to effectively fulfill its mission in a way that is fair to licensees.



Protect Yourself
Licensees can avoid putting themselves in professional situations that may expose them to sanction by the Board by going into any new employment situation with their eyes open. Points to consider when entering a new work environment:
    •Understand the organizational structure/ownership – to
    treat patients lawfully in NC, practices must be owned at
    least in part by someone with an active NCMB license
    • Be familiar with the written policies for healthcare delivery
    • Be familiar with the unwritten policies for care
    • Anticipate problems before you commit. Ask yourself, will I
    be working in an environment that meets the standard of
    care and reflects your personal standards for care
    • Recognize that your obligation to provide care that meets
    accepted standards may require you to walk away from a
    situation that does not allow this


Source: Dr. Walker-McGill

 Comments on this article:

Dr. Walker-Gill,
Thank you for sharing such a timely editorial.  Our profession(s) struggle with the “dynamic tension” that exists between an individuals autonomy and the evolving need to be a member of the “team”.  Obviously, as we care for patients, there is a need for an appropriate balance of autonomy with that of the systems needs.  I believe the Institute of Medicines “To Err Is Human” in 1999 helped to start the dialogue around this issue by focusing on the quality of care the collective “we” (Doctors, hospitals etc) provide to our patients.  I’m sure everyone wishes to gain more insight along these lines.  Thank you and the NCMB for raising this awareness and I wish for you the wisdom of Solomon…

take care,

Lawrence R. Nycum, MD
Sr Vice-President
Medical Staff Services
Novant Health

By Lawrence R Nycum, MD on Aug 28, 2015 at 12:15pm

Great article, with thought provoking examples!  It’s good to know that you’re doing your best to adapt to current situations and understand the issues.  Keep up the great work!

By Joseph FitzHarris, M.D. on Aug 28, 2015 at 12:30pm

The lack of oversight and enforcement of the corporate medicine laws of NC contribute to these situations. The ability of insurance companies, venture capital groups and other non medical organizations to own and manage practices, all done legally by clever legal documents, complicate the ability of medical providers to ultimately be responsible for the care and outcomes of their patients. The medical Board must address the issue of whether we, in NC, want medical providers to own Medical practices and be responsible for the care rendered or if we are willing to accept the management of medicine by non medical entities.

By dan phillips md on Aug 28, 2015 at 12:37pm

I am quite pleased that the Board is trying to adjust to the complexities of modern-day medicine, but I would add one note: those complexities include the physician’s own personal and social situation as much as the patient’s. It may well be true that people should just “walk away from” a bad practice. Implementing this suggestion, when you have a family, a mortgage, a hundred thousand dollar college and med school loan to pay off, and no comparable jobs on the horizon - especially knowing that if you “walk away” you will probably get a poor reference from that practice - that’s not so easy.

By Dr. Barry M. Lamont on Aug 28, 2015 at 1:41pm

This article and these multiple case studies reflect the ever growing infiltration and invasion of government, state medical boards included, into our professional as well as personal lives as physicians.  The unrealistic expectations of the public and the government regulators to provide “perfect” care to imperfect patients in an imperfect family , town or community, and of course ensure “perfect” outcomes.  The stress placed on the average physician is immeasurable regarding these issues and the responsibility for these unforeseen outcomes, is ultimately and unfairly placed on their shoulders .  And the government and regulator remain the ten thousand pound gorilla in the room. The regulators, whose sole purpose is to protect the public safety, become entangled in the typical witch hunt for “bad egg” doctors to justify a paycheck paid by the taxpayer. Most of these “criminals” should have received a simple letter without all the legalese threats to their livelihood.
Less is expected of the clergy and certainly the politician!

By steve case md on Aug 28, 2015 at 6:33pm

Well stated and agree with the comments of others.  I am concerned that physicians are being forced to sign documentation that they have not created. Major hospital systems in the TRIAD area are using EPIC software and regularly there are “verbal orders” placed under the physician’s name, by others when that physician has NOT placed such an order. They are often orders prescribed by internal hospital policies and should be labeled as such, as they were not ordered by the physician in question. If the physician does not sign them, then the physician’s privileges are threatened.  I am encountering similar situations with regard to medical reports and labs that are placed in my inbox when I did not order them and they reflect information outside my expertise and for which I have not been trained. Again, if I do not sign of on these reports, I am penalized with regard to hospital privileges. Physicians are being coerced into signing things they have not ordered and having data placed in their inbox that they have not ordered and without their knowledge. Such practices appear to be intended to shift responsibly to that signing physician and off of the facility/health system that is carrying out these practices. I would appreciate some guidance on the legality of such “verbal orders” being placed in the chart when the physician in question did not make the verbal order in question.

By Greer L. Geiger, M.D. on Aug 29, 2015 at 2:31am

A related issue we have been dealing with for several years now in our practice is preauthorization of outpatient scans by insurance companies. Many times, these are initially denied, requiring a peer-to-peer discussion before they are then authorized 100% of the time. I have had several cases where the scan ended up showing a major problem and thought, “If that scan hadn’t been approved, it would have been malpractice.” Who would have been blamed? Then the insurance company comes back with their yearly cost efficiency analysis and dings you for ordering the scan. It’s all very confusing and demoralizing.

