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‘Malicious peer review’ destroyed doc’s career, he says
Cardiothoracic surgeon J. Marvin Smith III, MD, had always thrived on a busy practice schedule, often performing 20-30 surgeries a week. A practicing surgeon for more than 40 years, Dr. Smith said he had no plans to slow down anytime soon.
But Dr. Smith said his career was derailed when leaders at Methodist Healthcare System of San Antonio initiated a sudden peer review proceeding against him. The hospital system alleged certain surgeries performed by Dr. Smith had excessive mortality rates. When he proved the data inaccurate, Dr. Smith said administrators next claimed he was cognitively impaired and wasn’t safe to practice.
Dr. Smith has now been embroiled in a peer review dispute with the hospital system for more than 2 years and says the conflict has essentially forced him out of surgical practice. He believes the peer review was “malicious” and was really launched because of complaints he made about nurse staffing and other issues at the hospital.
“I think it is absolutely in bad faith and is disingenuous what they’ve told me along the way,” said Dr. Smith, 73. “It’s because I pointed out deficiencies in nursing care, and they want to get rid of me. It would be a lot easier for them if I had a contract and they could control me better. But the fact that I was independent, meant they had to resort to a malicious peer review to try and push me out.”
Dr. Smith had a peer review hearing with Methodist in March 2021, and in April, a panel found in Dr. Smith’s favor, according to Dr. Smith. The findings were sent to the hospital’s medical board for review, which issued a decision in early May.
Eric A. Pullen, an attorney for Dr. Smith, said he could not go into detail about the board’s decision for legal reasons, but that “the medical board’s decision did not completely resolve the matter, and Dr. Smith intends to exercise his procedural rights, which could include an appeal.”
Methodist Hospital Texsan and its parent company, Methodist Health System of San Antonio, did not respond to messages seeking comment about the case. Without hearing from the hospital system, its side is unknown and it is unclear if there is more to the story from Methodist’s view.
The problem is not new, but some experts, such as Lawrence Huntoon, MD, PhD, say the practice has become more common in recent years, particularly against independent doctors.
Dr. Huntoon believes there is a nationwide trend at many hospitals to get rid of independent physicians and replace them with employed doctors, he said.
However, because most sham peer reviews go on behind closed doors, there are no data to pinpoint its prevalence or measure its growth.
“Independent physicians are basically being purged from medical staffs across the United States,” said Dr. Huntoon, who is chair of the Association of American Physicians and Surgeons’ Committee to Combat Sham Peer Review. “The hospitals want more control over how physicians practice and who they refer to, and they do that by having employees.”
Anthony P. Weiss, MD, MBA, chief medical officer for Beth Israel Deaconess Medical Center said it has not been his experience that independent physicians are being targeted in such a way. Dr. Weiss responded to an inquiry sent to the American Hospital Association for this story.
“As the authority for peer review rests with the organized medical staff (i.e., physicians), and not formally with the hospital per se, the peer review lever is not typically available as a management tool for hospital administration,” said Dr. Weiss, who is a former member of the AHA’s Committee on Clinical Leadership, but who was speaking on behalf of himself.
A spokesman for the AHA said the organization stands behinds Dr. Weiss’ comments.
Peer review remains a foundational aspect of overseeing the safety and appropriateness of healthcare provided by physicians, Dr. Weiss said. Peer review likely varies from hospital to hospital, he added, although the Healthcare Quality Improvement Act provides some level of guidance as does the American Medical Association Code of Medical Ethics (section 9.4.1).
“In essence, both require that the evaluation be conducted in good faith with the intention to improve care, by physicians with adequate training and knowledge, using a process that is fair and inclusive of the physician under review,” he said. “I believe that most medical staffs abide by these ethical principles, but we have little data to confirm this supposition.”
Did hospital target doc for being vocal?
When members of Methodist’s medical staff first approached Dr. Smith with concerns about his surgery outcomes in November 2018, the physician says he was surprised, but that he was open to an assessment.
“They came to me and said they thought my numbers were bad, and I said: ‘Well my gosh, I certainly don’t want that to be the case. I need to see what numbers you are talking about,’ ” Dr. Smith recalled. “I’ve been president of the Bexar County Medical Society; I’ve been involved with standards and ethics for the Society of Thoracic Surgeons. Quality health care means a whole lot to me.”
The statistical information provided by hospital administrators indicated that Dr. Smith’s mortality rates for coronary artery surgery in 2018 were “excessive” and that his rates for aortic surgery were “unacceptable,” according to a lawsuit Dr. Smith filed against the hospital system. Dr. Smith, who is double boarded with the American Board of Surgery and the American Board of Thoracic Surgery, said his outcomes had never come into question in the past. Dr. Smith said the timing was suspicious to him, however, considering he had recently raised concerns with the hospital through letters about nursing performance, staffing, and compensation.
A peer review investigation was initiated. In the meantime, Dr. Smith agreed to intensivist consults on his postoperative patients and consults with the hospital’s “Heart Team” on all preoperative cardiac, valve, and aortic cases. A vocal critic of the Heart Team, Dr. Smith had long contended the entity provided no meaningful benefit to his patients in most cases and, rather, increased hospital stays and raised medical expenses. Despite his agreement, Dr. Smith was later asked to voluntarily stop performing surgeries at the hospital.
“I agreed, convinced that we’d get this all settled,” he said.
Another report issued by the hospital in 2019 also indicated elevated mortality rates associated with some of Smith’s surgeries, although the document differed from the first report, according to the lawsuit. Dr. Smith says he was ignored when he pointed out problems with the data, including a lack of appropriate risk stratification in the report, departure from Society of Thoracic Surgeons data rules, and improper inclusion of his cases in the denominator of the ratio when a comparison was made of his outcomes with those hospitalwide. A subsequent report from Methodist in March 2019 indicated Dr. Smith’s surgery outcomes were “within the expected parameters of performance,” according to court documents.
The surgery accusations were dropped, but the peer review proceeding against Dr. Smith wasn’t over. The hospital next requested that Dr. Smith undergo a competency evaluation.
“When they realized the data was bad, they then changed their argument in the peer review proceeding and essentially started to argue that Dr. Smith had some sort of cognitive disability that prevented him from continuing to practice,” said Mr. Pullen. “The way I look at it, when the initial basis for the peer review was proven false, the hospital found something else and some other reason to try to keep Dr. Smith from practicing.”
Thus began a lengthy disagreement about which entity would conduct the evaluation, who would pay, and the type of acceptable assessment. An evaluation by the hospital’s preferred organization resulted in a finding of mild cognitive impairment, Dr. Smith said. He hired his own experts who conducted separate evaluations, finding no impairment and no basis for the former evaluation’s conclusion.
“Literally, the determinant as to whether I was normal or below normal on their test was one point, which was associated with a finding that I didn’t draw a clock correctly,” Dr. Smith claimed. “The reviewer said my minute hand was a little too short and docked me a point. It was purely subjective. To me, the gold standard of whether you are learned in thoracic surgery is the American Board of Thoracic Surgery’s test. The board’s test shows my cognitive ability is entirely in keeping with my practice. That contrasts with the one point off I got for drawing a clock wrong in somebody’s estimation.”
Conflict leads to legal case
In September 2020, Dr. Smith filed a lawsuit against Methodist Healthcare System of San Antonio, alleging business disparagement by Methodist for allegedly publishing false and disparaging information about Dr. Smith and tortious interference with business relations. The latter claim stems from Methodist refusing to provide documents to other hospitals about the status of Dr. Smith’s privileges at Methodist, Mr. Pullen said.
Because Methodist refused to confirm his status, the renewal process for Baptist Health System could not be completed and Dr. Smith lost his privileges at Baptist Health System facilities, according to the lawsuit.
Notably, Dr. Smith’s legal challenge also asks the court to take a stance against alleged amendments by Methodist to its Unified Medical Staff Bylaws. The hospital allegedly proposed changes that would prevent physicians from seeking legal action against the hospital for malicious peer review, according to Dr. Smith’s lawsuit.
The amendments would make the peer review process itself the “sole and exclusive remedy with respect to any action or recommendation taken at the hospital affecting medical staff appointment and/or clinical privileges,” according to an excerpt of the proposed amendments included in Dr. Smith’s lawsuit. In addition, the changes would hold practitioners liable for lost revenues if the doctor initiates “any type of legal action challenging credentialing, privileging, or other medical peer review or professional review activity,” according to the lawsuit.
Dr. Smith’s lawsuit seeks a declaration that the proposed amendments to the bylaws are “void as against public policy,” and a declaration that the proposed amendments to the bylaws cannot take away physicians’ statutory right to bring litigation against Methodist for malicious peer review.
“The proposed amendments have a tendency to and will injure the public good,” Dr. Smith argued in the lawsuit. “The proposed amendments allow Methodist to act with malice and in bad faith in conducting peer review proceedings and face no legal repercussions.”
Regardless of the final outcome of the peer review proceeding, Mr. Pullen said the harm Dr. Smith has already endured cannot be reversed.
“Even if comes out in his favor, the damage is already done,” he said. “It will not remedy the damage Dr. Smith has incurred.”
Fighting sham peer review is difficult
Battling a malicious peer review has long been an uphill battle for physicians, according to Dr. Huntoon. That’s because the Health Care Quality Improvement Act (HCQIA), a federal law passed in 1986, provides near absolute immunity to hospitals and peer reviewers in legal disputes.
The HCQIA was created by Congress to extend immunity to good-faith peer review of doctors and to increase overall participation in peer review by removing fear of litigation. However, the act has also enabled abuse of peer review by shielding bad-faith reviewers from accountability, said Dr. Huntoon.
“The Health Care Quality Improvement Act presumes that what the hospital did was warranted and reasonable and shifts the burden to the physician to prove his innocence by a preponderance of evidence,” he said. “That’s an entirely foreign concept to most people who think a person should be considered innocent until proven guilty. Here, it’s the exact opposite.”
The HCQIA has been challenged numerous times over the years and tested at the appellate level, but continues to survive and remain settled law, added Richard B. Willner, DPM, founder and director of the Center for Peer Review Justice, which assists and counsels physicians about sham peer review.
In 2011, former Rep. Joe Heck, DO, (R-Nev.) introduced a bill that would have amended the HCQIA to prohibit a professional review entity from submitting a report to the National Practitioner Data Bank (NPDB) while the doctor was still under investigation and before the doctor was afforded adequate notice and a hearing. Although the measure had 16 cosponsors and plenty of support from the physician community, it failed.
In addition to a heavy legal burden, physicians who experience malicious peer reviews also face ramifications from being reported to the NPDB. Peer review organizations are required to report certain negative actions or findings to the NPDB.
“A databank entry is a scarlet letter on your forehead,” Dr. Willner said. “The rules at a lot of institutions are not to take anyone who has been databanked, rightfully or wrongfully. And what is the evidence necessary to databank you? None. There’s no evidence needed to databank somebody.”
Despite the bleak landscape, experts say progress has been made on a case-by-case basis by physicians who have succeeded in fighting back against questionable peer reviews in recent years.
In January 2020, Indiana ob.gyn. Rebecca Denman, MD, prevailed in her defamation lawsuit against St Vincent Carmel Hospital and St Vincent Carmel Medical Group, winning $4.75 million in damages. Dr. Denman alleged administrators failed to conduct a proper peer review investigation after a false allegation by a nurse that she was under the influence while on the job.
Indianapolis attorney Kathleen A. DeLaney, who represented Dr. Denman, said hospital leaders misled Dr. Denman into believing a peer review had occurred when no formal peer review hearing or proceeding took place.
“The CMO of the medical group claimed that he performed a peer review ‘screening,’ but he never informed the other members of the peer review executive committee of the matter until after he had placed Dr. Denman on administrative leave,” Ms. DeLaney said. “He also neglected to tell the peer review executive committee that the substance abuse policy had not been followed, or that Dr. Denman had not been tested for alcohol use – due to the 12-hour delay in report.”
Dr. Denman was ultimately required to undergo an alcohol abuse evaluation, enter a treatment program, and sign a 5-year monitoring contract with the Indiana State Medical Association as a condition of her employment, according to the lawsuit. She claimed repercussions from the false allegation resulted in lost compensation, out-of-pocket expenses, emotional distress, and damage to her professional reputation.
She sued the hospital in July 2018, alleging fraud, defamation, tortious interference with an employment relationship, and negligent misrepresentation. After a 4-day trial, jurors found in her favor, awarding Dr. Denman $2 million for her defamation claims, $2 million for her claims of fraud and constructive fraud, $500,000 for her claim of tortious interference with an employment relationship, and $250,000 for her claim of negligent misrepresentation.
A hospital spokesperson said Ascension St Vincent is pursuing an appeal, and that it looks “forward to the opportunity to bring this matter before the Indiana Court of Appeals in June.”
In another case, South Dakota surgeon Linda Miller, MD, was awarded $1.1 million in 2017 after a federal jury found Huron Regional Medical Center breached her contract and violated her due process rights. Dr. Miller became the subject of a peer review at Huron Regional Medical Center when the hospital began analyzing some of her surgery outcomes.
Ken Barker, an attorney for Dr. Miller, said he feels it became evident at trial that the campaign to force Dr. Miller to either resign or lose her privileges was led by the lay board of directors of the hospital and upper-level administration at the hospital.
“They began the process by ordering an unprecedented 90-day review of her medical charts, looking for errors in the medical care she provided patients,” he said. “They could find nothing, so they did a second 90-day review, waiting for a patient’s ‘bad outcome.’ As any general surgeon will say, a ‘bad outcome’ is inevitable. And so it was. Upon that occurrence, they had a medical review committee review the patient’s chart and use it as an excuse to force her to reduce her privileges. Unbeknown to Dr. Miller, an external review had been conducted on another patient’s chart, in which the external review found her care above the standards and, in some measure, ‘exemplary.’ ”
Dr. Miller was eventually pressured to resign, according to her claim. Because of reports made to the NPDB by the medical center, including a patient complication that was allegedly falsified by the hospital, Dr. Miller said she was unable to find work as a general surgeon and went to work as a wound care doctor. At trial, jurors awarded Dr. Miller $586,617 in lost wages, $343,640 for lost future earning capacity, and $250,000 for mental anguish. (The mental anguish award was subsequently struck by a district court.)
Attorneys for Huron Regional Medical Center argued the jury improperly awarded damages and requested a new trial, which was denied by an appeals court.
In the end, the evidence came to light and the jury’s verdict spoke loudly that the hospital had taken unfair advantage of Dr. Miller, Mr. Barker said. But he emphasized that such cases often end differently.
“There are a handful of cases in which physicians like Dr. Miller have challenged the system and won,” he said. “In most cases, however, it is a ‘David vs. Goliath’ scenario where the giant prevails.”
What to do if faced with malicious peer review
An important step when doctors encounter a peer review that they believe is malicious is to consult with an experienced attorney as early as possible, Dr. Huntoon said. “Not all attorneys who set themselves out to be health law attorneys necessarily have knowledge and expertise in sham peer review. And before such a thing happens, I always encourage physicians to read their medical staff bylaws. That’s where everything is set forth, [such as] the corrective action section that tells how peer review is to take place.”
Mr. Barker added that documentation is also key in the event of a potential malicious peer review.
“When a physician senses [the] administration has targeted them, they should start documenting their conversations and actions very carefully, and if possible, recruit another ‘observer’ who can provide a third-party perspective, if necessary,” Mr. Barker said.
Dr. Huntoon recently wrote an article with advice about preparedness and defense of sham peer reviews. The guidance includes that physicians educate themselves about the tactics used by some hospitals to conduct sham peer reviews and the factors that place doctors more at risk. Factors that may raise a doctor’s danger of being targeted include being in solo practice or a small group, being new on staff, or being an older physician approaching retirement as some bad-actor hospitals may view older physicians as being less likely to fight back, said Dr. Huntoon.
Doctors should also keep detailed records and a timeline in the event of a malicious peer review and insist that an independent court reporter record all peer review hearings, even if that means the physician has to pay for the reporter him or herself, according to the guidance. An independent record is invaluable should the physician ultimately issue a future legal challenge against the hospital.
Mr. Willner encourages physicians to call the Center for Peer Review Justice hotline at (504) 621-1670 or visit the website for help with peer review and NPDB issues.
As for Dr. Smith, his days are much quieter and slower today, compared with the active practice he was accustomed to for more than half his life. He misses the fast pace, the patients, and the work that always brought him great joy.
“I hope to get back to doing surgeries eventually,” he said. “I graduated medical school in 1972. Practicing surgery has been my whole life and my career. They have taken my identity and my livelihood away from me based on false numbers and false premises. I want it back.”
A version of this article first appeared on Medscape.com.
Cardiothoracic surgeon J. Marvin Smith III, MD, had always thrived on a busy practice schedule, often performing 20-30 surgeries a week. A practicing surgeon for more than 40 years, Dr. Smith said he had no plans to slow down anytime soon.
But Dr. Smith said his career was derailed when leaders at Methodist Healthcare System of San Antonio initiated a sudden peer review proceeding against him. The hospital system alleged certain surgeries performed by Dr. Smith had excessive mortality rates. When he proved the data inaccurate, Dr. Smith said administrators next claimed he was cognitively impaired and wasn’t safe to practice.
Dr. Smith has now been embroiled in a peer review dispute with the hospital system for more than 2 years and says the conflict has essentially forced him out of surgical practice. He believes the peer review was “malicious” and was really launched because of complaints he made about nurse staffing and other issues at the hospital.
“I think it is absolutely in bad faith and is disingenuous what they’ve told me along the way,” said Dr. Smith, 73. “It’s because I pointed out deficiencies in nursing care, and they want to get rid of me. It would be a lot easier for them if I had a contract and they could control me better. But the fact that I was independent, meant they had to resort to a malicious peer review to try and push me out.”
Dr. Smith had a peer review hearing with Methodist in March 2021, and in April, a panel found in Dr. Smith’s favor, according to Dr. Smith. The findings were sent to the hospital’s medical board for review, which issued a decision in early May.
Eric A. Pullen, an attorney for Dr. Smith, said he could not go into detail about the board’s decision for legal reasons, but that “the medical board’s decision did not completely resolve the matter, and Dr. Smith intends to exercise his procedural rights, which could include an appeal.”
Methodist Hospital Texsan and its parent company, Methodist Health System of San Antonio, did not respond to messages seeking comment about the case. Without hearing from the hospital system, its side is unknown and it is unclear if there is more to the story from Methodist’s view.
The problem is not new, but some experts, such as Lawrence Huntoon, MD, PhD, say the practice has become more common in recent years, particularly against independent doctors.
Dr. Huntoon believes there is a nationwide trend at many hospitals to get rid of independent physicians and replace them with employed doctors, he said.
However, because most sham peer reviews go on behind closed doors, there are no data to pinpoint its prevalence or measure its growth.
“Independent physicians are basically being purged from medical staffs across the United States,” said Dr. Huntoon, who is chair of the Association of American Physicians and Surgeons’ Committee to Combat Sham Peer Review. “The hospitals want more control over how physicians practice and who they refer to, and they do that by having employees.”
Anthony P. Weiss, MD, MBA, chief medical officer for Beth Israel Deaconess Medical Center said it has not been his experience that independent physicians are being targeted in such a way. Dr. Weiss responded to an inquiry sent to the American Hospital Association for this story.
“As the authority for peer review rests with the organized medical staff (i.e., physicians), and not formally with the hospital per se, the peer review lever is not typically available as a management tool for hospital administration,” said Dr. Weiss, who is a former member of the AHA’s Committee on Clinical Leadership, but who was speaking on behalf of himself.
A spokesman for the AHA said the organization stands behinds Dr. Weiss’ comments.
Peer review remains a foundational aspect of overseeing the safety and appropriateness of healthcare provided by physicians, Dr. Weiss said. Peer review likely varies from hospital to hospital, he added, although the Healthcare Quality Improvement Act provides some level of guidance as does the American Medical Association Code of Medical Ethics (section 9.4.1).
“In essence, both require that the evaluation be conducted in good faith with the intention to improve care, by physicians with adequate training and knowledge, using a process that is fair and inclusive of the physician under review,” he said. “I believe that most medical staffs abide by these ethical principles, but we have little data to confirm this supposition.”
Did hospital target doc for being vocal?
When members of Methodist’s medical staff first approached Dr. Smith with concerns about his surgery outcomes in November 2018, the physician says he was surprised, but that he was open to an assessment.
“They came to me and said they thought my numbers were bad, and I said: ‘Well my gosh, I certainly don’t want that to be the case. I need to see what numbers you are talking about,’ ” Dr. Smith recalled. “I’ve been president of the Bexar County Medical Society; I’ve been involved with standards and ethics for the Society of Thoracic Surgeons. Quality health care means a whole lot to me.”
The statistical information provided by hospital administrators indicated that Dr. Smith’s mortality rates for coronary artery surgery in 2018 were “excessive” and that his rates for aortic surgery were “unacceptable,” according to a lawsuit Dr. Smith filed against the hospital system. Dr. Smith, who is double boarded with the American Board of Surgery and the American Board of Thoracic Surgery, said his outcomes had never come into question in the past. Dr. Smith said the timing was suspicious to him, however, considering he had recently raised concerns with the hospital through letters about nursing performance, staffing, and compensation.
A peer review investigation was initiated. In the meantime, Dr. Smith agreed to intensivist consults on his postoperative patients and consults with the hospital’s “Heart Team” on all preoperative cardiac, valve, and aortic cases. A vocal critic of the Heart Team, Dr. Smith had long contended the entity provided no meaningful benefit to his patients in most cases and, rather, increased hospital stays and raised medical expenses. Despite his agreement, Dr. Smith was later asked to voluntarily stop performing surgeries at the hospital.
“I agreed, convinced that we’d get this all settled,” he said.
Another report issued by the hospital in 2019 also indicated elevated mortality rates associated with some of Smith’s surgeries, although the document differed from the first report, according to the lawsuit. Dr. Smith says he was ignored when he pointed out problems with the data, including a lack of appropriate risk stratification in the report, departure from Society of Thoracic Surgeons data rules, and improper inclusion of his cases in the denominator of the ratio when a comparison was made of his outcomes with those hospitalwide. A subsequent report from Methodist in March 2019 indicated Dr. Smith’s surgery outcomes were “within the expected parameters of performance,” according to court documents.
The surgery accusations were dropped, but the peer review proceeding against Dr. Smith wasn’t over. The hospital next requested that Dr. Smith undergo a competency evaluation.
“When they realized the data was bad, they then changed their argument in the peer review proceeding and essentially started to argue that Dr. Smith had some sort of cognitive disability that prevented him from continuing to practice,” said Mr. Pullen. “The way I look at it, when the initial basis for the peer review was proven false, the hospital found something else and some other reason to try to keep Dr. Smith from practicing.”
Thus began a lengthy disagreement about which entity would conduct the evaluation, who would pay, and the type of acceptable assessment. An evaluation by the hospital’s preferred organization resulted in a finding of mild cognitive impairment, Dr. Smith said. He hired his own experts who conducted separate evaluations, finding no impairment and no basis for the former evaluation’s conclusion.
“Literally, the determinant as to whether I was normal or below normal on their test was one point, which was associated with a finding that I didn’t draw a clock correctly,” Dr. Smith claimed. “The reviewer said my minute hand was a little too short and docked me a point. It was purely subjective. To me, the gold standard of whether you are learned in thoracic surgery is the American Board of Thoracic Surgery’s test. The board’s test shows my cognitive ability is entirely in keeping with my practice. That contrasts with the one point off I got for drawing a clock wrong in somebody’s estimation.”
