January-February 2015 by Colorado Medical Society

January/February 2015

Volume 112, Number 1

CMS and COPIC celebrate 30-year partnership advocating for physicians and patients Colorado Medicine for January/February 2015

Award-winning publication of the Colorado Medical Society

Colorado Medicine for January/February 2015

contents Jan./Feb. 2015, Volume 112, Number 1

Features. . .

Cover story The Colorado Medical

Society and COPIC partnership is a 30-year Colorado success story and Colorado Medicine celebrates this collaboration with an in-depth look at the birth of COPIC and some of the more meaningful accomplishments CMS and COPIC have had on behalf of Colorado physicians over the years and today. Read more starting on page 8.

Looking forward–COPIC Chairman and CEO Ted Clarke, MD, launches “Looking Forward,” a new Colorado Medicine series that explores how the COPIC/CMS relationship supports and benefits medical professionals and patients.

Legislative preview–CMS General Counsel Susan Koontz, JD, talks with leaders on both sides of the aisle in the Colorado General Assembly about what physicians can expect in the 70th session.

State Innovation Model–The state of Colorado has been awarded a $65 million federal grant to improve integration of physical and behavioral health services.

Health Is Primary–Eight national family medicine organizations have launched a new campaign to demonstrate the value of primary care in achieving the Triple Aim of better health, better care and lower costs.

PQRS reality check–Several physician organizations are asking the federal government to synchronize and simplify requirements before physicians succumb to a tsunami of penalties that come into play within the next five years.

Colorado Supreme Court–Following two significant victories this summer, the Colorado Supreme Court has again ruled in favor of stability and consistency in Colorado’s tort law framework.

Legal victory in Minnesota–A ruling by the Minnesota Supreme Court affirms the legal standing of medical staffs and bylaws as a contract between staff and hospital under Minnesota law.

Final Word–Jason Kelly, MD, talks from personal experience of the powerful and positive role that CMS and COPIC's 30year history of collaboration has on the medical profession.

Inside CMS 5 7 31 33 34 36 37

President's Letter Executive Office Update Physician Wellness Spring Conference Reflections COPIC Comment Corporate Supporters

Departments 38 41

Medical News Classified Advertising

Editor’s note: Articles appearing in Colorado Medicine without a byline represent the collaborative work of CMS leadership and staff.

Colorado Medicine for January/February 2015

C OLOR A D O M EDICA L S O CI ET Y 7351 Lowry Boulevard, Suite 110 • Denver, Colorado 80230-6902 (720) 859-1001 • (800) 654-5653 • fax (720) 859-7509 • www.cms.org

OFFICERS, BOARD MEMBERS, AMA DELEGATES, and CONNECTION

2014/2015 Officers Tamaan Osbourne-Roberts, MD President Michael Volz, MD President-elect Kay D. Lozano, MD Treasurer M. Robert Yakely, MD Speaker of the House Brigitta J. Robinson, MD Vice-speaker of the House Alfred D. Gilchrist Chief Executive Officer John L. Bender, MD, FAAFP Immediate Past President

Board of Directors JT Boyd, MD Charles Breaux Jr., MD Laird Cagan, MD Leslie Capin, MD Cory Carroll, MD Joel Dickerman, DO Naomi Fieman, MD Greg Fliney, MS Curtis Hagedorn, MD Jan Gillespie, MD Mark Johnson, MD Richard Lamb, MD Tamara Lhungay, MS Lucy Loomis, MD Gary Mohr, MD Brad Moss, MD Christine Nevin-Woods, DO Edward Norman, MD Lynn Parry, MD Daniel Perlman, MD Scott Replogle, MD Floyd Russak, MD Joshua Tartakoff, MS Charlie Tharp, MD

Jennifer Wiler, MD Harold “Hap” Young, MD Lena Young, MS AMA Delegates A. “Lee” Morgan, MD M. Ray Painter Jr., MD Lynn Parry, MD Brigitta J. Robinson, MD AMA Alternate Delegates David Downs, MD Jan Kief, MD Kay Lozano, MD Tamaan Osbourne-Roberts, MD AMA Past President Jeremy Lazarus, MD CMS Historian W. Gerald Rainer, MD CMS Connection Mary Rice, President

COLORADO MEDICAL SOCIETY STAFF Executive Office

Alfred Gilchrist, Chief Executive Officer, Alfred_Gilchrist@cms.org Dean Holzkamp, Chief Operating Officer, Dean_Holzkamp@cms.org Dianna Mellott-Yost, Director, Professional Services, Dianna_Mellott-Yost@cms.org Tom Wilson, Manager, Accounting, Tom_Wilson@cms.org

Division of Communications and Member Benefits

Division of Health Care Financing

Marilyn Rissmiller, Senior Director, Marilyn_Rissmiller@cms.org

Division of Information Technology/Membership Tim Roberts, Senior Director, Tim_Roberts@cms.org Tim Yanetta, Coordinator, Tim_Yanetta@cms.org

Kate Alfano, Communications, Kate_Alfano@cms.org Mike Campo, Director, Business Development & Member Benefits, Mike_Campo@cms.org

Division of Government Relations

Division of Health Care Policy

Colorado Medical Society Foundation Colorado Medical Society Education Foundation

Chet Seward, Senior Director, Chet_Seward@cms.org JoAnne Wojak, Director, Continuing Medical Education, JoAnne_Wojak@cms.org

Susan Koontz, JD, General Counsel, Senior Director, Susan_Koontz@cms.org Adrienne Abatemarco, Executive Legal Assistant, adrienne_abatemarco@cms.org

Mike Campo, Staff Support, Mike_Campo@cms.org

COLORADO MEDICINE (ISSN-0199-7343) is published bimonthly as the official journal of the Colorado Medical Society, 7351 Lowry Boulevard, Suite 110, Denver, CO 80230-6902. Telephone (720) 859-1001 Outside Denver area, call 1-800-654-5653. Periodicals postage paid at Denver, Colorado, and at additional mailing offices. POSTMASTER, send address changes to COLORADO MEDICINE, P. O. Box 17550, Denver, CO 80217-0550. Address all correspondence relating to subscriptions, advertising or address changes, manuscripts, organizational and other news items regarding the editorial content to the editorial and business office. Subscriptions are available for $36 per year, paid in advance. COLORADO MEDICINE magazine is the official journal of the Colorado Medical Society, and as such is also authorized to carry general advertising. COLORADO MEDICINE is copyrighted 2006 by the Colorado Medical Society. All material subject to this copyright appearing in COLORADO MEDICINE may be photocopied for the non-commercial purpose of education and scientific advancement. Publication of any advertisement in COLORADO MEDICINE does not imply an endorsement or sponsorship by the Colorado Medical Society of the product or service advertised. Published articles represent the opinions of the authors and do not necessarily reflect the official policy of the Colorado Medical Society unless clearly specified.

Alfred Gilchrist, Executive Editor; Dean Holzkamp, Managing Editor; Chet Seward,Medicine Assistant Editor. Colorado for Printed by Spectro Printing, Denver, Colorado

January/February 2015

Inside CMS

president’s letter Tamaan Osbourne-Roberts, MD President, Colorado Medical Society

CMS and COPIC’s success borne of Colorado's “pioneer spirit” Most folks who have spent even a small amount of time with me know that I am exceptionally – make that remarkably, ridiculously, unapologetically – proud of my identity as a Westerner in general, and a Coloradan in particular. My wife, Camille, and I were married in Estes Park; our engagement photos feature rutting elk, and our wedding photos mountain vistas. Our kids have spent plenty of time at Elitch’s, been to the Brown Palace for tea, and have even made it to Casa Bonita for the obligatory sopapillas. My social media pages are filled with pictures of family time in Vail and Aspen, fourteener summits, and train rides through rocky canyons. And I’m fairly certain that Camille is afraid to have any more out-of-town guests to our home, as I always seem to find an excuse to take them out for a hearty bison steak dinner, complete with Rocky Mountain oysters and gunpowder-flavored whiskey. But of all the things that make me proud to be a Coloradan (and there are a lot of them), the most remarkable, in my estimation, is what I’ve taken to calling the “pioneer spirit” that we all share: a unique mixture of grit, persistence, resourcefulness and fearlessness born out of life in our version of big sky country. Because no matter how big you might be, you’ll never be bigger than a long winter in the mountains or a long summer up in the mesas, and if you’re gonna make it through either, you best get to using your wits. This approach plays out in our “purple state” politics, where Republicans, Democrats and our largest group of registered voters – independents – continuously defy the odds and, year after year, vote in public servants who find ways

to compromise, work together and get things done. It plays out in our booming economy, amongst the first to recover from the recent recession, where we sit at the forefront of multiple industries, and punch far above our weight in bringing jobs and opportunities to our state. Sometimes it plays out in ways that lead to substantial controversy, like our matchless brewing industry and our new “green” economy. And of course, I wouldn’t be talking about all of this if I didn’t see it playing out in health care in Colorado. As CMS president and a longstanding member of our AMA delegation, it has been my privilege to travel widely and to meet with medical leaders from just about every state in the union. As I’ve spent more and more time with them talking about the medical policy issues in their backyards and taking a look over the fence to see what’s going on in our own corral, it has become ever clearer to me that Colorado is light years ahead in terms of health care reform, and is still accomplishing things ahead of schedule. Now, I don’t say this to be boastful. (Okay, maybe that’s not entirely true, but I warned y’all, I LOVE it here). I say it to illustrate a point. Wayne Gretzky once said he was successful because he didn’t look to where the puck was at the moment, but looked instead to where the puck was going. To put it a bit more locally, you don’t generally climb a peak by staring at your boots; you gotta look at the summit.

years, and able to successfully transform itself from a liability insurance company into a nationally renowned patient safety organization, an organization that looks after the health of physicians and

