Round-up Magazine, September 2016 by Maricopa County Medical Society (MCMS)

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Ethics In Medicine

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September 2016 | Volume 62 | Number 9 Round-up (USPS 020-150) is published 12 times per year by the Maricopa County Medical Society, 326 E. Coronado Rd., Phoenix, AZ 85004. Round-up is a publication of the Maricopa County Medical Society (MCMS). Submissions, including advertisements, are welcome for review and approval by our editorial staff at roundup@mcmsonline.com. All solicited and unsolicited written materials and photos submitted to Round-up will be treated as unconditionally and irrevocably assigned to and the property of MCMS and may be used at MCMS’ sole discretion for publication and copyright purposes and use in any publication, website or brochure. MCMS accepts no responsibility for the loss of or damage to material submitted, including photographs or artwork. Submissions will not be returned. The opinions expressed in Round-up are those of the individual authors and not necessarily of MCMS. Round-up reserves the right to refuse certain submissions and advertising and is not liable for the authors’ or advertisers’ claims and/or errors. Round-up considers its sources reliable and verifies as much data as possible, but is not responsible for inaccuracies or content. Readers rely on this information at their own risk and are advised to seek independent legal, financial or other independent advice regarding the content of any submission. No part of this magazine may be reproduced or transmitted in any form or by any means without written permission by the publisher. All rights are reserved.

ROUND-UP

PUBLISHED MONTHLY BY THE MARICOPA COUNTY MEDICAL SOCIETY

September 2016 | Volume 62 | Number 9

4 9 11 13

Letters to the Editor What’s Inside

How even small gifts can lead to big problems

President’s Page Day-to-Day Ethics

by Bob Milligan & Neel Kothari

The Cannabis Manifesto A Review

Ethics and Forensic Psychiatry

Informed Refusal:

by Jonathan Weisbuch, MD, MPH

Beware of Marketers Bearing Gifts:

by Stephen P. Herman, MD, FAPA, FAACAP

When the Patient Says “No” by Karen Wright RN, BSN, ARM, CPHRM

Ethics and the Covenant of Medicine:

An interview with David H. Beyda, MD

Med Students View Ex-Patients’ E-Records to Track Progress The Paradox of Disclosure

by Sunita Sah, MD, PhD, MBA

Issues Facing the Medical Field: Old, New, and Improved

by Michael Hafertepe

The Physician Real Estate Investmentor by Trisha Talbot, CCIM

Marketplace

by Dominique Perkins

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Letters To The Editor Medicine & social change

The artistic nature of the written word has captivated me since I learned how to read. I love writing because it has the ability to capture human vulnerability in such a visceral way. Now, as I pursue a career in a service profession, I realize how powerful and important this aspect of writing can be for physicians, patients, and the overall movement towards better health. With the demanding nature of the medical school curriculum, there are few structured opportunities for students to reflect on the greater issues surrounding healthcare. My deepest gratitude goes to the Maricopa County Medical Society and the MICA Medical Foundation for actively encouraging students to consider medicine from multiple perspectives. Thank you for creating a space where students are able to re-discover their passion for medicine and social change. Sincerely, Hima Gaddipati Midwestern University

Fee too costly

I have been a licensed allopathic physician in the state of Arizona since 1978. I officially retired from practice in December 2012. When my license came up for renewal in 2013, I opted

not to renew my license. On a fixed retirement income, I felt that the $500 fee was too costly. Unfortunately in the state of Arizona there is no other option for retired physicians to retain their license at a reduced fee. As a result, I am not afforded the opportunity to donate my medical services if I choose to do so. It is my understanding that any change to the existing rules falls in the purview of the Arizona State legislature. Surely there are other retired physicians who wish to retain their license at a reduced cost without necessarily resuming practice. Respectfully, Howard B Wernick, M.D.

Absolute immunity no longer

I read with interest J. Alexander Dattiloâ&#x20AC;&#x2122;s article, A Delicate Balance: Should Expert Witnesses Enjoy Absolute Immunity for False or Unfounded Testimony? I experienced first hand why, in the current environment, absolute immunity is no longer needed to protect patients from bad doctors, or even from bad results from medical or surgical treatment. In 1998, I lost my first and only malpractice suit due to rogue medical testimony and the erroneous decisions of the trial judge, who made mistakes in controlling court testimony because he neither had the medical background nor medical expertise to counter the testimony of a very prominent neurosur-

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Lin Sue Cooney, director of community engagement

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Letters To The Editor geon from a prestigious institution in Arizona against me, an individual practitioner in private practice. Eighteen years later, I have never had another malpractice claim and my trademarked procedure that was viciously disparaged as malpractice by the plaintiff’s expert witness is now validated in peer reviewed literature and adopted and practiced all over the world. I have subsequently performed over 10,000 cases, using the same effective trademarked technique I coined “selective endoscopic discectomy and thermal annuloplasty to treat discogenic back pain,” and which is attracting local, national and international patients from all over the world. Losing the case caused a flurry of other case filings in one year that were subsequently either won in court, dismissed or withdrawn. This scenario caused MICA to settle for the policy limit for a pure business decision; basically MICA “hung me out to dry” and precipitously dropped my coverage, causing me to retire or scramble to get unattainable insurance coverage. I elected to carry on for

my patients and formed a captive company to insure myself, with a cash deposit of 1 million dollars into the captive, and a yearly premium of $500,000/year. After 5 years of no claims, no further complaints, and no losses I was then advised by my accountants to terminate my captive because the IRS could claim that my captive insurance company would be considered a tax avoidance shelter by IRS guidelines because it had NO losses and NO claims. I dissolved the captive and found outside malpractice insurance at a fraction of what I was paying MICA. In 2014, Arizona Senator Kimberly Yee sponsored a bill that was supported by her and two other legislators in committee, including the chair of the committee, but the bill subsequently lost in committee. Other legislators who voiced support, however, did not back their expressed sympathy and understanding with their vote. I speculate that this was likely due to the opposition by ArMA, MICA, and trial lawyers who showed up in committee hearing to argue against eliminating absolute immunity for their own sep-

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Round-up September 2016

Letters To The Editor arate interests. The opposition cited the 100-year Arizona tradition of giving absolute immunity to physicians to encourage physicians to testify against their own, to prevent an alleged, “conspiracy of silence by the medical community.” Proponents argued Absolute Immunity in the malpractice setting in today’s world is no longer good public policy. All we have to see is the plethora of websites advertising expert opinions for hire to know that “expert opinion for hire,” or personal agenda, is thriving. Expert witnesses are emboldened by this protection to say anything “experts” want, with immunity, for whoever hired them, or to use immunity to promote them or even go after competitors. We need to wake up to this way of thinking to preserve health care for our patients and for physicians. Absolute immunity should be eliminated for all litigation or the changing times will destroy our country as we know it. We are making the protection of hired experts more important than doing what is right for our patients. The very people the law was meant to help has provided a safe haven for the hired guns that are easy to find. Wake up fellow physicians! I am certain that all of you can cite cases where medical opinion or testimony has generated egregious decisions, even by your hospital or medical board. Use your influence with your professional societies to shout, “I will not tolerate the abuse that Absolute Immunity facilitates in our profession anymore!” The only protection needed for expert testimony is to make factual statements and make them in good faith, and absolute immunity will not be needed in any litigation. — Anthony T. Yeung, MD Past President, Maricopa County Medical Society Past President Arizona Orthopedic Society Past Board Member, Arizona Medical Association Past Chair, ArMA Political Action Committee Executive Director, International Intradiscal and Transforaminal Therapy Society

Disappearing private practice

The group of private practice surgeons that I work with will often share the Round-up with me and while reading the July edition I came across Dr. Johnston’s letter to the editor regarding an article in the May 2016 Roundup, written by Dr. Gunderman. As I have much respect for Dr. Johnston both as a previous employer and for a perfectly restored MCL/ACL that gave me many more years of soccer and softball, and continues to be problem free, I was interested in his always candid commentary. It then took a few days to find the May edition, and

today Dr. Harding asked me to read “How to Discourage a Physician,” so I now pen my letter to the editor. First and foremost, I will personally campaign for Dr. Gunderman to have a day named after him, or a parade and carrying him around on our shoulders. Brilliant article! I am a native Arizonan, born at Good Samaritan, delivered by Dr. Robert Price who my grandfather met as his milk man. Dr. Price started his care with my family doing my mother’s high school physical, delivered all 4 of her children, did all our appendectomies, tonsillectomies and womb-to-tomb care including delivering my 1st born daughter. He then started the GS Family Practice Residency and continued to care for my grandfather until retiring from the faculty program. Dr. Roseanne Collins trained at GS, and has been my family physician for 23 years. My granddaughter was delivered by Dr. Jeffrey Wolfrey’s daughter who was a FP resident, and Dr. Wolfrey was the Program Director at GS FP and hired me in 1994 to work there as a practice manager.

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Letters To The Editor I’ve primarily worked for private practice physicians, spent a few years at Lutheran Network, then Samaritan and the now-morphed behemoth, Banner. I watched the debacle of hospitals acquiring practices through the years, never with any positive outcomes but the current landscape is beyond disturbing. My # 1 message on all social media, to friends, family, and strangers is to NEVER see a physician employed by a hospital. Simplistic, desperate and perhaps a losing battle, but I see the patient is simply a commodity or cost center to these systems. As a matter of fact, it is a commodity much like the scenario where the government pays the farmer NOT to grow corn. The endless layers of costs and resources between the physician and a patient is beyond anything imaginable.

but defeated once they have their spines removed and bar codes stamped on them, and will stay in that system if for no other reason than credentialing with health plans. We receive calls from so many patients and referring physicians that are unable to secure appointments for those hospital employed surgeons, yet the insurance/ hospital controls and networks force the patient into limited narrow networks, regardless of geography. The rumor about employed surgeons is: don’t look for them in the OR, they will be in the lounge or meetings discussing strategies for pole vaulting over mouse turds. Stay healthy people, you don’t want to be in the non-delivery system of healthcare. — Cindy Leonard Director of Practice Development Arizona Associated Surgeons

The overhead in a private practice has gone up over the past 3 years well over 20%, with a benchmark now closer to 60% expense-to-income, primarily due to the technology onslaught, and the continued aggressive declines in reimbursement are forcing physicians to flee to the hospitals. Many ofRound-up thoseAd surgeons are11:44:02 genuinely unhappy, CTCA ANTO 2016.pdf 1 9/27/2016 AM