Conflict leads to legal case
In September 2020, Dr. Smith filed a lawsuit against Methodist Healthcare System of San Antonio, alleging business disparagement by Methodist for allegedly publishing false and disparaging information about Dr. Smith and tortious interference with business relations. The latter claim stems from Methodist refusing to provide documents to other hospitals about the status of Dr. Smith’s privileges at Methodist, Mr. Pullen said.
Because Methodist refused to confirm his status, the renewal process for Baptist Health System could not be completed and Dr. Smith lost his privileges at Baptist Health System facilities, according to the lawsuit.
Notably, Dr. Smith’s legal challenge also asks the court to take a stance against alleged amendments by Methodist to its Unified Medical Staff Bylaws. The hospital allegedly proposed changes that would prevent physicians from seeking legal action against the hospital for malicious peer review, according to Dr. Smith’s lawsuit.
The amendments would make the peer review process itself the “sole and exclusive remedy with respect to any action or recommendation taken at the hospital affecting medical staff appointment and/or clinical privileges,” according to an excerpt of the proposed amendments included in Dr. Smith’s lawsuit. In addition, the changes would hold practitioners liable for lost revenues if the doctor initiates “any type of legal action challenging credentialing, privileging, or other medical peer review or professional review activity,” according to the lawsuit.
Dr. Smith’s lawsuit seeks a declaration that the proposed amendments to the bylaws are “void as against public policy,” and a declaration that the proposed amendments to the bylaws cannot take away physicians’ statutory right to bring litigation against Methodist for malicious peer review.
“The proposed amendments have a tendency to and will injure the public good,” Dr. Smith argued in the lawsuit. “The proposed amendments allow Methodist to act with malice and in bad faith in conducting peer review proceedings and face no legal repercussions.”
Regardless of the final outcome of the peer review proceeding, Mr. Pullen said the harm Dr. Smith has already endured cannot be reversed.
“Even if comes out in his favor, the damage is already done,” he said. “It will not remedy the damage Dr. Smith has incurred.”
Fighting sham peer review is difficult
Battling a malicious peer review has long been an uphill battle for physicians, according to Dr. Huntoon. That’s because the Health Care Quality Improvement Act (HCQIA), a federal law passed in 1986, provides near absolute immunity to hospitals and peer reviewers in legal disputes.
The HCQIA was created by Congress to extend immunity to good-faith peer review of doctors and to increase overall participation in peer review by removing fear of litigation. However, the act has also enabled abuse of peer review by shielding bad-faith reviewers from accountability, said Dr. Huntoon.
“The Health Care Quality Improvement Act presumes that what the hospital did was warranted and reasonable and shifts the burden to the physician to prove his innocence by a preponderance of evidence,” he said. “That’s an entirely foreign concept to most people who think a person should be considered innocent until proven guilty. Here, it’s the exact opposite.”
The HCQIA has been challenged numerous times over the years and tested at the appellate level, but continues to survive and remain settled law, added Richard B. Willner, DPM, founder and director of the Center for Peer Review Justice, which assists and counsels physicians about sham peer review.
In 2011, former Rep. Joe Heck, DO, (R-Nev.) introduced a bill that would have amended the HCQIA to prohibit a professional review entity from submitting a report to the National Practitioner Data Bank (NPDB) while the doctor was still under investigation and before the doctor was afforded adequate notice and a hearing. Although the measure had 16 cosponsors and plenty of support from the physician community, it failed.
In addition to a heavy legal burden, physicians who experience malicious peer reviews also face ramifications from being reported to the NPDB. Peer review organizations are required to report certain negative actions or findings to the NPDB.
“A databank entry is a scarlet letter on your forehead,” Dr. Willner said. “The rules at a lot of institutions are not to take anyone who has been databanked, rightfully or wrongfully. And what is the evidence necessary to databank you? None. There’s no evidence needed to databank somebody.”
Despite the bleak landscape, experts say progress has been made on a case-by-case basis by physicians who have succeeded in fighting back against questionable peer reviews in recent years.
In January 2020, Indiana ob.gyn. Rebecca Denman, MD, prevailed in her defamation lawsuit against St Vincent Carmel Hospital and St Vincent Carmel Medical Group, winning $4.75 million in damages. Dr. Denman alleged administrators failed to conduct a proper peer review investigation after a false allegation by a nurse that she was under the influence while on the job.
Indianapolis attorney Kathleen A. DeLaney, who represented Dr. Denman, said hospital leaders misled Dr. Denman into believing a peer review had occurred when no formal peer review hearing or proceeding took place.
“The CMO of the medical group claimed that he performed a peer review ‘screening,’ but he never informed the other members of the peer review executive committee of the matter until after he had placed Dr. Denman on administrative leave,” Ms. DeLaney said. “He also neglected to tell the peer review executive committee that the substance abuse policy had not been followed, or that Dr. Denman had not been tested for alcohol use – due to the 12-hour delay in report.”
Dr. Denman was ultimately required to undergo an alcohol abuse evaluation, enter a treatment program, and sign a 5-year monitoring contract with the Indiana State Medical Association as a condition of her employment, according to the lawsuit. She claimed repercussions from the false allegation resulted in lost compensation, out-of-pocket expenses, emotional distress, and damage to her professional reputation.
She sued the hospital in July 2018, alleging fraud, defamation, tortious interference with an employment relationship, and negligent misrepresentation. After a 4-day trial, jurors found in her favor, awarding Dr. Denman $2 million for her defamation claims, $2 million for her claims of fraud and constructive fraud, $500,000 for her claim of tortious interference with an employment relationship, and $250,000 for her claim of negligent misrepresentation.
A hospital spokesperson said Ascension St Vincent is pursuing an appeal, and that it looks “forward to the opportunity to bring this matter before the Indiana Court of Appeals in June.”
In another case, South Dakota surgeon Linda Miller, MD, was awarded $1.1 million in 2017 after a federal jury found Huron Regional Medical Center breached her contract and violated her due process rights. Dr. Miller became the subject of a peer review at Huron Regional Medical Center when the hospital began analyzing some of her surgery outcomes.
Ken Barker, an attorney for Dr. Miller, said he feels it became evident at trial that the campaign to force Dr. Miller to either resign or lose her privileges was led by the lay board of directors of the hospital and upper-level administration at the hospital.
“They began the process by ordering an unprecedented 90-day review of her medical charts, looking for errors in the medical care she provided patients,” he said. “They could find nothing, so they did a second 90-day review, waiting for a patient’s ‘bad outcome.’ As any general surgeon will say, a ‘bad outcome’ is inevitable. And so it was. Upon that occurrence, they had a medical review committee review the patient’s chart and use it as an excuse to force her to reduce her privileges. Unbeknown to Dr. Miller, an external review had been conducted on another patient’s chart, in which the external review found her care above the standards and, in some measure, ‘exemplary.’ ”
Dr. Miller was eventually pressured to resign, according to her claim. Because of reports made to the NPDB by the medical center, including a patient complication that was allegedly falsified by the hospital, Dr. Miller said she was unable to find work as a general surgeon and went to work as a wound care doctor. At trial, jurors awarded Dr. Miller $586,617 in lost wages, $343,640 for lost future earning capacity, and $250,000 for mental anguish. (The mental anguish award was subsequently struck by a district court.)
Attorneys for Huron Regional Medical Center argued the jury improperly awarded damages and requested a new trial, which was denied by an appeals court.
In the end, the evidence came to light and the jury’s verdict spoke loudly that the hospital had taken unfair advantage of Dr. Miller, Mr. Barker said. But he emphasized that such cases often end differently.
“There are a handful of cases in which physicians like Dr. Miller have challenged the system and won,” he said. “In most cases, however, it is a ‘David vs. Goliath’ scenario where the giant prevails.”
What to do if faced with malicious peer review
An important step when doctors encounter a peer review that they believe is malicious is to consult with an experienced attorney as early as possible, Dr. Huntoon said. “Not all attorneys who set themselves out to be health law attorneys necessarily have knowledge and expertise in sham peer review. And before such a thing happens, I always encourage physicians to read their medical staff bylaws. That’s where everything is set forth, [such as] the corrective action section that tells how peer review is to take place.”
Mr. Barker added that documentation is also key in the event of a potential malicious peer review.
“When a physician senses [the] administration has targeted them, they should start documenting their conversations and actions very carefully, and if possible, recruit another ‘observer’ who can provide a third-party perspective, if necessary,” Mr. Barker said.
Dr. Huntoon recently wrote an article with advice about preparedness and defense of sham peer reviews. The guidance includes that physicians educate themselves about the tactics used by some hospitals to conduct sham peer reviews and the factors that place doctors more at risk. Factors that may raise a doctor’s danger of being targeted include being in solo practice or a small group, being new on staff, or being an older physician approaching retirement as some bad-actor hospitals may view older physicians as being less likely to fight back, said Dr. Huntoon.
Doctors should also keep detailed records and a timeline in the event of a malicious peer review and insist that an independent court reporter record all peer review hearings, even if that means the physician has to pay for the reporter him or herself, according to the guidance. An independent record is invaluable should the physician ultimately issue a future legal challenge against the hospital.
Mr. Willner encourages physicians to call the Center for Peer Review Justice hotline at (504) 621-1670 or visit the website for help with peer review and NPDB issues.
As for Dr. Smith, his days are much quieter and slower today, compared with the active practice he was accustomed to for more than half his life. He misses the fast pace, the patients, and the work that always brought him great joy.
“I hope to get back to doing surgeries eventually,” he said. “I graduated medical school in 1972. Practicing surgery has been my whole life and my career. They have taken my identity and my livelihood away from me based on false numbers and false premises. I want it back.”
A version of this article first appeared on Medscape.com.
Cardiothoracic surgeon J. Marvin Smith III, MD, had always thrived on a busy practice schedule, often performing 20-30 surgeries a week. A practicing surgeon for more than 40 years, Dr. Smith said he had no plans to slow down anytime soon.
But Dr. Smith said his career was derailed when leaders at Methodist Healthcare System of San Antonio initiated a sudden peer review proceeding against him. The hospital system alleged certain surgeries performed by Dr. Smith had excessive mortality rates. When he proved the data inaccurate, Dr. Smith said administrators next claimed he was cognitively impaired and wasn’t safe to practice.
Dr. Smith has now been embroiled in a peer review dispute with the hospital system for more than 2 years and says the conflict has essentially forced him out of surgical practice. He believes the peer review was “malicious” and was really launched because of complaints he made about nurse staffing and other issues at the hospital.
“I think it is absolutely in bad faith and is disingenuous what they’ve told me along the way,” said Dr. Smith, 73. “It’s because I pointed out deficiencies in nursing care, and they want to get rid of me. It would be a lot easier for them if I had a contract and they could control me better. But the fact that I was independent, meant they had to resort to a malicious peer review to try and push me out.”
Dr. Smith had a peer review hearing with Methodist in March 2021, and in April, a panel found in Dr. Smith’s favor, according to Dr. Smith. The findings were sent to the hospital’s medical board for review, which issued a decision in early May.
Eric A. Pullen, an attorney for Dr. Smith, said he could not go into detail about the board’s decision for legal reasons, but that “the medical board’s decision did not completely resolve the matter, and Dr. Smith intends to exercise his procedural rights, which could include an appeal.”
Methodist Hospital Texsan and its parent company, Methodist Health System of San Antonio, did not respond to messages seeking comment about the case. Without hearing from the hospital system, its side is unknown and it is unclear if there is more to the story from Methodist’s view.
The problem is not new, but some experts, such as Lawrence Huntoon, MD, PhD, say the practice has become more common in recent years, particularly against independent doctors.
Dr. Huntoon believes there is a nationwide trend at many hospitals to get rid of independent physicians and replace them with employed doctors, he said.
However, because most sham peer reviews go on behind closed doors, there are no data to pinpoint its prevalence or measure its growth.
“Independent physicians are basically being purged from medical staffs across the United States,” said Dr. Huntoon, who is chair of the Association of American Physicians and Surgeons’ Committee to Combat Sham Peer Review. “The hospitals want more control over how physicians practice and who they refer to, and they do that by having employees.”
Anthony P. Weiss, MD, MBA, chief medical officer for Beth Israel Deaconess Medical Center said it has not been his experience that independent physicians are being targeted in such a way. Dr. Weiss responded to an inquiry sent to the American Hospital Association for this story.
“As the authority for peer review rests with the organized medical staff (i.e., physicians), and not formally with the hospital per se, the peer review lever is not typically available as a management tool for hospital administration,” said Dr. Weiss, who is a former member of the AHA’s Committee on Clinical Leadership, but who was speaking on behalf of himself.
A spokesman for the AHA said the organization stands behinds Dr. Weiss’ comments.
Peer review remains a foundational aspect of overseeing the safety and appropriateness of healthcare provided by physicians, Dr. Weiss said. Peer review likely varies from hospital to hospital, he added, although the Healthcare Quality Improvement Act provides some level of guidance as does the American Medical Association Code of Medical Ethics (section 9.4.1).
“In essence, both require that the evaluation be conducted in good faith with the intention to improve care, by physicians with adequate training and knowledge, using a process that is fair and inclusive of the physician under review,” he said. “I believe that most medical staffs abide by these ethical principles, but we have little data to confirm this supposition.”
Did hospital target doc for being vocal?
When members of Methodist’s medical staff first approached Dr. Smith with concerns about his surgery outcomes in November 2018, the physician says he was surprised, but that he was open to an assessment.
“They came to me and said they thought my numbers were bad, and I said: ‘Well my gosh, I certainly don’t want that to be the case. I need to see what numbers you are talking about,’ ” Dr. Smith recalled. “I’ve been president of the Bexar County Medical Society; I’ve been involved with standards and ethics for the Society of Thoracic Surgeons. Quality health care means a whole lot to me.”
The statistical information provided by hospital administrators indicated that Dr. Smith’s mortality rates for coronary artery surgery in 2018 were “excessive” and that his rates for aortic surgery were “unacceptable,” according to a lawsuit Dr. Smith filed against the hospital system. Dr. Smith, who is double boarded with the American Board of Surgery and the American Board of Thoracic Surgery, said his outcomes had never come into question in the past. Dr. Smith said the timing was suspicious to him, however, considering he had recently raised concerns with the hospital through letters about nursing performance, staffing, and compensation.
A peer review investigation was initiated. In the meantime, Dr. Smith agreed to intensivist consults on his postoperative patients and consults with the hospital’s “Heart Team” on all preoperative cardiac, valve, and aortic cases. A vocal critic of the Heart Team, Dr. Smith had long contended the entity provided no meaningful benefit to his patients in most cases and, rather, increased hospital stays and raised medical expenses. Despite his agreement, Dr. Smith was later asked to voluntarily stop performing surgeries at the hospital.
“I agreed, convinced that we’d get this all settled,” he said.
Another report issued by the hospital in 2019 also indicated elevated mortality rates associated with some of Smith’s surgeries, although the document differed from the first report, according to the lawsuit. Dr. Smith says he was ignored when he pointed out problems with the data, including a lack of appropriate risk stratification in the report, departure from Society of Thoracic Surgeons data rules, and improper inclusion of his cases in the denominator of the ratio when a comparison was made of his outcomes with those hospitalwide. A subsequent report from Methodist in March 2019 indicated Dr. Smith’s surgery outcomes were “within the expected parameters of performance,” according to court documents.
The surgery accusations were dropped, but the peer review proceeding against Dr. Smith wasn’t over. The hospital next requested that Dr. Smith undergo a competency evaluation.
“When they realized the data was bad, they then changed their argument in the peer review proceeding and essentially started to argue that Dr. Smith had some sort of cognitive disability that prevented him from continuing to practice,” said Mr. Pullen. “The way I look at it, when the initial basis for the peer review was proven false, the hospital found something else and some other reason to try to keep Dr. Smith from practicing.”
Thus began a lengthy disagreement about which entity would conduct the evaluation, who would pay, and the type of acceptable assessment. An evaluation by the hospital’s preferred organization resulted in a finding of mild cognitive impairment, Dr. Smith said. He hired his own experts who conducted separate evaluations, finding no impairment and no basis for the former evaluation’s conclusion.
“Literally, the determinant as to whether I was normal or below normal on their test was one point, which was associated with a finding that I didn’t draw a clock correctly,” Dr. Smith claimed. “The reviewer said my minute hand was a little too short and docked me a point. It was purely subjective. To me, the gold standard of whether you are learned in thoracic surgery is the American Board of Thoracic Surgery’s test. The board’s test shows my cognitive ability is entirely in keeping with my practice. That contrasts with the one point off I got for drawing a clock wrong in somebody’s estimation.”
Conflict leads to legal case
In September 2020, Dr. Smith filed a lawsuit against Methodist Healthcare System of San Antonio, alleging business disparagement by Methodist for allegedly publishing false and disparaging information about Dr. Smith and tortious interference with business relations. The latter claim stems from Methodist refusing to provide documents to other hospitals about the status of Dr. Smith’s privileges at Methodist, Mr. Pullen said.
Because Methodist refused to confirm his status, the renewal process for Baptist Health System could not be completed and Dr. Smith lost his privileges at Baptist Health System facilities, according to the lawsuit.
Notably, Dr. Smith’s legal challenge also asks the court to take a stance against alleged amendments by Methodist to its Unified Medical Staff Bylaws. The hospital allegedly proposed changes that would prevent physicians from seeking legal action against the hospital for malicious peer review, according to Dr. Smith’s lawsuit.
The amendments would make the peer review process itself the “sole and exclusive remedy with respect to any action or recommendation taken at the hospital affecting medical staff appointment and/or clinical privileges,” according to an excerpt of the proposed amendments included in Dr. Smith’s lawsuit. In addition, the changes would hold practitioners liable for lost revenues if the doctor initiates “any type of legal action challenging credentialing, privileging, or other medical peer review or professional review activity,” according to the lawsuit.
Dr. Smith’s lawsuit seeks a declaration that the proposed amendments to the bylaws are “void as against public policy,” and a declaration that the proposed amendments to the bylaws cannot take away physicians’ statutory right to bring litigation against Methodist for malicious peer review.
“The proposed amendments have a tendency to and will injure the public good,” Dr. Smith argued in the lawsuit. “The proposed amendments allow Methodist to act with malice and in bad faith in conducting peer review proceedings and face no legal repercussions.”
Regardless of the final outcome of the peer review proceeding, Mr. Pullen said the harm Dr. Smith has already endured cannot be reversed.
“Even if comes out in his favor, the damage is already done,” he said. “It will not remedy the damage Dr. Smith has incurred.”
Fighting sham peer review is difficult
Battling a malicious peer review has long been an uphill battle for physicians, according to Dr. Huntoon. That’s because the Health Care Quality Improvement Act (HCQIA), a federal law passed in 1986, provides near absolute immunity to hospitals and peer reviewers in legal disputes.
The HCQIA was created by Congress to extend immunity to good-faith peer review of doctors and to increase overall participation in peer review by removing fear of litigation. However, the act has also enabled abuse of peer review by shielding bad-faith reviewers from accountability, said Dr. Huntoon.
“The Health Care Quality Improvement Act presumes that what the hospital did was warranted and reasonable and shifts the burden to the physician to prove his innocence by a preponderance of evidence,” he said. “That’s an entirely foreign concept to most people who think a person should be considered innocent until proven guilty. Here, it’s the exact opposite.”
The HCQIA has been challenged numerous times over the years and tested at the appellate level, but continues to survive and remain settled law, added Richard B. Willner, DPM, founder and director of the Center for Peer Review Justice, which assists and counsels physicians about sham peer review.
In 2011, former Rep. Joe Heck, DO, (R-Nev.) introduced a bill that would have amended the HCQIA to prohibit a professional review entity from submitting a report to the National Practitioner Data Bank (NPDB) while the doctor was still under investigation and before the doctor was afforded adequate notice and a hearing. Although the measure had 16 cosponsors and plenty of support from the physician community, it failed.
In addition to a heavy legal burden, physicians who experience malicious peer reviews also face ramifications from being reported to the NPDB. Peer review organizations are required to report certain negative actions or findings to the NPDB.
“A databank entry is a scarlet letter on your forehead,” Dr. Willner said. “The rules at a lot of institutions are not to take anyone who has been databanked, rightfully or wrongfully. And what is the evidence necessary to databank you? None. There’s no evidence needed to databank somebody.”
Despite the bleak landscape, experts say progress has been made on a case-by-case basis by physicians who have succeeded in fighting back against questionable peer reviews in recent years.
In January 2020, Indiana ob.gyn. Rebecca Denman, MD, prevailed in her defamation lawsuit against St Vincent Carmel Hospital and St Vincent Carmel Medical Group, winning $4.75 million in damages. Dr. Denman alleged administrators failed to conduct a proper peer review investigation after a false allegation by a nurse that she was under the influence while on the job.
Indianapolis attorney Kathleen A. DeLaney, who represented Dr. Denman, said hospital leaders misled Dr. Denman into believing a peer review had occurred when no formal peer review hearing or proceeding took place.
“The CMO of the medical group claimed that he performed a peer review ‘screening,’ but he never informed the other members of the peer review executive committee of the matter until after he had placed Dr. Denman on administrative leave,” Ms. DeLaney said. “He also neglected to tell the peer review executive committee that the substance abuse policy had not been followed, or that Dr. Denman had not been tested for alcohol use – due to the 12-hour delay in report.”
Dr. Denman was ultimately required to undergo an alcohol abuse evaluation, enter a treatment program, and sign a 5-year monitoring contract with the Indiana State Medical Association as a condition of her employment, according to the lawsuit. She claimed repercussions from the false allegation resulted in lost compensation, out-of-pocket expenses, emotional distress, and damage to her professional reputation.
She sued the hospital in July 2018, alleging fraud, defamation, tortious interference with an employment relationship, and negligent misrepresentation. After a 4-day trial, jurors found in her favor, awarding Dr. Denman $2 million for her defamation claims, $2 million for her claims of fraud and constructive fraud, $500,000 for her claim of tortious interference with an employment relationship, and $250,000 for her claim of negligent misrepresentation.
A hospital spokesperson said Ascension St Vincent is pursuing an appeal, and that it looks “forward to the opportunity to bring this matter before the Indiana Court of Appeals in June.”
In another case, South Dakota surgeon Linda Miller, MD, was awarded $1.1 million in 2017 after a federal jury found Huron Regional Medical Center breached her contract and violated her due process rights. Dr. Miller became the subject of a peer review at Huron Regional Medical Center when the hospital began analyzing some of her surgery outcomes.
Ken Barker, an attorney for Dr. Miller, said he feels it became evident at trial that the campaign to force Dr. Miller to either resign or lose her privileges was led by the lay board of directors of the hospital and upper-level administration at the hospital.
“They began the process by ordering an unprecedented 90-day review of her medical charts, looking for errors in the medical care she provided patients,” he said. “They could find nothing, so they did a second 90-day review, waiting for a patient’s ‘bad outcome.’ As any general surgeon will say, a ‘bad outcome’ is inevitable. And so it was. Upon that occurrence, they had a medical review committee review the patient’s chart and use it as an excuse to force her to reduce her privileges. Unbeknown to Dr. Miller, an external review had been conducted on another patient’s chart, in which the external review found her care above the standards and, in some measure, ‘exemplary.’ ”
Dr. Miller was eventually pressured to resign, according to her claim. Because of reports made to the NPDB by the medical center, including a patient complication that was allegedly falsified by the hospital, Dr. Miller said she was unable to find work as a general surgeon and went to work as a wound care doctor. At trial, jurors awarded Dr. Miller $586,617 in lost wages, $343,640 for lost future earning capacity, and $250,000 for mental anguish. (The mental anguish award was subsequently struck by a district court.)
Attorneys for Huron Regional Medical Center argued the jury improperly awarded damages and requested a new trial, which was denied by an appeals court.