From COPIC’s innovative start in crisis, to a future that looks beyond liability, it has continually, repeatedly kept its eyes on the summit, and never stopped climbing. Because that’s how we do things here. patients alike, it represents the best of what we do here in Colorado. From its innovative start in crisis to a future that looks beyond liability, it has continually, repeatedly kept its eyes on the summit, and never stopped climbing. Because that’s how we do things here. As I’m fond of saying, Colorado’s physicians face a lot of challenges in the current health care environment. But as Coloradans we have what it takes to get things done. It’s our legacy. And I don’t anticipate we’ll be abandoning our legacy any time soon. Thanks for listening, and I’ll catch you at the top. n

If you need an example, just open this month’s magazine to the stories on COPIC. Founded by the physicians of Colorado, supported by CMS throughout the

Colorado Medicine for January/February 2015

Inside CMS

executive office update Alfred Gilchrist, CEO Colorado Medical Society

The harmonic convergence of collective impact: Doubling down on the Triple Aim The Colorado Health Foundation has announced a decade-long commitment of their considerable resources to support a community-level collaboration to accelerate the growth and effectiveness of the many ongoing â&#x20AC;&#x153;Triple Aimâ&#x20AC;? efforts across Colorado to improve the care experience, population health outcomes and lower per capita costs. Linking and syncing all the moving parts in a system-wide approach requires a novel strategy given the fragmented nature of care delivery and its many unintended care and cost byproducts. The Foundation convened multiple stakeholders to define the work of collaboration, under the mantle of BC3, which emphasizes their goal: Better Care, Better Cost, Better Colorado. The BC3 plan adapts from a framework being successfully deployed in other settings where scale and complexity work against reform efforts. It is known as collective impact, which by definition means overcoming the splintered nature of the isolated efforts by non-profits and other organizations tackling triple aim goals.

to bend the cost curve and improve quality is immense. The building blocks are already in place. The collective impact approach starts with momentum and leadership already underway in Colorado from both the public and private health care sectors. These leaders have incubated and launched numerous social experiments in care integration, payment reform and patient safety that have reached or extended well beyond proof of concept. We have an all-payer claims database, a high-functioning health insurance exchange, operational health information exchanges and a regionalized approach to Medicaid care management, all of which are improving health outcomes and saving tax dollars. We have reelected a governor whose team has championed a thoughtful and comprehensive approach to population health that is in near perfect harmony with our long-sought goals, and the pioneering work of the 208 Blue Ribbon Commission. Its intellectual progeny now includes the recently established

Collective impact starts by convening the doers and thinkers under a common triple aim agenda to build shared goals and measurement systems, along with mutually reinforcing activities and supporting communication initiatives. A backbone support organization will work with key influencers (including CMS), and other brand names in care innovation, to guide all of the downstream actions and help to grow and spread the work of high-performing innovators. The potential to produce a wide range of policy options and market innovations, Colorado Medicine for January/February 2015

Commission on Affordable Health Care. The collective impact of matching and stacking these blocks in a cohesive collaboration requires the kind of leadership and funding support that the Colo-

Linking and syncing all the moving parts in a system-wide approach requires a novel strategy given the fragmented nature of care delivery and its many unintended care and cost byproducts. rado Health Foundation has brought to the table. While other states are locked in partisan and interest group conflicts that produce zero-sum policy outcomes, Colorado just stepped up its positivesum game dynamics by several orders of magnitude. n

Join Now!

Colorado Medical Political Action Committee Call 720-858-6327 or 800-654-5653, ext. 6327 or e-mail susan_koontz@cms.org 7

CMS and COPIC celebrate 30-year partnership advocating for physicians and patients 8

Alfred Gilchrist, CEO Colorado Medicine forColorado January/February 2015 Medical Society

Cover Story A Colorado success story Colorado Medicine celebrates 30-year partnership between CMS and COPIC

April 24, 1980, the CMS House of Delegates gave the CMS Board of Directors a mandate to develop a better malpractice insurance product for Colorado.

Born of a crisis, incubated by the Colorado Medical Society (CMS) and recognized today as a national leader in patient safety and risk management, COPIC is one of Colorado’s proudest health care achievements. The physician-governed organization was created to address the upward spiral on the cost of medical liability insurance that was adversely affecting access to care.

“The founding five doctors who created COPIC were all CMS presidents, former presidents or presidents-elect,” recalled George Dikeou, JD, former COPIC general counsel. “They came together and decided that insurance in Colorado ought to be provided by a physician-directed company that was more focused on protecting the practice of medicine and not so much interested in making a lot of money.”

Not only did CMS found COPIC, but for the last three decades, the two separate organizations have also united on legislation, education and advocacy. At the same time, COPIC’s connection to CMS has helped the company craft patient safety programs that address onthe-ground realities for physicians. “Our joint success is a recognition that patient safety, physician well-being and a stable liability climate are not at odds, but are part and parcel of a functioning health care system,” said CMS President Tamaan Osbourne-Roberts, MD. “All of these elements thrive when any one of them thrives.” The early years We must travel back a half-century to appreciate COPIC’s remarkable birth. In the 1960s, few physicians ever faced a malpractice suit. Internists paid just $100 a year for insurance. By the 1970s, medical malpractice claims in other states began to skyrocket. Premiums were climbing, and yet the number of national insurance companies doing business in Colorado had dropped to just a few. As early as 1976, CMS was called upon to examine how to protect Colorado physicians from the liability crisis. By 1978, out-of-state insurance companies had a near-monopoly in Colorado. In an effort to tackle rapidly rising premiums, CMS formally requested that these companies cut expenses and return excess profits to physicians. The companies were not responsive. So on

In 1981, the CMS Professional Liability Trust opened its doors for business. Funded by a $50,000 loan from CMS and advance payments from future members, the Trust spent from 1980 to 1984 building the infrastructure to become a formal insurer. The Trust’s founders quickly realized that its success ultimately came down to the ability to manage risks inherent in the practice of medicine. “Evidence-based, physician-to-physician prospective risk management was a real departure from the norm,” said former surgeon Bob Brittain, MD, COPIC’s first risk manager. “Insurance companies were more focused on containing losses or increasing premiums.” COPIC established a risk management committee to review former malpractice claims. The committee learned that these cases hinged on poor communication, lack of consent and late documentation of notes. In 1983, Brittain began sharing risk management tips to physicians via Copiscope, COPIC’s newsletter, which is still a widely read publication to this day. The Trust applied for a certificate of insurance, and on Sept. 19, 1984, COPIC Insurance Company was born. On to tort reform The creation of a physician-led insurance company was not enough to stop premiums from climbing. An increasing number of staggering jury awards forced

Colorado Medicine for January/February 2015

premiums to more than double between 1984 and 1987. A 1988 study by Ned Calonge, MD, showed that if left unchecked, the liability climate would force two-thirds of Colorado physicians who delivered babies to stop providing this service, potentially leaving 42 Colorado counties without coverage. Colorado legislators agreed that the need for tort reform was obvious. The Health Care Availability Act (HCAA) took effect on July 1, 1988,

“Our joint success is a recognition that patient safety, physician wellbeing and a stable liability climate are not at odds, but are part and parcel of a functioning health care system. All of these elements thrive when any one of them thrives.” – CMS President Tamaan OsbourneRoberts, MD establishing a $250,000 cap on noneconomic damages and a $1 million soft cap on economic damages. The soft cap could be exceeded at a judge’s discretion. As a result, the average paid indemnity claim dropped from $66,000 in 1988 to $29,000 in 1989. Medical malpractice insurance rates for about half of Colorado’s physicians dropped an average of 10 percent in 1989 and access to care was stabilized and enhanced. Just as importantly, tort reform allowed COPIC to achieve a key aspect of its mission: to provide rate stability so as to be able to offer affordable coverage for Colorado physicians.

Cover story (cont.) Maintaining a stable liability environment Since passage of the HCAA in 1988, CMS and COPIC have worked tirelessly in two distinct areas: liability and sharing best practices to improve health care. CMS and COPIC worked with lawmakers and in the courts to preserve the stable medical liability environment, while educational and innovative programs enabled COPIC to broaden its ability to help physicians, hospitals, acute care facilities, and medical practices implement patient safety and risk management programs.

the HCAA. Plaintiff attorneys appealed the case to the state high court, arguing that the law violated equal protection and due process provisions of the U.S. Constitution. This moment was pivotal for the HCAA, putting it to the highest test of the land. Fortunately, the high court rejected these arguments when determining that the non-economic damages cap neither violates the right to equal protection nor the right to due process. Since then, challenges to the HCAA mainly concerned attempts to raise the cap on non-economic damages.

As a result of this work, HCAA has remained essentially unchanged for 30 years; however, CMS and COPIC faced – and fended off – several major challenges along the way. The first occurred when the HCAA’s constitutionality was tested before the Colorado Supreme Court in 1990.

Two Colorado Supreme Court decisions in 2001 and 2002 introduced uncertainty into award limits. These decisions forced COPIC to significantly raise premiums for a short period to cover potential future losses until the HCAA could again be preserved.