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Round-up September 2016

What’s Inside M

edical ethics is a topic that has been on the minds of physicians for more than a millennium. The first books on the subject were published as early as the 5th century, although modern approaches to ethics in medicine point to Dr. Thomas Percival’s guidelines published around the turn of the 19th century. In fact, the American Medical Association adopted its first form of these in 1847, and numerous modifications have been made over the years. With the advent of technology and man-made pharmaceuticals, as well as the current models of how healthcare is financed and cost accounted, ethics in medicine have evolved greatly in the last century. Today, both allopathic and osteopathic medical schools recognize the importance of ethics in training the physicians of tomorrow. The Association for American Medical Colleges (AAMC) has woven the importance of ethics in the medical profession into its recommended framework for what a didactic program should embody, and the Liaison Committee on Medical Education (LCME), which served as the accreditation authority for allopathic medical schools, has specific requirements for how ethics should be a key component of any curricula. Similarly, the National Board of Osteopathic Medical Education (NBOME) clearly defines the importance of ethics in spelling out the seven domains of osteopathic principles. But are medical students being prepared well enough for what medicine looks like today? Many argue that they are not, especially with the growing variability in medical school programs. Additionally, many believe that didactic coursework and mock patient encounters with ethical dilemmas don’t adequately prepare medical students for the ever-expanding list of ethics concerns that face physicians today. No one will argue that medicine is changing. It’s a fact. With access to more

tests, more therapies, and more treatment options, physicians today have a toolbox that would be the envy of physicians from previous generations. But with those tools come new ethical concerns, and physicians of today have to be more on their toes than ever before. Medicine has, and always will be, an altruistic profession, first and foremost. This month, we share with our readers the story of Dr. David Beyda, a highly respected medical ethicist who runs an international humanitarian organization in addition to his responsibilities at Phoenix Children’s Hospital and the University of Arizona College of Medicine at Phoenix. We also bring you a great piece by last month’s profile, Dr. Stephen Herman, who shares his thoughts on forensics psychiatry. Milligan & Lawless pens a ‘what to know’ when it comes to the Anti-Kickback Act and details the dangers of marketing inducements. A physician turned management professor shares with us her research on specialty bias and proper disclosure of conflicts of interest in medicine.

Jay Conyers, PhD EXECUTIVE DIRECTOR

jconyers@mcmsonline.com 602.251.2361

We also share with you an interesting article about the value in medical students reviewing the electronic medical records of their former patients to track proper diagnoses. Also in this issue is a look at debunking vaccination myths, despite the retraction of fabricated research results. The fourth installment of our student essay contest, co-sponsored with the MICA Medical Foundation, is in this issue, with Creighton student Michael Hafertepe sharing with us his thoughts on issues facing the medical field. Longtime member Dr. Jonathan Weisbuch provides an overview of Cannabis Manifesto, a book he recommends we all read, given Arizona’s recreational ballot initiative that will be in the hands of voters this fall. Lastly, we bring you a thought-provoking article by one of our preferred partners, Newmark, Grubb, Knight, & Frank, who offer mcmsonline.com/round-up

What’s Inside some insight into the benefits of physicians owning commercial real estate. Next month, we focus on community, and how our physicians are involved in caring for those in need and how they volunteer their time for a good cause. No physician embodies the spirit of community more than Sister Adele O’Sullivan, MD, founder of Circle the City, a local respite center filling the medical needs of the sick and injured experiencing homelessness throughout the valley. We’re confident her story will inspire you to think more about your community. We hope you had a chance to attend our Annual Event, October 14th at El Chorro Restaurant. Outgoing president Dr. Adam Brodsky delivered his annual address,

and incoming president Dr. John Couvaras offered his thoughts on what direction the Society hopes to pursue next year. Our keynote lecture was a thought-provoking presentation by two local physicians, Drs. Judith Engelman and Cynthia Stonnington, who examine various ways of how physicians can be more resilient to avoid burnout. Please keep an eye on our upcoming events by visiting our website: www.mcmsonline.com. Not a member? Simply email us at mcms@mcmsonline.com and our excellent staff will get you signed up as a member and register you for the event. We’d love to see you at the next event!

Forum on Public Health A Maricopa County Medical Society Event There will be drinks, good food, and a panel of speakers on some of today’s most pressing public health concerns. Join the discussion on topics such as the diagnosis and treatment of Valley Fever, Zika, and Cryptosporidium.

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Round-up September 2016

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his month’s journal concerns itself with ethics. But not the splashy, headline-grabbing ethics that many read about but few actually encounter. Instead, we hope to encourage discussion about the day-to-day ethics that each of us encounters in the seemingly mundane practice of everyday medicine. For example, consider the requirement for informed consent. When I schedule a cardiac catheterization I have a consent form in our office, a consent form again in the hospital, and possibly a separate consent for anesthesia if applicable. As we all know, these forms are long, difficult to understand, overly broad and meant to “cover all bases.” The actual risk of a procedure is very dependent on the specific mechanics of the procedure, which vary from person to person. In fact, the risk actually changes during the procedure as we make on-the-fly decisions about what tools and techniques to use. Regardless of what forms the patient may have signed, we are making a decision to proceed or not to proceed based on our understanding of the patients wishes. That is where the doctor-patient relationship really matters, because only in that setting can we really make the best decision with and for our patients. We all know the concept of framing - how you frame the issue can lead a patient to either choose a procedure or not choose a procedure. We can choose to frame the situation differently by emphasizing different risks and benefits, thereby leading our patients to make the choices we want. We do this all the time. It is neither ethical nor unethical, it is simply a fact given the large knowledge gap between the patient and the physician. It is more readily apparent in uneducated patients who simply follow our advice without protest, but is equally at work in our wellread patients no matter how many google searches and family member physicians they have. These interactions essentially make the written informed consent irrelevant as a knowledge tool. This is not to say it is not important, but we must recognize it for what it is - a symbol meant to “get

in our way” in order to remind us that we must be the ones to insure that we are presenting a fair and balanced assessment of treatment options, risks, benefits, and alternatives to our patients so that we are sure they understand and are therefore making the best decisions they can. This may smack of paternalism, however simply letting our patients fend for themselves with no more than a written consent form and the internet to guide them, all in the name of patient autonomy, can be equally damaging. When we learn ethics in medical school, we learn about our “evil” predecessors performing the infamous Tuskegee syphilis experiments. We then pat ourselves on the back as we contemplate how far we’ve come with our civilized informed written consent documents. I submit to you that if the best ethical praise we can give ourselves is that at least we don’t experiment on people without their knowledge anymore, then we have a long, long way to go. Another example of day-to-day ethics lies in the possibility of our over-utilizing medical care in a fee-for-service environment or under-utilizing in a capitated environment. There is a long way between frankly lying on the medical record (fraud) for financial gain, and not finding the life threatening illness afflicting the patient because the patient was stoic and didn’t admit to any particular symptoms after cursory history. We all know that some patients must have their symptoms “pulled out of them” with more aggressive or specific questioning. As in the informed consent discussion above, how we frame the question can lead our patients to answer one way or another. A patient who doesn’t really want to come to the visit may initially answer “no, not really,” when asked about chest pain. I could be finished with the interview at that point, or I could, sensing they have something more to say, ask them more pointed questions eventually eliciting the fact that they occasionally do have some chest pressure, leading to the diagnosis of coronary artery

Adam Brodsky, MD, MM

MCMS PRESIDENT 2016 abrodsky@mcmsonline.com 602.307.0070

Dr. Brodsky specializes in Interventional Cardiology. He joined MCMS in 2005. Contact Information: Heart & Vascular Center of Arizona 1331 N. 7th Street Suite 375 Phoenix, AZ 85006 http://heartcenteraz.com

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President’s Page disease they didn’t know they had. Similarly, the patent who is clearly short of breath just walking into the room but answers in the negative when questioned because they have so acclimated to their level of deconditioning, may simply never answer in the affirmative, no matter how many times I ask the question. Does this mean I am unable to order any further tests to diagnose their obvious shortness of breath? What if the only way the insurance company will cover any testing at all is if the patient has a symptom? If these examples seem contrived, I assure you they are not. I cannot tell you how many times my medical student, resident, fellow, physician’s assistant or nurse practitioner have come out of a patient’s room to say that the patient has no complaints, only for me to step in a few minutes later and illicit one or more symptoms. However, I have also heard stories of physicians only half-jokingly saying that “any patient is short of breath if you push them hard enough” or “the patient looked like they would be short of breath if they were to

walk little faster…” in order to be able to chart the diagnosis they need to get the test they want covered. No matter how many boxes we check on the appropriate use form, at the end of the day it is simply me deciding how hard to push each patient and simply me deciding how ethical it is to document the symptom I need to get the test I think my patient needs. I can do this ethically and do what’s right for my patient; I can do this unethically and over- or under- order for financial gain; or I can do this equally unethically and under-order out of a misdirected sense of allegiance to appropriate use guidelines when they are clearly inappropriate for the situation at hand. But I have to individually make that call with each and every patient encounter. We cannot hide behind the facade of forms we fill out. The day we abrogate this responsibility, which can only be fulfilled by a full human-to-human interaction leading to a true understanding of our patient’s story, will be a sad day for the practice of medicine.