In the end, the evidence came to light and the jury’s verdict spoke loudly that the hospital had taken unfair advantage of Dr. Miller, Mr. Barker said. But he emphasized that such cases often end differently.
“There are a handful of cases in which physicians like Dr. Miller have challenged the system and won,” he said. “In most cases, however, it is a ‘David vs. Goliath’ scenario where the giant prevails.”
What to do if faced with malicious peer review
An important step when doctors encounter a peer review that they believe is malicious is to consult with an experienced attorney as early as possible, Dr. Huntoon said. “Not all attorneys who set themselves out to be health law attorneys necessarily have knowledge and expertise in sham peer review. And before such a thing happens, I always encourage physicians to read their medical staff bylaws. That’s where everything is set forth, [such as] the corrective action section that tells how peer review is to take place.”
Mr. Barker added that documentation is also key in the event of a potential malicious peer review.
“When a physician senses [the] administration has targeted them, they should start documenting their conversations and actions very carefully, and if possible, recruit another ‘observer’ who can provide a third-party perspective, if necessary,” Mr. Barker said.
Dr. Huntoon recently wrote an article with advice about preparedness and defense of sham peer reviews. The guidance includes that physicians educate themselves about the tactics used by some hospitals to conduct sham peer reviews and the factors that place doctors more at risk. Factors that may raise a doctor’s danger of being targeted include being in solo practice or a small group, being new on staff, or being an older physician approaching retirement as some bad-actor hospitals may view older physicians as being less likely to fight back, said Dr. Huntoon.
Doctors should also keep detailed records and a timeline in the event of a malicious peer review and insist that an independent court reporter record all peer review hearings, even if that means the physician has to pay for the reporter him or herself, according to the guidance. An independent record is invaluable should the physician ultimately issue a future legal challenge against the hospital.
Mr. Willner encourages physicians to call the Center for Peer Review Justice hotline at (504) 621-1670 or visit the website for help with peer review and NPDB issues.
As for Dr. Smith, his days are much quieter and slower today, compared with the active practice he was accustomed to for more than half his life. He misses the fast pace, the patients, and the work that always brought him great joy.
“I hope to get back to doing surgeries eventually,” he said. “I graduated medical school in 1972. Practicing surgery has been my whole life and my career. They have taken my identity and my livelihood away from me based on false numbers and false premises. I want it back.”
A version of this article first appeared on Medscape.com.
Frivolous lawsuits: Still a big threat to doctors?
Dr. G, a New York surgeon, was only a couple years into practice when he faced his first lawsuit.
After undergoing liposuction surgery on the area of her calf and ankle, a patient claimed she had developed a severe allergic reaction, characterized by small areas of necrosis on the lower extremities, said Dr. G, who asked to remain anonymous. However, the alleged injury seemed suspicious, said Dr. G, considering that 3 weeks after the surgery, the area had shown a successful result with minimal swelling.
Six months into the suit, Dr. G received a shocking phone call. It was the patient’s estranged husband, who revealed that his wife was having an affair with another man, a physician. In recorded phone calls, the patient and her paramour had discussed causing an injury near the patient’s calf in an attempt to sue and get rich, the husband relayed. Dr. G immediately contacted his insurance carrier with the news, but his attorney said the information would not be admissible in court. Instead, the insurer settled with the patient, who received about $125,000.
At the time, Dr. G did not have a consent-to-settle clause in his contract, so the insurer was able to settle without his approval.
In legal practice, a frivolous claim is defined as one that lacks a supporting legal argument or any factual basis. A claim issued with the intent of disturbing, annoying, or harassing the opposing party can also be described as legally frivolous, said Michael Stinson, vice president of government relations and public policy for the Medical Professional Liability Association (MPL Association), a trade association for medical liability insurers.
However, when most physicians refer to “frivolous claims,” they often mean a claim in which there is no attributable negligence. Such suits represent a second category of claims – nonmeritorious lawsuits.
“I think people intermix nonmeritorious and frivolous all the time,” Mr. Stinson said. “In the vast majority of nonmeritorious claims, the patient has suffered an adverse outcome, it’s just that it wasn’t the result of negligence, whereas with a frivolous lawsuit, they really haven’t suffered any damage, so they’ve got no business filing a lawsuit on any level.”
A third type of so-called frivolous suit is that of a fraudulent or fake claim, in which, as Dr. G experienced, a patient causes a self-injury or lies about a condition to craft a false claim against a physician.
If a patient files a claim that the patient knows is false, the patient commits fraud and may be subject to counterclaims for malicious prosecution or abuse of process, said Jeffrey Segal, MD, JD, a neurosurgeon and health law attorney. Further, the patient would be testifying under oath, and such testimony can be considered perjury, a criminal offense with criminal penalties.
Sadly, Dr. G was the target of another frivolous lawsuit years later. In that suit, a patient claimed the surgeon had left a piece of sponge in her breast cavity during surgery. The case was dismissed when medical records proved the patient knew that the foreign body resulted from an unrelated procedure she had undergone years earlier.
“There is so much abuse in the court system,” Dr. G said. “You really don’t think stuff like that will happen to you, especially if you honor the profession. It’s unfortunate. It’s left a very bitter taste in my mouth.”
Frivolous claims have long been a subject of debate. Tort reform advocates often contend that such claims are pervasive. They cite them as key reasons for high health care costs and say that they have led to the rise of defensive medicine. Plaintiffs’ attorneys counter that the rate of frivolous claims is widely exaggerated and argue that the pursuit of frivolous claims would be “bad business” for legal firms.
“I have never seen a frivolous malpractice claim,” says Malcolm P. McConnell III, JD, a Richmond, Va., medical malpractice attorney and chair of the Medical Malpractice Legislative Subcommittee for the Virginia Trial Lawyers Association. “I cannot say that such things never happen, but any lawyer bringing such a thing is foolish, because there is no reward for it.”
Are shotgun lawsuits frivolous?
To many physicians, being dragged into a lawsuit over a complaint or medical outcome in which they were not involved is frivolous, said Stanislaw Stawicki, MD, a trauma surgeon and researcher based in Bethlehem, Pa. Dr. Stawicki was named in a lawsuit along with a long list of medical staff who interacted in some way with the plaintiff. Dr. Stawicki himself saw the patient once and made a note in the chart but had nothing to do with the patient’s surgery or with any critical decisions regarding his care, he said.
“Nothing really prepares you for seeing your name on a legal complaint,” Dr. Stawicki said. “It’s traumatic. I had to block out entire days to give depositions, which were really kind of pointless. Questions like, ‘Is this really your name? Where did you train? Were you there that morning?’ Stuff that was really not consequential to the fact that someone had surgery a month earlier and had some sort of complication.”
Dr. Stawicki was eventually dropped from the claim, but not before a nearly year-long ordeal of legal proceedings, meetings, and paperwork.
It is common practice for plaintiffs’ attorneys to add codefendants in the early stages of a claim, said David M. Studdert, ScD, a leading health law researcher and a professor of law at Stanford (Calif.) Law School. Defendants are gradually dismissed as the case moves forward and details of the incident become clearer, he said.
“Plaintiffs’ attorneys have strong incentives to try and choose claims that will be successful,” Dr. Studdert said. “However, in the early point in the process, neither the patient nor the attorney may have a good idea what has actually happened with care. So sometimes, filing a lawsuit may be the only way to begin the process of opening up that information.”
A study by Dr. Studdert in which medical malpractice claims, errors, and compensation payments were analyzed found that, out of 1,452 claims, about one-third (37%) did not involve errors.
“Many physicians might call those frivolous lawsuits, but in fact, most of those don’t go on to receive compensation,” he said. “We suspect that in many instances, those claims are simply dropped once it becomes apparent that there wasn’t error involved.
“They can still be burdensome, anxiety provoking, and time consuming for physicians who are named in those suits, so I don’t want to suggest that claims that don’t involve errors are not a problem,” said Dr. Studdert. “However, I think it’s wrong to assume, as many people do when they use the term ‘frivolous lawsuit,’ that this is really an extortionary effort by a plaintiffs’ attorney to try to get money out of a hospital or a physician for care that was really unproblematic.”
Certain ‘frivolous’ cases more common than others
Nonmeritorious claims still occur relatively frequently today, according to data from the Medical Professional Liability Association’s Data Sharing Project. Of about 18,000 liability claims reported from 2016 to 2018, 65% were dropped, withdrawn, or dismissed. Of the 6% of claims that went before a jury, more than 85% resulted in a verdict for the defendant, the researchers found.
“Basically, any claim that does not result in a payment because the underlying claim of negligence on the part of a health professional had been demonstrated, proven, or adjudicated false is one we would describe as nonmeritorious,” Mr. Stinson said.
The MPL Association does not track cases that meet the legal definition of frivolous, said Mr. Stinson, and they “don’t see truly frivolous lawsuits very often.”
Malpractice claims are risky, expensive, and aggressively defended, says Mr. McConnell, the plaintiffs’ attorney. Mr. McConnell, who has been practicing for 30 years, said his own claim selection process is very rigorous and that he cannot afford to pursue claims that aren’t well supported by science and medicine.
“Pursuing frivolous cases would bankrupt me and ruin my reputation,” he said. “A lawyer I know once said he would write a check for $10,000 to anyone who could show him a lawyer who makes a living pursuing frivolous medical malpractice cases. It’s a fair challenge. The economics and the practices of liability carriers and defense lawyers make frivolous cases a dead end for plaintiff lawyers.”
Most medical malpractice cases are taken on a contingency fee basis, Mr. McConnell noted, meaning that the plaintiff’s lawyer is not paid unless the claim is successful.
“This means that the plaintiff’s lawyer is risking 2 years of intensive labor on a case which may yield no fee at all,” he said. “Obviously, any reasonable lawyer is going to want to minimize that risk. The only way to minimize that risk is for the case to be solid, not weak, and certainly not frivolous.”
But Dr. Segal, the health law attorney, says that plenty of frivolous liability claims are levied each year, with attorneys willing to pursue them.
It’s true that seasoned plaintiffs’ attorneys generally screen for merit and damages, Dr. Segal said, but in some instances, attorneys who are not trained in malpractice law accept frivolous claims and take them forward. In some cases, they are slip-and-fall accident attorneys accustomed to receiving modest amounts from insurance companies quickly, said Dr. Segal, founder of Medical Justice, a company that helps deter frivolous lawsuits against physicians.
“If we lived in a perfectly rational universe where plaintiffs’ attorneys screened cases well and only took the meritorious cases forward, we would see less frivolous cases filed, but that’s not the universe I live in,” Dr. Segal said. “There are well over a million attorneys in this country, and some are hungrier than others. The attorneys may frequently get burned in the end, and maybe that attorney won’t move another malpractice case forward, but there’s always someone else willing to take their place.”
Medical Justice has twice run a Most Frivolous Lawsuit Contest on its website, one in 2008 and one in late 2018. The first contest drew 30 entries, and the second garnered nearly 40 submissions, primarily from physicians who were defendants in the cases, according to Dr. Segal. (Dr. G’s lawsuit was highlighted in the most recent contest.)
In one case, an emergency physician was drawn into litigation by the family of a deceased patient. The patient experienced sudden cardiac arrythmia at home, and paramedics were unable to intubate her or establish IV access. She was transferred to the hospital, where resuscitation efforts continued, but she remained in asystole and was pronounced dead after 15 minutes.
At the hospital, blood tests were conducted. They showed that her serum potassium concentration was elevated to about 12 mEq/L, Dr. Segal said. The family initiated a claim in which they accused the emergency physician of failure to diagnose hyperkalemia. They alleged that had the hyperkalemia been discovered sooner, the patient’s death could have been prevented.
“If you had no other facts about this, you would wonder how a person with potassium that high would even be alive,” Dr. Segal said. “But what they were looking at was the body decomposing and all the potassium in the cells being released into the bloodstream. It wasn’t the cause of the problem, it was an effect of the problem. She really was dead on arrival, and she was probably dead at home.”
The case was eventually dropped.
Although the outcome for the patient was tragic, says Dr. Segal, the case is one of many types of frivolous claims that exist today.
“Yes, frivolous cases are out there,” he said.
Fraudulent claims uncommon
As for fraudulent medical liability claims, legal experts say they’re rare. J. Richard Moore, JD, an Indianapolis-based medical liability defense attorney, said he’s never personally encountered a medical malpractice claim in which he believed a plaintiff caused an injury or an illness and attempted to blame it on a physician.
However, Mr. Moore has defended many claims in which the illness or condition the plaintiff claimed was caused or was made worse through medical negligence was actually a preexisting condition or a preexisting condition that worsened and was not related to any medical negligence, Mr. Moore said.
“Although I have often felt in such cases that the plaintiff really knew that the condition was not affected by any alleged medical negligence, I would not put that in the ‘fraudulent claim’ category because it can be very difficult to establish a person’s subjective state of mind,” he said. “Usually in those cases, the plaintiff just denies memory of previous medical records or claims that the previous doctor who treated him or her for the same condition ‘got it wrong.’ In those cases, it is generally left to the jury whether to believe the plaintiff or not.”
Mr. Stinson also says he has not come across a truly fraudulent medical liability case. He noted that such a claim might be similar to a person falsely claiming a soft-tissue injury following an alleged slip-and-fall accident.
“Clearly, a fraudulent claim could be viewed as riskier from the plaintiff’s perspective because they could face criminal prosecution for insurance fraud, whereas if a claim is merely frivolous, they probably only run the risk of court-issued fine, if even that. That may be why we don’t often see fraudulent MPL claims.”
Ways to prevent or fight frivolous lawsuits
Since Dr. Stawicki’s legal nightmare as a resident, rules have tightened in Pennsylvania, and it is now more difficult to file frivolous claims, he said.
Pennsylvania is one of at least 28 states that require a certificate of merit in order for a medical liability claim to move forward. The provisions generally state that an appropriately licensed professional must supply a written statement attesting that the care the patient received failed to meet acceptable professional standards and that such conduct was a cause in the alleged harm.
“There is now a much greater burden of proof regarding what can proceed,” Dr. Stawicki said. “I’ve been involved in a couple cases that did not proceed because there was no certificate of merit.”
Although these reforms may help, not all merit rules are created equal. Some states require that the expert who signs the affidavit be knowledgeable in the relevant issues involved in the action. Other states have looser requirements. In one of the cases featured in Medical Justice’s Most Frivolous Lawsuit Contest, a podiatrist signed a supporting declaration for a claim related to obstetric care.
For physicians facing a frivolous claim, fighting it out in court depends on a number of factors. Without a consent-to-settle clause in the contract, an insurer can make the final decision on whether to defend or settle a case.
Resolving a malpractice claim is generally a business decision for the insurer, Dr. Studdert said.
“When the claim is for a relatively low amount of money, the costs of moving forward to defend that claim may be much more than the costs of simply settling it would be,” he said. “On the other hand, liability insurers and their lawyers are repeat players here, as are the plaintiffs’ attorneys. They don’t want to incentivize plaintiffs’ attorneys to bring questionable claims, and if they settle quickly, that may do so.”
Mr. Stinson, of the MPL Association, said a truly frivolous claim – one with no legal basis – is highly unlikely to be settled, “especially by MPL Association members who go beyond having a purely financial interest in their insureds to also focus on their professional reputation/integrity.” MPL Association members insure nearly 2 million health care professionals globally, including 2,500 hospitals and more than two-thirds of America’s physicians who are in private practice.
Physicians should make sure they know what is and what is not included in their policy, Dr. Segal said.
“The broker should sit down with the doctor, ideally before initial purchase or renewal, and explain in clear terms what the carrier’s obligations are and what the physician’s obligations are,” he said. “Know what type of protection is being purchased and what conditions might trigger a surprising and unhappy outcome.”
Should I countersue?
For truly frivolous claims, physicians have the legal right to sue for damages caused by the unfounded complaint.
Perhaps the most well-known case of a successful malpractice countersuit is that of Louisville neurosurgeon John Guarnaschelli, MD, who in 2000 won $72,000 in damages against a plaintiffs’ attorney for malicious prosecution.
The physician’s countersuit followed the dismissal of a negligence claim against Dr. Guarnaschelli by a patient who contracted meningitis. The plaintiffs’ attorney had made little effort to gather evidence to connect Dr. Guarnaschelli to the patient’s injuries and had consulted only one other physician, a client of his, before filing the lawsuit, according to a summary of the case in the American Bar Association Journal.
Malicious prosecution is the most common legal theory of recovery for physicians in countersuits, according to a review of successful countersuits by doctors. Dr. Stawicki is a coauthor of that review. Other legal theories that physicians can raise include abuse of process, negligence, defamation, invasion of privacy, and infliction of emotional distress. Of the 13 cases evaluated in the article by Dr. Stawicki and colleagues, damages awarded to physicians ranged from about $13,000 to $125,000.
Although some doctors have success, pursuing a counterclaim can be a difficult feat, said Benjamin Braslow, MD, a trauma surgeon and professor of clinical surgery at the University of Pennsylvania in Philadelphia.
“The main takeaways were it’s an uphill battle often met with not only resistance but diminishing returns to countersue,” said Dr. Braslow, a coauthor of the countersuits analysis. “You have to meet very specific criteria regarding leveling the suit, and it may end up being a costly, time-consuming battle.”
To prove malicious prosecution, for example, a physician must show that a claim was instituted without probable cause, that the suing party acted maliciously in instituting the action, and that the doctor was damaged by the action, among other essential elements.
As for Dr. G, the surgeon, he now has a contract with a consent-to-settle clause and has taken other legal precautions since his lawsuits. He requires that his patients sign an agreement that any negligence claims they levy go to arbitration. If an arbitrator finds in the patient’s favor, the case may proceed to court, he said. However, he requires another agreement such that if patients lose in court, they are responsible for his legal fees.
“I’m just more careful,” he said. “I ask all my staff in the office to use their judgment, however superficial, if they feel something is wrong with an individual to tell me so. I’d rather send them away than operate on them and have it result in a lawsuit.”
A version of this article originally appeared on Medscape.com.
Dr. G, a New York surgeon, was only a couple years into practice when he faced his first lawsuit.
After undergoing liposuction surgery on the area of her calf and ankle, a patient claimed she had developed a severe allergic reaction, characterized by small areas of necrosis on the lower extremities, said Dr. G, who asked to remain anonymous. However, the alleged injury seemed suspicious, said Dr. G, considering that 3 weeks after the surgery, the area had shown a successful result with minimal swelling.
Six months into the suit, Dr. G received a shocking phone call. It was the patient’s estranged husband, who revealed that his wife was having an affair with another man, a physician. In recorded phone calls, the patient and her paramour had discussed causing an injury near the patient’s calf in an attempt to sue and get rich, the husband relayed. Dr. G immediately contacted his insurance carrier with the news, but his attorney said the information would not be admissible in court. Instead, the insurer settled with the patient, who received about $125,000.
At the time, Dr. G did not have a consent-to-settle clause in his contract, so the insurer was able to settle without his approval.
In legal practice, a frivolous claim is defined as one that lacks a supporting legal argument or any factual basis. A claim issued with the intent of disturbing, annoying, or harassing the opposing party can also be described as legally frivolous, said Michael Stinson, vice president of government relations and public policy for the Medical Professional Liability Association (MPL Association), a trade association for medical liability insurers.
However, when most physicians refer to “frivolous claims,” they often mean a claim in which there is no attributable negligence. Such suits represent a second category of claims – nonmeritorious lawsuits.
“I think people intermix nonmeritorious and frivolous all the time,” Mr. Stinson said. “In the vast majority of nonmeritorious claims, the patient has suffered an adverse outcome, it’s just that it wasn’t the result of negligence, whereas with a frivolous lawsuit, they really haven’t suffered any damage, so they’ve got no business filing a lawsuit on any level.”
A third type of so-called frivolous suit is that of a fraudulent or fake claim, in which, as Dr. G experienced, a patient causes a self-injury or lies about a condition to craft a false claim against a physician.
If a patient files a claim that the patient knows is false, the patient commits fraud and may be subject to counterclaims for malicious prosecution or abuse of process, said Jeffrey Segal, MD, JD, a neurosurgeon and health law attorney. Further, the patient would be testifying under oath, and such testimony can be considered perjury, a criminal offense with criminal penalties.
Sadly, Dr. G was the target of another frivolous lawsuit years later. In that suit, a patient claimed the surgeon had left a piece of sponge in her breast cavity during surgery. The case was dismissed when medical records proved the patient knew that the foreign body resulted from an unrelated procedure she had undergone years earlier.
“There is so much abuse in the court system,” Dr. G said. “You really don’t think stuff like that will happen to you, especially if you honor the profession. It’s unfortunate. It’s left a very bitter taste in my mouth.”
Frivolous claims have long been a subject of debate. Tort reform advocates often contend that such claims are pervasive. They cite them as key reasons for high health care costs and say that they have led to the rise of defensive medicine. Plaintiffs’ attorneys counter that the rate of frivolous claims is widely exaggerated and argue that the pursuit of frivolous claims would be “bad business” for legal firms.
“I have never seen a frivolous malpractice claim,” says Malcolm P. McConnell III, JD, a Richmond, Va., medical malpractice attorney and chair of the Medical Malpractice Legislative Subcommittee for the Virginia Trial Lawyers Association. “I cannot say that such things never happen, but any lawyer bringing such a thing is foolish, because there is no reward for it.”
Are shotgun lawsuits frivolous?
To many physicians, being dragged into a lawsuit over a complaint or medical outcome in which they were not involved is frivolous, said Stanislaw Stawicki, MD, a trauma surgeon and researcher based in Bethlehem, Pa. Dr. Stawicki was named in a lawsuit along with a long list of medical staff who interacted in some way with the plaintiff. Dr. Stawicki himself saw the patient once and made a note in the chart but had nothing to do with the patient’s surgery or with any critical decisions regarding his care, he said.
“Nothing really prepares you for seeing your name on a legal complaint,” Dr. Stawicki said. “It’s traumatic. I had to block out entire days to give depositions, which were really kind of pointless. Questions like, ‘Is this really your name? Where did you train? Were you there that morning?’ Stuff that was really not consequential to the fact that someone had surgery a month earlier and had some sort of complication.”
Dr. Stawicki was eventually dropped from the claim, but not before a nearly year-long ordeal of legal proceedings, meetings, and paperwork.
It is common practice for plaintiffs’ attorneys to add codefendants in the early stages of a claim, said David M. Studdert, ScD, a leading health law researcher and a professor of law at Stanford (Calif.) Law School. Defendants are gradually dismissed as the case moves forward and details of the incident become clearer, he said.
“Plaintiffs’ attorneys have strong incentives to try and choose claims that will be successful,” Dr. Studdert said. “However, in the early point in the process, neither the patient nor the attorney may have a good idea what has actually happened with care. So sometimes, filing a lawsuit may be the only way to begin the process of opening up that information.”
A study by Dr. Studdert in which medical malpractice claims, errors, and compensation payments were analyzed found that, out of 1,452 claims, about one-third (37%) did not involve errors.
“Many physicians might call those frivolous lawsuits, but in fact, most of those don’t go on to receive compensation,” he said. “We suspect that in many instances, those claims are simply dropped once it becomes apparent that there wasn’t error involved.
“They can still be burdensome, anxiety provoking, and time consuming for physicians who are named in those suits, so I don’t want to suggest that claims that don’t involve errors are not a problem,” said Dr. Studdert. “However, I think it’s wrong to assume, as many people do when they use the term ‘frivolous lawsuit,’ that this is really an extortionary effort by a plaintiffs’ attorney to try to get money out of a hospital or a physician for care that was really unproblematic.”