In 1991, a trial judge reduced a medical malpractice jury award of $1.6 million to $1 million, as was appropriate under

In one case, the high court held damages related to disfigurement were not subject to the cap. Because almost any

medical liability claim could arguably create a disfigurement, this decision – known as the Dupont decision – undermined the HCAA. In the Russell decision, the Colorado Supreme Court held that a professional corporation, such as a medical practice, could be vicariously liable for the negligent acts of an employed physician. COPIC could not directly challenge these decisions in court so the organization’s leaders set about to educate lawmakers as to the negative impact on health care. First, the CMS-COPIC legislative team assembled a broad coalition of partners such as the Association of Commerce and Industry, the National Federation of Independent Businesses and others. Then, the coalition persuaded Colorado lawmakers to propose legislation stating explicitly that damages for disfigurement in medical malpractice actions are considered non-economic damages and subject to the cap. HB 1007 emerged from committee with the recommendation that the cap be raised to $300,000, including disfigurement. The bill was signed into law in 2003. Separately and concurrently, CMS, COPIC and their tort reform partners helped craft legislation clarifying that health care business entities were not liable for the negligent acts of physicians themselves. HB 1012 was signed into law that same year. Just four years later, CMS and COPIC successfully advocated to exempt the HCAA from an attempt to authorize increases to the amount paid in a wrongful death settlement. “Suddenly, if there’s no limit to what a wrongful death settlement is worth, it becomes impossible to price our insurance product and determine what it’s going to cost physicians,” explained COPIC Chairman and CEO Ted Clarke, MD. “It’s very important to have a set amount.” The HCAA came under attack again in 2008 when two Colorado legislators

Colorado Medicine for January/February 2015

Cover story (cont.) championed Senate Bill 164. This legislation intended to raise the caps for non-economic damages in medical malpractice cases by inflation-adjusting the cap retroactively back to 1988, thereby raising the cap to $510,000. SB 164 also intended to allow awards to be doubled in extreme circumstances if a judge determined it was justified.

House Judiciary Committee voted to “postpone indefinitely” SB 164.

“As an unintended consequence, physicians would have been driven into buying much higher levels of medical liability coverage, immediately leading to an 18 percent increase in premiums,” said Clarke. “It was a major fight because the trial attorneys had the support of the Senate president and the governor.”

Just last year, the high court issued a ruling favorable to physicians that said it would allow the introduction of hearsay evidence to support alternative causes to negligence for plaintiff’s injuries. In other words, the testimony of friends and family can be used to offer an alternate explanation as to why a patient’s history or outcomes did not go as planned and to support a physician’s defense.

CMS, COPIC and every quarter of the health care community responded to SB 164 with reasoned, vocal, sustained and respectful opposition. More than 350 health care and business organizations, as well as seven newspapers, lent their voices against SB 164. Dozens of physicians called, wrote, emailed and visited their legislators. On April 30, 2008, the

In recent years, COPIC and CMS have filed a number of “friend of the court” briefs at the Colorado Supreme Court in cases that support physicians’ ability to defend themselves in medical malpractice cases.

CMS and COPIC have also fought to maintain the sanctity and confidentiality of professional review for physicians. The high court recently ruled that professional review records couldn’t be subpoenaed and discoverable or admitted in a civil suit, protecting an important

process that is critical to improving quality of care and enhancing patient safety. Improving safety in the practice of medicine COPIC and CMS have also worked in a coordinated fashion to improve the safety of physician practices. Following the pioneering work of risk manager Brittain, COPIC has invested heavily in physician education, communicationand-resolution programs, and initiatives to improve patient safety. “What’s particularly unique about COPIC is really that emphasis on patient safety and safe care,” said OsbourneRoberts. “If you look at the various activities COPIC is involved in, from physician education to its teaching of medical residents, to its nationally recognized programs, you see from top to bottom how patient-safety-oriented it is.” COPIC’s general counsel Mark Fogg, JD, agreed. “To a large extent, COPIC is a

Colorado Medicine for January/February 2015

Cover Story vehicle for patient safety,” he said. “Our strongest defense for our doctors is preventing an adverse event from occurring in the first place, so we spend a lot of time on patient safety, risk management and regulatory reform.” COPIC’s risk management team has continually reached out to physicians to instill principles of risk management. To support insureds, practice reviews became formally organized around specific “Level One Guidelines” in the 1990s to improve documentation, reduce system failure and prevent avoidable adverse outcomes. These “Practice Quality Reviews” are conducted every two years for any office-based practice. COPIC now performs more than 2,200 Practice Quality Reviews each year. In the early 1990s, COPIC also began offering formal education programs to physicians. Course offerings have grown over the years to address medical management, technical issues, patient communication and documentation.

patients and their families. In return, patients receive timely reimbursement for their out-of-pocket medical expenses and extended recovery time. They retain the right to sue at all times. As of June 2014, more than 5,200 COPIC-insured physicians were enrolled in the 3Rs Program, and approximately 2,100 Colorado patients have received reimbursement. “We, along with the Colorado Medical Society, think that the current tort environment is ineffective and inefficient,” said Clarke. “Since COPIC’s mission is to improve medicine in the communities we serve, we are always looking for ways to make the practice of medicine safer. The 3Rs Program is an example of that.” In recent years, CMS has emphasized the importance of ensuring physicians themselves are healthy. Studies show that just half of physicians feel capable of living a healthy lifestyle in terms of diet and exercise. Many studies correlate

physician wellness with increased patient safety, so a finding that physicians are neglecting themselves is a concern for patients and for COPIC. In partnership with the Behavioral Health and Wellness Program at the University of Colorado Anschutz Medical Campus, in 2014 CMS launched the “DIMENSIONS: Work and Well-being Toolkit for Physicians.” The toolkit both measures readiness for change and offers a variety of simple, protective practices that physicians can employ to combat burnout and flourish professionally and personally. This is just another example of how by standing shoulder-to-shoulder, COPIC and CMS help Colorado physicians provide quality care to Colorado residents. “The relationship between COPIC and CMS is a win-win,” said Clarke. “We are both in synch in making sure errors don’t happen and in providing better medicine in the communities we serve.” n

In 2013, COPIC conducted 373 inperson seminars with an attendance of 9,376 medical professionals, and more than 5,500 participants completed online courses available through its website. Some of the most popular courses deal with topics such as opioids and pain, principles of patient safety, closed claims, informed consent and liability aspects of EHRs. COPIC also offers an annual week-long orientation to medical residents and students, and other physicians-in-training. COPIC has also sought to develop a communication-and-resolution program as an alternative to the costly, ineffective tort system. The organization launched one of the country’s first of these programs in 2000. COPIC’s 3Rs (Recognize, Respond and Resolve) Program addresses the physical, financial, and emotional needs of patients following an unexpected outcome. It also aims to keep the lines of communication between physicians and patients open. Through this pioneering program, COPIC actively encourages the disclosure of unanticipated care outcomes to affected Colorado Medicine for January/February 2015

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Colorado Medicine for January/February 2015

Features

Looking forward Ted J. Clarke, MD , Chairman & CEO COPIC Insurance Company

Adding a fourth aim to health care: The well-being of medical professionals What will the future of health care look like in Colorado? That is a question many of us ponder and struggle to answer. According to a 2012 survey by The Physicians Foundation1, approximately 92 percent of physicians are unsure where the health system will be or how they will fit into it in three to five years. While there are certain trends we know will influence medicine, from digital technology to an aging population, there is still uncertainty as to how our industry will change as a result. This is an area where COPIC and the Colorado Medical Society (CMS) see an opportunity to help define the path, offer trusted guidance, and try and make sense of it all.

nected and influence each other – an important fact to remember as we make decisions. But there is a fourth aim that we also see as essential: the well-being of medical professionals.

“Looking Forward” is a new article series that explores how the COPIC/CMS relationship supports and benefits medical professionals and patients. From education to legislative advocacy, there are many ways we collaborate and complement each other to improve the future of health care. Sometimes these are joint efforts that are highly visible, while other times they are independent projects. Our initiatives share a common goal: to generate awareness and involvement that reinforces our connection to those we represent in the medical community.

Sizeable demands are placed on physicians, allied health professionals and health care providers, and they cannot face these alone. COPIC and CMS work to provide resources that are timely, relevant and enable those in health care to address ever-changing challenges. This includes support designed to improve the day-to-day elements of medical practices and broader advocacy that helps protect the practice of good medicine. As medical professionals fo-

This concept was recently highlighted in an article (Berwick et al.) titled “From Triple to Quadruple Aim: Care of the Patient Requires Care of the Provider” in the November/December 2014 issue of the Annals of Family Medicine: “Leaders and providers of health care should consider adding a fourth dimension – improving the work life of those who deliver care – to the compass points of better care, better health, and lower costs.”

cus on patients, there must be a sense of confidence that others are focusing on their well-being. COPIC and CMS recognize the importance of taking care of physicians so they can take care of patients. A 2013 study2 by the RAND Corporation stated that “…our finding that physicians are more satisfied when they perceive that they are meeting their patients’ needs by delivering high-quality care – and dissatisfied when they perceive barriers to delivering high-quality care – suggests an additional way of thinking about the relationship between physician professional satisfaction and the quality of care that patients receive.” COPIC and CMS are committed to working together to advance the goals of the triple aim while keeping the wellbeing of medical professionals in the forefront of our minds as we continue our efforts. n 1 http://www.physiciansfoundation.org/uploads/default/Physicians_ Foundation_2012_Biennial_Survey.pdf 2 http://www.rand.org/content/dam/rand/ pubs/research_report s/RR400/RR439/ RAND_RR439.sum.pdf

A current joint initiative is promoting the care of health professionals so that they can better serve their patients. Many of us are familiar with Don Berwick’s “Triple Aim” in health care, which refers to improving the experience of care and the health of populations, while reducing the overall costs of health care. In simple terms, we often look at issues in a similar context through the perspectives of access, quality and cost. These areas are interconColorado Medicine for January/February 2015

Features

Legislative preview Susan Koontz, JD, contributing CMS Generalwriter Counsel Kate Alfano, CMS