By Jeevan Ramakrishnan on Aug 29, 2015 at 11:17am

The salient point from several of your examples is the erosion of quality brought about by EMR’s adding complexity to clinical practice. For instance, in year’s past, arranging follow-up involved calling a receptionist at the practice, giving them the patient’s key identifiers, and instructing them to schedule that patient within a defined time frame. The process took 2 minutes. Last week I received an email detailing the process for ordering follow-up through our health system EMR. The “simplified process” described in the email, printed, amounted to 7 pages, with screen shots of the EMR. The menu structure of our EMR is opaque, requiring crib notes on my phone to remember how to navigate them to achieve tasks that previously were simple, intuitive, and efficiently handled by clerks. EMR’s have evolved from legible, searchable clinical records available online to all-encompassing billing and QI tools generating productivity metrics valuable to the business side of a health system, but useless, and even obstructive, from a clinical perspective. I would urge the Board to consider its regulatory role in strategies to give some relief to clinicians who are overburdened by needlessly complex procedures for previously straightforward tasks.

By Ross Goldbaum PA-C on Aug 30, 2015 at 9:31am

Over the past few years and partially as a response to diminished healthcare financing hospital-based physicians are being asked to do “more with less”. Promotion of efficiency is a noble goal and much can be done to accomplish this. However, I have witnessed several episodes of what appear to be excess influence on patient care by physicians by administrative personnel that are clearly at odds with what an individual physician believes is in the best interest of their patient. As as result I see a systematic erosion of ethical standards that compel physicians to consider their patient’s welfare as primary!

By Thomas M Penders MD on Aug 30, 2015 at 5:48pm

There comes a point where EMR integrated policies and/or institutional policies become entities in of themselves that are, in fact, practicing bad medicine without a medical licence.  Does not the medical board go after people that practice without a licence?  Should not the owners of legal entities that now practice medicine be held accountable for their behavior?  If they hide behind one doctor who signs off on all this stuff, should he not be held accountable? 
The movie “the terminator” has dire predictions when entities are no longer accountable to the people they supposedly serve.

By Mark E Meijer, MD on Aug 31, 2015 at 1:45pm

Thank God that I have been able to retire before health care decisions were made by corporate suits (and skirts) who never had to spend a night on call or talk to a family after the death of a loved one or take any personal responsibility for the medical consequences of their policies. These policies almost always prioritize the bottom line over patient interests. As far as just walking away from a bad situation, consider that non-competes are almost always involved. Leaving a bad practice or hospital system may involve selling your home and either moving your family 100 miles or more or actually leaving them and just commuting on weekends for a year or two as some of my colleagues have had to do. When institutional failures are primarily responsible for a bad outcome the physician should not be reprimanded. A letter noting that a bad outcome occurred but that the physician involved was not primarily responsible would be a better option. The letter should detail the failures of the other parties as clearly as they were in the above examples. My understanding was the board has a responsibility to physicians as well as patients.

By Robert K Stack MD on Sep 02, 2015 at 2:30pm

It looks to me that medicine, as we knew it, does not exist any more. In its place now there is a health industry. All the industries I can think of have one main goal: profit.
I urge the Board to go public and declare its licensees’ concerns regarding these changes in healthcare, underlying potential adverse effects these changes can have to quality of care.
The Board has duty to protect public. It should have a say in regulating different corporate entities whose policies can and do, in effect, obstruct the ability of licensees to provide optimal patient care.
In my humble opinion, every aspect of healthcare should be regulated, at least in part, by health professionals whose primary concern is to help and cure.

By Dag Pavic on Sep 10, 2015 at 5:01pm

It is commendable that the medical board tries to view such incidences from more than one point of view, but I do not think that they should rely on outside entities to dictate decisions on evaluation of caregivers. I refer specifically to CPEP which is a poor substitute for evaluating a caregivers performance and could in fact be quite detrimental to the caregiver and their ability to practice. It is the responsibility of the board to make sure that what ever occurs with a caregiver that it is viewed in context with the caregivers position and practice type.

By Clancy Laizure on Sep 11, 2015 at 10:07am

What we have now is a role-reversal in which the “payers” practice medicine and the physicians assume risk. The payers should pay the malpractice premiums for doctors in proportion to the percentage of lives covered in the State of North Carolina. This would include the State paying their percentage for medicaid lives covered. By having some skin in the “medical malpractice” game, the economic cost of providing poor care-though low cost-would be balanced by the threat of catastrophic legal judgements resulting in an unsustainable amount of awards in the tort system. The result is a workman’s comp system similar to most other developed countries. In the short term this will enrich the trial bar. In the longterm this will eliminate the feeding troughs for the trial bar.

By John Lewis on Sep 20, 2015 at 5:35pm
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