Certain ‘frivolous’ cases more common than others
Nonmeritorious claims still occur relatively frequently today, according to data from the Medical Professional Liability Association’s Data Sharing Project. Of about 18,000 liability claims reported from 2016 to 2018, 65% were dropped, withdrawn, or dismissed. Of the 6% of claims that went before a jury, more than 85% resulted in a verdict for the defendant, the researchers found.
“Basically, any claim that does not result in a payment because the underlying claim of negligence on the part of a health professional had been demonstrated, proven, or adjudicated false is one we would describe as nonmeritorious,” Mr. Stinson said.
The MPL Association does not track cases that meet the legal definition of frivolous, said Mr. Stinson, and they “don’t see truly frivolous lawsuits very often.”
Malpractice claims are risky, expensive, and aggressively defended, says Mr. McConnell, the plaintiffs’ attorney. Mr. McConnell, who has been practicing for 30 years, said his own claim selection process is very rigorous and that he cannot afford to pursue claims that aren’t well supported by science and medicine.
“Pursuing frivolous cases would bankrupt me and ruin my reputation,” he said. “A lawyer I know once said he would write a check for $10,000 to anyone who could show him a lawyer who makes a living pursuing frivolous medical malpractice cases. It’s a fair challenge. The economics and the practices of liability carriers and defense lawyers make frivolous cases a dead end for plaintiff lawyers.”
Most medical malpractice cases are taken on a contingency fee basis, Mr. McConnell noted, meaning that the plaintiff’s lawyer is not paid unless the claim is successful.
“This means that the plaintiff’s lawyer is risking 2 years of intensive labor on a case which may yield no fee at all,” he said. “Obviously, any reasonable lawyer is going to want to minimize that risk. The only way to minimize that risk is for the case to be solid, not weak, and certainly not frivolous.”
But Dr. Segal, the health law attorney, says that plenty of frivolous liability claims are levied each year, with attorneys willing to pursue them.
It’s true that seasoned plaintiffs’ attorneys generally screen for merit and damages, Dr. Segal said, but in some instances, attorneys who are not trained in malpractice law accept frivolous claims and take them forward. In some cases, they are slip-and-fall accident attorneys accustomed to receiving modest amounts from insurance companies quickly, said Dr. Segal, founder of Medical Justice, a company that helps deter frivolous lawsuits against physicians.
“If we lived in a perfectly rational universe where plaintiffs’ attorneys screened cases well and only took the meritorious cases forward, we would see less frivolous cases filed, but that’s not the universe I live in,” Dr. Segal said. “There are well over a million attorneys in this country, and some are hungrier than others. The attorneys may frequently get burned in the end, and maybe that attorney won’t move another malpractice case forward, but there’s always someone else willing to take their place.”
Medical Justice has twice run a Most Frivolous Lawsuit Contest on its website, one in 2008 and one in late 2018. The first contest drew 30 entries, and the second garnered nearly 40 submissions, primarily from physicians who were defendants in the cases, according to Dr. Segal. (Dr. G’s lawsuit was highlighted in the most recent contest.)
In one case, an emergency physician was drawn into litigation by the family of a deceased patient. The patient experienced sudden cardiac arrythmia at home, and paramedics were unable to intubate her or establish IV access. She was transferred to the hospital, where resuscitation efforts continued, but she remained in asystole and was pronounced dead after 15 minutes.
At the hospital, blood tests were conducted. They showed that her serum potassium concentration was elevated to about 12 mEq/L, Dr. Segal said. The family initiated a claim in which they accused the emergency physician of failure to diagnose hyperkalemia. They alleged that had the hyperkalemia been discovered sooner, the patient’s death could have been prevented.
“If you had no other facts about this, you would wonder how a person with potassium that high would even be alive,” Dr. Segal said. “But what they were looking at was the body decomposing and all the potassium in the cells being released into the bloodstream. It wasn’t the cause of the problem, it was an effect of the problem. She really was dead on arrival, and she was probably dead at home.”
The case was eventually dropped.
Although the outcome for the patient was tragic, says Dr. Segal, the case is one of many types of frivolous claims that exist today.
“Yes, frivolous cases are out there,” he said.
Fraudulent claims uncommon
As for fraudulent medical liability claims, legal experts say they’re rare. J. Richard Moore, JD, an Indianapolis-based medical liability defense attorney, said he’s never personally encountered a medical malpractice claim in which he believed a plaintiff caused an injury or an illness and attempted to blame it on a physician.
However, Mr. Moore has defended many claims in which the illness or condition the plaintiff claimed was caused or was made worse through medical negligence was actually a preexisting condition or a preexisting condition that worsened and was not related to any medical negligence, Mr. Moore said.
“Although I have often felt in such cases that the plaintiff really knew that the condition was not affected by any alleged medical negligence, I would not put that in the ‘fraudulent claim’ category because it can be very difficult to establish a person’s subjective state of mind,” he said. “Usually in those cases, the plaintiff just denies memory of previous medical records or claims that the previous doctor who treated him or her for the same condition ‘got it wrong.’ In those cases, it is generally left to the jury whether to believe the plaintiff or not.”
Mr. Stinson also says he has not come across a truly fraudulent medical liability case. He noted that such a claim might be similar to a person falsely claiming a soft-tissue injury following an alleged slip-and-fall accident.
“Clearly, a fraudulent claim could be viewed as riskier from the plaintiff’s perspective because they could face criminal prosecution for insurance fraud, whereas if a claim is merely frivolous, they probably only run the risk of court-issued fine, if even that. That may be why we don’t often see fraudulent MPL claims.”
Ways to prevent or fight frivolous lawsuits
Since Dr. Stawicki’s legal nightmare as a resident, rules have tightened in Pennsylvania, and it is now more difficult to file frivolous claims, he said.
Pennsylvania is one of at least 28 states that require a certificate of merit in order for a medical liability claim to move forward. The provisions generally state that an appropriately licensed professional must supply a written statement attesting that the care the patient received failed to meet acceptable professional standards and that such conduct was a cause in the alleged harm.
“There is now a much greater burden of proof regarding what can proceed,” Dr. Stawicki said. “I’ve been involved in a couple cases that did not proceed because there was no certificate of merit.”
Although these reforms may help, not all merit rules are created equal. Some states require that the expert who signs the affidavit be knowledgeable in the relevant issues involved in the action. Other states have looser requirements. In one of the cases featured in Medical Justice’s Most Frivolous Lawsuit Contest, a podiatrist signed a supporting declaration for a claim related to obstetric care.
For physicians facing a frivolous claim, fighting it out in court depends on a number of factors. Without a consent-to-settle clause in the contract, an insurer can make the final decision on whether to defend or settle a case.
Resolving a malpractice claim is generally a business decision for the insurer, Dr. Studdert said.
“When the claim is for a relatively low amount of money, the costs of moving forward to defend that claim may be much more than the costs of simply settling it would be,” he said. “On the other hand, liability insurers and their lawyers are repeat players here, as are the plaintiffs’ attorneys. They don’t want to incentivize plaintiffs’ attorneys to bring questionable claims, and if they settle quickly, that may do so.”
Mr. Stinson, of the MPL Association, said a truly frivolous claim – one with no legal basis – is highly unlikely to be settled, “especially by MPL Association members who go beyond having a purely financial interest in their insureds to also focus on their professional reputation/integrity.” MPL Association members insure nearly 2 million health care professionals globally, including 2,500 hospitals and more than two-thirds of America’s physicians who are in private practice.
Physicians should make sure they know what is and what is not included in their policy, Dr. Segal said.
“The broker should sit down with the doctor, ideally before initial purchase or renewal, and explain in clear terms what the carrier’s obligations are and what the physician’s obligations are,” he said. “Know what type of protection is being purchased and what conditions might trigger a surprising and unhappy outcome.”
Should I countersue?
For truly frivolous claims, physicians have the legal right to sue for damages caused by the unfounded complaint.
Perhaps the most well-known case of a successful malpractice countersuit is that of Louisville neurosurgeon John Guarnaschelli, MD, who in 2000 won $72,000 in damages against a plaintiffs’ attorney for malicious prosecution.
The physician’s countersuit followed the dismissal of a negligence claim against Dr. Guarnaschelli by a patient who contracted meningitis. The plaintiffs’ attorney had made little effort to gather evidence to connect Dr. Guarnaschelli to the patient’s injuries and had consulted only one other physician, a client of his, before filing the lawsuit, according to a summary of the case in the American Bar Association Journal.
Malicious prosecution is the most common legal theory of recovery for physicians in countersuits, according to a review of successful countersuits by doctors. Dr. Stawicki is a coauthor of that review. Other legal theories that physicians can raise include abuse of process, negligence, defamation, invasion of privacy, and infliction of emotional distress. Of the 13 cases evaluated in the article by Dr. Stawicki and colleagues, damages awarded to physicians ranged from about $13,000 to $125,000.
Although some doctors have success, pursuing a counterclaim can be a difficult feat, said Benjamin Braslow, MD, a trauma surgeon and professor of clinical surgery at the University of Pennsylvania in Philadelphia.
“The main takeaways were it’s an uphill battle often met with not only resistance but diminishing returns to countersue,” said Dr. Braslow, a coauthor of the countersuits analysis. “You have to meet very specific criteria regarding leveling the suit, and it may end up being a costly, time-consuming battle.”
To prove malicious prosecution, for example, a physician must show that a claim was instituted without probable cause, that the suing party acted maliciously in instituting the action, and that the doctor was damaged by the action, among other essential elements.
As for Dr. G, the surgeon, he now has a contract with a consent-to-settle clause and has taken other legal precautions since his lawsuits. He requires that his patients sign an agreement that any negligence claims they levy go to arbitration. If an arbitrator finds in the patient’s favor, the case may proceed to court, he said. However, he requires another agreement such that if patients lose in court, they are responsible for his legal fees.
“I’m just more careful,” he said. “I ask all my staff in the office to use their judgment, however superficial, if they feel something is wrong with an individual to tell me so. I’d rather send them away than operate on them and have it result in a lawsuit.”
A version of this article originally appeared on Medscape.com.
Dr. G, a New York surgeon, was only a couple years into practice when he faced his first lawsuit.
After undergoing liposuction surgery on the area of her calf and ankle, a patient claimed she had developed a severe allergic reaction, characterized by small areas of necrosis on the lower extremities, said Dr. G, who asked to remain anonymous. However, the alleged injury seemed suspicious, said Dr. G, considering that 3 weeks after the surgery, the area had shown a successful result with minimal swelling.
Six months into the suit, Dr. G received a shocking phone call. It was the patient’s estranged husband, who revealed that his wife was having an affair with another man, a physician. In recorded phone calls, the patient and her paramour had discussed causing an injury near the patient’s calf in an attempt to sue and get rich, the husband relayed. Dr. G immediately contacted his insurance carrier with the news, but his attorney said the information would not be admissible in court. Instead, the insurer settled with the patient, who received about $125,000.
At the time, Dr. G did not have a consent-to-settle clause in his contract, so the insurer was able to settle without his approval.
In legal practice, a frivolous claim is defined as one that lacks a supporting legal argument or any factual basis. A claim issued with the intent of disturbing, annoying, or harassing the opposing party can also be described as legally frivolous, said Michael Stinson, vice president of government relations and public policy for the Medical Professional Liability Association (MPL Association), a trade association for medical liability insurers.
However, when most physicians refer to “frivolous claims,” they often mean a claim in which there is no attributable negligence. Such suits represent a second category of claims – nonmeritorious lawsuits.
“I think people intermix nonmeritorious and frivolous all the time,” Mr. Stinson said. “In the vast majority of nonmeritorious claims, the patient has suffered an adverse outcome, it’s just that it wasn’t the result of negligence, whereas with a frivolous lawsuit, they really haven’t suffered any damage, so they’ve got no business filing a lawsuit on any level.”
A third type of so-called frivolous suit is that of a fraudulent or fake claim, in which, as Dr. G experienced, a patient causes a self-injury or lies about a condition to craft a false claim against a physician.
If a patient files a claim that the patient knows is false, the patient commits fraud and may be subject to counterclaims for malicious prosecution or abuse of process, said Jeffrey Segal, MD, JD, a neurosurgeon and health law attorney. Further, the patient would be testifying under oath, and such testimony can be considered perjury, a criminal offense with criminal penalties.
Sadly, Dr. G was the target of another frivolous lawsuit years later. In that suit, a patient claimed the surgeon had left a piece of sponge in her breast cavity during surgery. The case was dismissed when medical records proved the patient knew that the foreign body resulted from an unrelated procedure she had undergone years earlier.
“There is so much abuse in the court system,” Dr. G said. “You really don’t think stuff like that will happen to you, especially if you honor the profession. It’s unfortunate. It’s left a very bitter taste in my mouth.”
Frivolous claims have long been a subject of debate. Tort reform advocates often contend that such claims are pervasive. They cite them as key reasons for high health care costs and say that they have led to the rise of defensive medicine. Plaintiffs’ attorneys counter that the rate of frivolous claims is widely exaggerated and argue that the pursuit of frivolous claims would be “bad business” for legal firms.
“I have never seen a frivolous malpractice claim,” says Malcolm P. McConnell III, JD, a Richmond, Va., medical malpractice attorney and chair of the Medical Malpractice Legislative Subcommittee for the Virginia Trial Lawyers Association. “I cannot say that such things never happen, but any lawyer bringing such a thing is foolish, because there is no reward for it.”
Are shotgun lawsuits frivolous?
To many physicians, being dragged into a lawsuit over a complaint or medical outcome in which they were not involved is frivolous, said Stanislaw Stawicki, MD, a trauma surgeon and researcher based in Bethlehem, Pa. Dr. Stawicki was named in a lawsuit along with a long list of medical staff who interacted in some way with the plaintiff. Dr. Stawicki himself saw the patient once and made a note in the chart but had nothing to do with the patient’s surgery or with any critical decisions regarding his care, he said.
“Nothing really prepares you for seeing your name on a legal complaint,” Dr. Stawicki said. “It’s traumatic. I had to block out entire days to give depositions, which were really kind of pointless. Questions like, ‘Is this really your name? Where did you train? Were you there that morning?’ Stuff that was really not consequential to the fact that someone had surgery a month earlier and had some sort of complication.”
Dr. Stawicki was eventually dropped from the claim, but not before a nearly year-long ordeal of legal proceedings, meetings, and paperwork.
It is common practice for plaintiffs’ attorneys to add codefendants in the early stages of a claim, said David M. Studdert, ScD, a leading health law researcher and a professor of law at Stanford (Calif.) Law School. Defendants are gradually dismissed as the case moves forward and details of the incident become clearer, he said.
“Plaintiffs’ attorneys have strong incentives to try and choose claims that will be successful,” Dr. Studdert said. “However, in the early point in the process, neither the patient nor the attorney may have a good idea what has actually happened with care. So sometimes, filing a lawsuit may be the only way to begin the process of opening up that information.”
A study by Dr. Studdert in which medical malpractice claims, errors, and compensation payments were analyzed found that, out of 1,452 claims, about one-third (37%) did not involve errors.
“Many physicians might call those frivolous lawsuits, but in fact, most of those don’t go on to receive compensation,” he said. “We suspect that in many instances, those claims are simply dropped once it becomes apparent that there wasn’t error involved.
“They can still be burdensome, anxiety provoking, and time consuming for physicians who are named in those suits, so I don’t want to suggest that claims that don’t involve errors are not a problem,” said Dr. Studdert. “However, I think it’s wrong to assume, as many people do when they use the term ‘frivolous lawsuit,’ that this is really an extortionary effort by a plaintiffs’ attorney to try to get money out of a hospital or a physician for care that was really unproblematic.”
Certain ‘frivolous’ cases more common than others
Nonmeritorious claims still occur relatively frequently today, according to data from the Medical Professional Liability Association’s Data Sharing Project. Of about 18,000 liability claims reported from 2016 to 2018, 65% were dropped, withdrawn, or dismissed. Of the 6% of claims that went before a jury, more than 85% resulted in a verdict for the defendant, the researchers found.
“Basically, any claim that does not result in a payment because the underlying claim of negligence on the part of a health professional had been demonstrated, proven, or adjudicated false is one we would describe as nonmeritorious,” Mr. Stinson said.
The MPL Association does not track cases that meet the legal definition of frivolous, said Mr. Stinson, and they “don’t see truly frivolous lawsuits very often.”
Malpractice claims are risky, expensive, and aggressively defended, says Mr. McConnell, the plaintiffs’ attorney. Mr. McConnell, who has been practicing for 30 years, said his own claim selection process is very rigorous and that he cannot afford to pursue claims that aren’t well supported by science and medicine.
“Pursuing frivolous cases would bankrupt me and ruin my reputation,” he said. “A lawyer I know once said he would write a check for $10,000 to anyone who could show him a lawyer who makes a living pursuing frivolous medical malpractice cases. It’s a fair challenge. The economics and the practices of liability carriers and defense lawyers make frivolous cases a dead end for plaintiff lawyers.”
Most medical malpractice cases are taken on a contingency fee basis, Mr. McConnell noted, meaning that the plaintiff’s lawyer is not paid unless the claim is successful.
“This means that the plaintiff’s lawyer is risking 2 years of intensive labor on a case which may yield no fee at all,” he said. “Obviously, any reasonable lawyer is going to want to minimize that risk. The only way to minimize that risk is for the case to be solid, not weak, and certainly not frivolous.”
But Dr. Segal, the health law attorney, says that plenty of frivolous liability claims are levied each year, with attorneys willing to pursue them.
It’s true that seasoned plaintiffs’ attorneys generally screen for merit and damages, Dr. Segal said, but in some instances, attorneys who are not trained in malpractice law accept frivolous claims and take them forward. In some cases, they are slip-and-fall accident attorneys accustomed to receiving modest amounts from insurance companies quickly, said Dr. Segal, founder of Medical Justice, a company that helps deter frivolous lawsuits against physicians.
“If we lived in a perfectly rational universe where plaintiffs’ attorneys screened cases well and only took the meritorious cases forward, we would see less frivolous cases filed, but that’s not the universe I live in,” Dr. Segal said. “There are well over a million attorneys in this country, and some are hungrier than others. The attorneys may frequently get burned in the end, and maybe that attorney won’t move another malpractice case forward, but there’s always someone else willing to take their place.”
Medical Justice has twice run a Most Frivolous Lawsuit Contest on its website, one in 2008 and one in late 2018. The first contest drew 30 entries, and the second garnered nearly 40 submissions, primarily from physicians who were defendants in the cases, according to Dr. Segal. (Dr. G’s lawsuit was highlighted in the most recent contest.)
In one case, an emergency physician was drawn into litigation by the family of a deceased patient. The patient experienced sudden cardiac arrythmia at home, and paramedics were unable to intubate her or establish IV access. She was transferred to the hospital, where resuscitation efforts continued, but she remained in asystole and was pronounced dead after 15 minutes.
At the hospital, blood tests were conducted. They showed that her serum potassium concentration was elevated to about 12 mEq/L, Dr. Segal said. The family initiated a claim in which they accused the emergency physician of failure to diagnose hyperkalemia. They alleged that had the hyperkalemia been discovered sooner, the patient’s death could have been prevented.
“If you had no other facts about this, you would wonder how a person with potassium that high would even be alive,” Dr. Segal said. “But what they were looking at was the body decomposing and all the potassium in the cells being released into the bloodstream. It wasn’t the cause of the problem, it was an effect of the problem. She really was dead on arrival, and she was probably dead at home.”
The case was eventually dropped.
Although the outcome for the patient was tragic, says Dr. Segal, the case is one of many types of frivolous claims that exist today.
“Yes, frivolous cases are out there,” he said.
Fraudulent claims uncommon
As for fraudulent medical liability claims, legal experts say they’re rare. J. Richard Moore, JD, an Indianapolis-based medical liability defense attorney, said he’s never personally encountered a medical malpractice claim in which he believed a plaintiff caused an injury or an illness and attempted to blame it on a physician.
However, Mr. Moore has defended many claims in which the illness or condition the plaintiff claimed was caused or was made worse through medical negligence was actually a preexisting condition or a preexisting condition that worsened and was not related to any medical negligence, Mr. Moore said.
“Although I have often felt in such cases that the plaintiff really knew that the condition was not affected by any alleged medical negligence, I would not put that in the ‘fraudulent claim’ category because it can be very difficult to establish a person’s subjective state of mind,” he said. “Usually in those cases, the plaintiff just denies memory of previous medical records or claims that the previous doctor who treated him or her for the same condition ‘got it wrong.’ In those cases, it is generally left to the jury whether to believe the plaintiff or not.”
Mr. Stinson also says he has not come across a truly fraudulent medical liability case. He noted that such a claim might be similar to a person falsely claiming a soft-tissue injury following an alleged slip-and-fall accident.
“Clearly, a fraudulent claim could be viewed as riskier from the plaintiff’s perspective because they could face criminal prosecution for insurance fraud, whereas if a claim is merely frivolous, they probably only run the risk of court-issued fine, if even that. That may be why we don’t often see fraudulent MPL claims.”
Ways to prevent or fight frivolous lawsuits
Since Dr. Stawicki’s legal nightmare as a resident, rules have tightened in Pennsylvania, and it is now more difficult to file frivolous claims, he said.
Pennsylvania is one of at least 28 states that require a certificate of merit in order for a medical liability claim to move forward. The provisions generally state that an appropriately licensed professional must supply a written statement attesting that the care the patient received failed to meet acceptable professional standards and that such conduct was a cause in the alleged harm.
“There is now a much greater burden of proof regarding what can proceed,” Dr. Stawicki said. “I’ve been involved in a couple cases that did not proceed because there was no certificate of merit.”
Although these reforms may help, not all merit rules are created equal. Some states require that the expert who signs the affidavit be knowledgeable in the relevant issues involved in the action. Other states have looser requirements. In one of the cases featured in Medical Justice’s Most Frivolous Lawsuit Contest, a podiatrist signed a supporting declaration for a claim related to obstetric care.
For physicians facing a frivolous claim, fighting it out in court depends on a number of factors. Without a consent-to-settle clause in the contract, an insurer can make the final decision on whether to defend or settle a case.
Resolving a malpractice claim is generally a business decision for the insurer, Dr. Studdert said.
“When the claim is for a relatively low amount of money, the costs of moving forward to defend that claim may be much more than the costs of simply settling it would be,” he said. “On the other hand, liability insurers and their lawyers are repeat players here, as are the plaintiffs’ attorneys. They don’t want to incentivize plaintiffs’ attorneys to bring questionable claims, and if they settle quickly, that may do so.”
Mr. Stinson, of the MPL Association, said a truly frivolous claim – one with no legal basis – is highly unlikely to be settled, “especially by MPL Association members who go beyond having a purely financial interest in their insureds to also focus on their professional reputation/integrity.” MPL Association members insure nearly 2 million health care professionals globally, including 2,500 hospitals and more than two-thirds of America’s physicians who are in private practice.
Physicians should make sure they know what is and what is not included in their policy, Dr. Segal said.
“The broker should sit down with the doctor, ideally before initial purchase or renewal, and explain in clear terms what the carrier’s obligations are and what the physician’s obligations are,” he said. “Know what type of protection is being purchased and what conditions might trigger a surprising and unhappy outcome.”
Should I countersue?
For truly frivolous claims, physicians have the legal right to sue for damages caused by the unfounded complaint.
Perhaps the most well-known case of a successful malpractice countersuit is that of Louisville neurosurgeon John Guarnaschelli, MD, who in 2000 won $72,000 in damages against a plaintiffs’ attorney for malicious prosecution.
The physician’s countersuit followed the dismissal of a negligence claim against Dr. Guarnaschelli by a patient who contracted meningitis. The plaintiffs’ attorney had made little effort to gather evidence to connect Dr. Guarnaschelli to the patient’s injuries and had consulted only one other physician, a client of his, before filing the lawsuit, according to a summary of the case in the American Bar Association Journal.