Colorado legislators share what to expect in 2015 The first regular session of the 70th Colorado General Assembly convened Jan. 7, 2015, and with its convening comes opportunities to advance the priorities of Colorado physicians and their patients. Lawmakers on both sides of the aisle from the Joint Budget Committee and the Senate and House committees with jurisdiction over health care issues give their thoughts on the upcoming session. The budget The JBC has the unenviable task of balancing the state budget under the constraint of available resources, the many conflicting spending priorities and differing philosophies. “One of the big challenges we’re getting now is more federal mandates that are causing higher pressure across the whole budget,” said Sen. Kent Lambert, R-Colorado Springs, JBC chairman. The 2015 budget will be the largest in Colorado history, and health and human services spending represents the largest segment at just over $10.5 billion. “It’s always a fight, meeting the demands of federal mandates and self-imposed mandates in the state,” said Sen. Kevin Grantham, R-Canon City, JBC member. “It’s a struggle given limited revenues and a growing population. Expanded Medicaid within the state over the last several years creates increased pressure on several other departments and we have to juggle those needs and wants across many different sectors of our society.” As more people enroll in Medicaid, Grantham said the state has to make sure the provider rate is equitable and fair. Rep. Millie Hamner, D-Dillon, JBC 16

vice-chair, said she is interested in pursuing targeted rate increases to encourage additional capacity and an overall increase across the board. Rep. Dave Young, D-Greeley, is acutely aware that ensuring patients have access to specialty providers is connected to making sure those providers are adequately compensated. He previously served as vice-chair of the House Public Health and Human Services Committee. “In the big picture, we need significant Medicaid payment reform,” he said. “All of that just adds to the pressure that is put on the JBC with all the other aspects of the budget,” Grantham said. Additionally, the budget is challenged by a “funding knot” created by TABOR (the Taxpayer’s Bill of Rights), the Gallagher Amendment and Amendment 23. TABOR places restrictions on the amount of total general funds and cash funds that can be collected and spent by the state, and Colorado is expected to hit the TABOR limit this year, raising questions about how to handle the funds. Hamner said that while TABOR does not directly affect health care, “the end result is that fewer dollars will be available to the overall budget, making it more difficult to increase specialty rates or to fund new programs or expand existing programs.” “At a time when we are expanding enrollments in Medicaid, when we are trying to help our schools recover from massive cuts they experienced during the Great Recession, and when we are trying to help reduce college debt load, the state will hit the TABOR limit and we’ll be faced with the constitutional

requirement to provide refunds to taxpayers,” Young said. “Our budget is stretched very thin.” Health care reform With significant Republican victories in the November election and a few pending U.S. Supreme Court cases, it is possible that the Affordable Care Act may see challenges in Congress and in the statehouse. Lambert said there will be moves on a national level to replace or pull back on the federally mandated systems. “If that leads to some sort of impasse in Washington, D.C., especially when people are losing individual health insurance plans or group plans from their employer, the state may have to make some major changes in how we do state health care if we can’t rely on a stable federal system.” In Colorado, “we’re in defensive mode to ensure we keep moving forward on the Affordable Care Act and that bills to try to get rid of it are not successful,” said Sen. Irene Aguilar, MD, D-Denver, former chair of the Senate Health and Human Services Committee. “I don’t see this as a real threat in the sense that the House would not let it get through, but I think there’s a chance a bill like that might make it through the Senate.” A major part of the Colorado implementation of the Affordable Care Act is the state health insurance exchange, Connect for Health Colorado. Rep. Beth McCann, D-Denver, chairwoman of the House Health, Insurance and Environment Committee, expects to see the exchange come under additional scrutiny following an unfavorable audit, though she said there may not be any legislative changes this session.

Colorado Medicine for January/February 2015

Features “Despite some of the negative findings of the exchange audit, I believe the exchange has done a very good job,” she said. “They had to get set up so quickly with hiring so many people and training them on the complicated health insurance arena, policies, subsidies and all of that. There seem to be areas of improvement but overall I think they’ve done a remarkable job considering how quickly they had to put all this together.” “I think we are going to see some ability in the future to have some more flexibility within the exchange,” said Rep. Dianne Primavera, D-Broomfield. “What we need to be working on is to make sure it runs as efficiently as possible and people get the health care that they need.” Sen. Kevin Lundberg, R-Loveland, chairman of the Senate Health and Human Services Committee, has heard negative feedback about the exchange and the Affordable Care Act from his constituents. “Very few are satisfied with how Obamacare is working out for themselves and their families,” he said, adding that the state should allow for the development of more choices and free competition for the coverage of medical costs. “I look forward to serious discussions that will lead to putting medical decisions back into the hands of the patients and their doctor.” Scope of practice Aguilar said the political environment this session is more favorable for expanding the scope of practice of nonphysician health care providers. She attended the Colorado Medical Society’s strategic discussion on scope of practice at the 2014 annual meeting in Vail in September. “The thing to think about is how we can safely help people with different types of education practice at the full extent of their license, and be open to that possibility of team models and apply outside-the-box thinking on how we can accomplish that goal and get good health outcomes.” Primavera said she has heard discussions about expanding scope of practice

Colorado Medicine for January/February 2015

Legislative preview (cont.) as much as possible to increase provider supply, as well as expanding telehealth services and exploring student loan forgiveness. Other issues Aguilar expects to see legislation related to increasing access to specialty care in Medicaid and she said she hopes to see some creative ideas come out of this session around that concept. She presented a request: “If every specialist would consider trying to see people who have

Medicaid, that would help us with that need.” Young sees great promise in the recent announcement that Colorado’s State Innovation Model (SIM) proposal was approved by the Centers for Medicare and Medicaid Services. “The integration of behavioral health with primary care is one of the top issues Northern Colorado Medical Society members identified when I met with them in late October. This integration of care is, like

payment reform, one of the essential elements to ensuring improved health care for Coloradans. It’s one of my goals to support the implementation of the SIM grant in any way I can.” McCann expects to see bills related to making marijuana edibles more easily identifiable and limiting the number of marijuana plants that individual caregivers can grow. She also expects a “death with dignity” bill to come before her committee. That bill is patterned after the Oregon bill that allows a physician to prescribe a lethal dose of medication to a patient who is in a terminal illness situation, with additional stipulations. “We’re looking forward to the session,” McCann said. “I’m sure there will be some interesting bills. We’ll be able to get some good bills passed, and we’ll work across the aisle to try to do what’s best for Colorado.” n

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Colorado Medicine for January/February 2015

Features

State Innovation Model Kate Alfano, CMS contributing writer

Colorado awarded $65 million health care innovation grant The state of Colorado has been awarded a federal grant to create a coordinated, accountable system of care that gives Coloradans access to integrated primary care and behavioral health. Gov. John Hickenlooper announced on Dec. 16, 2014, that the state would receive $65 million in State Innovation Model (SIM) funding. Colorado will use the funding over the next four years to further develop a State Health Care Innovation Plan with a focus on improved integration of physical and behavioral health services. “We understand the connections between mind and body, and integration

of behavioral health with physical health services is a critical need for Colorado and our nation,” said Susan E. Birch, executive director for the Colorado Department of Health Care Policy and Financing (HCPF), in a press release. “This grant will allow us to reach approximately 80 percent of our state’s residents to provide them with the support they need to move toward greater integration.” The SIM initiative provides federal funding for states to develop and test their own state-based models for multi-payer payment and health care delivery system transformation. The initiative’s goal is

to improve health system performance for residents of those states participating in the SIM project. Nearly $300 million has been awarded to 25 states to design or test improvements to their public and private health payment and delivery systems. The projects will be broad-based and focus on people enrolled in private insurance, Medicare, Medicaid and the Children’s Health Insurance Program (CHIP). The $65 million grant award builds on the $2 million planning grant Colorado received in 2013. In applying for the 2014 SIM funding, Colorado identified four major goals: • To create a coordinated, accountable system of care that gives Coloradans access to integrated primary care and behavioral health. • To leverage the power of our public health system to achieve broader population health goals and support delivery of care. • To use outcomes-based payments to enable transformation. • To engage individuals in their care. The grant proposal was led by the governor’s office; the departments of Health Care Policy and Financing, Human Services, Public Health and Environment, Regulatory Agencies, and Personnel and Administration; and included input from more than 100 stakeholders from the public, private and nonprofit sectors representing governments, physical and behavioral health care providers, public and private payers, and advocates. HCPF will be the primary implementing state agency for the proposal. n

Colorado Medicine for January/February 2015

Features

Health care transformation Kate Alfano, CMS contributing writer

New Kate Alfano,campaign CMS contributing writerto showcase primary care “done right ” A new campaign, “Health is Primary,” created by a coalition of national family medicine organizations, aims to rally patients, employers, policymakers and other stakeholders across the country to recognize and support the value of primary care in delivering on the Triple Aim of better health, better care and lower costs. Health Is Primary will showcase primary care “done right” in Colorado, said Richard Budensiek, DO, FAAFP, of Greeley, past president of the Colorado Academy of Family Physicians. “It dovetails with the goals of the Colorado Primary Care Collaborative in informing the public and businesses of the importance of primary care in achieving the Triple Aim.” “Colorado is unique in having the multi-payer Primary Care Collaborative and Comprehensive Primary Care Initiative to help showcase the PCMH,” he continued. “Having an organization like HealthTeamWorks work with practices to transform has been a game-changer. Now with the SIM [State Innovation Model] grant and the TCIP, Colorado primary care is positioned for the future. The tipping point for care transformation of all primary care in Colorado is at the threshold.” Health Is Primary is the communications vehicle for Family Medicine for America’s Health (FMAH), a coalition of eight national family medicine organizations that will implement a five-year strategic plan that aims to transform family medicine to meet the needs of a growing population of patients with increasing complexity of health issues. 22