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The Cannabis Manifesto: A Book Review

BY JONATHAN WEISBUCH, MD, MPH

n November, 2016, the voters of Arizona may well have the chance to vote on a Proposition that would legalize the sale of marijuana not only for medicinal purposes, but also for recreational use. This action will move Arizona into the company of the states of Colorado, Oregon and the District of Columbia, all of which have voted to eliminate the legal strictures against both the sale and possession of the product. In preparation for the possibility that such a Proposition will be passed by the voters of this state, it would appear to be prudent for physicians to become more familiar with the actions of marijuana and its active ingredient, cannabis. Tetra-hydro Cannabinol, the active ingredient of the marijuana plant when smoked or eaten has several effects on the human brain, frequently resulting in what is described as the “Mary Jane high.” Most of us, when we studied pharmacology in medical school were not taught about the biochemical and physiologic reactions that occur when cannabis is ingested; although one must presume that

many of us tested those reactions experimentally. The book, “The Cannabis Manifesto,” by Steve DeAngelo, is both an interesting read and packed with information that every physician should know when patients begin to ask about the product for personal use and the use of marijuana by their teenagers. The general focus of the text is upon what is known about the chemical, physiologic and therapeutic aspects of cannabis, as well as the social and epidemiologic factors that have been engendered as the result of 80 years of prohibition. Mr. DeAngelo begins his treatise by suggesting that the harm that might occur from the use of marijuana is far less than that which has occurred as a result of the legal prohibitions that have existed since the 1930s when Mr. Harry Anslinger, the first Commissioner of the Federal Bureau of Drugs and Narcotics, encouraged Congress to pass the Marijuana Tax Act in 1937 which criminalized mcmsonline.com/round-up

both the growing of hemp and the consuming of any form of cannabis. Virtually all of the evidence demonstrating “Reefer Madness” used by Mr. Anslinger in his testimony to Congress in support of the law has been shown to have been bogus. Virtually no evidence existed showing that the consumption of marijuana ever caused any form of madness or violence. Yet the law was passed, and millions of users since have been subject to criminal penalties if indicted by local or federal authorities. Today, the data shows that up to 50% of state and local prisoners have been incarcerated for selling, possessing or using a prohibited substance on the Schedule I list of drugs. The harm to these individuals socially is immeasurable, yet the number of users of marijuana who have been harmed by the drug, or have caused harm to others is vanishingly small. Just as the cost to society, and the increase in crime associated with the illegal distribution of alcohol during Prohibition in the 1920s, so the growth of criminal activities to sell banned drugs and incarcerate users has become a fatal war by the government against certain segments of society. Mr. DeAngelo makes a very strong case that prohibition of cannabis has been carried out at a very high cost to all of American society. He makes a very strong argument that marijuana and cannabis should never have been made illegal; but should have been regulated, taxed, studied, and woven into the fabric of therapeutic elements within the medical armamentarium. The primary thrust of “The Cannabis Manifesto” is that the product has, for millennia, been used as a therapeutic product by ancient healers in China, Persia, India, Egypt and Greece. In more recent times, cannabis has been used in pre-revolutionary America by Native Americans, and by early physicians. Early medical reports indicate the therapeutic nature of cannabis for a variety of illnesses from epilepsy to cancer. Unfortunately, since the passage of the 1937 legislation, and the inclusion of marijuana as a Schedule I drug, very few American studies of marijuana have been published. With new information now emerging from Israel, Europe, and a few studies from this country, the potential for therapeutic uses of cannabis may ultimately be found. The ultimate benefit of decriminalizing the product, and allowing recreational use, is that the state will be able to raise taxes on its sale, and develop a set of regulations to assure the product that is sold has a regulated amount of THC, no impurities, is not a substitute, and is only sold to adults able to make their own decisions about use. These are the kind of questions that patients will be asking their physicians during the debate on the Proposition, if it passes, and as the state develops appropriate regulations to manage its use. To be prepared, the hundreds of citations which fill DeAngelo’s book are invaluable. He references papers on the biochemistry of cannabis, the positive and negative health effects of usage, the legal implications of current laws, and the long history of the chemical as a therapeutic tool. Any physician wishing to have solid 14

Round-up September 2016

information to answer patient’s questions on cannabis would do well to read Steve DeAngelo’s book, “The Cannabis Manifesto.”

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Ethics and Forensic Psychiatry BY STEPHEN P. HERMAN, MD, FAPA, FAACAP

orensic psychiatry is often misunderstood by other mental health professionals, attorneys, and members of the general public. It may be surprising to learn that this unique sub-specialty has its own ethical standards. First, what do we mean by “ethics?” Derived from the Greek ethos meaning, “accustomed place” or habit, ethos is the root of the word ethikos, meaning “moral” or “showing moral character.” Aristotle wrote extensively on ethos, as did later philosophers, who noted its appearance in theatre, literature and art. While they still debate today over fine points, we use “ethical” today to mean adhering to the basic values of a person, profession, business, etc. “Medical ethics” is a term first used by an English physician, Thomas Percival, who wrote a pamphlet about it in 1794. However, the subject was written about in the West, by Hippocrates (the well-known Hippocratic Oath), early Christians, and Catholic scholars such as Thomas Aquinas, Jews, including Maimonides and Muslim philosophers, including Ishaq ibn Ali al-Ruhawi, author of Conduct of a Physician. The first code of medical ethics of the American Medical Association was adopted in 1847. Today, the term is ubiquitous in every aspect of medicine.

Ethical standards apply to psychiatry and forensic psychiatry. After 1980, when the AMA updated its Principles of Medical Ethics, the American Psychiatric Association published The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. The latest revision was in 2013. In its 35 pages, the Annotations contains eight parts covering every aspect of psychiatric research and practice, from forensic issues: “When the psychiatrist is ordered by the court to reveal the confidences entrusted to him/her by patients, he or she may comply or he/ she may ethically hold the right to dissent within the framework of the law. When the psychiatrist is in doubt, the right of the patient to confidentiality and, by extension, to unimpaired treatment should be given priority. The psychiatrist should reserve the right to raise the question of adequate need for disclosure. In the event that the necessity for legal disclosure is demonstrated by the court, the psychiatrist may request the right to disclosure of only that information which is relevant to the legal question at hand;” mcmsonline.com/round-up

to other basic issues such as: “Psychiatrists shall not participate in torture;” and, “Medical doctors shall not participate in executions.” or: “On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.” This section, colloquially known as the Goldwater Rule, is one of the most important principles, born out of one of psychiatry’s greatest failures. Briefly, as every Arizonan knows, Barry Goldwater ran for president against Lyndon Johnson in 1964. In the midst of the campaign, Fact Magazine, published by Ralph Ginsburg, ran a story entitled “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater.” The article quoted over a thousand American psychiatrists who opined — without ever meeting Senator Goldwater — that he was unfit to be president. Goldwater successfully sued the magazine and a federal jury rewarded him $1.00 in compensatory damages and $75,000 in punitive damages. The verdict was appealed unsuccessfully, and the United States Supreme Court refused to hear it. That was the end of Fact Magazine. Today, a violation of this rule could result in severe sanctions by the American Psychiatric Association. This was a serious blemish on general psychiatry. Forensic psychiatry, although demeaned by those who see it as the specialty of “the hired gun,” has a legitimate and very important role to play as a subspecialty. Forensic psychiatrists — now with their own Board Certification — are involved with a multitude of medical-legal topics, such as sexual abuse allegations; custody battles; psychiatric malpractice; criteria for the insanity defense; Internet crimes, such as stalking, online harassment, and possession of child pornography; sociopathy; juvenile crime; mental health conditions in prisons; competencies to represent oneself in court, to sign a will, and to understand court proceedings; the impact of major court decisions upon psychiatry and human rights; mass killings in public places; assessing risks for violence; immigration issues; the possibility of malingering; legal decisions relating to Munchausen-by-Proxy; the possibility of mitigation in capital cases; medical-legal aspects of bullying; and applying new behavioral and neurological findings to crimes or other antisocial behavior. The need for expert witnesses of all kinds — especially psychiatrists — has increased since three seminal court decisions: Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, and Kumho Tire Co. v. Carmichael. In 16

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Here are some examples of forensic psychiatry in action: A single mother was convicted of murder by starving of one of her six children. She is serving a long prison term. The maternal grandmother petitioned the court to allow adoption proceedings to proceed for her to gain full parental rights to the remaining children. Child Protective Services vehemently opposed, reporting: 1) the grandmother should have known about the fatal child abuse, and 2) the remaining children did not have strong attachments to each other or to their grandmother. A forensic child psychiatrist was appointed by the court. He assessed these relationships by seeing the children alone and together with their grandmother, the grandmother, alone, and by reading numerous case files. He spoke to the case worker at CPS and reviewed the agency’s records. He visited the mother in prison. She expressed her fervent hope that the adoption would be successful. The forensic evaluator agreed and wrote a report, submitted it to the Court and testified as to his findings and opined that the adoption would be in the best interests of the children. The judge agreed and granted the adoption. *************** A 15-year-old girl — always at odds with her parents — one evening set a small fire at their bedroom door, while they were asleep. The fire quickly spread throughout the house. The girl, panicked, awoke her parents and all escaped without injury. The house was destroyed. The teen admitted her crime to her parents and the police. She was placed in juvenile detention. Both the prosecutor and defense attorney agreed to a single forensic psychiatric evaluation of the teen. The psychiatrist diagnosed her with Major Depressive Disorder and chronic use of MDMA/ecstasy, which has hallucinogenic and stimulant properties. The recommendation of the forensic expert was that she receive dual diagnosis in-patient treatment, followed by longterm individual psychotherapy. The prosecutor agreed but placed her on one year of probation. ******************** A forensic child psychiatrist was court-appointed to evaluate an 8-year-old girl who had been kidnapped by her mother at age 4 and taken to Germany to live with her extended family. She was found four years later and returned to the United States. She had lost all of her English and only spoke German. She did not remember her father and missed her friends in Munich. With a professional translator, the psychiatrist interviewed the child alone, and with each of her parents. The little girl was clearly attached to her mother and barely looked at her father. Whenever he tried to engage her, he was rebuffed.

The forensic psychiatrist struggled, looking for some mitigation of an impossible solution. Recognizing the psychological harm to the child, she nevertheless concluded in her report and testimony that the mother could not be “rewarded” for breaking the law, and the child would, over time and with intensive psychotherapy, reconnect with her father and relearn English. The forensic expert recommended that the father and mother — if she remained in the United States — work together as best as they could to help heal their child. *******************

summary, Frye, the oldest decision, held that expert scientific opinion is admissible only where the technique is generally accepted as reliable in the relevant scientific community. Daubert required more: the judge must be the “gatekeeper” of the admissibility of expert testimony; the technique in question can be (and has been) tested: whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards, and whether it has attracted widespread acceptance within a relevant scientific community. Finally, Kumho extended the Daubert criteria to all expert testimony — not just scientific. Forensic psychiatrists may testify in either Frye or Daubert states.

whether a patient is likely to commit violence. Another is to confuse lying with malingering. (Psychiatrists are no better at prediction than the general public.) Forensic psychiatrists know that predicting future violence is extremely difficult. We can list positives and negatives of future dangerous. However, we know the best predictor of future behavior is past behavior. Forensic adult and child psychiatry is an exciting, intellectually challenging and ever-changing profession. Physicians must keep up with medical advances as well as important changes in the law. After decades of practice, I am as enthusiastic about my work as ever.