Malicious prosecution is the most common legal theory of recovery for physicians in countersuits, according to a review of successful countersuits by doctors. Dr. Stawicki is a coauthor of that review. Other legal theories that physicians can raise include abuse of process, negligence, defamation, invasion of privacy, and infliction of emotional distress. Of the 13 cases evaluated in the article by Dr. Stawicki and colleagues, damages awarded to physicians ranged from about $13,000 to $125,000.
Although some doctors have success, pursuing a counterclaim can be a difficult feat, said Benjamin Braslow, MD, a trauma surgeon and professor of clinical surgery at the University of Pennsylvania in Philadelphia.
“The main takeaways were it’s an uphill battle often met with not only resistance but diminishing returns to countersue,” said Dr. Braslow, a coauthor of the countersuits analysis. “You have to meet very specific criteria regarding leveling the suit, and it may end up being a costly, time-consuming battle.”
To prove malicious prosecution, for example, a physician must show that a claim was instituted without probable cause, that the suing party acted maliciously in instituting the action, and that the doctor was damaged by the action, among other essential elements.
As for Dr. G, the surgeon, he now has a contract with a consent-to-settle clause and has taken other legal precautions since his lawsuits. He requires that his patients sign an agreement that any negligence claims they levy go to arbitration. If an arbitrator finds in the patient’s favor, the case may proceed to court, he said. However, he requires another agreement such that if patients lose in court, they are responsible for his legal fees.
“I’m just more careful,” he said. “I ask all my staff in the office to use their judgment, however superficial, if they feel something is wrong with an individual to tell me so. I’d rather send them away than operate on them and have it result in a lawsuit.”
A version of this article originally appeared on Medscape.com.
Dangers behind antimaskers and antivaxxers: How to combat both
Niket Sonpal, MD, thought he’d heard most of the myths about wearing masks during the pandemic, but the recent claim from a patient was a new one for the New York City gastroenterologist.
The patient refused to wear a mask because she heard inhaling bad breath through a mask could be toxic. The woman said the rumor was circulating on Facebook. Sonpal calmly explained that breathing your own breath is not going to cause health problems, he said.
“There’s a lot of controversy on masks,” he said. “Unfortunately, it’s really just a lack of education and buy-in. Social media is the primary source of all this misinformation. These kinds of over-the-top hyperbole has basically led to a disbelief that masks are effective. The disbelief is hard to break up.”
As mask requirements have tightened amid the ongoing pandemic, debates about face coverings have emerged front and center, with a growing number of people opposing mask usage. So-called antimaskers dispute the benefits of wearing masks and many contend that face coverings decrease oxygen flow and can lead to illness. Sentiment against masks have led to protests nationwide, ignited public conflicts in some areas, and even generated lawsuits over mask mandates.
The issue presents an ongoing challenge for physicians as they strive to educate patients about the significance of masking against the flood of antimask messages on social media and beyond. Opposition to masks is particularly frustrating for health professionals who have witnessed patients, family, or friends become ill or die from the virus. Refusing to mask and failing to social distance have been linked to the rapid spread of the coronavirus and subsequent deaths.
“I have had colleagues pass away, and it’s extremely disheartening and frustrating to see science so easily disregarded,” Sonpal said. “Masks save lives and protect people and not wearing them is simply a lack of respect, not just for your fellow colleagues, but for a member of your species.”
Michael Rebresh, who helped create the antimask group Million Unmasked Patriots, says his group’s objections to masks are rational and reasonable. The group, which has more than 8,000 members, formed in response to guidance by Illinois state officials that children would only be allowed to return to school wearing a mask.
“Our objections are to the fact that masks on children in school have a greater propensity to make children sick from breathing in bacteria that forms on the inner layer of a mask worn for hours on end,” Rebresh said. “We have an objection to the increase of CO2 intake and a decrease in oxygen flow for kids who need all the oxygen they can get during a learning environment. We recognized the masking of ourselves and kids for what it is: A political move to separate the two parties in our November election and define and create division between the two.”
Million Unmasked Patriots is one of dozens of antimask groups on social media platforms such as Facebook, Instagram, and TikTok. In July, Facebook suspended one such group, Unmasking America, which boasts 9,600 members, for posting repeated claims that face masks obstruct oxygen flow and have negative mental health effects.
Experts say the antiscience rhetoric is far from new. The antimask movement in many ways, shares similarities with that of the anti-vaccine movement, says Todd Wolynn, MD, a Pittsburgh pediatrician and cofounder of Shots Heard Round the World, an organization that defends vaccine advocates against coordinated online attacks by antivaxxers.
“A lot of it is conspiracy-laden,” said Wolynn of the disinformation. “That Dr. [Anthony] Fauci somehow helped construct the pandemic and that it’s not real. That Bill Gates is funding the vaccine so he can inject people with microchips. All sorts of really out-there, ungrounded conspiracy theories. If you had Venn diagram of antimask and antivaxx, I would say there’s clearly overlap.”
Parallels between antimaskers, antivaxxers
Opponents to masks fall on a spectrum, explains Vineet Arora, MD, a hospitalist and associate chief medical officer–clinical learning environment at University of Chicago Medicine. People who believe conspiracy theories and push misinformation are on one end, she said. There are also those who generally don’t believe the seriousness of the pandemic, feel their risk is minimal, or doubt the benefits of masks.
The two trains of thought resemble the distinction among parents who are antivaccine and those who are simply “vaccine hesitant,” says Arora, who co-authored a recent article about masking and misinformation that addresses antivaccine attitudes.
“While the antimask sentiment gets a lot of attention, I think it’s important to highlight there’s a lot of vocal anti-mask sentiment since most people are supportive of masks,” she said. “There might be people sitting on the fence who are just unsure about wearing a mask. That’s understandable because the science and the communication has evolved. There was a lot of early mixed messages about masking. Anytime you have confusion about the science or the science is evolving, it’s easy to have misinformation and then have that take off as myth.”
Just as antivaxxers work to swing the opinion of the vaccine hesitant, antimaskers are vying with public health advocates for the support of the mask hesitant, she said. Creating doubt in public health authorities is one way they are gaining followers. Anti-maskers often question and scrutinize past messaging about masks by public health officials, claiming that because guidance on masks has changed over time, the science behind masks and current guidance can’t be trusted, Wolynn said. Similarly, antivaxxers frequently question past actions by public health officials, such as the Tuskegee Experiment (which began in 1932), to try to poke holes in the credibility of public health officials and their advice.
Both the antimask and antivaccine movements also tend to base their resistance on a personal liberties argument, adds Jacqueline Winfield Fincher, MD, president for the American College of Physicians and an internist based in Thomson, Georgia. Antimaskers contend they should be free to decide whether to wear face coverings and that rules requiring masks infringe upon their civil liberties. Similarly, antivaxxers argue they should be free to decide whether to vaccinate their children and contend vaccine mandates violate their personal liberties.
Taking a deeper look, fear and control are two likely drivers of antimasking and antivaccine attitudes, Fincher said. Those refusing to wear masks may feel they have no control over the pandemic or its impacts, but they can control how they respond to mask-wearing requirements, she said.
Antivaccine parents often want more control over their children’s healthcare and falsely believe that vaccines are injecting something harmful into their children or may lead to harmful reactions.
“It’s a control issue and a defense mechanism,” she said. “Some people may feel helpless to deal with the pandemic or believe since it is not affecting them or their family, that it is not real. ‘If I just deny it and I don’t acknowledge facts, I don’t have to worry about it or do anything about it, and therefore I will have more control over my day-to-day life.’”
Groups fueling each other
In some cases, antimask and antivaxx groups are joining forces or adopting dual causes.
In California for instance, longtime opponents to vaccines are now objecting to mask policies as similar infringement to their bodily autonomy. Demonstrations in Texas, Idaho, and Michigan against mask mandates and other COVID-19 requirements have drawn support from anti-vaccine activists and incorporated antivaccine propaganda.
In Illinois, Million Unmasked Patriots, formally the Million Unmasked March, has received widespread attention for protesting both masks for returning schoolchildren and a future COVID-19 vaccine requirement.
A July protest planned by the antimask group triggered a letter by Arora and 500 other healthcare professionals to Illinois lawmakers decrying the group’s views and urging the state to move forward with universal masking in schools.
“What’s happening is those who are distrustful of government and public health and science are joining together,” said Arora, who coauthored a piece about the problem on KevinMD.com. “It’s important to address both movements together because they can quickly feed off each other and build in momentum. At the heart of both is really this deep skepticism of science.”
Rebresh of Million Unmasked Patriots said most of his members are not opposed to all vaccines, but rather they are opposed to “untested vaccines.” The primary concern is the inability to research long-term effects of a COVID-19 vaccine before its approval, he said.
Rebresh disagrees with the antimask movement being compared with the antivaccine movement. The two groups are “motivated by different things and a different set of circumstances drive their opinions,” he said. However, Rebresh believes that potential harm resulting from “mass vaccinations” is a valid concern. For this reason, he and his wife chose for their children to receive their vaccinations individually over a series of weeks, rather than the “kiddie cocktail of vaccines,” at a single visit, he said.
Vaccine scientist Peter Hotez, MD, PhD, said the antivaccine movement appears to have grown stronger from the pandemic fueled by fresh conspiracies and new alliances. Antivaccine sentiment has been gaining steam over the last several years and collecting more allies from the far-right, said Hotez, dean for the National School of Tropical Medicine and codirector for the Texas Children’s Hospital Center for Vaccine Development.
“Now what you’re seeing is yet another expansion this year, with antivaccine groups, under the banner of ‘health freedom,’ campaigning against social distancing and wearing masks and contact tracing,” he said. “What was an antivaccine movement has now become a full-blown antiscience movement and an anti-public health movement. It’s causing a lot of damage and I believe costing a lot of American lives.”
Neil F. Johnson, PhD, who has studied the antivaccine movement and its social media proliferation during the pandemic, said online comments by antivaxxers frequently condemn mask usage and showcase memes making fun of masks.
“In those same narratives about opposing vaccines for COVID, we see a lot of discussion against masks,” said Johnson, a physics professor at George Washington University in Washington, D.C. “If you don’t believe in the official picture of COVID, you don’t believe the policies or the advice that’s given about COVID.”
An analysis by Johnson that examined 1,300 Facebook pages found that, while antivaxxers have fewer followers than provaccine pages, antivaccine pages are more numerous, faster growing, and are more often connected to unrelated, undecided pages. Conversely, pages that advocate the benefits of vaccinations and explain the science behind immunizations are largely disconnected from such undecided communities, according to the study, published May 13 in Nature.
The study suggests the antivaccine movement is making influential strides during the pandemic and connecting with people who are undecided, while public health advocates are not building the same bridges, Johnson said.
“I think it’s hugely dangerous, because I don’t know any other moment in science or in public health when there was so much uncertainty in something affecting everybody,” he said. “Every policy that will be coming, everything depends on people buying into the official message. Once you have the seeds of doubt, that’s a very difficult thing to overcome. It’s an unprecedented challenge.”
How physicians and clinicians can help
A more aggressive approach is necessary when it comes to taking down antiscience content on social media, says Hotez. Too often, misinformation and antiscience rhetoric is allowed to linger on popular sites such as Facebook and Amazon.
Wolynn agrees. On personal or business platforms, it’s crucial to ban, hide, and delete such comments as quickly as possible, he said. On public sites, purposeful disinformation should be immediately reported to the platform.
At the same time, Wolynn said it’s essential to support those who make sound, science-based comments in social media forums.
“If you see someone who is pushing accurate, evidence-based information, and they come under attack, they should be supported and defended and empowered,” Wolynn said. “Shots Heard Round the World is doing all of those things, including galvanizing and recruiting more people to help get their voices out there.”
Expanded visibility by physicians and scientists would greatly help counter the spread of antiscience sentiment, adds Hotez.
“Too often, antiscience movements are able to flourish because scientists and physicians are invisible,” he said. “They’re too focused on either clinical practices or in the case of physician scientists, on grants and papers and not enough attention to public engagement. We’re going to have to change that around. We need to hear more from scientists directly.”
To that end, Wolynn said health care professionals, including medical students and residents, need to have formal training in communications, media, and social media as part of their education – and more support from employers to engage through social media.
“That’s where the fight is,” Wolynn said. “You can be the best diagnostician, the best clinician. You can make the right diagnosis and prescribe the right medication, but if families don’t hear what you’re saying, you’re not going to be effective. If you can’t be on the platform where they’re being influenced, we’re losing the battle.”
Speaking to your mask-hesitant patients
Concentrating on those who are uncertain about masks is particularly key for physicians and public health advocates as the pandemic continues, says Arora.
“It’s important for us to focus on the mask-hesitant who often don’t get the attention they need,” she said.
She suggests bringing up the subject of masks with patients during visits, asking about mask usage, discussing rumors they’ve heard, and emphasizing why masks are important. Be a role model by wearing a mask in your community and on social media, she added.
Some patients have real concerns about not being able to breathe through masks or anxiety disorders that can be aggravated even by the thought of wearing a mask, noted Susan R. Bailey, MD, president for the American Medical Association. Bailey, an immunologist, recently counseled a patient with a deviated nasal septum in addition to a panic disorder who was worried about wearing a mask, she said. Bailey listened to the patient’s concerns, discussed his health conditions, and proposed an alternative face covering that might make him more comfortable.
“Every patient is different,” Bailey said. “It’s important for us to remember that each person who is reluctant to wear a mask has their own reasons. It’s important for us to express some empathy – to agree with them, yes, masks are hot and inconvenient – and help understand their questions, which you may be able to answer to their satisfaction. There are patients that have legitimate questions and a physician caring about how they feel, can make all the difference.”
Physicians can also get involved with the AMA’s #MaskUp campaign, an effort to normalize mask wearing and debunk myths associated with masks. The campaign includes social media materials, slogans doctors can tweet, and profile pictures they can use on social media. The campaign’s toolkit includes images, videos, and information that physicians can share with patients and the public.
Enforcing strong mask policies at your practice and ensuring all staff are modeling appropriate mask behavior is also important, adds Fincher of the ACP. The college recently issued a policy supporting mask usage in community settings.
If a patient conveys an antimask belief, Fincher suggests not directly challenging the person’s views, but listening to them and offering objective data, discussing the science behind masks, and directing them to credible sources.
“Doctors are used to this. We recommend a lot of things to patients that they don’t want to do,” Fincher said. “If a patient feels attacked, they act defensively. But if you base your explanation in more objective terms with data, numbers, and personalize the risks and benefits of a vaccine, a healthy change in behavior, or a medication, then patients are more likely to hear your concerns and do the right thing. Having a long-term relationship with a trusted physician makes all of these issues much easier to discuss and to implement the best plan for the individual patient.”
This article first appeared on Medscape.com.
Niket Sonpal, MD, thought he’d heard most of the myths about wearing masks during the pandemic, but the recent claim from a patient was a new one for the New York City gastroenterologist.
The patient refused to wear a mask because she heard inhaling bad breath through a mask could be toxic. The woman said the rumor was circulating on Facebook. Sonpal calmly explained that breathing your own breath is not going to cause health problems, he said.
“There’s a lot of controversy on masks,” he said. “Unfortunately, it’s really just a lack of education and buy-in. Social media is the primary source of all this misinformation. These kinds of over-the-top hyperbole has basically led to a disbelief that masks are effective. The disbelief is hard to break up.”
As mask requirements have tightened amid the ongoing pandemic, debates about face coverings have emerged front and center, with a growing number of people opposing mask usage. So-called antimaskers dispute the benefits of wearing masks and many contend that face coverings decrease oxygen flow and can lead to illness. Sentiment against masks have led to protests nationwide, ignited public conflicts in some areas, and even generated lawsuits over mask mandates.
The issue presents an ongoing challenge for physicians as they strive to educate patients about the significance of masking against the flood of antimask messages on social media and beyond. Opposition to masks is particularly frustrating for health professionals who have witnessed patients, family, or friends become ill or die from the virus. Refusing to mask and failing to social distance have been linked to the rapid spread of the coronavirus and subsequent deaths.
“I have had colleagues pass away, and it’s extremely disheartening and frustrating to see science so easily disregarded,” Sonpal said. “Masks save lives and protect people and not wearing them is simply a lack of respect, not just for your fellow colleagues, but for a member of your species.”
Michael Rebresh, who helped create the antimask group Million Unmasked Patriots, says his group’s objections to masks are rational and reasonable. The group, which has more than 8,000 members, formed in response to guidance by Illinois state officials that children would only be allowed to return to school wearing a mask.
“Our objections are to the fact that masks on children in school have a greater propensity to make children sick from breathing in bacteria that forms on the inner layer of a mask worn for hours on end,” Rebresh said. “We have an objection to the increase of CO2 intake and a decrease in oxygen flow for kids who need all the oxygen they can get during a learning environment. We recognized the masking of ourselves and kids for what it is: A political move to separate the two parties in our November election and define and create division between the two.”
Million Unmasked Patriots is one of dozens of antimask groups on social media platforms such as Facebook, Instagram, and TikTok. In July, Facebook suspended one such group, Unmasking America, which boasts 9,600 members, for posting repeated claims that face masks obstruct oxygen flow and have negative mental health effects.
Experts say the antiscience rhetoric is far from new. The antimask movement in many ways, shares similarities with that of the anti-vaccine movement, says Todd Wolynn, MD, a Pittsburgh pediatrician and cofounder of Shots Heard Round the World, an organization that defends vaccine advocates against coordinated online attacks by antivaxxers.
“A lot of it is conspiracy-laden,” said Wolynn of the disinformation. “That Dr. [Anthony] Fauci somehow helped construct the pandemic and that it’s not real. That Bill Gates is funding the vaccine so he can inject people with microchips. All sorts of really out-there, ungrounded conspiracy theories. If you had Venn diagram of antimask and antivaxx, I would say there’s clearly overlap.”
Parallels between antimaskers, antivaxxers
Opponents to masks fall on a spectrum, explains Vineet Arora, MD, a hospitalist and associate chief medical officer–clinical learning environment at University of Chicago Medicine. People who believe conspiracy theories and push misinformation are on one end, she said. There are also those who generally don’t believe the seriousness of the pandemic, feel their risk is minimal, or doubt the benefits of masks.
The two trains of thought resemble the distinction among parents who are antivaccine and those who are simply “vaccine hesitant,” says Arora, who co-authored a recent article about masking and misinformation that addresses antivaccine attitudes.
“While the antimask sentiment gets a lot of attention, I think it’s important to highlight there’s a lot of vocal anti-mask sentiment since most people are supportive of masks,” she said. “There might be people sitting on the fence who are just unsure about wearing a mask. That’s understandable because the science and the communication has evolved. There was a lot of early mixed messages about masking. Anytime you have confusion about the science or the science is evolving, it’s easy to have misinformation and then have that take off as myth.”
Just as antivaxxers work to swing the opinion of the vaccine hesitant, antimaskers are vying with public health advocates for the support of the mask hesitant, she said. Creating doubt in public health authorities is one way they are gaining followers. Anti-maskers often question and scrutinize past messaging about masks by public health officials, claiming that because guidance on masks has changed over time, the science behind masks and current guidance can’t be trusted, Wolynn said. Similarly, antivaxxers frequently question past actions by public health officials, such as the Tuskegee Experiment (which began in 1932), to try to poke holes in the credibility of public health officials and their advice.
Both the antimask and antivaccine movements also tend to base their resistance on a personal liberties argument, adds Jacqueline Winfield Fincher, MD, president for the American College of Physicians and an internist based in Thomson, Georgia. Antimaskers contend they should be free to decide whether to wear face coverings and that rules requiring masks infringe upon their civil liberties. Similarly, antivaxxers argue they should be free to decide whether to vaccinate their children and contend vaccine mandates violate their personal liberties.
Taking a deeper look, fear and control are two likely drivers of antimasking and antivaccine attitudes, Fincher said. Those refusing to wear masks may feel they have no control over the pandemic or its impacts, but they can control how they respond to mask-wearing requirements, she said.
Antivaccine parents often want more control over their children’s healthcare and falsely believe that vaccines are injecting something harmful into their children or may lead to harmful reactions.
“It’s a control issue and a defense mechanism,” she said. “Some people may feel helpless to deal with the pandemic or believe since it is not affecting them or their family, that it is not real. ‘If I just deny it and I don’t acknowledge facts, I don’t have to worry about it or do anything about it, and therefore I will have more control over my day-to-day life.’”
Groups fueling each other
In some cases, antimask and antivaxx groups are joining forces or adopting dual causes.
In California for instance, longtime opponents to vaccines are now objecting to mask policies as similar infringement to their bodily autonomy. Demonstrations in Texas, Idaho, and Michigan against mask mandates and other COVID-19 requirements have drawn support from anti-vaccine activists and incorporated antivaccine propaganda.
In Illinois, Million Unmasked Patriots, formally the Million Unmasked March, has received widespread attention for protesting both masks for returning schoolchildren and a future COVID-19 vaccine requirement.
A July protest planned by the antimask group triggered a letter by Arora and 500 other healthcare professionals to Illinois lawmakers decrying the group’s views and urging the state to move forward with universal masking in schools.
“What’s happening is those who are distrustful of government and public health and science are joining together,” said Arora, who coauthored a piece about the problem on KevinMD.com. “It’s important to address both movements together because they can quickly feed off each other and build in momentum. At the heart of both is really this deep skepticism of science.”
Rebresh of Million Unmasked Patriots said most of his members are not opposed to all vaccines, but rather they are opposed to “untested vaccines.” The primary concern is the inability to research long-term effects of a COVID-19 vaccine before its approval, he said.
Rebresh disagrees with the antimask movement being compared with the antivaccine movement. The two groups are “motivated by different things and a different set of circumstances drive their opinions,” he said. However, Rebresh believes that potential harm resulting from “mass vaccinations” is a valid concern. For this reason, he and his wife chose for their children to receive their vaccinations individually over a series of weeks, rather than the “kiddie cocktail of vaccines,” at a single visit, he said.
Vaccine scientist Peter Hotez, MD, PhD, said the antivaccine movement appears to have grown stronger from the pandemic fueled by fresh conspiracies and new alliances. Antivaccine sentiment has been gaining steam over the last several years and collecting more allies from the far-right, said Hotez, dean for the National School of Tropical Medicine and codirector for the Texas Children’s Hospital Center for Vaccine Development.
“Now what you’re seeing is yet another expansion this year, with antivaccine groups, under the banner of ‘health freedom,’ campaigning against social distancing and wearing masks and contact tracing,” he said. “What was an antivaccine movement has now become a full-blown antiscience movement and an anti-public health movement. It’s causing a lot of damage and I believe costing a lot of American lives.”
Neil F. Johnson, PhD, who has studied the antivaccine movement and its social media proliferation during the pandemic, said online comments by antivaxxers frequently condemn mask usage and showcase memes making fun of masks.
“In those same narratives about opposing vaccines for COVID, we see a lot of discussion against masks,” said Johnson, a physics professor at George Washington University in Washington, D.C. “If you don’t believe in the official picture of COVID, you don’t believe the policies or the advice that’s given about COVID.”
An analysis by Johnson that examined 1,300 Facebook pages found that, while antivaxxers have fewer followers than provaccine pages, antivaccine pages are more numerous, faster growing, and are more often connected to unrelated, undecided pages. Conversely, pages that advocate the benefits of vaccinations and explain the science behind immunizations are largely disconnected from such undecided communities, according to the study, published May 13 in Nature.