FMAH’s strategy focuses on expanding access to the patient-centered medical home, ensuring a strong primary care workforce and shifting from fee-forservice to comprehensive primary care payment. “What we’re looking to do is to have patients and other stakeholders understand the foundational role of primary care and create a movement that moves our health care system to have that strong primary care foundation,” said Glen Stream, MD, MBI, former president of the American Academy of Family Physicians and FMAH board chair. “We are just absolutely convinced that the Triple Aim cannot be accomplished without the strong primary care foundation that we’re advocating for.” The FMAH board guides the strategic effort. It comprises one representative from each partner organization plus a family physician in full-time practice, new physician leader, patient advocate and AAFP state chapter executive. Driving the work of FMAH are six tactic teams focused on payment, practice management, workforce, education, technology and engagement, with broad representation from the primary care community. The core members of FMAH’s tactic teams met for the first time in December in Tampa, Fla., to develop a five-year work plan for their strategy focus. Moving forward, each team will engage a broader group of up to 60 volunteers to help with various aspects of their plan. Jen Brull, MD, FMAH board member representing practicing physicians, has been asked by colleagues what this cam-

paign will “do” to them. She said she hopes it won’t do anything to them but rather that it will do a lot “for” them. “We want people to practice in a way that brings them joy and lets them do things the way they want to do things, and accomplish objectives that are important,” Brull said. “I think the idea is that we’re not looking to massively change or reform the way physicians practice. It’s all about how can we shape technology, legislation, payment and pipeline to make your job easier so you can do a better job of taking care of patients.” Health Is Primary is designed to connect patients to primary care and impart to them that 90 percent of health needs can be met in the primary care medical home. The campaign will employ national advertising, workplace programs and stakeholder outreach to raise awareness, and will travel to five cities in 2015 to engage local stakeholders and showcase community-level interventions that are working to enhance and expand primary care and improve health. One stop will be in Denver, coinciding with the AAFP’s annual meeting, Sept. 29 - Oct. 3, 2015. The campaign will reach out to employers, disease groups and health advocates to activate patients around major health issues to demonstrate how primary care can support them in preventing disease and promoting health. Health Is Primary launches its first quarterly consumer campaign in January, with a focus on nutrition and fitness, with chronic disease management, immunization and smoking cessation following later in 2015.

Colorado Medicine for January/February 2015

Features Also in January, the campaign will host a panel discussion at the Consumer Electronics Show in Las Vegas to share the family medicine perspective on consumer health technology, the start of an effort to engage with the technology community to help drive innovation and technologies that foster the connection between physicians and patients and improve patient care and patient health. Stream said the biggest challenge to the campaign is the sheer size of the audience and the broad scope of the message. “We recognize that we can’t make this type of a change in the health care system on our own and are very much looking for partners to collaborate around areas of shared interests.” He encouraged practicing physicians, both in family medicine and other specialties, to share their stories of successful collaboration between colleagues, patients, public health, employers, health plans, schools and others by emailing them to info@fmahealth.org. “By highlighting those successes we think we can demonstrate best practices that then could be modeled for other communities that are struggling with similar problems.” “What we need the other stakeholders to understand – people in government, employers, health plans – is that our current system is broken in how it pays for primary care,” Stream said. “We’ll be engaging those groups around how to retool our health care system to be based on a stronger primary care foundation; changing the payment model is a linchpin piece of that project.” Budensiek agreed. “When payment goes from a fee-for-service to value and global reimbursement, specialists will be incentivized to work hand-in-hand with primary care as team members doing the best for our patients.” The campaign sends out regular communications. Interested physicians can sign up to receive updates or view more information at HealthisPrimary.org and FMAHealth.org. n Colorado Medicine for January/February 2015

Features

PQRS reality check Marilyn Rissmiller, Senior Director, Colorado Medical Society

Health care organizations ask federal government to consolidate Medicare incentive programs In October and November, the American Medical Association (AMA), College of Healthcare Information Management Executives (CHIME), Healthcare Information and Management Systems Society (HIMSS) and Medical Group Management Association (MGMA) authored letters expressing concerns about overlapping Medicare incentive programs and their impending penalty phases. In 2015, three Medicare Part B quality reporting programs – the Physician Quality Reporting System (PQRS), Meaningful Use electronic health record (EHR) incentive program, and Value-Based Payment Modifier program (VBM) – will penalize physicians for unsuccessful report-

ing. Add in the transition to ICD-10 by Oct. 1, 2015, and the year becomes even more complex. The AMA, specifically, asked the Centers for Medicare and Medicaid Services (federal CMS) to synchronize and simplify the requirements for avoiding the penalties and to reverse its proposals to raise total penalties from these programs to 10 percent or more in the foreseeable future. The programs were created by different pieces of legislation and their cumulative effect could levy as much as an 11 percent penalty in 2017 and a 13 percent penalty in 2020. The AMA, CHIME, HIMSS and MGMA cited concerns with lower-than-

expected Medicare numbers with meaningful use, and continued reports detailing nationwide difficulty in meeting federal guidelines for EHR requirements. The federal CMS released data that less than 17 percent of the nation’s hospitals have demonstrated Stage 2 capabilities, less than 38 percent of eligible hospitals and critical access hospitals have met either stage of Meaningful Use in 2014, and only 2 percent of eligible professionals have demonstrated Stage 2 capabilities thus far. Though the Colorado Medical Society has been actively preparing members for the quality-improvement programs and supports reasonable programs to improve health care quality and reduce costs,

Get help from Telligen on impending Medicare penalties The Telligen Quality Innovation Network - Quality Improvement Organization (QIN-QIO) is offering in-office assistance with PQRS, MU and VBM at no cost to providers (office, ambulatory surgery centers, inpatient psychiatric facilities and hospitals settings) to help them understand and meet requirements to avoid penalties and receive payment incentives. Telligen provides: • Training and education to optimize EHR technology capabilities • Networking and sharing opportunities with other participants focused on spreading best prac-

tices and learning from successful improvement efforts • Access to no-cost tools and resources to help you improve processes, patient education and care coordination • Assistance with identifying gaps in quality care, including those related to health care disparities and coordination of care • Educational opportunities, including conferences and webinars, at no cost • Data collection and analysis for quality improvement initiatives In collaboration with the Centers for Medicare and Medicaid Services, Telligen is supporting the HHS National

Quality Strategy to accomplish better care, better health for people and communities, and affordable care through improvements. Working together within a three-state network, teams in Iowa, Illinois and Colorado will work side-by-side with providers in all settings of care on quality improvement initiatives, while pooling resources and common elements to best serve the needs of beneficiaries, families, caregivers and health care providers across the region. For more information on this assistance, contact Devin Detwiler by email at devin.detwiler@hcqis.org or by phone at (303) 875-9131.

Colorado Medicine for January/February 2015

Features CMS recognizes the high administrative burden on physicians and their practices. To address concerns about MU, PQRS and VBM, the AMA is recommending that the federal CMS do the following. • Remove its all-or-nothing approach to meaningful use, make optional the measures that have been the most challenging for the vast majority of physicians and in many cases are outside of physicians’ control, shorten the reporting period for 2015 to 90 days, and reduce burdensome certification requirements that are stifling EHR usability and innovation. • Release aggregate 2013 PQRS and VBM data that will allow physicians and the public to evaluate the programs in a more timely fashion, create a formal appeals process to give physicians more than 30 days to seek correction of any inaccurate information, and maintain a more robust set of claims-based measures and claims reporting options to reduce additional physician reporting costs.

• Limit the implementation of the VBM if Congress and the administration are still determined to impose it on all physicians. If VBM is not repealed, the AMA asks the federal CMS to at least provide more time to gauge its results on large physician groups before penalties are ratcheted up and extended to small and singular-owned practices. AMA EVP James Madera, MD, said in the letter that no other segment of the health care industry faces penalties as steep as these and no other segment faces such challenging implementation logistics. While the AMA expresses sympathy for the federal CMS as the agency “struggles to meet unrealistic deadlines with inadequate resources and a flawed IT platform,” moving forward with these programs threatens to damage the agency’s image and physician confidence in the government’s goal of achieving a more efficient health care system, he said.

ent an untenable situation for physician practices who are forced to focus internal resources on government reporting, rather than patient care. MGMA calls on [the federal] CMS to support, not punish, physician practices. The agency should take immediate action to truly harmonize Medicare quality initiatives. Medicare’s focus should be on meaningful quality improvement efforts that provide timely, actionable feedback aimed at improving patient care.” “It is time to reassess where these programs are going and how to get there,” Madera said. “The AMA offers our assistance in such an endeavor, which should begin with a realistic assessment of [the agency’s] resource constraints, the methodological challenges, and the limitations of an all-or-nothing approach that is creating an unsustainable burden on physician practices and threatens the continued access to care of some of Medicare’s frailest patients.” n

MGMA supports making “significant” changes to the programs. “They pres-

Colorado Medicine for January/February 2015

Features

Colorado Supreme Court Susan Koontz, JD, CMS General Counsel

Victory for judicial stability: It speaks for itself Christmas came early in December for prospective physician defendants when the Colorado Supreme Court resolved a significant legal ambiguity under a legal doctrine called res ipsa loquitur (“it speaks for itself”). The Court upheld the COPIC-insured physician’s argument that the burden of proof does not shift to a physician defendant even if the plaintiff argues that an injury while in the physician’s care “speaks for itself” as negligent. The Court’s decision overruled an old case that was being leveraged to unfair advantage by trial attorneys. The Court noted that the plaintiff has ample opportunity to discover and submit evidence to establish causation and the burden of proof remains on the plaintiff throughout the trial to prove their negligence case.

ered or comes to light and thus is not impermissible “hearsay.” Shortly after the hearsay ruling, the Court overruled an administrative law judge decision that would have allowed the discoverability of confidential professional review records, notwithstanding CMS-backed peer review reform legislation enacted the previous summer that stated that such records are not subject to discovery.