STEPHEN P. HERMAN, MD, FAPA, FAACAP Dr. Herman is Board-Certified in Pediatrics, Adult Psychiatry, Child & Adolescent Psychiatry and Forensic Psychiatry. He has four decades of experience in forensic and clinical child and adult psychiatry. He has written for peer reviewed journals, and he is the author of Parent vs. Parent — How You and Your Child Can Survive the Custody Battle. sherman8earthlink.net www.childadultforensics.com

The American Academy of Psychiatry and the Law (www.aapl.org), our primary professional association, has promulgated ethical guidelines, based on those of the AMA. These include such issues as rights of privacy and confidentiality and how they change during a forensic evaluation; informed consent, which is not required, for example, in court-ordered evaluations for competency to stand trial or involuntary commitment; honesty and integrity when performing forensic assessments regardless of who pays the fee; refusal to take contingency fees; and being well-qualified on the subject being addressed. When forensic psychiatrists evaluate a child, the same warnings should be presented in a developmentally appropriate manner. Most children, even as young as three years old, have heard the words “judge” or “divorce,” but they do not connect them with the present evaluation. In addition, if the child is old enough, she should understand that if, during your interview, you develop a good-faith suspicion she has been abused, you are required to report that immediately. As in any medical specialty, forensic psychiatrists strive to do no harm to those we evaluate and to represent the very best of psychiatry. However, sometimes forensic psychiatrists forget this. A serious example is to assume the “two-hats” of acting as therapist and forensic evaluator. Occasionally, even courts put treating psychiatrists in this position by asking the therapist to provide a medical-legal opinion such as whether a child is ready to see her mother without supervision, or predicting

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THE STRENGTH TO HEAL and stand by those who stand up for me. Learn the latest treatments and play an important role in the care of Soldiers and their families. As a physician on the U.S. Army Reserve health care team, you’ll continue to practice in your community and serve when needed. You’ll work with the most advanced technology and distinguish yourself while working with dedicated professionals. You’ll make a difference. To learn more, visit healthcare.goarmy.com/ey56 or call the Phoenix Medical Recruiting Center at 602-253-0371.

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Informed Refusal: When the Patient Says “No” BY KAREN WRIGHT, RN, BSN, ARM, CPHRM

e see it all too often, patients who refuse to follow the recommended treatment plan. A patient’s mother died of a hereditary disease and now the patient displays symptoms of the same disease. The patient adamantly declines any further evaluation when additional diagnostic testing is recommended. A high risk pregnant patient declines additional ultrasounds to determine fetal well-being. A hospitalized patient is stable for discharge but requires six weeks of IV antibiotics for continued treatment of an infection. The patient cannot afford home healthcare and there are no community resources available. These are examples of situations where patients have exercised their right to refuse the proposed treatment plan. However, it is the physician’s responsibility to ensure patients understand that their refusal to follow the medical recommendations pose a deviance from the accepted standard or guideline for care and there is a significant and very real risk of an adverse outcome.

The legal requirement for informed consent stems from the principle of Battery, defined as an intentional tort consisting of unauthorized touching of another person that results in harmful or offensive contact.1 Battery can also apply if a procedure is performed outside the scope of the

consent provided. Informed consent is a legal and ethical concept and a fundamental element in a patient’s right of self-determination.2 Additionally, licensing Boards recognize the physician’s obligation to provide adequate informed consent, and that it must be documented. Failure to obtain proper informed consent could lead to allegations of battery, negligence and/or unprofessional conduct. Adult patients have the right to make an informed decision regarding their healthcare. Therefore, a competent adult can refuse treatment, even if the treatment is necessary to their life and health, for any reason. However, clinicians should be sensitive to the fact that patients may refuse treatment with a variety of motives, such as fear, lack of economic resources or misunderstanding regarding the nature of the proposed treatment. Inadequate healthcare literacy might even play a part in the patient’s reluctance to follow the medical advice provided. Physicians need to be advocates for the care or treatment warranted by the patient’s condition and explore the rationale for the patient’s refusal. Accordingly, physicians should consider taking additional efforts to explain the recommended treatment plan, the rationale and reasons for it, and the probable and possible consequences of refusal. In some circumstances, it may mcmsonline.com/round-up

PATIENT’S NAME: My physician, ______________ has recommended the following treatment or procedure: This treatment or procedure has been recommended for the purpose of: The potential benefits of the treatment or procedure have been explained to me and include: and that the risks are: My choice is: The possible alternatives to reduce these risks are: By signing this document, I acknowledge that my medical condition has been evaluated and explained by my physician, who has recommended the treatment or procedure as stated above, and the doctor has explained to me the potential benefits of such treatment or procedure and the risks associated with it, as well as the probable risks of not following the recommended treatment or procedure, which I fully understand. In spite of this understanding, I refuse to consent to this medical treatment or procedure, I assume responsibility for all risks and consequences of my refusal for my health and quality of life, and I hereby release my treating physician and all others participating in my care from all responsibility for poor outcomes and bad results due to my refusal of the recommended treatment or procedure. If the patient is unable to sign by reason of age or some other factor, please state reasons: Do not sign unless you have read and thoroughly understand this form. Informed Refusal of Treatment By signing this form, I am stating that I have read, understand, and do not consent to the treatment or procedure recommended by my doctor. DATE: __________TIME: ____________ SIGNATURE OF PATIENT OR AUTHORIZED INDIVIDUAL RELATIONSHIP OF AUTHORIZED INDIVIDUAL Witness The patient/authorized individual has read this form or had it read to him or her. The patient/authorized individual states that he or she understanding this information. The patient/authorized individual has no further questions. DATE: ______TIME:______SIGNATURE OF WITNESS______________________________

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be helpful to bring in additional physicians and family and friends to assist in the discussions with the patient. When it is reasonably apparent a competent patient will not follow the recommended treatment plan, there must be a clearly documented explanation of the potential ramifications of the refusal. The patient’s understanding of the risks should be verified. Additionally, it is important to identify treatment alternatives which could possibly minimize the risks. While the physician’s best medical judgment may not be followed, a negotiation, of sorts, with the patient may yield a treatment plan with less risk than doing nothing. Faced with a patient’s refusal to follow the medical recommendation and recognizing the patient’s right to refuse the proposed treatment, the clinician should carefully document the discussion regarding the refusal. This documentation should include the specific treatment refused, as well as a clear statement regarding the patient’s declination. It is also important to document the risks and circumstances of the patient’s refusal were thoroughly explained, along with the patient’s demonstrated understanding. Finally, a summary of the possible alternatives discussed and the negotiated resolution, if achieved, should be documented.

a mechanism for documenting the discussion regarding an informed refusal. The tool also serves to impress upon the patient the seriousness of their reluctance to follow the clinician’s recommended course of action. A well-documented note and/or refusal form will assist in defending any subsequent claim or licensing board complaint. 1. Cornell University Law School. Legal Information Institute. n.d. Available at: https://www.law.cornell.edu/wex/assault_and_battery 2. Selde, W. Know when and how your patient can legally refuse care. Journal of Emergency Medicine Services. March, 25, 2015. Available at: http://www.jems.com//articles/print/volume-40/issue-3/features/ know-when-and-how-your-patient-can-legal.html

KAREN WRIGHT, RN, BSN, ARM, CPHRM Karen Wright is a Senior Risk Management Consultant for the Mutual Insurance Company of Arizona (MICA). She has more than 20 years of risk management experience and provides a wide range of risk management education and consulting services to hospitals, out-patient facilities, clinics and medical offices.

In some cases, a signed refusal of treatment form should be obtained. MICA Risk Management Services developed a sample refusal of treatment form. This form provides

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date of service will not be listed and agencies must delete accounts that are paid through insurance. Enhanced requirements were also added for data furnishers to supply a full name (First, Middle, Last & Generation Suffix), address, full social security number and/ or date of birth for account acceptance.

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Ethics and the Covenant of Medicine: an interview with

David H. Beyda, MD

Article photos by Denny Collins Photography. www.dennycollins.com • (602) 448-2437

BY DOMINIQUE PERKINS

r. Beyda’s path to becoming a doctor doesn’t look like most. Raised around the world and in a great many unusual circumstances, his first-hand observations of the suffering and living conditions of underdeveloped and war-torn countries shaped his views and his ambitions.

A world wide upbringing Both of Beyda’s parents were raised in Cairo, Egypt. His father had a particular gift for languages and spoke seven in all. When Beyda was about five years old, his parents moved to New York City, where his father found work as a simultaneous translator for the UN General Assembly. Not long after that, and while going through a divorce, he was transferred to the UN Foreign service, and stationed in Somalia as a UN representative. Beyda and his mother and sister moved to Toronto for two years.

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“This covenant wasn’t just about taking care of people; it entailed caring about and for them,” he said.

An early start in international medicine Beyda said there was never a time when he didn’t want to be a doctor, and he can remember observing people with rashes or bandages or different gaits and wondering what it was they had and how he could make them better at a very early age. When he was only 15 years old, he began working with a Philippine surgical team in Laos on every break he had from school. “This informal but hands-on kind of education continued, so that I found myself in situations that offered opportunities not given to most, and I eagerly took advantage of them because of my father’s position,” he said. Beyda attended Loyola University Stritch School of Medicine, and completed a pediatric residency at the University of Louisville Kosair Children’s Hospital, followed by a pediatric critical care fellowship training at John Hopkins University.

“I vividly remember looking up at the sky every time I heard an airplane flying overhead, wondering where it was going and thinking how much I wanted to be on it,” Beyda said. In 1958, Beyda’s father was appointed the representative of the United States Government in Somalia. He made a brief trip to Toronto, and one week later Beyda packed his things and followed to Washington D. C. and then to Somalia. Looking back, Beyda said that his mother told him later that she knew it would be best for him to travel with his father, and that those experiences would help him become who he was meant to be. “She gave up a part of her heart for me,” he said. Growing up with his father, Beyda traveled the world and received a less than conventional education. One of his caretakers in particular, a man named Mahmoud, diligently trained Beyda to carefully observe the world around him. “We would sit in a village to watch the routines of Somali life, and Mahmoud would ask me to tell him what I saw,” he said. “At first I rendered basic, elementary observations: there’s a camel, there’s a mother with her children, and so forth. As time progressed, he taught me to observe more carefully and describe the characteristics of a camel, as well as the actions and movements of a mother, the children, and how they behaved.” This early training has served Beyda well as a physician, using his senses to read a patient’s condition and situation, and informing his views on relationships, which would later become his treatment and teaching philosophy of “covenant” medicine. 24

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In December of 1979, during his last year of residency at the University of Louisville Kosair Children’s hospital, Beyda joined the International Rescue Committee as medical director of the pediatric ward at Khao I Dang refugee camp on the border of Thailand and Laos. This was during the control of the Communist Party of Kampuchea, known as the Khmer Rouge, and a genocide that would be responsible for the deaths of nearly 2 million people. “There is something palpable about death, and I literally felt it before I actually saw it,” Beyda said of his arrival in the camp. The refugee camp was still being assembled — bamboo shacks lined up one after another—when the refugees came rushing down the mountain by the thousands into the unprepared camp. “In the first ten minutes I saw three people die,” Beyda said. “Within three hours, we had over 10,000 refugees in our camp. By the next day, we had 21,000 refugees. Within three weeks, we were up to 65,000, and after three months, we had 150,000 refugees. That first day, over 650 people died. By the second day another 600 had died, and by the end of the week we were seeing, on average, 100 people dying each day.” With hundreds of children in his care, and limited diagnostic equipment, Beyda quickly learned to make assessments based on what he could observe, and to make life and death decisions for his patients. “The human suffering was incalculable,” he said. While at Johns Hopkins, he became known for his research in brain resuscitation, and he lectured around the country and became known for aggressive and innovative techniques for measuring the metabolism of brain cells and blood flow to the brain. At the end of

his fellowship he was heavily recruited to start a pediatric ICU, and chose Phoenix Children’s Hospital (PCH).