The study suggests the antivaccine movement is making influential strides during the pandemic and connecting with people who are undecided, while public health advocates are not building the same bridges, Johnson said.
“I think it’s hugely dangerous, because I don’t know any other moment in science or in public health when there was so much uncertainty in something affecting everybody,” he said. “Every policy that will be coming, everything depends on people buying into the official message. Once you have the seeds of doubt, that’s a very difficult thing to overcome. It’s an unprecedented challenge.”
How physicians and clinicians can help
A more aggressive approach is necessary when it comes to taking down antiscience content on social media, says Hotez. Too often, misinformation and antiscience rhetoric is allowed to linger on popular sites such as Facebook and Amazon.
Wolynn agrees. On personal or business platforms, it’s crucial to ban, hide, and delete such comments as quickly as possible, he said. On public sites, purposeful disinformation should be immediately reported to the platform.
At the same time, Wolynn said it’s essential to support those who make sound, science-based comments in social media forums.
“If you see someone who is pushing accurate, evidence-based information, and they come under attack, they should be supported and defended and empowered,” Wolynn said. “Shots Heard Round the World is doing all of those things, including galvanizing and recruiting more people to help get their voices out there.”
Expanded visibility by physicians and scientists would greatly help counter the spread of antiscience sentiment, adds Hotez.
“Too often, antiscience movements are able to flourish because scientists and physicians are invisible,” he said. “They’re too focused on either clinical practices or in the case of physician scientists, on grants and papers and not enough attention to public engagement. We’re going to have to change that around. We need to hear more from scientists directly.”
To that end, Wolynn said health care professionals, including medical students and residents, need to have formal training in communications, media, and social media as part of their education – and more support from employers to engage through social media.
“That’s where the fight is,” Wolynn said. “You can be the best diagnostician, the best clinician. You can make the right diagnosis and prescribe the right medication, but if families don’t hear what you’re saying, you’re not going to be effective. If you can’t be on the platform where they’re being influenced, we’re losing the battle.”
Speaking to your mask-hesitant patients
Concentrating on those who are uncertain about masks is particularly key for physicians and public health advocates as the pandemic continues, says Arora.
“It’s important for us to focus on the mask-hesitant who often don’t get the attention they need,” she said.
She suggests bringing up the subject of masks with patients during visits, asking about mask usage, discussing rumors they’ve heard, and emphasizing why masks are important. Be a role model by wearing a mask in your community and on social media, she added.
Some patients have real concerns about not being able to breathe through masks or anxiety disorders that can be aggravated even by the thought of wearing a mask, noted Susan R. Bailey, MD, president for the American Medical Association. Bailey, an immunologist, recently counseled a patient with a deviated nasal septum in addition to a panic disorder who was worried about wearing a mask, she said. Bailey listened to the patient’s concerns, discussed his health conditions, and proposed an alternative face covering that might make him more comfortable.
“Every patient is different,” Bailey said. “It’s important for us to remember that each person who is reluctant to wear a mask has their own reasons. It’s important for us to express some empathy – to agree with them, yes, masks are hot and inconvenient – and help understand their questions, which you may be able to answer to their satisfaction. There are patients that have legitimate questions and a physician caring about how they feel, can make all the difference.”
Physicians can also get involved with the AMA’s #MaskUp campaign, an effort to normalize mask wearing and debunk myths associated with masks. The campaign includes social media materials, slogans doctors can tweet, and profile pictures they can use on social media. The campaign’s toolkit includes images, videos, and information that physicians can share with patients and the public.
Enforcing strong mask policies at your practice and ensuring all staff are modeling appropriate mask behavior is also important, adds Fincher of the ACP. The college recently issued a policy supporting mask usage in community settings.
If a patient conveys an antimask belief, Fincher suggests not directly challenging the person’s views, but listening to them and offering objective data, discussing the science behind masks, and directing them to credible sources.
“Doctors are used to this. We recommend a lot of things to patients that they don’t want to do,” Fincher said. “If a patient feels attacked, they act defensively. But if you base your explanation in more objective terms with data, numbers, and personalize the risks and benefits of a vaccine, a healthy change in behavior, or a medication, then patients are more likely to hear your concerns and do the right thing. Having a long-term relationship with a trusted physician makes all of these issues much easier to discuss and to implement the best plan for the individual patient.”
This article first appeared on Medscape.com.
Niket Sonpal, MD, thought he’d heard most of the myths about wearing masks during the pandemic, but the recent claim from a patient was a new one for the New York City gastroenterologist.
The patient refused to wear a mask because she heard inhaling bad breath through a mask could be toxic. The woman said the rumor was circulating on Facebook. Sonpal calmly explained that breathing your own breath is not going to cause health problems, he said.
“There’s a lot of controversy on masks,” he said. “Unfortunately, it’s really just a lack of education and buy-in. Social media is the primary source of all this misinformation. These kinds of over-the-top hyperbole has basically led to a disbelief that masks are effective. The disbelief is hard to break up.”
As mask requirements have tightened amid the ongoing pandemic, debates about face coverings have emerged front and center, with a growing number of people opposing mask usage. So-called antimaskers dispute the benefits of wearing masks and many contend that face coverings decrease oxygen flow and can lead to illness. Sentiment against masks have led to protests nationwide, ignited public conflicts in some areas, and even generated lawsuits over mask mandates.
The issue presents an ongoing challenge for physicians as they strive to educate patients about the significance of masking against the flood of antimask messages on social media and beyond. Opposition to masks is particularly frustrating for health professionals who have witnessed patients, family, or friends become ill or die from the virus. Refusing to mask and failing to social distance have been linked to the rapid spread of the coronavirus and subsequent deaths.
“I have had colleagues pass away, and it’s extremely disheartening and frustrating to see science so easily disregarded,” Sonpal said. “Masks save lives and protect people and not wearing them is simply a lack of respect, not just for your fellow colleagues, but for a member of your species.”
Michael Rebresh, who helped create the antimask group Million Unmasked Patriots, says his group’s objections to masks are rational and reasonable. The group, which has more than 8,000 members, formed in response to guidance by Illinois state officials that children would only be allowed to return to school wearing a mask.
“Our objections are to the fact that masks on children in school have a greater propensity to make children sick from breathing in bacteria that forms on the inner layer of a mask worn for hours on end,” Rebresh said. “We have an objection to the increase of CO2 intake and a decrease in oxygen flow for kids who need all the oxygen they can get during a learning environment. We recognized the masking of ourselves and kids for what it is: A political move to separate the two parties in our November election and define and create division between the two.”
Million Unmasked Patriots is one of dozens of antimask groups on social media platforms such as Facebook, Instagram, and TikTok. In July, Facebook suspended one such group, Unmasking America, which boasts 9,600 members, for posting repeated claims that face masks obstruct oxygen flow and have negative mental health effects.
Experts say the antiscience rhetoric is far from new. The antimask movement in many ways, shares similarities with that of the anti-vaccine movement, says Todd Wolynn, MD, a Pittsburgh pediatrician and cofounder of Shots Heard Round the World, an organization that defends vaccine advocates against coordinated online attacks by antivaxxers.
“A lot of it is conspiracy-laden,” said Wolynn of the disinformation. “That Dr. [Anthony] Fauci somehow helped construct the pandemic and that it’s not real. That Bill Gates is funding the vaccine so he can inject people with microchips. All sorts of really out-there, ungrounded conspiracy theories. If you had Venn diagram of antimask and antivaxx, I would say there’s clearly overlap.”
Parallels between antimaskers, antivaxxers
Opponents to masks fall on a spectrum, explains Vineet Arora, MD, a hospitalist and associate chief medical officer–clinical learning environment at University of Chicago Medicine. People who believe conspiracy theories and push misinformation are on one end, she said. There are also those who generally don’t believe the seriousness of the pandemic, feel their risk is minimal, or doubt the benefits of masks.
The two trains of thought resemble the distinction among parents who are antivaccine and those who are simply “vaccine hesitant,” says Arora, who co-authored a recent article about masking and misinformation that addresses antivaccine attitudes.
“While the antimask sentiment gets a lot of attention, I think it’s important to highlight there’s a lot of vocal anti-mask sentiment since most people are supportive of masks,” she said. “There might be people sitting on the fence who are just unsure about wearing a mask. That’s understandable because the science and the communication has evolved. There was a lot of early mixed messages about masking. Anytime you have confusion about the science or the science is evolving, it’s easy to have misinformation and then have that take off as myth.”
Just as antivaxxers work to swing the opinion of the vaccine hesitant, antimaskers are vying with public health advocates for the support of the mask hesitant, she said. Creating doubt in public health authorities is one way they are gaining followers. Anti-maskers often question and scrutinize past messaging about masks by public health officials, claiming that because guidance on masks has changed over time, the science behind masks and current guidance can’t be trusted, Wolynn said. Similarly, antivaxxers frequently question past actions by public health officials, such as the Tuskegee Experiment (which began in 1932), to try to poke holes in the credibility of public health officials and their advice.
Both the antimask and antivaccine movements also tend to base their resistance on a personal liberties argument, adds Jacqueline Winfield Fincher, MD, president for the American College of Physicians and an internist based in Thomson, Georgia. Antimaskers contend they should be free to decide whether to wear face coverings and that rules requiring masks infringe upon their civil liberties. Similarly, antivaxxers argue they should be free to decide whether to vaccinate their children and contend vaccine mandates violate their personal liberties.
Taking a deeper look, fear and control are two likely drivers of antimasking and antivaccine attitudes, Fincher said. Those refusing to wear masks may feel they have no control over the pandemic or its impacts, but they can control how they respond to mask-wearing requirements, she said.
Antivaccine parents often want more control over their children’s healthcare and falsely believe that vaccines are injecting something harmful into their children or may lead to harmful reactions.
“It’s a control issue and a defense mechanism,” she said. “Some people may feel helpless to deal with the pandemic or believe since it is not affecting them or their family, that it is not real. ‘If I just deny it and I don’t acknowledge facts, I don’t have to worry about it or do anything about it, and therefore I will have more control over my day-to-day life.’”
Groups fueling each other
In some cases, antimask and antivaxx groups are joining forces or adopting dual causes.
In California for instance, longtime opponents to vaccines are now objecting to mask policies as similar infringement to their bodily autonomy. Demonstrations in Texas, Idaho, and Michigan against mask mandates and other COVID-19 requirements have drawn support from anti-vaccine activists and incorporated antivaccine propaganda.
In Illinois, Million Unmasked Patriots, formally the Million Unmasked March, has received widespread attention for protesting both masks for returning schoolchildren and a future COVID-19 vaccine requirement.
A July protest planned by the antimask group triggered a letter by Arora and 500 other healthcare professionals to Illinois lawmakers decrying the group’s views and urging the state to move forward with universal masking in schools.
“What’s happening is those who are distrustful of government and public health and science are joining together,” said Arora, who coauthored a piece about the problem on KevinMD.com. “It’s important to address both movements together because they can quickly feed off each other and build in momentum. At the heart of both is really this deep skepticism of science.”
Rebresh of Million Unmasked Patriots said most of his members are not opposed to all vaccines, but rather they are opposed to “untested vaccines.” The primary concern is the inability to research long-term effects of a COVID-19 vaccine before its approval, he said.
Rebresh disagrees with the antimask movement being compared with the antivaccine movement. The two groups are “motivated by different things and a different set of circumstances drive their opinions,” he said. However, Rebresh believes that potential harm resulting from “mass vaccinations” is a valid concern. For this reason, he and his wife chose for their children to receive their vaccinations individually over a series of weeks, rather than the “kiddie cocktail of vaccines,” at a single visit, he said.
Vaccine scientist Peter Hotez, MD, PhD, said the antivaccine movement appears to have grown stronger from the pandemic fueled by fresh conspiracies and new alliances. Antivaccine sentiment has been gaining steam over the last several years and collecting more allies from the far-right, said Hotez, dean for the National School of Tropical Medicine and codirector for the Texas Children’s Hospital Center for Vaccine Development.
“Now what you’re seeing is yet another expansion this year, with antivaccine groups, under the banner of ‘health freedom,’ campaigning against social distancing and wearing masks and contact tracing,” he said. “What was an antivaccine movement has now become a full-blown antiscience movement and an anti-public health movement. It’s causing a lot of damage and I believe costing a lot of American lives.”
Neil F. Johnson, PhD, who has studied the antivaccine movement and its social media proliferation during the pandemic, said online comments by antivaxxers frequently condemn mask usage and showcase memes making fun of masks.
“In those same narratives about opposing vaccines for COVID, we see a lot of discussion against masks,” said Johnson, a physics professor at George Washington University in Washington, D.C. “If you don’t believe in the official picture of COVID, you don’t believe the policies or the advice that’s given about COVID.”
An analysis by Johnson that examined 1,300 Facebook pages found that, while antivaxxers have fewer followers than provaccine pages, antivaccine pages are more numerous, faster growing, and are more often connected to unrelated, undecided pages. Conversely, pages that advocate the benefits of vaccinations and explain the science behind immunizations are largely disconnected from such undecided communities, according to the study, published May 13 in Nature.
The study suggests the antivaccine movement is making influential strides during the pandemic and connecting with people who are undecided, while public health advocates are not building the same bridges, Johnson said.
“I think it’s hugely dangerous, because I don’t know any other moment in science or in public health when there was so much uncertainty in something affecting everybody,” he said. “Every policy that will be coming, everything depends on people buying into the official message. Once you have the seeds of doubt, that’s a very difficult thing to overcome. It’s an unprecedented challenge.”
How physicians and clinicians can help
A more aggressive approach is necessary when it comes to taking down antiscience content on social media, says Hotez. Too often, misinformation and antiscience rhetoric is allowed to linger on popular sites such as Facebook and Amazon.
Wolynn agrees. On personal or business platforms, it’s crucial to ban, hide, and delete such comments as quickly as possible, he said. On public sites, purposeful disinformation should be immediately reported to the platform.
At the same time, Wolynn said it’s essential to support those who make sound, science-based comments in social media forums.
“If you see someone who is pushing accurate, evidence-based information, and they come under attack, they should be supported and defended and empowered,” Wolynn said. “Shots Heard Round the World is doing all of those things, including galvanizing and recruiting more people to help get their voices out there.”
Expanded visibility by physicians and scientists would greatly help counter the spread of antiscience sentiment, adds Hotez.
“Too often, antiscience movements are able to flourish because scientists and physicians are invisible,” he said. “They’re too focused on either clinical practices or in the case of physician scientists, on grants and papers and not enough attention to public engagement. We’re going to have to change that around. We need to hear more from scientists directly.”
To that end, Wolynn said health care professionals, including medical students and residents, need to have formal training in communications, media, and social media as part of their education – and more support from employers to engage through social media.
“That’s where the fight is,” Wolynn said. “You can be the best diagnostician, the best clinician. You can make the right diagnosis and prescribe the right medication, but if families don’t hear what you’re saying, you’re not going to be effective. If you can’t be on the platform where they’re being influenced, we’re losing the battle.”
Speaking to your mask-hesitant patients
Concentrating on those who are uncertain about masks is particularly key for physicians and public health advocates as the pandemic continues, says Arora.
“It’s important for us to focus on the mask-hesitant who often don’t get the attention they need,” she said.
She suggests bringing up the subject of masks with patients during visits, asking about mask usage, discussing rumors they’ve heard, and emphasizing why masks are important. Be a role model by wearing a mask in your community and on social media, she added.
Some patients have real concerns about not being able to breathe through masks or anxiety disorders that can be aggravated even by the thought of wearing a mask, noted Susan R. Bailey, MD, president for the American Medical Association. Bailey, an immunologist, recently counseled a patient with a deviated nasal septum in addition to a panic disorder who was worried about wearing a mask, she said. Bailey listened to the patient’s concerns, discussed his health conditions, and proposed an alternative face covering that might make him more comfortable.
“Every patient is different,” Bailey said. “It’s important for us to remember that each person who is reluctant to wear a mask has their own reasons. It’s important for us to express some empathy – to agree with them, yes, masks are hot and inconvenient – and help understand their questions, which you may be able to answer to their satisfaction. There are patients that have legitimate questions and a physician caring about how they feel, can make all the difference.”
Physicians can also get involved with the AMA’s #MaskUp campaign, an effort to normalize mask wearing and debunk myths associated with masks. The campaign includes social media materials, slogans doctors can tweet, and profile pictures they can use on social media. The campaign’s toolkit includes images, videos, and information that physicians can share with patients and the public.
Enforcing strong mask policies at your practice and ensuring all staff are modeling appropriate mask behavior is also important, adds Fincher of the ACP. The college recently issued a policy supporting mask usage in community settings.
If a patient conveys an antimask belief, Fincher suggests not directly challenging the person’s views, but listening to them and offering objective data, discussing the science behind masks, and directing them to credible sources.
“Doctors are used to this. We recommend a lot of things to patients that they don’t want to do,” Fincher said. “If a patient feels attacked, they act defensively. But if you base your explanation in more objective terms with data, numbers, and personalize the risks and benefits of a vaccine, a healthy change in behavior, or a medication, then patients are more likely to hear your concerns and do the right thing. Having a long-term relationship with a trusted physician makes all of these issues much easier to discuss and to implement the best plan for the individual patient.”
This article first appeared on Medscape.com.
Three malpractice risks of video visits
During a telemedicine visit with his physician, a 62-year-old obese patient with an ankle injury reported new swelling of his leg. Three weeks had passed since the man visited an emergency department, where he underwent surgery and had a cast applied to the wound. The physician, during the telemedicine visit, advised the patient to elevate his leg and see an orthopedist within 24 hours. A Doppler ultrasound was ordered for 12:30 p.m. that same day.
The patient never made it to the appointment. He became unresponsive and went into full arrest hours later. His death fueled a lawsuit by his family that claimed failure to diagnose and treat deep venous thrombosis. The family contended the providers involved should have referred the patient to care immediately during the video visit.
The case, which comes from the claims database of national medical liability insurer The Doctors Company, illustrates the legal risks that can stem from video visits with patients, says Richard Cahill, JD, vice president and associate general counsel for The Doctors Company.
“By evaluating the patient remotely, the physician failed to appreciate the often subtle nuances of the clinical presentation, which undoubtedly could have been more accurately assessed in the office setting, and would probably have led to more urgent evaluation and intervention, thereby likely preventing the unfortunate and otherwise avoidable result,” said Mr. Cahill.
According to a Harris poll, 42% of Americans reported using video visits during the pandemic, a trend that is likely to continue as practices reopen and virtual care becomes the norm. But as physicians conduct more video visits, so grows their risk for lawsuits associated with the technology.
“We probably will see more malpractice suits filed the more telehealth is used,” said Mei Wa Kwong, JD, executive director of the Center for Connected Health Policy. “It’s a numbers game. The more it’s used, the higher likelihood that lawsuits occur.”
Three problems in not being able to touch the patient
1. The primary challenge with video visits “is the inability to directly observe and lay hands on the patient,” says Jonathan Einbinder, MD, assistant vice president of analytics for CRICO, a medical liability insurer based in Boston.
said Dr. Einbinder, a practicing internist.
Such incomplete pictures can lead to diagnostic errors and the potential for lawsuits, as demonstrated by a recent CRICO analysis. Of 106 telemedicine-related claims from 2014 to 2018, 66% were diagnosis related, according to the analysis of claims from CRICO’s national database. Twelve percent of the telemedicine-related claims were associated with surgical treatment, 11% were related to medical treatment, and 5% were associated with medication issues. A smaller number of claims resulted from patient monitoring, ob.gyn. care, and safety and security.
Another analysis by The Doctors Company similarly determined that diagnostic errors are the most common allegation in telemedicine-related claims. In the study of 28 telemedicine-related claims from The Doctors’ database, 71% were diagnosis related, 11% were associated with mismanagement of treatment, and 7% were related to improper management of a surgical patient. Other allegations included improper performance of treatment or procedure and improper performance of surgery.
“Because a ‘typical’ exam can’t be done, there is the potential to miss things,” said David L. Feldman, MD, chief medical officer for The Doctors Company Group. “A subtlety, perhaps a lump that can’t be seen but only felt, and only by an experienced examiner, for example, may be missed.”
2. Documentation dangers also loom, said William Sullivan, DO, JD, an emergency physician and an attorney who specializes in health care. The legal risk lies in documenting a video visit in the same way the doctor would document an in-person visit, he explained.
“Investigation into a potential lawsuit begins when there is some type of bad outcome related to medical care,” Dr. Sullivan explained. “To determine whether the lawsuit has merit, patients/attorneys review the medical records to retrospectively determine the potential cause of the bad outcome. If the documentation reflects an examination that could not have been performed, a lawyer might be more likely to pursue a case, and it would be more difficult to defend the care provided.”
Dr. Sullivan provided this example: During a video visit, a patient complains of acute onset weakness. The physician documents that the patient’s heart has a “regular rate and rhythm,” and “muscle strength is equal bilaterally.” The following day, the patient’s weakness continues, and the patient goes to the emergency department where he is diagnosed with stroke. An EKG in the ED shows that the patient is in atrial fibrillation.
“The telehealth provider would have a difficult time explaining how it was determined that the patient had normal muscle strength and a normal heart rhythm over a video visit the day before,” Dr. Sullivan said. “A lawyer in a subsequent malpractice case would present the provider as careless and would argue that if the provider had only sent the patient to the emergency department after the telehealth visit instead of documenting exam findings that couldn’t have been performed, the patient could have been successfully treated for the stroke.”
3. Poorly executed informed consent can also give rise to a lawsuit. This includes informed consent regarding the use of telehealth as the accepted modality for the visit rather than traditional on-site evaluations, as well as preprocedure informed consent.
“Inadequate and/or poorly documented informed consent can result in a claim for medical battery,” Mr. Cahill said.
A medical battery allegation refers to the alleged treatment or touching of a patient’s body without that person’s consent. As the AMA Journal of Ethics explains, a patient’s consent must be given, either expressly or implicitly, before a physician may legally “interfere” with the physical body of the patient.
Ideally, the informed consent process is undertaken during a first in-person visit, before virtual visits begin, Dr. Feldman said.
“There is a lot that a patient has to understand when a visit is done virtually, which is part of the informed consent process,” Dr. Feldman said. “The pandemic has forced some physicians to do their first visit virtually, and this makes the process of informing patients more onerous. It is not a simple matter of converting an in-person office practice to a remote office practice. The work flows are different, so there are definitely legal concerns as it relates to privacy and cybersecurity to name a few.”
Waivers may be weak protection
Since the pandemic started, a number of states have enacted emergency malpractice protections to shield health professionals from lawsuits. Some protections, such as those in Massachusetts, offer immunity to health professionals who provide general care to patients during the COVID-19 emergency, in addition to treatment of COVID-19 patients. Other protections, like those in Connecticut, apply specifically to care provided in support of the state’s pandemic response.
Whether that immunity applies both to in-person visits and video visits during the pandemic is not certain, said J. Richard Moore, JD, a medical liability defense attorney based in Indianapolis. Indiana’s immunity statute for example, does not make a specific provision for telehealth, he said.
“My best prediction is that if considered by the courts, the immunity would be applied to telehealth services, so long as they are being provided ‘in response to the emergency,’ which is the scope of the immunity,” he said. “I would not consider telehealth physicians to be either more or less protected than in-person providers.”
Regulatory scrutiny for telehealth providers has also been relaxed in response to COVID-19, but experts warn not to rely on the temporary shields for ultimate protection.
In March, the U.S. Department of Health and Human Service’s Office of Civil Rights (OCR) eased enforcement actions for noncompliance with Health Insurance Portability and Accountability Act requirements in connection with the good faith provision of telehealth during the COVID-19 health crisis. Under the notice, health providers can use popular applications such as Apple FaceTime, Facebook Messenger, Zoom, or Google Hangouts, to offer telehealth care without risk that OCR will impose fines or penalties for HIPAA violations.