CMS and other allies including the University of Colorado and the Colorado Defense Lawyers Association joined with COPIC and filed friend of the court briefs in each of these cases. The Colorado Trial Lawyers Association filed briefs on the other side. You can read all the briefs and related talking points on these three cases at http:// www.cms.org/resources/category/legaland-ethics. n

This is the third successive ruling in the last six months favoring stability and consistency in Colorado’s tort law framework. The Court’s views continue to sustain a public policy interest in preserving well-established legal principles that have produced one of the most stable medical liability environments in the country. This summer, the Court clarified the admissibility of medical “hearsay” statements made for purposes of diagnosis or treatment in favor of physician defendants. The Court noted, in reversing a verdict against a COPIC insured, that diagnosing does not have a definitive end point and frequently evolves as more information and evidence is gathColorado Medicine for January/February 2015

Colorado Medicine for January/February 2015

Features

Legal victory in Minnesota Elizabeth A. Snelson, Esq. Legal Counsel for the Medical Staff, PLLC

Medical staffs, bylaws legal standing recognized by court Hospital medical staff bylaws are contracts, and medical staffs have standing to sue and be sued under the decision of the Minnesota Supreme Court in Medical Staff of Avera Marshall Regional Medical Center et. al. v. Avera Marshall d/b/a Avera Marshall Regional Medical Center. Avera is a South Dakota-based Catholic hospital system that acquired the Regional Medical Center in the southwestern Minnesota town of Marshall. Issued on the last day of 2014, the decision successfully concludes the medical staff’s twoyear battle against unilateral amendment of medical staff bylaws by the hospital, overturning decisions by Minnesota trial and appellate courts.

were adopted because the law required them, not because the hospital and medical staff accepted them as beneficial terms to work by. The Court points out that the content of the bylaws as agreed to by the parties exceeds the minimal requirements of the Minnesota code, qualifying the bylaws as a contract between medical staff and hospital. Further, since each medical staff member agrees to follow the medical staff bylaws’ mutual obligations as a condition of privileges, the hospital

At issue was whether medical staffs could even take hospitals to court. In holding that medical staffs have standing to sue and be sued, the Minnesota Supreme Court rejected the hospital’s argument that, because it is subject to the hospital board’s authority, the medical staff is just a department or unit of the hospital. Rather, the court held, “the Medical Staff is composed of two or more physicians who associate and act together for the purpose of ensuring proper patient care at the hospital under the common name ‘Medical Staff.’ Therefore, because the Medical Staff satisfies the statutory criteria of (Minn. Stat.§) 540.151, we hold that it has the capacity to sue and be sued under Minnesota law.” Finding standing, the Court declined to follow the lower courts’ analysis that since bylaws are required by law, the agreement by the parties to adopt and approve them lacks consideration, i.e., that the bylaws Colorado Medicine for January/February 2015

“formed a contractual relationship with each member of the Medical Staff upon appointment.” Minnesota joins the majority of jurisdictions recognizing medical staff bylaws as contract, also a long-standing position of the American Medical Association. The Avera Marshall Medical Staff was supported by the AMA Litigation Center and Minnesota Medical Association in this case. n

Colorado Medical Society is pleased to announce The Health Law Firm as our newest Corporate Supporter. TM

The Health Law Firm: The health care professional’s advocate. The health care industry is one marked by complex legal and regulatory issues, which is why we concentrate in representing health care providers, exclusively. With decades of experience in the legal and health care fields, our team of health law attorneys includes licensed health care professionals, attorneys Board Certified in Health Law, and former hospital counsel. We know how important your ability to practice in the field of medicine is to you, which is why we focus on helping clients just like you preserve their careers. Our services include but are not limited to:    • Colorado State Board Representation • Contract Reviews and Negotiation • Licensure Defense • Representation in the Licensure Renewal/Application Process • Corporate Law Assistance Medicare/Medicaid Defense • Administrative Hearings • …And much more Visit our website at www.TheHeathLawFirm.com to learn more about our areas of practice, meet our attorneys, and read our blog on trending health law topics. 29

Colorado Medicine for January/February 2015

Inside CMS

Make time for wellness Joe Christenson, MD President, Colorado Psychiatric Society

Redefining the problem, seeking solutions Editor’s note: This column originally appeared in the Colorado Psychiatric Society (CPS) quarterly newsletter, “A Piece of Our Mind,” Winter 2014, Vol. 40, No. 4. It has been reprinted with permission. The president’s column this quarter consists largely of a wholesale, mindful “cut and paste” from out of one of the most delightful surprises of my long association with the Colorado Psychiatric Society. Last month I received, for review and distribution to all members, the 47-page, wonderfully illustrated and thoughtfully done, evidence-based “DIMENSIONS: Work and Well-Being Toolkit for Physicians” containing a number of useful educational resources:

your collateral contacts, your releases of information, your insurance payers’ paperwork, your committee work, your MOC work, and so forth, protecting the time (and mental energy) to take time to be well seems a continuing casualty of our modern, electronically enhanced, physician-hood.

being toolkit: www.cms.org/resources/ category/physician-wellness. Then, as a favor to yourself, your patients and colleagues, and especially to the people who don’t pay you to be with them, spend the rest of your life applying the carefully outlined pathways. There are many to choose from in the toolkit.

As psychiatrists we know better.

Factors that influence physician well-being There are several factors that influence the well-being, or lack thereof, of a phy-

But do we do better? One quiet evening, please take the time to review the entire work and well-

• A low-burden tool for measuring readiness to change to achieve wellness. • Step-by-step instructions for developing skills to assess one’s wellness. • Evidence-based strategies for improving wellness. • Suggestions for maintaining wellness. The Colorado Medical Society presented the toolkit – developed in partnership with the Behavioral Health and Wellness Program at the University of Colorado Anschutz Medical Campus – to all component and specialty societies in Colorado as a goodwill gift to all physicians. Like so many professionals, the time and energy to read, much less commit to such a reevaluation and reworking of one’s careers, is beyond most all of us given our long days and late nights. After you finish up your medical records, Colorado Medicine for January/February 2015

Physician wellness (cont.) sician. In 2013, Friedburg and colleagues found that two major frustrations physicians face are in working with electronic health records (EHRs) and providing quality health care. These two frustrations, beyond all others, contribute to physiciansâ&#x20AC;&#x2122; experience of career dissatisfaction. Electronic Health Records (EHR) While EHRs may eventually be a powerful tool for interconnectivity, currently EHRs often contribute significantly to a physicianâ&#x20AC;&#x2122;s decreased level of satisfaction and well-being at work. Poor EHR usability, confusing interfaces, time-consuming data entry, interference with direct patient care, problems communicating with other professionals, and degradation of documentation are major frustrations physicians report having with EHRs. Although physicians agree with the concept of an EHR, they regularly report that in practice EHRs

do not meet the goals of increased access to patient information, streamlined diagnosis and treatment, or improving the quality of care. Quality patient care Competing demands: Physicians must find a delicate balance between providing quality health care to patients and meeting the demands of third-party payers. These third-party payers sometimes deny coverage for a patient even when a treatment has been prescribed by a physician. When this occurs, physicians must make a difficult decision regarding whether to carry out their prescribed treatment, follow the directive of the managed care company, or appeal, which takes precious time. Other instances of competing demands occur when practice leadership is unsupportive of new ideas or has unrealistic expectations regarding the number of billed patients seen. Another compet-

Encourage a colleague to join the Colorado Medical Society and your local medical society today!

visit www.cms.org to learn more about the benefits of becoming a member

For more information and an application to join, call Tim Yanneta 720-858-6306 or e-mail Tim_Yanetta@cms.org

ing demand is balancing the commitment of time and energy between work and home life. Workload: Physicians who have more control and autonomy over their workflow report greater well-being and satisfaction. When physicians can appoint their own colleagues, have control over their schedule, and see the type of patient they wish, in the time period they wish, they are happier with their work situation overall. Working with other physicians: Relationships between physicians can also have significant effects on well-being and satisfaction with work. When physicians feel respected, perceive teamwork among providers, and feel they are compensated well, they report feeling more satisfied with their profession. Other factors: Additional factors that are associated with physician resilience include a sense of contribution, maintaining an interest in the field, appropriate use of acceptance-versus-change-related coping skills, self awareness, ability to set appropriate limits, attending to personal care (exercise, recreation, spirituality), and personal support (family, friends and colleagues). n Dr. Christenson is president of CPS and is actively engaged in psychiatric medicine on the northern Front Range of Colorado.

Colorado Medicine for January/February 2015

Inside CMS

Spring conference May 1-3, 2015 Kate Alfano, CMS contributing writer

Breaking down barriers: reunifying physicians and patients Twenty-five years ago a wall in Berlin was dismantled – the culmination of grassroots political, economic and diplomatic forces that ultimately broke through, brick by brick, and reunified Germany. The wall that has grown over that same stretch of time between patients and physicians – systemic, economic, political, and cultural – is being chipped away by the determined forces of medicine. The Colorado Medical Society will host the annual spring conference at the luxurious Sonnenalp Hotel in the heart of Vail village May 1-3, bringing together physician activists and national experts in a series of hands-on, eyes- and minds-open interactive sessions on what we are doing, have been doing, and will be doing to hammer at barriers in health care that prevent progress in quality and safety, access, efficiencies, and patient experience.

faces to CMS, develop ideas to address the critical issues facing physicians, and broaden the view of attendees on relevant policy matters by bringing in outside experts. CMS encourages all members, staff and stakeholders to make plans to attend what continues to be a lively celebration of fellowship in the Colorado medical community, and a provocative discussion on the how-to’s of patient engagement and safety, improving care value and collaboration. CMS extends a particular warm invitation to physicians who have never experienced one of CMS’s spring conferences before or who haven’t attended in awhile.

Registration is free for CMS member physicians and component society staff, and will open in spring 2015. The hotel group rate at the Sonnenalp is $155 per night for a junior suite and $130 per night for a hotel room. Reservations can be made by phone through the Sonnenalp reservations department at (800) 654-8312, or online at www.sonnenalp. com. Be sure to mention that you are with the Colorado Medical Society to receive this group rate. Find more information as it is available at www.cms.org/events/spring-conference. n

CMS will kick off the conference with a social reception Friday evening hosted by the Intermountain Medical Society. Saturday and Sunday’s programming will include a mock claims committee case presented by COPIC, a session on administrative simplification and workplace dissatisfaction, and a session on the patient experience – particularly when physicians find themselves or their loved ones as patients. Saturday evening’s fireside chat will feature an open forum on CMS governance reform, giving attendees the opportunity to explore the composition and selection of the CMS House of Delegates and the Board of Directors and shape the process as it is happening. The purpose of the conference is to create unity among physicians, attract new Colorado Medicine for January/February 2015

Inside CMS

Reflections Reflective writing is an important component of the CU School of Medicine curriculum. Beginning in the first semester, all medical students participate by writing essays or poems that reflect what they have seen, heard and felt. This column is selected and edited by School of Medicine faculty members Steven Lowenstein, MD, MPH and Henry Claman, MD.