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Beyda is currently the Division Chief of Critical Care Medicine at PCH, and Professor of Child Health at the University of Arizona College of Medicine-Phoenix, as well as the Chair and Professor of the Department of Bioethics and Medical Humanism.

Introduction to the field of medical ethics Eager to show off his skills of saving lives, heady with the recognition and responsibility his research had brought him, and heavily influenced by his experiences in Laos, ego had a firm hold on Beyda’s medical demeanor. Indeed, he recalls thinking of himself almost as a god, with the power to fight off death and change the courses of his patient’s lives; making treatment decisions “to” the patient rather than “for” them. One day during rounds, Beyda came face to face with an experience that changed his outlook and shaped the rest of his life. A four year old boy injured in a terrible car accident was rushed to the hospital via helicopter. His head was severely injured, his bones were fractured, his internal organs bruised, shattered, and much more. Beyda was the attending physician, leading the trauma team, residents, and an entourage of medical students, respiratory therapists, nurses, and more. The resident presented the case, citing numbers, charts, vitals, and referencing test results, then Beyda took over, taping sheets of paper to the wall as he explained the physiology of the injuries, and the theory of what was to be done, when a small voice interrupted him. “Excuse me,” it was the boy’s mother. “You really don’t know who Jeffrey is, do you? All you know is what he is. A bunch of broken pieces that you are trying to put back together.” “You don’t even call him by his name,” she continued. “He is a ‘thing’ to you. Well, not to me. His name is Jeffrey. He is my son.” And she walked away. That experience shook Beyda, and he has never been the same since. “I learned over time that there is a difference between just keeping a patient alive and ensuring that they have a meaningful life when they leave the hospital,” he said. “Medicine is centered on a physician-patient relationship based on the “who”—the person, and not only on the complaint, the injury, the

illness, or the diagnosis. It is about knowing who the patient is, his life, his goals, his wants, and his fears.” Beyda began writing essays on patient experiences, and attended and was appointed as a Visiting Fellow and Scholar at the Kennedy Institute of Ethics and the Center for Clinical Bioethics at Georgetown University in Washington D. C., where he completed his training in medical ethics.

Today’s ethical concerns When asked about particular ethical issues facing today’s physician, Beyda said there are quite a few. One issue concerns patient consent for procedures. Beyda pointed out that absolute truth telling can be a challenge here. Not because physicians have any desire to deceive their patients. On the contrary, physicians want the best for their patients and feel they know what the best treatments and procedures are for them. However, this can sometimes tempt physicians to give only as much information as is needed to gain consent, or perhaps to shield the patient from points that might overly frighten the patient. When deciding procedures, or ordering tests, or employing new medical technologies, Beyda recommends considering whether the course is a necessity, or merely a convenience. “Medicine is addicted to technology,” Beyda said. Medical technology has certainly advanced our understanding of health, medicine, and patient care, and has saved many lives as a result, Beyda said. However, it can also serve as a distraction from the human-to-human interaction that should serve as the core of healthcare. “Technology has progressed to the point where it at times supersedes caring, implying a type of pseudo-caring that can leave the patient isolated and empty,” Beyda said. Another issue that surfaces in determining tests mcmsonline.com/round-up

and procedures is company inducements. Despite the fanfare over the government’s initial crack-down on pharmaceutical inducements, modern lab companies seem to be resorting to similar tactics, and the ethics of accepting these inducements are of growing concern among today’s physician community. Beyda feels that physicians should acknowledge their share of the blame. We all, patient and physician alike, find ourselves wanting a quick fix and easy answers, and sometimes push technology in place of what Beyda calls “being present when present.” “Physicians investing in medical laboratories and other businesses to which they refer their patients poses a threat to physician trustworthiness by creating an incentive to order unnecessary tests,” Beyda said.

not to mention savvy patients who “shop” for a physician or emergency room that will give them what they want, Beyda said it is sometimes all too easy to react to the symptoms, the diagnosis, and the complaint, and prescribe without the full picture of who the patient is, and the best solutions for care. The time this takes is hard to come by, Beyda acknowledges, but worth it. One ethics concern that doesn’t get as much public attention, Beyda says, is the concept of futility. Physicians, by their nature and habit, do not like failure, and can be reluctant to accept that occasionally further treatment has no further benefit for the patient, and it’s time to walk away. “I am reminded of a quote from MASH when Hawkeye was struggling with the loss of a patient (I’ll paraphrase): “There are two rules in life. Rule number one is that people die and rule number two is that you can’t change rule number one,” he said.

Along with consent for treatment and the judicious use of tests and technology, the concerns regarding opioid prescription present a very real ethical concern in our day and age, and one that is becoming more and more of an issue.

Volunteering abroad

When facing patients who demand medications, Beyda said that most physicians do make an attempt to explore the reasons behind the opioids, and to examine other avenues of therapy. But with shortened visit times,

Beyda uses his considerable training and experience abroad as well as state side. He founded the Children’s Heart Project, which provides comprehensive cardiovascular care to children in Sri Lanka. He is also the

Round-up September 2016

MEMBER PROFILE

founder and Medical Director of Medical Mercy, the medical arm of One Child Matters, traveling 6-8 times a year to care for children in over 20 countries, a few of which are Cambodia, Swaziland, Mozambique, Kenya, and Ethiopia. He has also founded Covenant Medicine Outreach, a medical ministry serving the forgotten children in Kenya and Swaziland. Since 2004 he has made over 60 medical trips to third world countries serving underprivileged children. These international trips have exposed him to a number of ethical concerns unique to caring for those in underprivileged countries, and Beyda says he has seen gross unethical practices by those who really should know better. “There are times when I find myself conflicted and in moral distress knowing that I could have prevented a death or treated an illness if I had the right medications and facilities,” he said. “But I have learned that there is sometimes more to the delivery of medical care in an underprivileged country than just bringing medicine.” Instead of focusing on what we bring — medical equipment, facilities, medicine — Beyda choses to focus on what he leaves behind by caring about all of his patients, and being present.

Additional photos provided by Dr. David Beyda, from his many travels. The photo of the small girl was taken in Egypt. The markings on her eyes are to ward against evil spirits. The photo of the older woman with the small boy was taken in India. The group of teachers in the third photo are from Kenya, and spent two weeks with Dr. Beyda training to be healthcare workers. The photo of Dr. Beyda carrying the small boy was also taken in Kenya. We are so grateful to him for sharing these memories with us!

DOMINIQUE PERKINS Dominique joined Maricopa County Medical Society’s staff in 2014, and is currently serving as the Communications Coordinator. She has a bachelor’s degree in Communications and Journalism, and over 6 years’ experience as a writer, editor, and social media strategist. Dominique also enjoys helping with Society events. Be sure to look for her the next time you attend! Dominique can be reached at dperkins@mcmsonline.com.

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Dr. Beyda | On the Personal Side Describe yourself in one word. Introverted

What is your favorite food, and favorite restaurant in the Valley? Potato chips; Paradise Bakery

What career would you be doing if you weren’t a physician? Writer and teacher

What’s a hidden talent that you have that most wouldn’t know about you?

• Play a right handed strung guitar left-handed, play chords upside down. • Pilot

Best movie you’ve seen in the ten years? Saving Private Ryan

Favorite Arizona sports team (college or pro)? Diamondbacks

Favorite activity outside of medicine? (hiking, painting, fishing, etc.) Writing and Flying

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Family?

I’ve been married 36 years to Charclye. We met when I was in my 3rd year of pediatric residency and did a rotation through the neonatal ICU where she was a NICU nurse. I gave her an order and she refused to follow it, as it was wrong and not going to help the baby. She burst my egotistical bubble. I asked her out right then and there. She is and has always been the foundation of my life. We have 2 sons, Nicholas 34 years old who is Assistant Professor in the College of Pharmacy at the University of Houston and Justin 32 years old who is our special needs adult who works at Fry’s and performs in full production musicals with Detour Theatre Company. We have a daughter in law Rebecca, who is an adolescent medicine physician at Miller Hermann Children’s Hospital in Houston (who met my son Nicholas on a medical mission trip when I took 5 of my pediatric residents to Africa and called Nicholas who was in Pharm.D school and asked him if he could come along to help with meds – they met on that 7 day trip and got married a year and a half later). We have 2 grandchildren, Nate three and a half years old and Molly, eight months old.

Dr. Beyda has published 2 books: Border Crossings, and Covenant Medicine.

Beware of Marketers Bearing Gifts: How even small gifts can lead to big problems BY BOB MILLIGAN & NEEL KOTHARI

physicians. However, since accepting even token gifts can lead to devastating penalties, caution is advisable when anyone seeking your referrals approaches you bearing gifts.

It might a bit melodramatic to make a comparison between the Trojan Horse and the gifts given to physicians by companies seeking referrals from those

This article provides a brief summary of the laws implicated by gifts given to referring physicians, including a discussion of “remuneration, which is a key concept under those laws. It also provides information about the current environment for enforcement of the laws. Finally, it provides references to guidance issued by the DHHS Office of Inspector General (“OIG”) and professional associations relating to the offer and receipt of

n Aeneid, Virgil tells the story of the Trojan Horse, the “gift” left by the Greeks for the Trojans. One of the Trojan elders warns the Trojans against accepting the gift by telling the citizens, “I fear the [Greeks], even when bringing gifts.” The warnings are ignored, and the Trojans wheel the Horse inside the city. That night, Greek warriors hidden inside the Horse slip out, and initiate the destruction of the city.