But once the current health care emergency is mitigated, the waivers will likely be withdrawn, and enforcement actions will probably resume, Mr. Cahill said.
“It is recommended that, to avoid potential problems going forward, practitioners use due diligence and undertake best efforts to obey existing privacy and security requirements, including the use of technology that satisfies compliance regulations, despite the waiver by OCR,” he said.
In addition, a majority of states have relaxed state-specific rules for practicing telehealth and loosened licensure requirements during the pandemic. At least 47 states have issued waivers to alter in-state licensure requirements for telemedicine in response to COVID-19, according to the Federation of State Medical Boards. Most of the waivers allow physicians licensed in other states to provide care in states where they do not hold licenses, and some enable doctors to treat patients without first having had an in-person evaluation.
But at least for now, these are temporary changes, reminds Amy Lerman, JD, a health care attorney based in Washington, who specializes in telehealth and corporate compliance. Given the current pandemic environment, a significant concern is that physicians new to the telemedicine space are reacting only to the most recent rules established in the context of the pandemic, Ms. Lerman said.
“As previously noted, the recent developments are temporary in nature – states and various federal agencies have been pretty clear in setting this temporal boundary,” she said. “It is not advisable for providers to build telepractice models around temporary sets of rules.
“Furthermore, the recent developments are not necessarily comprehensive relative to all of the state-specific and other requirements that telemedicine providers are otherwise expected to follow, so relying only on the most recent guidance may cause providers to create telepractice models that have key gaps with respect to regulatory compliance.”
How you can avoid a lawsuit
As businesses reopen and practices resume treatments, physicians should weigh the choice between in-person care and video visits very carefully, said Joseph Kvedar, MD, president of the American Telemedicine Association and a dermatology professor at Harvard Medical School, Boston.
“We have to be very thoughtful about quality in this current phase, where we are doing what I call a hybrid model,” he said. “Some services are offered by telehealth and some require patients to come into the doctor’s office. We have to be very thoughtful about what types of care we determine to be appropriate for telehealth, and that has to be based on clinical quality. And if it is, it should follow that we’ll have low incidence of liability claims.”
Data should be at the center of that conclusion, Dr. Kvedar advises.
“Think about what data is needed to make a therapeutic or diagnostic decision,” he said. “If a health care provider can gather the information needed without touching the patient, then the provider is probably on safe, solid ground making that decision via a telehealth interaction. If the patient can come into the doctor’s office, and the provider deems it necessary to see the patient in person and touch the patient in order to make that clinical decision, then the patient should come in.”
An important step to preventing liability is also having strong telehealth systems and protocols in place and the necessary support to carry them out, said Dr. Einbinder of medical liability insurer CRICO.
For example, Dr. Einbinder, who practices in a 12-doctor internal medicine group, said when he finishes a virtual visit, he enters any orders into the electronic health record. Some of the orders will result in notifications to Dr. Einbinder if they are not executed, such as a referral appointment or a procedure that was not completed.
“I also can forward my orders to a front desk pool that is responsible for making sure things get done,” he said. “And, in our hospital system, we have good case management for complex patients and population management for a variety of chronic conditions. These represent additional safety nets.”
Another liability safeguard is sending patients a “visit summary” after each virtual visit, Dr. Sullivan said. This could be in the form of an email or a text that includes a brief template including items such as diagnosis, recommendations, follow-up, and a reminder to contact the doctor or go to the emergency department if symptoms worsen or new problems develop.
“Patients tend to remember about half of what physicians tell them and half of the information patients do remember is incorrect,” he said. “Consider a few sentences in an e-mail or text message as a substitute for the after-visit instructions from an office visit to enhance patient understanding. There are several inexpensive programs/services that allow text messages to be sent from a computer using a separate dedicated phone number and pretty much every patient has a cell phone to receive the instructions.”
Dr. Sullivan suggests having a documentation template specifically for telehealth visits. He also recommends the inclusion an “informed refusal of care” in the record when necessary. Dr. Sullivan’s wife, a family physician, has encountered several patients who fear contracting COVID-19 and who have refused her recommendations for in-person visits, he said. In such cases, he said it’s a good idea to document that the patient decided to forgo the recommendations given.
“If a patient suffers a bad outcome because of a failure to seek an in-person exam, a short note in the patient’s chart would help to establish that the lack of a follow-up physical exam was the patient’s informed decision, not due to some alleged negligence of the medical provider,” he said.
Concerning informed consent, Dr. Feldman says at a minimum physicians should discuss the following with patients:
- Names and credentials of staff participating.
- The right to stop or refuse treatment by telemedicine.
- Technology that will be used.
- Privacy and security risks.
- Technology-specific risks and permission to bill.
- Alternative care in case of an emergency or technology malfunction.
- Any state-specific requirements.
“Physicians can ensure they have a strong informed consent process during video visits by taking the time to cover these points at the beginning of the first visit, and being sure the patient understands and agrees to these,” Dr. Sullivan explained. “Ideally, this conversation can be recorded for future reference if necessary or at a minimum documented in the medical record.”
Consider these extra precautions
Mr. Cahill advises that practitioners be especially mindful of their “web-side manner” and the setting in which they are communicating with virtual patients to promote confidentiality, professionalism, and uninterrupted interactions.
“Use of a headset in a quiet home office is advisable,” he said. “Physicians must also be cognizant of their physical appearance and the background behind them when the visit includes both audio and visual capability. For ‘face-to-face’ telehealth encounters, it is recommended that a white lab jacket be worn as the appropriate attire; coat and tie are unnecessary.”
Some patients may need to be reminded of the need for confidentiality during a video visit, Mr. Moore added. Physicians are typically in a position to ensure confidentiality, but some patients may not understand how to protect their privacy on their end.
“If the physician sees on the screen or hears from an audio connection that there are other people around who may be able to overhear what is communicated, the physician probably has some responsibility to remind the patient that she or he may want to go to a more private place, close the door, etc.,” he said. “While I think a claim against a physician on this basis would be pretty weak, it is still a good practice for the physician to be cognizant of those kinds of concerns even if the patient is not.”
Finally, for physicians who set up telehealth operability during the pandemic – possibly in a hurry – consider using your actual case data to take a look backward, said Ms. Lerman, the Washington-based health care attorney. Reviewing the data can help determine whether you’re in compliance with relevant state laws, she said.
“If, for example, a provider set up telehealth operations during the pandemic and can see that most of [the] patients are based in a single state, or a small group of states, it is worthwhile to take [the] time and become familiar with the telemedicine laws in those states,” she said. “If there are modifications that need to be made, it may be easier to make them incrementally before the telehealth operations grow any larger in scope.”
A version of this article originally appeared on Medscape.com.
During a telemedicine visit with his physician, a 62-year-old obese patient with an ankle injury reported new swelling of his leg. Three weeks had passed since the man visited an emergency department, where he underwent surgery and had a cast applied to the wound. The physician, during the telemedicine visit, advised the patient to elevate his leg and see an orthopedist within 24 hours. A Doppler ultrasound was ordered for 12:30 p.m. that same day.
The patient never made it to the appointment. He became unresponsive and went into full arrest hours later. His death fueled a lawsuit by his family that claimed failure to diagnose and treat deep venous thrombosis. The family contended the providers involved should have referred the patient to care immediately during the video visit.
The case, which comes from the claims database of national medical liability insurer The Doctors Company, illustrates the legal risks that can stem from video visits with patients, says Richard Cahill, JD, vice president and associate general counsel for The Doctors Company.
“By evaluating the patient remotely, the physician failed to appreciate the often subtle nuances of the clinical presentation, which undoubtedly could have been more accurately assessed in the office setting, and would probably have led to more urgent evaluation and intervention, thereby likely preventing the unfortunate and otherwise avoidable result,” said Mr. Cahill.
According to a Harris poll, 42% of Americans reported using video visits during the pandemic, a trend that is likely to continue as practices reopen and virtual care becomes the norm. But as physicians conduct more video visits, so grows their risk for lawsuits associated with the technology.
“We probably will see more malpractice suits filed the more telehealth is used,” said Mei Wa Kwong, JD, executive director of the Center for Connected Health Policy. “It’s a numbers game. The more it’s used, the higher likelihood that lawsuits occur.”
Three problems in not being able to touch the patient
1. The primary challenge with video visits “is the inability to directly observe and lay hands on the patient,” says Jonathan Einbinder, MD, assistant vice president of analytics for CRICO, a medical liability insurer based in Boston.
said Dr. Einbinder, a practicing internist.
Such incomplete pictures can lead to diagnostic errors and the potential for lawsuits, as demonstrated by a recent CRICO analysis. Of 106 telemedicine-related claims from 2014 to 2018, 66% were diagnosis related, according to the analysis of claims from CRICO’s national database. Twelve percent of the telemedicine-related claims were associated with surgical treatment, 11% were related to medical treatment, and 5% were associated with medication issues. A smaller number of claims resulted from patient monitoring, ob.gyn. care, and safety and security.
Another analysis by The Doctors Company similarly determined that diagnostic errors are the most common allegation in telemedicine-related claims. In the study of 28 telemedicine-related claims from The Doctors’ database, 71% were diagnosis related, 11% were associated with mismanagement of treatment, and 7% were related to improper management of a surgical patient. Other allegations included improper performance of treatment or procedure and improper performance of surgery.
“Because a ‘typical’ exam can’t be done, there is the potential to miss things,” said David L. Feldman, MD, chief medical officer for The Doctors Company Group. “A subtlety, perhaps a lump that can’t be seen but only felt, and only by an experienced examiner, for example, may be missed.”
2. Documentation dangers also loom, said William Sullivan, DO, JD, an emergency physician and an attorney who specializes in health care. The legal risk lies in documenting a video visit in the same way the doctor would document an in-person visit, he explained.
“Investigation into a potential lawsuit begins when there is some type of bad outcome related to medical care,” Dr. Sullivan explained. “To determine whether the lawsuit has merit, patients/attorneys review the medical records to retrospectively determine the potential cause of the bad outcome. If the documentation reflects an examination that could not have been performed, a lawyer might be more likely to pursue a case, and it would be more difficult to defend the care provided.”
Dr. Sullivan provided this example: During a video visit, a patient complains of acute onset weakness. The physician documents that the patient’s heart has a “regular rate and rhythm,” and “muscle strength is equal bilaterally.” The following day, the patient’s weakness continues, and the patient goes to the emergency department where he is diagnosed with stroke. An EKG in the ED shows that the patient is in atrial fibrillation.
“The telehealth provider would have a difficult time explaining how it was determined that the patient had normal muscle strength and a normal heart rhythm over a video visit the day before,” Dr. Sullivan said. “A lawyer in a subsequent malpractice case would present the provider as careless and would argue that if the provider had only sent the patient to the emergency department after the telehealth visit instead of documenting exam findings that couldn’t have been performed, the patient could have been successfully treated for the stroke.”
3. Poorly executed informed consent can also give rise to a lawsuit. This includes informed consent regarding the use of telehealth as the accepted modality for the visit rather than traditional on-site evaluations, as well as preprocedure informed consent.
“Inadequate and/or poorly documented informed consent can result in a claim for medical battery,” Mr. Cahill said.
A medical battery allegation refers to the alleged treatment or touching of a patient’s body without that person’s consent. As the AMA Journal of Ethics explains, a patient’s consent must be given, either expressly or implicitly, before a physician may legally “interfere” with the physical body of the patient.
Ideally, the informed consent process is undertaken during a first in-person visit, before virtual visits begin, Dr. Feldman said.
“There is a lot that a patient has to understand when a visit is done virtually, which is part of the informed consent process,” Dr. Feldman said. “The pandemic has forced some physicians to do their first visit virtually, and this makes the process of informing patients more onerous. It is not a simple matter of converting an in-person office practice to a remote office practice. The work flows are different, so there are definitely legal concerns as it relates to privacy and cybersecurity to name a few.”
Waivers may be weak protection
Since the pandemic started, a number of states have enacted emergency malpractice protections to shield health professionals from lawsuits. Some protections, such as those in Massachusetts, offer immunity to health professionals who provide general care to patients during the COVID-19 emergency, in addition to treatment of COVID-19 patients. Other protections, like those in Connecticut, apply specifically to care provided in support of the state’s pandemic response.
Whether that immunity applies both to in-person visits and video visits during the pandemic is not certain, said J. Richard Moore, JD, a medical liability defense attorney based in Indianapolis. Indiana’s immunity statute for example, does not make a specific provision for telehealth, he said.
“My best prediction is that if considered by the courts, the immunity would be applied to telehealth services, so long as they are being provided ‘in response to the emergency,’ which is the scope of the immunity,” he said. “I would not consider telehealth physicians to be either more or less protected than in-person providers.”
Regulatory scrutiny for telehealth providers has also been relaxed in response to COVID-19, but experts warn not to rely on the temporary shields for ultimate protection.
In March, the U.S. Department of Health and Human Service’s Office of Civil Rights (OCR) eased enforcement actions for noncompliance with Health Insurance Portability and Accountability Act requirements in connection with the good faith provision of telehealth during the COVID-19 health crisis. Under the notice, health providers can use popular applications such as Apple FaceTime, Facebook Messenger, Zoom, or Google Hangouts, to offer telehealth care without risk that OCR will impose fines or penalties for HIPAA violations.
But once the current health care emergency is mitigated, the waivers will likely be withdrawn, and enforcement actions will probably resume, Mr. Cahill said.
“It is recommended that, to avoid potential problems going forward, practitioners use due diligence and undertake best efforts to obey existing privacy and security requirements, including the use of technology that satisfies compliance regulations, despite the waiver by OCR,” he said.
In addition, a majority of states have relaxed state-specific rules for practicing telehealth and loosened licensure requirements during the pandemic. At least 47 states have issued waivers to alter in-state licensure requirements for telemedicine in response to COVID-19, according to the Federation of State Medical Boards. Most of the waivers allow physicians licensed in other states to provide care in states where they do not hold licenses, and some enable doctors to treat patients without first having had an in-person evaluation.
But at least for now, these are temporary changes, reminds Amy Lerman, JD, a health care attorney based in Washington, who specializes in telehealth and corporate compliance. Given the current pandemic environment, a significant concern is that physicians new to the telemedicine space are reacting only to the most recent rules established in the context of the pandemic, Ms. Lerman said.
“As previously noted, the recent developments are temporary in nature – states and various federal agencies have been pretty clear in setting this temporal boundary,” she said. “It is not advisable for providers to build telepractice models around temporary sets of rules.
“Furthermore, the recent developments are not necessarily comprehensive relative to all of the state-specific and other requirements that telemedicine providers are otherwise expected to follow, so relying only on the most recent guidance may cause providers to create telepractice models that have key gaps with respect to regulatory compliance.”
How you can avoid a lawsuit
As businesses reopen and practices resume treatments, physicians should weigh the choice between in-person care and video visits very carefully, said Joseph Kvedar, MD, president of the American Telemedicine Association and a dermatology professor at Harvard Medical School, Boston.
“We have to be very thoughtful about quality in this current phase, where we are doing what I call a hybrid model,” he said. “Some services are offered by telehealth and some require patients to come into the doctor’s office. We have to be very thoughtful about what types of care we determine to be appropriate for telehealth, and that has to be based on clinical quality. And if it is, it should follow that we’ll have low incidence of liability claims.”
Data should be at the center of that conclusion, Dr. Kvedar advises.
“Think about what data is needed to make a therapeutic or diagnostic decision,” he said. “If a health care provider can gather the information needed without touching the patient, then the provider is probably on safe, solid ground making that decision via a telehealth interaction. If the patient can come into the doctor’s office, and the provider deems it necessary to see the patient in person and touch the patient in order to make that clinical decision, then the patient should come in.”
An important step to preventing liability is also having strong telehealth systems and protocols in place and the necessary support to carry them out, said Dr. Einbinder of medical liability insurer CRICO.
For example, Dr. Einbinder, who practices in a 12-doctor internal medicine group, said when he finishes a virtual visit, he enters any orders into the electronic health record. Some of the orders will result in notifications to Dr. Einbinder if they are not executed, such as a referral appointment or a procedure that was not completed.
“I also can forward my orders to a front desk pool that is responsible for making sure things get done,” he said. “And, in our hospital system, we have good case management for complex patients and population management for a variety of chronic conditions. These represent additional safety nets.”
Another liability safeguard is sending patients a “visit summary” after each virtual visit, Dr. Sullivan said. This could be in the form of an email or a text that includes a brief template including items such as diagnosis, recommendations, follow-up, and a reminder to contact the doctor or go to the emergency department if symptoms worsen or new problems develop.
“Patients tend to remember about half of what physicians tell them and half of the information patients do remember is incorrect,” he said. “Consider a few sentences in an e-mail or text message as a substitute for the after-visit instructions from an office visit to enhance patient understanding. There are several inexpensive programs/services that allow text messages to be sent from a computer using a separate dedicated phone number and pretty much every patient has a cell phone to receive the instructions.”
Dr. Sullivan suggests having a documentation template specifically for telehealth visits. He also recommends the inclusion an “informed refusal of care” in the record when necessary. Dr. Sullivan’s wife, a family physician, has encountered several patients who fear contracting COVID-19 and who have refused her recommendations for in-person visits, he said. In such cases, he said it’s a good idea to document that the patient decided to forgo the recommendations given.
“If a patient suffers a bad outcome because of a failure to seek an in-person exam, a short note in the patient’s chart would help to establish that the lack of a follow-up physical exam was the patient’s informed decision, not due to some alleged negligence of the medical provider,” he said.
Concerning informed consent, Dr. Feldman says at a minimum physicians should discuss the following with patients:
- Names and credentials of staff participating.
- The right to stop or refuse treatment by telemedicine.
- Technology that will be used.
- Privacy and security risks.
- Technology-specific risks and permission to bill.
- Alternative care in case of an emergency or technology malfunction.
- Any state-specific requirements.
“Physicians can ensure they have a strong informed consent process during video visits by taking the time to cover these points at the beginning of the first visit, and being sure the patient understands and agrees to these,” Dr. Sullivan explained. “Ideally, this conversation can be recorded for future reference if necessary or at a minimum documented in the medical record.”
Consider these extra precautions
Mr. Cahill advises that practitioners be especially mindful of their “web-side manner” and the setting in which they are communicating with virtual patients to promote confidentiality, professionalism, and uninterrupted interactions.
“Use of a headset in a quiet home office is advisable,” he said. “Physicians must also be cognizant of their physical appearance and the background behind them when the visit includes both audio and visual capability. For ‘face-to-face’ telehealth encounters, it is recommended that a white lab jacket be worn as the appropriate attire; coat and tie are unnecessary.”
Some patients may need to be reminded of the need for confidentiality during a video visit, Mr. Moore added. Physicians are typically in a position to ensure confidentiality, but some patients may not understand how to protect their privacy on their end.
“If the physician sees on the screen or hears from an audio connection that there are other people around who may be able to overhear what is communicated, the physician probably has some responsibility to remind the patient that she or he may want to go to a more private place, close the door, etc.,” he said. “While I think a claim against a physician on this basis would be pretty weak, it is still a good practice for the physician to be cognizant of those kinds of concerns even if the patient is not.”
Finally, for physicians who set up telehealth operability during the pandemic – possibly in a hurry – consider using your actual case data to take a look backward, said Ms. Lerman, the Washington-based health care attorney. Reviewing the data can help determine whether you’re in compliance with relevant state laws, she said.
“If, for example, a provider set up telehealth operations during the pandemic and can see that most of [the] patients are based in a single state, or a small group of states, it is worthwhile to take [the] time and become familiar with the telemedicine laws in those states,” she said. “If there are modifications that need to be made, it may be easier to make them incrementally before the telehealth operations grow any larger in scope.”
A version of this article originally appeared on Medscape.com.
During a telemedicine visit with his physician, a 62-year-old obese patient with an ankle injury reported new swelling of his leg. Three weeks had passed since the man visited an emergency department, where he underwent surgery and had a cast applied to the wound. The physician, during the telemedicine visit, advised the patient to elevate his leg and see an orthopedist within 24 hours. A Doppler ultrasound was ordered for 12:30 p.m. that same day.
The patient never made it to the appointment. He became unresponsive and went into full arrest hours later. His death fueled a lawsuit by his family that claimed failure to diagnose and treat deep venous thrombosis. The family contended the providers involved should have referred the patient to care immediately during the video visit.
The case, which comes from the claims database of national medical liability insurer The Doctors Company, illustrates the legal risks that can stem from video visits with patients, says Richard Cahill, JD, vice president and associate general counsel for The Doctors Company.
“By evaluating the patient remotely, the physician failed to appreciate the often subtle nuances of the clinical presentation, which undoubtedly could have been more accurately assessed in the office setting, and would probably have led to more urgent evaluation and intervention, thereby likely preventing the unfortunate and otherwise avoidable result,” said Mr. Cahill.
According to a Harris poll, 42% of Americans reported using video visits during the pandemic, a trend that is likely to continue as practices reopen and virtual care becomes the norm. But as physicians conduct more video visits, so grows their risk for lawsuits associated with the technology.
“We probably will see more malpractice suits filed the more telehealth is used,” said Mei Wa Kwong, JD, executive director of the Center for Connected Health Policy. “It’s a numbers game. The more it’s used, the higher likelihood that lawsuits occur.”
Three problems in not being able to touch the patient
1. The primary challenge with video visits “is the inability to directly observe and lay hands on the patient,” says Jonathan Einbinder, MD, assistant vice president of analytics for CRICO, a medical liability insurer based in Boston.
said Dr. Einbinder, a practicing internist.
Such incomplete pictures can lead to diagnostic errors and the potential for lawsuits, as demonstrated by a recent CRICO analysis. Of 106 telemedicine-related claims from 2014 to 2018, 66% were diagnosis related, according to the analysis of claims from CRICO’s national database. Twelve percent of the telemedicine-related claims were associated with surgical treatment, 11% were related to medical treatment, and 5% were associated with medication issues. A smaller number of claims resulted from patient monitoring, ob.gyn. care, and safety and security.
Another analysis by The Doctors Company similarly determined that diagnostic errors are the most common allegation in telemedicine-related claims. In the study of 28 telemedicine-related claims from The Doctors’ database, 71% were diagnosis related, 11% were associated with mismanagement of treatment, and 7% were related to improper management of a surgical patient. Other allegations included improper performance of treatment or procedure and improper performance of surgery.
“Because a ‘typical’ exam can’t be done, there is the potential to miss things,” said David L. Feldman, MD, chief medical officer for The Doctors Company Group. “A subtlety, perhaps a lump that can’t be seen but only felt, and only by an experienced examiner, for example, may be missed.”
2. Documentation dangers also loom, said William Sullivan, DO, JD, an emergency physician and an attorney who specializes in health care. The legal risk lies in documenting a video visit in the same way the doctor would document an in-person visit, he explained.
“Investigation into a potential lawsuit begins when there is some type of bad outcome related to medical care,” Dr. Sullivan explained. “To determine whether the lawsuit has merit, patients/attorneys review the medical records to retrospectively determine the potential cause of the bad outcome. If the documentation reflects an examination that could not have been performed, a lawyer might be more likely to pursue a case, and it would be more difficult to defend the care provided.”
Dr. Sullivan provided this example: During a video visit, a patient complains of acute onset weakness. The physician documents that the patient’s heart has a “regular rate and rhythm,” and “muscle strength is equal bilaterally.” The following day, the patient’s weakness continues, and the patient goes to the emergency department where he is diagnosed with stroke. An EKG in the ED shows that the patient is in atrial fibrillation.