Lisa Hamilton University of Colorado School of Medicine

Lisa Hamilton is a fourth-year medical student at the University of Colorado. She is a non-traditional student, who "took a long time to grow the courage to pursue my childhood dream of becoming a doctor." She has lived in many places, in the U.S. and abroad, and she connects easily with people from all walks of life. Her background in teaching complex information helps her communicate clearly and gauge how well she's being understood. She hopes to put her clinical and communication skills to good use for the next 40 years or so, as an emergency medicine physician in a small town.

If you were my father I’ve been an orphan for a really long time. But I remember when both my parents died, two weeks apart, and what I did especially well by them at the end. I also remember, working my way through college on an ambulance, the many deaths I’ve witnessed that could have gone better. I have a unique perspective on dealing with families as they confront a loved one’s approach to death. I got to bring all my hard-gained experience to bear with a patient recently, in a way I will never forget. My patient is a tree-sized black man in his late 80s; bald, baritone, jolly, joking, appearing full of life at first glance. Then you see the nasal cannula under his non-rebreather mask set to flush O2. Then you notice the swollen legs, the short sentences, the furtive glances at the level on his oxygen tank when he was trans 34

ferred anywhere. And now, new-onset diabetes. I met him in the Emergency Department. He was ‘my patient’ for his entire stay. We connected quickly, without effort, and I knew he liked me, as I liked him. During the day, when teams rounded in doublets, tetrads and hordes, he was cooperative but reserved. But when I came to visit him by myself, at the crack of dawn, he would tell me stories of his life. I barely had to prompt him: the jobs he’d worked, Army experiences, his parents, nine siblings, nine children or 70 grandchildren, including greats and great-greats. A new one was due in a week, on his wife’s birthday. And of course, we talked about his wife, who had been his school-age sweetheart and had died four years ago after a sudden brief decline. He never recovered from that loss. His kids had closed ranks, two of them moving into the home they had shared for over 40 years to take care of him around the clock, the others living within blocks. The oldest daughter led their coordinated care. After a few days getting to know her, I could see how she must be just like her Mom: competent, strong, goal-directed, yet loving and overly selfless. Her heart and head weren’t on the same page yet. I brought it up first: death. We were talking about hobbies he had enjoyed, like golf. He confided that he knew he would never play golf again and recounted what had happened the last time he left his house: their car had broken down and his portable O2 tank had come close to running out. He called friends to come get him and bring him home, but they did not appreciate the severity of the situation, and he is a big man to help transfer. No one came. It scared him to his core and left him determined not to be exposed to that situation again. For him, that meant not leaving the house, ever again. So I asked about death, about his death: what he thought about, what he wanted. He was listed as “full code-full tube,” but really, he wanted to be “do not resuscitate-do not intubate.” He told me that his biggest fear was feeling like he couldn’t breathe, that he would feel like he was suffocating at the end. I Colorado Medicine for January/February 2015

Inside CMS asked about what the others knew of his wishes, what had been put down on paper. Nothing. We went through the Five Wishes. He was clear: no more hospitalizations, no more interventions other than his oxygen, and now his insulin. He didn’t want to feel pain and especially not air hunger. If we could ensure that, he’d rather pass naturally. “I’ve lived a good full life. There’s nothing else I need to do... And I hate these trips to the hospital.” He knew that each trip cost him functionality, never to be regained. His daughter arrived to join us, relieved he finally wanted to talk about it. I explained about palliative care and hospice, the philosophical shift from keeping him alive to keeping him comfortable. I left them to talk in private and arranged to have the hospice person come in with specifics. When I came back, the conversation was about CPR. The daughter was having a hard time giving up on the idea of CPR, if it would just be a couple minutes of resuscitation that would bring him back to the way he was before the arrest. She couldn’t imagine life without him. Besides being her Dad, he had been her purpose for years. The train of questions made it clear to me that they were

not picturing how violent CPR is to the body or how infrequently someone wakes from it at all, let alone perfectly fine. I could see my patient beginning to acquiesce, to give his oldest child her way, as he had his wife for so many years. He was second-guessing himself about this most intimate, personal, individual decision. Until then, I had been a sounding board, an information source, a focusing lens. But at that moment, I became an advocate. I didn’t know if I was breaking a legal barrier or crossing an ethical line, but I leaned in to him and said “We’ve gotten to know each other pretty well. If you were my father, I wouldn’t want you to have CPR. It’s so hard on the body and it hardly ever turns out well. I would want you to have a peaceful natural death, when your time comes.” I paused to see if I’d crossed that line, but he locked eyes with me and took my hand. “That’s it then. No CPR. That’s my final decision.” His daughter saw that his choice was made. We stepped outside and talked about hearts and heads and how to stop all the doing and just be, together as a family, with a shared awareness of precious time left. She was OK with my speaking up, really OK with it. And now I know that advocacy is sometimes warranted, sometimes welcome, sometimes life-changing for both sides. n

All donations to this committee are used exclusively to support legislative candidates who are 100% committed to maintaining Colorado's stable liability and confidential professional review climate. All friends of medicine are eligible to participate. Call 720-859-1001, ext. 6327 or 800-654-5653, ext. 6327 Colorado Medicine for January/February 2015

Inside CMS

Ted J. Clarke, MD Chairman & CEO COPIC Insurance Company

Helping to shape the future of health care As we head into the 2015 legislative session, I am reminded of COPIC’s unique position at the crossroads of the medical, legal, and regulatory worlds. Our experience offers insight to legislators and helps to inform them on the health care challenges that exist from our perspective. Together, with partners such as the Colorado Medical Society (CMS) and Colorado Hospital Association, we invest in legislative advocacy to support an environment that reinforces quality improvement and patient safety, while addressing barriers to the delivery of care. Each year, hundreds of bills are introduced during the Colorado legislative session. Monitoring and evaluating bills that have the potential to impact health care is no easy task. It requires expertise in several different areas, the ability to collaborate effectively, and in-depth reviews that take into consideration intended and unintended consequences. Besides monitoring proposed legislation and regulations, COPIC’s efforts extend throughout the governing process: • Our work continues after a bill passes. Once a bill is enacted, it is imperative to pay attention to its implementation. For example, HB 14-1283 was passed last year and mandates that all DEA-licensed providers register and maintain an account with the Colorado Prescription Drug Monitoring Program (PDMP). COPIC followed this closely and worked with the Department of Regulatory Agencies to be assured that actions against health care providers will not be taken if PDMP notifications are received and placed into a patient’s medical record, and subsequently shared with the patient or another provider. • We anticipate new challenges that are emerging. As health care evolves and the patient population grows, there is a need to expand access to health care providers. In particular, telemedicine has become more prevalent, with ongoing discussions in the medical community to define the boundaries and requirements that medical professionals must undertake. COPIC and CMS have been involved in initial telemedicine discussions at the state level around standard of care, compliance with licensing requirements and medical board policies, and other concerns with the use of technology. Being a part of the early conversations allows us to represent the interests of our insureds as new policies start to take shape.

• Policymakers recognize the value of our involvement. COPIC’s proactive approach has resulted in strong relationships with policymakers and regulators who turn to us as a resource. This includes serving on legislative committees and task forces, and providing factual reports that support decision-making. By establishing ourselves as a reliable source, we can work to identify issues and opportunities, and partner with other organizations to take the appropriate actions. A key factor that enables COPIC to take on these responsibilities is the expertise that resides in our legal department. Their involvement is essential to our legislative advocacy in the following areas: • Reviewing drafts of bills for encroachment upon tort reform and unnecessary increases in medical and health care facility liability. • Drafting language, attending stakeholder meetings, and testifying on key legislation affecting health care providers and health care facilities. • Providing input to the Colorado Medical Board, other licensing boards and administrative agencies, regarding proposed rules and policies that affect health care providers and health care facilities. The knowledge within our legal department and the efforts outlined above also translate into the direct assistance and education we provide insureds on legal issues such as HIPAA, medical records and charting, electronic medical records, minors and risk, professional review, and supervision of allied health professionals. All of this connects back to COPIC being a critical partner for our insureds and others in health care. We recognize that our role provides us with the opportunity to help medical professionals navigate the complexities of health care and better understand how public policy influences their practice. And we are committed to ensuring that Colorado remains a great state in which to practice medicine. n

Colorado Medicine for January/February 2015

Inside CMS

CMS Corporate Supporters and Member Benefit Partners While CMS analyzes the quality and viability of our member benefit partners and their offerings, we do not guarantee any product or service will be right for you. Before you make a purchase, we recommend you perform your own due diligence.