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gifts between referring physicians and the entities to which they refer.

The rules The law that is most often implicated by the offer of gifts to referring physicians, and the acceptance of those gifts by physicians, is the federal Anti-Kickback Act (“AKA”). The AKA makes it a felony to, among other things, knowingly and willfully offer or receive “remuneration” in exchange for the referral of a patient for items or services reimbursable by a federal health care program, e.g., Medicare, AHCCCS, etc. A person convicted of violating the AKA is subject to a fine of up to $25,000, imprisonment for a term of up to five years, or both. Although the AKA is the focus of this article, another law that might apply to gifts given to referral sources is the Stark law. The Stark law is narrower in its focus (it only applies to referrals for imaging, lab, PT and other “designated health services”), but it is potentially more dangerous. This is because the law is hellishly complex, and because physicians can (and often do) violate the Stark law without even suspecting that they are in peril. Although this is a dramatic oversimplification, as a general proposition, a gift given to a physician who makes referrals for designated health services may violate the Stark law. A violation of the Stark law carries hefty civil penalties. To compound the problem, if referrals are made in connection with an arrangement that violates the AKA or the Stark law, the submission of claims for payment for those services may violate the federal False Claims Act, which carries its own draconian sanctions. Finally, physicians who violate these laws may be exposed to other civil penalties, exclusion from participation in federal health care programs, licensing actions and other potentially career-altering consequences. The possibility that gifts might influence referral decisions is not lost on the DHHS Office of Inspector General (“OIG”) (the agency charged with primary responsibility for enforcing the AKA) or the Department of Justice (which has primary responsibility for enforcing the False Claims Act). OIG has articulated its concerns about this issue on many occasions, including the following comment in its Compliance Guidance for Pharmaceutical Manufacturers: “Manufacturers, providers, and suppliers of health care products and services frequently cultivate relationships with physicians in a position to generate business for them through a variety of practices, including gifts [and] entertainment.... These activities have a high potential for fraud and abuse and, historically, have generated a substantial number of anti-kickback convictions…. [I]f the 30

Round-up September 2016

remuneration is intended to generate any federal health care business, it potentially violates the anti-kickback statute.1

Remuneration As noted above, it is the knowing or willful offer or receipt of “remuneration” in exchange for a referral that is at the heart of an AKA violation. Obviously, cash payments offered in exchange for referrals, including disguised payments such as those offered under sham consulting agreements, constitute remuneration. Given the severe consequences associated with a violation of the AKA, you might think that for a gift to constitute remuneration under the AKA, the gift would have to be a significant, and possibly even extravagant. That is not the case, however. The OIG takes the position that ‘‘‘remuneration’ includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind.” (OIG Advisory Opinion 09-01, March, 2009) (Emphasis added).2 This point is reinforced in the OIG’s Compliance Program for Individual and Small Group Physician Practices.3 In that document, OIG lists several types of conduct that physician practices need to guard against in establishing their compliance plans. The list includes “soliciting, accepting or offering any gift or gratuity of more than nominal value to or from those who may benefit from a physician practice’s referral of Federal health care program business.” (Emphasis added.) Unfortunately, neither the Compliance Guidance nor any other pronouncement from OIG provides any certainty as to what constitutes “nominal value.” Consequently, items of seemingly trivial value might be deemed “remuneration.” In commentary issued under a different rule, which prohibits providers from giving “remuneration” to beneficiaries,4 OIG opined that the prohibition did not apply to items of “nominal” value. In the context of that rule, OIG defined nominal as “no more than $10 per item, or $50 in the aggregate on an annual basis.” This guidance from OIG prompted one group of commentators to observe, in the context of the AKA, that “[w]hile a $10 item by itself will not likely draw the government’s attention (although the government could theoretically prosecute on the same), a pattern or practice of $10 kickbacks will draw the government’s attention and enforcement activity.”5

1. OIG, Compliance Program Guidance for Pharmaceutical Manufacturers, 68 Fed. Reg. 23731, 23737 (May 5, 2003) (emphasis added). 2. Many of the OIG’s Advisory Opinions contain a detailed discussion of the Office’s interpretation of the AKA. See, e.g., https://oig. hhs.gov/fraud/docs/advisoryopinions/2009/AdvOpn09-01.pdf. 3. 65 Fed. Reg. 59434, 59441 (Oct. 5, 2000) 4. 42 C.F.R. 1003.102. This rule permits the imposition of Civil Monetary Penalties on providers who offer federal health care program beneficiaries remuneration as an inducement for the beneficiaries to seek care from a particular provider. 5. Anderson, J, et al, Vendor-Healthcare Professional Gift Giving, Marketing and Compliance, American Health Lawyers Association,

To make matters more difficult, the offer or receipt of something of value may be deemed to violate the AKA even if the exchange of value has a legitimate business purpose, i.e., a purpose other than the inducement of referrals. This is because the AKA “has been interpreted to cover any arrangement where one purpose of the remuneration was to obtain money for the referral of services or to induce further referrals.” (OIG Advisory Opinion 09-01, March, 2009) (Emphasis in original). The combination of the almost all-inclusive definition of “remuneration,” and the “one purpose” test, means that the offer or receipt of a low value item as part of an otherwise legitimate business arrangement could trigger AKA scrutiny and, possibly, sanctions. Often, physicians who receive gifts of modest value from vendors, or from other health care providers to whom the physicians refer, think their acceptance of the gift is of no consequence because “I would have made the referral to that vendor/provider anyway.” The fact that the physician would have made the referral without regard to the gift is not necessarily a defense, however, at least in the eyes of the OIG. OIG’s position is that “[t]aking money or gifts from a drug or device company or a durable medical equipment (DME) supplier is not justified by the argument that you would have prescribed that drug or ordered that wheelchair even without a kickback.”6

The enforcement environment It’s an article of faith in many circles that government agencies cannot operate as effectively as private businesses. The federal government’s efforts to enforce the AKA, the Stark law and the False Claims Act might be viewed as a striking exception to that rule. Each year, the OIG and the Department of Justice issue their Health Care Fraud and Abuse Control Program Report. According to the FY 2015 Report, the Program’s return on investment (ROI) for the period from 2013-2015 was $6.10 returned for every $1.00 expended.7 Given that ROI, it’s not surprising that seemingly every health care-related bill coming out of Washington appropriates a few hundred million more dollars to enforcement efforts. It also is not surprising that this level of investment has resulted in a very active and aggressive enforcement environment. To get a sense of how active the OIG and DOJ have been in recent years, go to the OIG’s website for a listing of charges, convic Corporate Governance Task Force, Member Briefing, December, 2007, accessed at http://www.hcca-info.org/Portals/0/PDFs/Resources/Conference_Handouts/Compliance_Institute/2008/711-2. pdf. 6. DHHS OIG’s A Roadmap for New Physician’s, Fraud and Abuse Laws, https://oig.hhs.gov/compliance/physician-education/01laws. asp. 7. The Department of Health and Human Services and The Department of Justice Health Care Fraud and Abuse Control Program Annual Report for Fiscal Year 2015, February, 2016, https://oig.hhs. gov/reports-and-publications/hcfac/.

tions and settlements in health care cases.8 Search the list for the term “kickback” to see how often the acceptance of “remuneration” brings serious woe to physicians and other providers.

Where to turn for guidance Given the breadth of the AKA’s reach, and the lack of any hard and fast rules as to what constitutes prohibited remuneration, physicians who find themselves approached by vendors or other providers bearing gifts should consider establishing policies regarding whether and to what extent the physician will accept gifts (and allow office staff to accept gifts). There are a number of potential resources that can be used to develop those policies. One of the sources of guidance is the OIG, which provides examples of gifts that would violate the AKA, if the offer or acceptance of the gift is accompanied by an intent to induce referrals of federal health care program patients.9 The examples include gift cards, entertainment, recreation, travel, meals; gifts provided during special occasions such as holidays, celebrations, raffles, and drawings; gifts to physicians and other clinicians for studies of questionable scientific value; free or significantly discounted clerical and other staffing services; free training in areas such as management techniques, CPT coding, and lab techniques; free testing or other services for physicians, their staff, and their families; payment of the cost of a physician’s travel and expenses for conferences or continuing medical education courses; and free clinical equipment, supplies, computers, or software. Other guidance documents have been issued by the American Medical Association;10 the American College of Physicians-Internal Medicine;11 the American Osteopathic Association;12 the American Association of Orthopaedic Surgeons;13 the Pharmaceutical Research and Manufacturers of America (PhRMA);14

8. https://oig.hhs.gov/fraud/enforcement/criminal/. 9. See OIG Compliance Program Guidance for Pharmaceutical Manufacturers, 68 Fed. Reg. at 23738; OIG Compliance Program for Individual and Small Group Physician Practices, 65 Fed. Reg. at 59441, 59447; OIG Special Fraud Alert (Dec. 19, 1994); OIG, Provider Self-Disclosure Settlements (available at: https://oig.hhs.gov/fraud/ enforcement/cmp/psds.asp). 10. Ethical Guidelines for Gifts to Physicians from Industry, AMA Ethics Opinion 8.061, accessed at http://journalofethics.ama-assn. org/2014/04/coet2-1404.html. 11. Physician Industry Relations, accessed at https://www.acponline.org/clinical-information/ethics-and-professionalism/ethics-issues-and-position-papers/physician-industry-relations. 12. AOA Code of Ethics, Section 17, and Gifts to Physicians from Industry, H612-A/15 accessed at http://www.osteopathic.org/inside-aoa/about/leadership/aoa-policy-search/Documents/H612A2015-GIFTS-TO-PHYSICIANS-FROM-INDUSTRY.pdf. 13. Standards of Professionalism on Orthopaedist-Industry Conflicts of Interest, accessed at http://www.aaos.org/AAOSNow/2007/Jun/ youraaos/youraaos6/?ssopc=1. 14. Code on Interactions with Health Care Professionals, accessed at http://www.phrma.org/principles-guidelines/code-on-interactions-with-health-care-professionals.

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and AdvaMed.15 Most of these association guidelines, and most of the published articles dealing with this issue, focus on relationships between physicians and industry. The concepts expressed in these guidance documents probably apply with equal force to gifts from other health care providers to whom referrals are made. Consequently, these documents can provide a good framework for the development of a policy addressing whether, when and under what circumstances a physician and his or her staff should accept gifts from industry or other health care providers.

