These are clearly the times that try men’s souls, or at least their patience. As health care reform is being contemplated throughout the country, there are more and more chances that we’ll get it wrong as opposed to getting it right. However, disagreements aside, emergency physicians need to come together and decide what goals we will put forward. We need to stop wasting time asking whose name is on the bill and start asking if the policies will meet the long-term goals of our specialty. There are many policy areas where emergency physicians need to get involved, from services rendered to workforce issue, but let’s begin with the medical-legal structure since we are most likely to get some unanimity in this area. I’ll give some ideas that I think are straightforward and could be a win-win situation for the government.
Ever since the passage of EMTALA, emergency physicians have been de facto employees of the federal government. We don’t get to decide whom we see. We have no way of deciding who walks in the door or whether we’re ever going to see a dime for the services rendered. We also have no way of knowing if those patients, who may not even pay the bill, are going to sue us. I think that there are multiple things that can be done right now with the Obama administration to address this issue.
The first thing is to agree that rendering care to those in need is not the problem. One of my greatest badges of honor is the ability to say that I have never denied anyone health care based on their ability to pay. We are the physicians who carry the staff of Asclepius the highest. We are the ones who, any moment of the day and night, see anyone and give out health care. This is part of who we are and should not change. But give me a break! This ought to be recognized and rewarded in at least two ways. First, emergency physicians should be able to calculate the value of the free care they were mandated to give out in a given year and then deduct some portion of that amount from their income taxes. If, in a year, I give out $160,000 of free care – which I’m perfectly happy to do – the government ought to be perfectly happy to let me at least write the loss off on my taxes. What’s wrong with this idea? I understand that this would reduce the income coming to the government, but if they actually had to pay for that same care, it would cost even more. The federal government needs to recognize that emergency physicians are acting as conscripted government workers and should receive some sort of compensation. Don’t give me 100%. No insurance company gives me 100% (and ever since California cancelled balanced billing none of us will ever again expect to see 100% of charges) but don’t let me drown in red ink! The logic is straightforward. As tax-paying citizens, we do not expect Boeing to make planes for the U.S. government and not get paid for it. Why would we expect physicians to give out health care and not get paid?
Second, there is no reason for EPs to bear the liability of every patient who walks into the emergency department. We need to have some reasonable liability relief. I believe that since we have essentially been named the de facto employees of the federal government, we should be covered by the federal government like any other federal employee. If the mailman runs over your mailbox, the government handles that liability. The concept is called “respondeat superior,” or “let the master answer.” Well since our master, the federal government, has decided what we will do and what we will get, let him also be involved in the malpractice issue. For physicians of any specialty who are mandated by law to see ED patients, liability should be handled through a no-fault system paid for by the federal government. In some states, this might mean as much as $40,000 savings in insurance costs. Having a federal system that would, without fear or favor, use a no-fault system to evaluate harm and properly compensate patients who are truly damaged, would work out for the benefit of physicians and patients alike.
And finally, it has been estimated that less than 15% of the funds that go into malpractice insurance policies actually wind up in the pockets of patients. Most reasonable physicians could look at a situation and decide whether a patient was truly harmed by the actions of other physicians. So be it. But do not let 40% of the money go directly into the pockets of attorneys. Both plaintiff and defense attorneys strip us down for money. Do not let people who are on the fringes of health care continuously drain the pockets of emergency physicians. It just doesn’t make sense. A simple act of assuming liability and creating boards which look at the extent of injuries would go a long way towards lowering health care costs, making physicians more comfortable with their clinical decision-making and stopping the mindless ordering of tests which are part of the “cover-your-ass” medicine which supposedly protects us from lawsuits. These few simple actions could be just the teaspoon of sugar needed to help the bitter pill of health care reform go down smoothly.
Greg Henry, MD, is the founder and CEO of Medical Practice Risk Assessment, Inc. Dr. Henry is a past president of ACEP and directed an ED for 21 years.