AUTOMOBILE PURCHASE/LEASE Rocky Mountain Fleet Associates 303-753-0440 or visit www.rmfainc.com * CMS Member Benefit Partner FINANCIAL SERVICES COPIC Financial Service Group 720-858-6280 or visit www.copicfsg.com * CMS Member Benefit Partner Sharkey, Howes & Javer 303-639-5100 or visit www.shwj.com * CMS Member Benefit Partner INSURANCE PROGRAMS COPIC Insurance Company 720-858-6000 or visit www.callcopic.com *CMS Member Benefit Partner UnitedHealthcare 877-842-3210 or visit www.UnitedhealthcareOnline.com MEDICAL PRACTICE SUPPLIES AND RESOURCES Colorado Drug Card 720-539-1424 or visit www.coloradodrugcard.com *CMS Member Benefit Partner CO-POWER 720-858-6179 or www.groupsourceinc.com *CMS Member Benefit Partner University of Colorado Hospital/CeDAR 877-999-0538 or visit www.CeDARColorado.org PRACTICE VIABILITY ALN Medical Management 866-611-5132 or visit www.alnmm.com athenahealth 888-402-6942 or visit www.athenahealth.com/cms *CMS Member Benefit Partner Colorado Medicine for January/February 2015

PRACTICE VIABILITY (cont.) Bluestein Law Firm, PC 720-420-1777 or visit www.bluesteinlaw.com Carr Healthcare Realty 303-817-6654 or visit www.carrhr.com Diagonal Medical Billing 303-551-7944 or visit www.diagonalmedicalbilling.com First Healthare ComplianceTM 888-54-FIRST or visit www.1sthcc.com *CMS Member Benefit Partner GL Advisor 877-552-9907 or visit www.gladvisor.com/cms * CMS Member Benefit Partner HealthTeamWorks 866-401-2092 or visit www.healthteamworks.com *CMS Member Benefit Partner Medical Telecommunications 866-345-0251, 303-761-6594 or visit www.medteleco.com * CMS Member Benefit Partner Solve IT 303-800-9300 or visit www.solveit.us *CMS Member Benefit Partner The Health Law Firm 407-331-6620 or visit www.TheHealthLawFirm.com TransFirst 800-613-0148 or visit www.transfirstassociation.com/cms *CMS Member Benefit Partner Transcription Outsourcing 720-287-3710 or visit www.transcriptionoutsourcing.net Transworld Systems 800-873-8005 or visit www.web.transworldsystems.com/npeters * CMS Member Benefit Partner 37

Departments

medical news Colorado physicians encouraged to nominate a colleague to be featured in Colorado Medicine magazine’s “Physician Heroes” series Physicians have been trained to be other-directed – patients always come first – which means that they frequently make their own health a low priority. Add demanding schedules, increasing administrative burden and endless technology requirements, and it’s no surprise that 30 to 40 percent of physicians experience burnout. We at the Colorado Medical Society are interested in changing this, to help physicians be healthy and enjoy long careers in medicine. One of the ways we hope to decrease burnout is with a new series in Colorado Medicine, “Physician Heroes.” Through Physician Heroes, CMS will profile as many different members as we

can who have gone above and beyond in the profession to help their colleagues or community. To date we have honored Frank Dumont, MD, for his extraordinary work in helping maintain access to health care for the Estes Park community during the devasting flood of September 2013 and John Ogle, MD, an emergency physician in Longmont and a colonel with a 33-year history of service to our country.

them to join the profession.

We hope physicians will be able to reflect on the meaningful difference these heroes are making in the lives of their patients and communities, see their own values reflected in these stories, and be reminded of the joy of medicine that led

We need your help to identify these physicians. Please consider nominating yourself or a colleague for this series by contacting Dean Holzkamp at dean_ holzkamp@cms.org or (303) 748-6113 or Kate Alfano at kate_alfano@cms.org. n

We have intentionally kept the definition of “hero” broad. It could mean someone who has served in the military, figured out a tricky diagnosis, volunteered with a community health program, served rural or underserved patients, traveled many miles to treat a patient, or comforted someone struggling – anything that inspires others.

Colorado Medicine for January/February 2015

Departments

medical news Parkview Medical Center achieves highest accreditation for the continuing education of physicians The Colorado Medical Society Committee on Professional Education and Accreditation has awarded the highest accreditation level to a Colorado provider of continuing medical education (CME): Parkview Medi-

cal Center. Parkview, a private, non-profit, 350-bed facility in Pueblo, is the largest employer in Pueblo County, the only Level II Trauma Center in the region and the region’s first certified stroke center.

ing Medical Education, or ACCME, the main accreditation body for CME. CMS is recognized by ACCME to accredit CME providers in Colorado and the surrounding region.

Hammer joins HCPF as Medicaid director

“Their CME program demonstrated that CME is integrated into their quality improvement process, and they collaborate through CME with other organizations to improve the health care population in their community,” said JoAnne Wojak, director of CME at the Colorado Medical Society.

The first 15 criteria fall into three essential areas: purpose and mission, education and planning, and evaluation and improvement. To receive commendation, organizations must also demonstrate that they use CME as a tool to improve quality performance and health outcomes, and that they collaborate with internal or external stakeholders to further improve quality. With commendation, these organizations will receive a six-year term of accreditation rather than the standard four-year term. n

Gretchen Hammer joined the Department of Health Care Policy and Financing (HCPF) as Colorado’s Medicaid Director effective Jan. 5, 2015. In her new role she will oversee the Department’s Health Programs Office, which administers public health insurance programs for low-income Coloradans, including Medicaid and Child Health Plan Plus.

This honor, “Accreditation with Commendation,” is awarded to CME institutions that adhere to all 22 CME criteria of the Accreditation Council for Continu-

“Gretchen’s expertise in community advocacy, public and private insurance coverage and her zeal for solving complex problems will be an enormous asset for the department,” said Sue Birch, executive director of HCPF, in a press release. “Medicaid’s new opportunity to serve as a redesigned platform will move Colorado closer to being the healthiest state in the nation.” Hammer previously served as executive director of the Colorado Coalition for the Medically Underserved and as past chair of the board of directors for Connect for Health Colorado. It was for her work with Connect for Health Colorado that CMS awarded Hammer its Breakthrough Award in 2013. CMS President Tamaan OsbourneRoberts, MD, said, “CMS extends its sincere congratulations to Gretchen and HCPF. Her persistence and skilled leadership have served her well in her previous work and will greatly benefit the department. We look forward to our continued collaboration.” n

Colorado Medicine for January/February 2015

Departments

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Seeking Primary Care Physicians/Practices in the Denver Metro Area

We are seeking quality physicians to join our existing Englewood clinic OR Physicians/Practices that could add to our geographic coverage of the metropolitan area. If you are a physician or group that would like to: • Join a group with a fully integrated Electronic Health Record, • Be a part of an NCQA Recognized Level 3 Medical Home, and • Make a change but maintain your current patients We can offer a unique opportunity to get back to treating patients and stop worrying about administrative and personnel headaches. We are not a broker and will not respond to broker inquiries. If interested, contact Janelle at (303) 493-5276. All inquiries will be kept in strict confidence and will receive a prompt response. Colorado Medicine for January/February 2015

Features

the final word Jason Kelly, MD

“Having COPIC and CMS in my corner tipped the scales in my favor” The Colorado Medical Society and COPIC have had a close and mutually reinforcing relationship for 30 years, but many physicians are not aware of the powerful and positive role that their collaboration has on our profession. I had the opportunity to experience how this partnership benefits Colorado physicians firsthand when I was involved

Like many physicians, before this case I did not appreciate the importance of organizations like COPIC and CMS, particularly when they work in concert.

but also “intensely probative” of the issues. She admitted the evidence. After winning the trial, everyone expected an appeal; we did not expect that it would succeed. We were wrong. The Court of Appeals ruled that the hearsay exception related only to statements in the interest of prospectively treating the patient, and that statements to discover what had already happened were not covered. The opinion narrowed how the hearsay exception could be used, and set a precedent for Colorado that would be cited around the country. The case now became about the more global issue of what evidence physicians could use to defend themselves in court.

A week after the biopsy, the patient’s girlfriend told me the patient had been using cocaine to self-medicate for the pain that brought him into the hospital, and she wondered if this could have contributed to the event. When the family sued for negligence, the cocaine use became a central issue at the trial.

Here is where the strength of organized medicine and the relationship between COPIC and CMS became critical. CMS and the AMA Litigation Center filed an amicus brief with the Colorado Supreme Court, detailing the importance of the case and the precedent it would set. CMS also teamed with the COPIC lawyers to organize amicus briefs by the Regents of the University of Colorado, the Colorado Chapter of Emergency Physicians, the Colorado Radiologic Society and the Colorado Defense Lawyers Association.

Specifically, there was the question of whether cocaine use could be admitted as evidence, because I had been made aware of it by a third party and thus hearsay. Hearsay is generally not admissible, but there is a medical exception, because it is assumed that people want to get better and therefore tell their doctors the truth. The trial judge felt that the cocaine was “intensely prejudicial,”

This, along with excellent legal work by my attorneys, led the Colorado Supreme Court to reverse the Court of Appeals, upholding the medical exception as it had stood for many years. The court recognized that while the cocaine evidence was “intensely prejudicial,” it was not “unfairly prejudicial.” I expect those phrases will be used in more than a few legal briefs going forward.

in a catastrophic outcome from a liver biopsy.

Being in a lawsuit is grueling. Many physicians would rather settle than be dragged through a trial. The tireless support I received from CMS and COPIC was a tremendous psychological lift. COPIC spared no effort or expense to defend me. A more commercial insurance company likely would have assessed the costs and potential losses in my case and decided it was not worth the effort, no matter who was right. In addition to my family and legal team, support from COPIC, CMS and the AMA Litigation Center gave me the boost I needed to believe we could still be heard – and win – in the Supreme Court. It is critical that we do not underestimate the power of these organizations to keep physicians in the fight – a necessity if we are to see important legal victories like mine in the future. Like many physicians, before this case I did not appreciate the importance of organizations like COPIC and CMS, particularly when they work in concert. More and more though, physicians sit across the table from massive organizations, whether they be hospital systems, the government, insurance companies or – in my case – a law firm. We do not have the resources to counterbalance these huge entities by ourselves. However the voices of thousands of physicians carry much more weight than the individual. I have no doubt that the scales tipped in my favor because I had an indefatigable insurance company like COPIC and a respected physician organization like CMS in my corner, and for that I am incredibly grateful. n

Colorado Medicine for January/February 2015