Conclusion The current enforcement environment, recent events in local enforcement, and the breadth and ambiguity of the AKA suggest that there will be increasing scrutiny on gifts to referring physicians and on the physicians who receive those gifts. Physicians who are offered gifts by others in a position to receive referrals should consider carefully whether and under what circumstances they will accept those gifts.

BOB MILLIGAN Bob Milligan is a shareholder in Milligan Lawless, P.C., and specializes in healthcare law. He limits his practice to the representation of individuals and companies in the healthcare and life sciences industry. In addition to his law practice, he has received an LLM degree in Biotechnology and Genomics. He received his J.D. from DePaul University, where he was a Dean’s Scholar, and his B.S. from Northern Illinois University.

NEEL KOTHARI Neel Kothari is an attorney at Milligan Lawless, P.C., in Phoenix. He regularly helps physicians and physician groups with a wide variety of matters, including business transactions, corporate governance, employment, and regulatory compliance. Neel received his law degree with honors from the University of Chicago Law School.

15. AdvaMed Code of Ethics on Interactions with Health Care Professionals, accessed at http://advamed.org/res/112/advamed-code-ofethics-on-interactions-with-health-care-professionals.

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Round-up September 2016

Med Students View Ex-Patients’ E-Records to Track Progress M

any U.S. medical students use electronic health records to track the progress of their former patients and confirm the accuracy of their diagnoses, a new study shows.

While the practice raises issues over privacy, checking up on former patients may not be a bad thing overall, the researchers said. The students “are accessing health information for educational purposes -- it is important for them to learn medicine by observing the course of illness,” said study co-author Dr. Gregory Brisson, of Northwestern University’s School of Medicine in Chicago. In fact, “we have talked with a group of patients about this issue and, after hearing about this issue, they concluded that students should not only be permitted to follow up on former patients, but that they should be required to do it,” he said. In their study, Brisson and Dr. Patrick Tyler, also from Northwestern, surveyed 103 fourth-year medical students who were training at an academic health center in 2013. Most -- 96 percent -- admitted they used patients’ e-records to follow up on cases. Most times, the students used the e-records to confirm diagnoses and follow up on their patients’ treatment success. When the students were asked if they had any ethical reservations about accessing the records of patients who were no longer under their care, only about 17 percent of the participants voiced such concerns.

Brisson and Tyler also pointed out that the students who used electronic health records to track their patients often did so on their own -- without the direction of a supervisor. Still, Brisson said that, overall, “patients should not be concerned,” about the practice. “This is not the same issue as a third party, such as an employer, reviewing patient records,” he explained. “Medical students, like physicians, are bound by confidentiality, which means they will never disclose information about their patients.” Also, “follow-up fosters curiosity, which is a virtue that can improve clinical reasoning and promote empathy,” Brisson reasoned. “These are good things for patients.” In their interviews with patients, most were fine with the e-record follow-up, Brisson said. “They felt that follow-up encourages students to think of the whole patient and not just the disease, which might make students more caring doctors,” he said. “However, they also felt that patients should be aware of this practice and have the option to refuse.” “Based upon input from patients and a review of the ethical concerns related to this issue ... we are developing guidelines for students on how to preserve the educational benefits of follow up in the electronic health records, while also maintaining patient privacy,” Brisson added. “We hope to publish those guidelines early next year.”

Privacy issues do come into play, however, Brisson said. “Privacy is a patient’s right to not disclose information about themselves to their doctor,” he said. “For example, a patient may choose not to tell his dermatologist that he is also seeing a therapist for anxiety. That information is personal and unrelated to his skin issue.”

© 2016 HealthDay. All rights reserved. The study was published July 25 in the journal JAMA Internal Medicine. The U.S. Centers for Medicare & Medicaid Services provides more information on electronic health records.

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The Paradox of Disclosure BY SUNITA MD, PhD, MBA

popular remedy for a conflict of interest is disclosure — informing the buyer (or the patient, etc.) of the potential bias of the seller (or the doctor, etc.). Disclosure is supposed to act as a warning, alerting consumers to their adviser’s stake in the matter so they can process the advice accordingly. But as several recent studies I conducted show, there is an underappreciated problem with disclosure: It often has the opposite of its intended effect, not only increasing bias in advisers but also making advisees more likely to follow biased advice. When I worked as a physician, I witnessed how bias could arise from numerous sources: gifts or sponsorships from the pharmaceutical industry; compensation for performing particular procedures; viewing our own specialties as delivering more effective treatments than others’ specialties. Although most physicians, myself included, tend to believe that we are invulnerable to bias, thus making disclosures unnecessary, regulators insist on them, assuming that they work effectively.

Round-up September 2016

To some extent, they do work. Disclosing a conflict of interest — for example, a financial adviser’s commission or a physician’s referral fee for enrolling patients into clinical trials — often reduces trust in the advice. But my research has found that people are still more likely to follow this advice because the disclosure creates increased pressure to follow the adviser’s recommendation. It turns out that people don’t want to signal distrust to their adviser or insinuate that the adviser is biased, and they also feel pressure to help satisfy their adviser’s self-interest. Instead of functioning as a warning, disclosure can become a burden on advisees, increasing pressure to take advice they now trust less. Disclosure can also cause perverse effects even when biases are unavoidable. For example, surgeons are more likely to recommend surgery than non-surgeons. Radiation-oncologists recommend radiation more than other physicians. This is known as specialty bias. Perhaps in an attempt to be transparent,

What can be done? When bias is unavoidable, as with specialty bias, options such as patient educational materials could alert patients to this problem without hearing it directly from the physician. Another solution could be multidisciplinary treatment consultations, in which patients meet multiple specialists at the same time. Another remedy is to incorporate mandatory “cooling off” periods for important decisions; this could reduce some pressure advisees feel to follow their advisers’ recommendations.

some doctors spontaneously disclose their specialty bias. That is, surgeons may inform their patients that as surgeons, they are biased toward recommending surgery. My latest research, published last month in the Proceedings of the National Academy of Sciences, reveals that patients with localized prostate cancer (a condition that has multiple effective treatment options) who heard their surgeon disclose his or her specialty bias were nearly three times more likely to have surgery than those patients who did not hear their surgeon reveal such a bias. Rather than discounting the surgeon’s recommendation, patients reported increased trust in physicians who disclosed their specialty bias.

One situation in which conflict of interest disclosure can work well is when the conflict itself can be avoided. For example, in cases involving gifts, bonuses or commissions, which can be readily rejected, my research has shown that disclosure requirements may encourage advisers to reject the conflict so they can disclose the absence of any conflicts.

Remarkably, I found that surgeons who disclosed their bias also behaved differently. They were more biased, not less. These surgeons gave stronger recommendations to have surgery, perhaps in an attempt to overcome any potential discounting they feared their patient would make on the recommendation as a result of the disclosure.

Bias disclosure can have a profound effect on both advisees and advisers. Consumers should be aware of their reactions to disclosure and take time out to reconsider their options and seek second opinions. And advisers and policymakers must understand the potential unintended consequences when using disclosure as a solution to manage bias.

Surgeons also gave stronger recommendations to have surgery if they discussed the opportunity for the patient to meet with a radiation oncologist. This aligns with my previous research from randomized experiments, which showed that primary advisers gave more biased advice and felt it was more ethical to do so when they knew that their advisee might seek a second opinion.

SUNITA SAH, MD, PhD, MBA Sunita Sah is an assistant professor of management and organizations at the Johnson Graduate School of Management at Cornell University.

To be sure, physicians who disclose a financial conflict of interest or a specialty bias do not necessarily give poor advice. Often physicians make great efforts to inform patients of facts relevant to their decision. It would be damaging if patients became distrustful of all expert advice. But the truth remains that it is often difficult to judge the quality of advice.

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Issues Facing the Medical Field: Old, New, and Improved The Maricopa County Medical Society has teamed up with long-time supporter MICA Medical Foundation to co-sponsor a scholarship for local medical students to write about emerging topics in healthcare. BY MICHAEL HAFERTEPE

s a fourth year medical student, excited to be entering the home stretch of my medical education, I canâ&#x20AC;&#x2122;t help but think back at how daunting the application and admissions processes were, not to mention all of the hard work that followed. Despite the arduous process, I am certain that there will never be a time where medical schools lack applicants. While I am confident in this statement, I see many barriers to the longevity of the current system in the face of mid-level medical professions boasting

Round-up September 2016

shorter duration and easier access. According to the Association of American Colleges (AAMC), there were roughly 52,536 applicants for 20,627 medical school positions in 20151. Since 2006 the total number of matriculates has increased nearly 18%, with the addition of new medical schools, in an effort to supplement the growing shortage of primary care physicians1. While this increase may be seen as strength there are many areas of weakness

These stresses have the potential to increase appointment wait times, increase patient volumes, increase specialist referrals, and lead to an overall reduction in the quality of patient care. in the system that make the path towards becoming a medical doctor in the United States a grueling one. In 2015 the median debt of allopathic medical school graduates was $180,0002. The AAMC offers a sample table displaying the average debt repayment model based on $180,000 of debt using a pre-taxed salary of $ 183,000. The interest on standard repayment plans ranges from $140,000 to $300,0002. This results in a total cost ranging from $400,000 — $500,000 for medical education. This does not take into consideration that students are investing anywhere from 3-7 years in residency work, which does not offer a return reflective of the debt accrued. Additionally, this is a time in students’ lives when they are often starting families, buying homes and taking on a mortgage, all the while trying to save to save for retirement, children’s educations and the ever increasing cost associated with raising a family. These factors create multiple barriers to fast loan repayment, thus increasing interest accrued and overall debt in the face of decreasing physician salaries. While this information is readily available and good food for thought, many students entering medical school do not understand the magnitude of medical education debt and the repercussions of that debt. Perhaps this is because students are so focused on the rigorous application process. I would argue that the mindset of many medical students tends to be on the prestige of the profession and promise of high compensation. Unfortunately, this has led to overemphasis on acceptance and under emphasis on the realities that accompany almost a decade of education and hundreds of thousands of dollars of debt. At some point during four years of medical education students begin to understand the magnitude of the debt that has accrued. Unfortunately, the time in which students begin to realize they will have more debt than any generation of physicians before is usually around the time they are choosing their area of specialty.

While many other factors that lead people to choose a medical specialty to pursue, I believe that the cost of medical education is forcing students to favor high paying specialties. This is evidenced by the fact that allopathic medical schools educate only 47% of Family Medicine residents3. During its peak in the mid 1990’s 2,340 allopathic medical students chose Family Medicine, as their area of practice3. This is a seemingly large number when compared to the most recent graduating class, wherein where only 1,416 chose Family Medicine as an area of practice3. This is data supports the idea that the seemingly positive 18% increase in the total number of medical students has done very little to support the increased need for primary care physicians. While the need for primary care physicians continues to increase, the rate of allopathic medical students choosing to practice primary care remains at best, stagnant. This is a large void to fill within the United States healthcare system. Fortunately, or unfortunately, what appears to have the most notable growth in the past decade is the role of mid-level medical care professionals, the Physician Assistants (PA) and the Nurse Practitioners (NP). The growth of these programs and practitioners has been drastically larger, when compared to the increase in medical education programs and has resulted in a booming “midlevel workforce”. A 2010 article from Public Health Reports projected a 72% increase in the PA workforce over the next 15 years, an incredibly large number when compared to the previously mentioned 18% increase in physicians4. The emphasis on PA and NP positions moving forward is positive step toward addressing the provider shortage within our healthcare system; however, there are obvious drawbacks for physicians with the emergence of this workforce. A retrospective comparison study conducted by the Mayo Clinic in 2014 concluded that the quality of referrals was lower for PA’s and NP’s when compared to physicians5. Specifically, the study cites reduced clarity of the referral question, inadequate pre-referral evaluation, documentation and understanding of pathophysiology, when compared to their physician counterparts. If this finding true, we must have a better understanding of the impact of these errors on the medical system, before assuming that a 72% increase is a solution for under supported primary care. If we do not do our due diligence to understand the ramifications of these changes we risk stressing the infrastructure and specialty groups who are receiving the referrals. These stresses have the potential to increase appointment wait times, increase patient volumes, increase specialist referrals, and lead to an overall reduction in the quality of patient care. Another factor to consider when evaluating the value of a growing mid-level workforce is the infringement of jobs, or perceived infringement on jobs, once held by a mcmsonline.com/round-up

physician. The increase in midlevel provider workforce certainly fills a much needed gap in primary care; however, with what is known about the great investment that is allopathic medical education one asks what additional sacrifices are being required of physicians to practice under this new structure? Although a mid-level workforce has been present for over 50 years, the drastic growth in recent years poses changes to the mid-level provider-physician relationship. As a result, it is highly likely that a greater presence of mid-level providers changes the scope of physician practice. An increased need for primary care providers, coupled with the rapidly increasing aged population, means physicians will likely be forced into increased supervisory roles with decreased patient interaction so that

physician assistants are able to meet the demand. A second infringement on the physician role, albeit more perceived than supported by data, is that of the mid-level provider replacing the clinic physician. Perhaps this is why many primary care physicians are moving away from this area of medicine toward specialties where the role remains intact. According to the Society of Hospital Medicine, the number of Hospitalists increased 172% between 2003 and 2010, a statistic that is unlikely to slow down. I believe this is important because as dependence on PA’s and NP’s increases, the role of physicians will inevitably change and will ultimately play one of the largest roles in defining healthcare in United States

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over the next ten years. Defining roles and developing productive relationships is of the utmost importance, if successful integration of workforces is to occur. It is paramount for the healthcare system and continued delivery of quality healthcare; it should be prioritized as such. Although there remains significant room for growth and improvement in the unification of medical professionals, there is one area of healthcare that has shown promise moving into the next decade, the electronic medical record (EMR). While in the recent past there have been significant growing pains across healthcare, as hospitals and clinics have transitioned to EMR. Many people believe that the change to EMR resulted in cumbersome, time consuming and mediocre documentation. This paired with the frustrations that accompany transitioning thousands of employees and differing roles, left many feeling it wasn’t worth the investment. However there are two

main reasons that the next decade will have fewer issues with EMR. The first is that the companies making EMR systems have adapted to early flaws in their system. The second is this generation of medical students and young physicians have never not worked in an EMR system. Furthermore many of younger medical professionals have been required to use several different EMR systems throughout their training, which in theory makes this generation more adaptable and more capable of streamlining the EMR process. Ultimately many of the same healthcare challenges that the last decade faced, we continue to face looking towards the next decade. The ever-transforming landscape of American healthcare, only made more tumultuous by the upcoming presidential election, leaves questions as to what new challenges will emerge and how the healthcare community reacts to solve them.

Resources: 1. “Applicants and Matriculants Data — FACTS: Applicants, Matriculants, Enrollment, Graduates, MD/PhD, and Residency Applicants Data — Data and Analysis — AAMC.” Applicants and Matriculants Data — FACTS: Applicants, Matriculants, Enrollment, Graduates, MD/PhD, and Residency Applicants Data — Data and Analysis — AAMC. AAMC, 25 Nov. 2015. Web. 29 Aug. 2016. 2. Fresne J, Youngclaus J, Shick M. Medical Student Education: Debt, Costs and Loan Repayment Fact Card. AAMC. October 2015 3. “Charts and Graphs.” Charts and Graphs. AAFP, 2016. Web. 30 Aug. 2016. http://www.aafp.org/media-center/materials/charts. html 4. Hooker R, Cawley J, Everett C. Predictive Modeling the Physician Assistant Supply: 2010-2025. Public Health Reports. 2011; 126: 708716. 5. Lohr R, et al. Comparison of Quality of Patient Referrals from Physicians, Physician Assistants, and Nurse Practioners. Mayo Clinic Proceedings. Nov 2013; 88.11 : 1266-1271

MICHAEL HAFERTEPE Michael Hafertepe is currently a fourth-year medical student at Creighton University School of Medicine — Phoenix Regional Campus. He received his bachelor degree in natural science from Xavier University. He then received a Master’s degree from Tulane University in Cell and Molecular Biology. He plans on pursuing a residency in Diagnostic Radiology.

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The Physician Real Estate Investmentor BY TRISHA TALBOT, CCIM

ntering the real estate investment world attracts physicians for several reasons. For the most part, these reasons can be summarized into one of the following general categories: (1) providers are interested in the “capital investment” and “return”; (2) providers want to invest tenant improvements dollars into an owned space; and/or (3) it was spearheaded as a business decision to locate proximate to other referring providers. In all cases, the decision is driven with the overarching theme of lowering the cost of occupancy and business development.

It is common knowledge that medical office buildings require expensive tenant improvements to build-out. The plumbing, power, lead lined walls, and backup generators are all expensive to outfit. Even with landlord contributions, providers bear a fair amount of the tenant improvement burden, especially in a brand new medical office development. After a practice pays a hefty tenant improvement bill or two some start to question how this expense can be mitigated. The answers for some is to build their own building, either stand alone or multitenant or purchase an office condo, as an option.

It is often assumed that physicians, especially surgeons, have earned disposable income. Therefore, some of these blessed providers seek innovative ways to invest their money. What better way than to invest in an asset that is part of a business practice? Further, a physician owner knows what adds value to the asset – colleagues and referral partners as the tenants. Familiar with the work ethic and reputation of the tenants, many physician investors are eager to invest in medical office buildings.

In medicine, specialties have a referral pattern. Popularity, insurance contracts, and proximity to hospitals and collaborating specialties such as cardiology and pulmonology drive business locational decisions. Demand driven decisions such as this may require a practice to invest in real estate by purchasing a building or office condominium.

Round-up September 2016

While all of the examples described above appear at-

tractive and make a lot of common sense, the details of property ownership are not all glamorous and require advisors along the way to avoid expensive pitfalls. Professionals such as real estate attorneys, property accountants, lenders, vendors, CPAs, financial advisors, general contractors, and architects familiar with medical office building investments are highly recommended. The healthcare real estate broker can discover an appropriate site and negotiate the right deal. Now the ownership begins. As a physician owning medical office real estate, occupying space in it, managing and maintaining it, there are a lot of factors to consider. One of the most important is remaining consistent in offering “fair market” lease terms and conditions to fellow providers. Offering “friends and family” lease deals to referring physicians is prohibited under Stark law, three separate provisions which govern physician self-referral for Medicare and Medicaid patients. Often, a third-party fair market value opinion from a broker is recommended to protect against an audit, and a medical office real estate professional is recommended for all lease negotiations. Leasing terms and conditions do not begin and end with the economic terms. When leasing and managing medical office space, the right lease language and vendors will protect the investment of a medical office asset. Examples include medical waste language and experienced vendors for the disposal of medical waste. Cleanliness and disinfection are major concerns for a medical practice. Only janitorial companies familiar with the need and expectation for thorough sanitation of medical office spaces tend to be successful. Additionally, determining if electricity is separately metered or how excess consumption is handled can have a significant affect on operating expenses. After leasing terms and conditions are developed, tenant improvement capital is required. While as an owner, a physician may feel that he/she is investing its tenant improvement dollars in its own building, if a physician owns a multi-tenant medical office building, a sufficient amount of capital is required for the landlord contribution for tenant improvements. The landlord contribution is significantly higher for a new ground-up medical office development versus a second-generation medical office property. Partnering with a lender specializing in this asset class can greatly lower the overall cost of capital. Capital investment considerations are even more dramatic when a physician or practice considers a groundup medical office building development. Architects familiar with ADA requirements for the building shell and interior improvements can save a lot of time and money. General contractors familiar with the complexities of designing and constructing medical office buildings are crucial to positioning a healthcare real estate investment for financial success. Elements to consider include durable finishes, window placement and specialty requirements for diagnostic and radiology equipment including lead-lined walls for x-ray.

Healthcare real estate investment decisions are vast and varied, and offer many potential financial opportunities. A physician entering into ownership while still practicing medicine is prudent to arm him/herself with the wealth of experience from professionals that specialize in the industry. A PROFESSIONAL, QUALIFIED healthcare real estate broker can offer suggestions for industry-focused attorneys, accounts, lenders, vendors, contractors and advisors to navigate through the complexities and potential risks of medical asset investment.

TRISHA A. TALBOT, CCIM Trisha A. Talbot serves as a managing director with Newmark Grubb Knight Frank at the Phoenix office, where she is part of the Global Healthcare Services practice at the company. Ms. Talbot is responsible for assisting her healthcare real estate investors and provider clients in establishing comprehensive real estate strategies. Ms. Talbot and her team have a reputation for stabilizing value-add properties and new developments for their clients and selling them to institutional investors. They are leaders in the Arizona healthcare brokerage community, executing unique healthcare real estate solutions for their clients.

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