“The telehealth provider would have a difficult time explaining how it was determined that the patient had normal muscle strength and a normal heart rhythm over a video visit the day before,” Dr. Sullivan said. “A lawyer in a subsequent malpractice case would present the provider as careless and would argue that if the provider had only sent the patient to the emergency department after the telehealth visit instead of documenting exam findings that couldn’t have been performed, the patient could have been successfully treated for the stroke.”
3. Poorly executed informed consent can also give rise to a lawsuit. This includes informed consent regarding the use of telehealth as the accepted modality for the visit rather than traditional on-site evaluations, as well as preprocedure informed consent.
“Inadequate and/or poorly documented informed consent can result in a claim for medical battery,” Mr. Cahill said.
A medical battery allegation refers to the alleged treatment or touching of a patient’s body without that person’s consent. As the AMA Journal of Ethics explains, a patient’s consent must be given, either expressly or implicitly, before a physician may legally “interfere” with the physical body of the patient.
Ideally, the informed consent process is undertaken during a first in-person visit, before virtual visits begin, Dr. Feldman said.
“There is a lot that a patient has to understand when a visit is done virtually, which is part of the informed consent process,” Dr. Feldman said. “The pandemic has forced some physicians to do their first visit virtually, and this makes the process of informing patients more onerous. It is not a simple matter of converting an in-person office practice to a remote office practice. The work flows are different, so there are definitely legal concerns as it relates to privacy and cybersecurity to name a few.”
Waivers may be weak protection
Since the pandemic started, a number of states have enacted emergency malpractice protections to shield health professionals from lawsuits. Some protections, such as those in Massachusetts, offer immunity to health professionals who provide general care to patients during the COVID-19 emergency, in addition to treatment of COVID-19 patients. Other protections, like those in Connecticut, apply specifically to care provided in support of the state’s pandemic response.
Whether that immunity applies both to in-person visits and video visits during the pandemic is not certain, said J. Richard Moore, JD, a medical liability defense attorney based in Indianapolis. Indiana’s immunity statute for example, does not make a specific provision for telehealth, he said.
“My best prediction is that if considered by the courts, the immunity would be applied to telehealth services, so long as they are being provided ‘in response to the emergency,’ which is the scope of the immunity,” he said. “I would not consider telehealth physicians to be either more or less protected than in-person providers.”
Regulatory scrutiny for telehealth providers has also been relaxed in response to COVID-19, but experts warn not to rely on the temporary shields for ultimate protection.
In March, the U.S. Department of Health and Human Service’s Office of Civil Rights (OCR) eased enforcement actions for noncompliance with Health Insurance Portability and Accountability Act requirements in connection with the good faith provision of telehealth during the COVID-19 health crisis. Under the notice, health providers can use popular applications such as Apple FaceTime, Facebook Messenger, Zoom, or Google Hangouts, to offer telehealth care without risk that OCR will impose fines or penalties for HIPAA violations.
But once the current health care emergency is mitigated, the waivers will likely be withdrawn, and enforcement actions will probably resume, Mr. Cahill said.
“It is recommended that, to avoid potential problems going forward, practitioners use due diligence and undertake best efforts to obey existing privacy and security requirements, including the use of technology that satisfies compliance regulations, despite the waiver by OCR,” he said.
In addition, a majority of states have relaxed state-specific rules for practicing telehealth and loosened licensure requirements during the pandemic. At least 47 states have issued waivers to alter in-state licensure requirements for telemedicine in response to COVID-19, according to the Federation of State Medical Boards. Most of the waivers allow physicians licensed in other states to provide care in states where they do not hold licenses, and some enable doctors to treat patients without first having had an in-person evaluation.
But at least for now, these are temporary changes, reminds Amy Lerman, JD, a health care attorney based in Washington, who specializes in telehealth and corporate compliance. Given the current pandemic environment, a significant concern is that physicians new to the telemedicine space are reacting only to the most recent rules established in the context of the pandemic, Ms. Lerman said.
“As previously noted, the recent developments are temporary in nature – states and various federal agencies have been pretty clear in setting this temporal boundary,” she said. “It is not advisable for providers to build telepractice models around temporary sets of rules.
“Furthermore, the recent developments are not necessarily comprehensive relative to all of the state-specific and other requirements that telemedicine providers are otherwise expected to follow, so relying only on the most recent guidance may cause providers to create telepractice models that have key gaps with respect to regulatory compliance.”
How you can avoid a lawsuit
As businesses reopen and practices resume treatments, physicians should weigh the choice between in-person care and video visits very carefully, said Joseph Kvedar, MD, president of the American Telemedicine Association and a dermatology professor at Harvard Medical School, Boston.
“We have to be very thoughtful about quality in this current phase, where we are doing what I call a hybrid model,” he said. “Some services are offered by telehealth and some require patients to come into the doctor’s office. We have to be very thoughtful about what types of care we determine to be appropriate for telehealth, and that has to be based on clinical quality. And if it is, it should follow that we’ll have low incidence of liability claims.”
Data should be at the center of that conclusion, Dr. Kvedar advises.
“Think about what data is needed to make a therapeutic or diagnostic decision,” he said. “If a health care provider can gather the information needed without touching the patient, then the provider is probably on safe, solid ground making that decision via a telehealth interaction. If the patient can come into the doctor’s office, and the provider deems it necessary to see the patient in person and touch the patient in order to make that clinical decision, then the patient should come in.”
An important step to preventing liability is also having strong telehealth systems and protocols in place and the necessary support to carry them out, said Dr. Einbinder of medical liability insurer CRICO.
For example, Dr. Einbinder, who practices in a 12-doctor internal medicine group, said when he finishes a virtual visit, he enters any orders into the electronic health record. Some of the orders will result in notifications to Dr. Einbinder if they are not executed, such as a referral appointment or a procedure that was not completed.
“I also can forward my orders to a front desk pool that is responsible for making sure things get done,” he said. “And, in our hospital system, we have good case management for complex patients and population management for a variety of chronic conditions. These represent additional safety nets.”
Another liability safeguard is sending patients a “visit summary” after each virtual visit, Dr. Sullivan said. This could be in the form of an email or a text that includes a brief template including items such as diagnosis, recommendations, follow-up, and a reminder to contact the doctor or go to the emergency department if symptoms worsen or new problems develop.
“Patients tend to remember about half of what physicians tell them and half of the information patients do remember is incorrect,” he said. “Consider a few sentences in an e-mail or text message as a substitute for the after-visit instructions from an office visit to enhance patient understanding. There are several inexpensive programs/services that allow text messages to be sent from a computer using a separate dedicated phone number and pretty much every patient has a cell phone to receive the instructions.”
Dr. Sullivan suggests having a documentation template specifically for telehealth visits. He also recommends the inclusion an “informed refusal of care” in the record when necessary. Dr. Sullivan’s wife, a family physician, has encountered several patients who fear contracting COVID-19 and who have refused her recommendations for in-person visits, he said. In such cases, he said it’s a good idea to document that the patient decided to forgo the recommendations given.
“If a patient suffers a bad outcome because of a failure to seek an in-person exam, a short note in the patient’s chart would help to establish that the lack of a follow-up physical exam was the patient’s informed decision, not due to some alleged negligence of the medical provider,” he said.
Concerning informed consent, Dr. Feldman says at a minimum physicians should discuss the following with patients:
- Names and credentials of staff participating.
- The right to stop or refuse treatment by telemedicine.
- Technology that will be used.
- Privacy and security risks.
- Technology-specific risks and permission to bill.
- Alternative care in case of an emergency or technology malfunction.
- Any state-specific requirements.
“Physicians can ensure they have a strong informed consent process during video visits by taking the time to cover these points at the beginning of the first visit, and being sure the patient understands and agrees to these,” Dr. Sullivan explained. “Ideally, this conversation can be recorded for future reference if necessary or at a minimum documented in the medical record.”
Consider these extra precautions
Mr. Cahill advises that practitioners be especially mindful of their “web-side manner” and the setting in which they are communicating with virtual patients to promote confidentiality, professionalism, and uninterrupted interactions.
“Use of a headset in a quiet home office is advisable,” he said. “Physicians must also be cognizant of their physical appearance and the background behind them when the visit includes both audio and visual capability. For ‘face-to-face’ telehealth encounters, it is recommended that a white lab jacket be worn as the appropriate attire; coat and tie are unnecessary.”
Some patients may need to be reminded of the need for confidentiality during a video visit, Mr. Moore added. Physicians are typically in a position to ensure confidentiality, but some patients may not understand how to protect their privacy on their end.
“If the physician sees on the screen or hears from an audio connection that there are other people around who may be able to overhear what is communicated, the physician probably has some responsibility to remind the patient that she or he may want to go to a more private place, close the door, etc.,” he said. “While I think a claim against a physician on this basis would be pretty weak, it is still a good practice for the physician to be cognizant of those kinds of concerns even if the patient is not.”
Finally, for physicians who set up telehealth operability during the pandemic – possibly in a hurry – consider using your actual case data to take a look backward, said Ms. Lerman, the Washington-based health care attorney. Reviewing the data can help determine whether you’re in compliance with relevant state laws, she said.
“If, for example, a provider set up telehealth operations during the pandemic and can see that most of [the] patients are based in a single state, or a small group of states, it is worthwhile to take [the] time and become familiar with the telemedicine laws in those states,” she said. “If there are modifications that need to be made, it may be easier to make them incrementally before the telehealth operations grow any larger in scope.”
A version of this article originally appeared on Medscape.com.
Would you be happier in a leadership position? This hospitalist wasn’t
After practicing clinical care for 4 years, hospitalist Suneel Dhand, MD, was ready for a change and eager for the chance to help improve the broader health care system.
So when the opportunity arose to direct an internal medicine program at a large hospital, Dr. Dhand gladly accepted the role. He aimed to enhance frontline staffing, expand his hospital medicine team’s influence, and raise the standard of care for patients.
Almost immediately, however, Dr. Dhand knew the administrative route was the wrong path for him.
“I realized very quickly that initiating change and being a positive force, while working with multiple competing interests, is far from easy,” said Dr. Dhand. “I didn’t particularly feel well supported by the high-level administrators. Without resources, it’s extra difficult to make things happen.”
A year and half into the role, Dr. Dhand left the position and returned to purely clinical work. He now practices as a Boston-area hospitalist while writing, filming, and podcasting about medicine on the side.
“I have no intention of leaving clinical medicine,” he said. “If somebody gave me a very highly compensated offer right now to come and be a hospital leader, I wouldn’t do it. It’s not me, and I wouldn’t enjoy it.”
Taking on an administrative or executive role can sound appealing to many clinicians. The Medscape Physician Compensation Report 2018 found that 42% of employed physicians were aiming for a promotion. Another physician survey by The Physicians Foundation found that 46% planned to change career paths in 2018 and that more than 12% planned to seek a nonclinical job in the next 1-3 years.
Interest in executive and leadership roles has also increased because of the COVID-19 pandemic, particularly as more physicians struggle financially and search for alternative compensation, said Peter B. Angood, MD, CEO and president for the American Association for Physician Leadership.
“Because of the COVID-19 impacts on health care and our country as a whole, the strengths of physician leadership have been better recognized at multiple levels,” Dr. Angood said. “As a result, there is definitely early interest as the ongoing impacts of COVID-19 are appreciated in how to further integrate physicians as leaders within the health care industry as a whole.”
Administration: Not for everyone
But as Dr. Dhand’s experience highlights, administration is not the right direction for every physician. Take the case of prominent surgeon and Harvard University professor Atul Gawande, MD, who in May stepped down as chief executive for Haven, the health care venture backed by Amazon, after just 2 years. In a statement, Dr. Gawande indicated he would be taking a less operational role with the company to devote more time to policy and activities associated with COVID-19.
Although the details of Dr. Gawande’s departure are unclear, his abrupt exit raises questions. Are physicians prepared for executive positions before making the move? Who makes the best fit for an administrative job?
“It’s certainly something most folks should not just jump into,” said Dr. Angood. “In the same way that physicians spend an awful lot of time developing their expertise to become an expert clinician, the same philosophy for becoming an expert administrative leader should be applied. You need to put in the same amount of energy and effort to truly be effective.”
The motivations behind moving to an administrative role vary among physicians, said Carson F. Dye, fellow and faculty member at the American College of Healthcare Executives and a leadership consultant. Some doctors make the shift because they have a natural proclivity for leading, whereas others want to make a greater impact on patient care and quality, Mr. Dye said. Still other physicians simply want a greater say in the everyday areas that affect them.
At the same time, there are more physician leadership opportunities than before. Positions such as chief quality officer, chief medical information officer, president of the employed medical group, and chief population health officer rarely existed 20 or 30 years ago, Mr. Dye noted.
“Moreover, nonclinical executives have begun to see the great value in having more physician leaders involved because it enhances physician engagement and provides valuable input for strategic change,” Mr. Dye said. “As a result, more physicians are coaxed into considering leadership roles.”
North Carolina internist Michael Lalor, MD, says leadership responsibilities landed in his lap early in his career and led to his ultimate post as a full-time administrator. Dr. Lalor was a couple years out of residency and working for a small private practice when the owner decided to retire early and asked him to take over the group, he explained.
After accepting, Dr. Lalor hired another physician, expanded the group, and later merged with a larger network.
“I loved it from the perspective of the intersection of business and medicine,” he said. “It really gave me experience you don’t get in training, such as the actual operations of running a medical group, contract negotiations, expansion plans, payroll, accounting. It was an entirely new experience that I really enjoyed.”
Dr. Lalor also served as a medical director for a small, nonprofit hospice in the area, which spurred him to become board certified in hospice and palliative medicine. He now acts as chief medical officer for a large hospice and palliative care organization based in North Carolina.
Chicago-area family physician John Jurica, MD, made his way up the executive ladder through a series of steps. Dr. Jurica said he felt drawn to committees and projects that addressed population health and quality issues. Tapping into this interest, he became medical director for Riverside Medical Center in Kankakee, Ill., followed by vice president of medical affairs and then chief medical officer for the hospital.
Along the way, Dr. Jurica volunteered with nonprofit organizations, served on hospital boards, and completed a master’s degree in public health.
“The more I got into it, the more I liked it,” he said. “I was wanting to be involved in helping larger numbers of patients in a different way, work on big problems, affect the community, and work on multidisciplinary teams.”
Today, Dr. Jurica is medical director and part owner of two urgent care centers. His career journey inspired him to create the VITAL Physician Executive blog, which offers advice about becoming a physician executive. He also hosts a podcast devoted to nonclinical careers for physicians.
Dr. Jurica said he hears a range of reasons for seeking a change from clinical care, including disillusionment with medicine; high debt; outside interests; and burnout.
“A number of physicians have said, ‘I really don’t enjoy medicine anymore,’ ” Dr. Jurica said. “ ‘The paperwork is onerous, I’m working long hours, I have to see more patients, and I’m getting paid the same or less. It’s just not what I thought it would be.’ ”
Although burnout prompts some physicians to pursue administrative roles, Dr. Angood cautions that this is like entering a rebound relationship after leaving a bad relationship. Making the move merely because of dissatisfaction with your current position can set you up for disappointment, he said.
“Too often, physicians who are frustrated with the complexities of clinical care will view administrative roles as a parachute for themselves out of that situation,” he said. “If they don’t understand the nuances of administrative work, they run the risk of moving into a role that will ultimately provide them a different level of dissatisfaction, rather than the higher level of satisfaction they were seeking. It is all about trying to ensure a good match in terms of expectations in order to obtain optimal outcomes.”
Who’s right for an administrative job?
Nearly any type of personality can make a good fit for an administrative post, said Dr. Jurica.
“If you look at most leadership teams, they usually have a team of people that have different personality types that complement one another,” he said. “You can be an extrovert, an introvert, Whatever kind of breakdown in personality you have can be successful.”
Certain attributes, however, are more helpful for executive positions, according to Mr. Dye, including comfort in dealing with ambiguity, a willingness to make difficult decisions, an aptitude for interpreting nonverbal cues, and the ability to demonstrate confidence, but not arrogance.
“Someone who is collaborative and cooperative, a good listener, and has a compelling vision for change in health care also makes a great leader,” he said.
The ability to balance and manage the needs of different groups is also key, said Heidi Moawad, MD, a neurologist, career consultant, and author of “Careers Beyond Clinical Medicine” (New York: Oxford University Press, 2013).
“Sometimes the needs of one group steps on the toes of the needs of another group,” said Dr. Moawad, who provides career resources for physicians at nonclinicaldoctors.com. “You have to be someone who isn’t so overwhelmed by pleasing everyone. You have to think fairly about the needs of all the groups involved, not just the loudest group.”
Is there a specialty best suited to an administrative role? Executive recruiters typically encounter more primary care physician candidates when conducting physician executive searches, according to Mr. Dye. This is likely because primary care doctors are usually the lowest paid of all specialties, and their pay scale may better fit with that of hiring organizations, he said. Higher-paid specialists, on the other hand, may be deterred from pursuing executive roles because of the possibility of lower pay. In addition, primary care physicians typically have traits that align well with administrative/executive functions.
“The nature of their clinical practice means that they are able to see the broad spectrum of the continuum of care and understand the system better,” he said.
Dr. Jurica stressed, however, that strong leaders can come from any specialty and that many medical backgrounds can fit an administrative or executive position.
“It’s more related to interests, desires, personality, and experiences over time as to whether they fit that role or mature into that role,” he said.
Just because you’re a great clinician doesn’t mean you’ll make a good administrative leader, Dr. Lalor said. Physicians can often fall into executive or leadership positions because they’re considered the best or most productive clinician in a group, he explained.
“The skill set is not 100% the same,” he said. “Not everybody is necessarily suited for it. They kind of fall into it and then have great missteps in their earliest experiences.”
Will you miss your former responsibilities?
Some physicians who enter the administrative realm really miss the clinical world and the satisfaction of helping patients directly, added Mr. Dye. He hears from many physicians who miss the “short-term nature” of clinical practice, meaning encountering a patient, determining an intervention, and moving on to another patient.
“Decisions are made, and the physician gets to see the result of those decisions,” he said. “One physician remarked to me that she lived her clinical life in ‘15-minute segments’ and that her executive world had many issues that went on for years, making it very frustrating to her that she was not really making progress.”
For physicians such as family physician Krista Skorupa, MD, who straddle both the clinical and administrative spheres, obstacles can arise in the form of time and balance. Dr. Skorupa splits her time between practicing family medicine and acting as vice president of medical practice for the M Health Fairview Primary Care Service Line in St. Paul, Minn.
“Most people will tell you it’s the balance that’s one of the hardest things,” she said. “You always feel like you’re doing one job not as well as you could because you’re trying to do two jobs at 100%.”
Dr. Skorupa said she has been fortunate to work for organizations that have provided the time and compensation for both jobs. But she warns that some institutions expect physicians to excel at dual clinical and administrative roles, yet fail to allot enough time or compensation for both.
Doctors going the executive route should also prepare for their work relationships to change – some for the worse.
Some peers may perceive a physician’s trek into administration as going to “the dark side,” Dr. Angood said. Attitudes from colleagues may change, and not everyone may be accepting of your new role, he advised.
And as Dr. Dhand experienced, conflict can stem from having to act as an intermediary between staff physicians and administrators. In his director position, Dr. Dhand had to relay administrative policies to his physician colleagues. The task was challenging because Dr. Dhand did not necessarily agree with the policies and felt they burdened already overworked physicians.
“I believe almost all physician leaders feel this way,” he said. “They walk in the same shoes as clinicians and know what a tough job it is. Yet, we are part of the system and have to follow rules and protocols. When you are the one giving bad news, you frequently become the fall guy.”
Is administration right for me?
To decide whether administration is right for you, start by talking to other physicians in the industry and asking questions, said Dr. Skorupa.
“I strongly encourage mentorship and network,” she said. “I learned a lot by just asking physicians who were in different leadership roles, to ‘Tell me your story. How did you get to where you’re at?’ It’s been hearing those stories that helped me craft my own.”
Consider joining committees within your local hospital or among your national specialty organization to evaluate whether the work interests you, Dr. Moawad advises.
“Getting some experience is important to see if it’s right for you,” she said.
Another way to measure your interest is by taking on a part-time job in physician leadership, Mr. Dye said. This allows physicians to try out leadership without leaving clinical practice behind.
“Dyad roles where physicians are paired with a nonphysician partner can also be helpful to physicians who are wanting to move slowly into leadership,” he said. “Typically, the physician partner in a dyad model also continues to practice clinically part time and thus does not lose that connection with medicine.”
In addition to getting some leadership experience, you may want to consider formal training in executive leadership. Many specialty societies offer formal coursework related to leadership, as do some hospital organizations.
The Society of Hospital Medicine offers a 3-course Leadership Academy that prepares clinical and academic leaders with skills traditionally not taught in medical school or typical residency programs. The society also offers a Leadership Capstone program for hospitalists with 3 or more years of experience, who are already leading or preparing to lead an academic, business, or clinical change initiative at their institution.
Physicians can find numerous courses and programs through AAPL, including the organization’s certified physician executive credential. The ACHE has a spectrum of career resources for health care professionals, including courses, competency assessments, and executive career coaches. Medscape’s Physician Business Academy also offers a course in leadership called “How to Become an Effective Leader,” which covers the attributes needed to become an effective leader and how to learn and develop relevant skills and traits.
Some physicians heading down the administrative road pursue more formal degrees, such as an MBA, MHA, or MMM, added Dr. Jurica. A business degree is not required, but degrees do have advantages, he said.
“The most important factor in preparing a physician for this career shift is taking on progressively more challenging duties managing people, running important projects, working with budgets, and honing your leadership skills,” he said. “However, there are benefits to having a degree. It provides formal education in these areas. Pursuing such a degree demonstrates a commitment to your leadership career and can be helpful when competing with other physician leaders for an attractive position.”
The reality is that more hospitals and health systems are recognizing the value of having physicians in leadership and executive functions, Dr. Angood said. Data show that health systems and hospitals with physician leaders perform better.
“This is because physicians not only have strong leadership and administrative capabilities, but they already have a strong sense of the clinical environment and how best to deliver good clinical care. It’s a double benefit nonclinical administrators are unable to match.”
As for Dr. Dhand, he doesn’t regret his stint in administration, despite finding out the path was not his calling.
“My experience was an eye-opener; I’m glad I did it,” he said. “I would change certain things looking back, like having lower expectations and understanding that change takes time. It’s also okay to be unpopular. I’m much happier now, though, only doing clinical medicine, and have found fulfillment through other nonclinical ventures.”
A version of this article originally appeared on Medscape.com.
After practicing clinical care for 4 years, hospitalist Suneel Dhand, MD, was ready for a change and eager for the chance to help improve the broader health care system.
So when the opportunity arose to direct an internal medicine program at a large hospital, Dr. Dhand gladly accepted the role. He aimed to enhance frontline staffing, expand his hospital medicine team’s influence, and raise the standard of care for patients.
Almost immediately, however, Dr. Dhand knew the administrative route was the wrong path for him.
“I realized very quickly that initiating change and being a positive force, while working with multiple competing interests, is far from easy,” said Dr. Dhand. “I didn’t particularly feel well supported by the high-level administrators. Without resources, it’s extra difficult to make things happen.”
A year and half into the role, Dr. Dhand left the position and returned to purely clinical work. He now practices as a Boston-area hospitalist while writing, filming, and podcasting about medicine on the side.
“I have no intention of leaving clinical medicine,” he said. “If somebody gave me a very highly compensated offer right now to come and be a hospital leader, I wouldn’t do it. It’s not me, and I wouldn’t enjoy it.”
Taking on an administrative or executive role can sound appealing to many clinicians. The Medscape Physician Compensation Report 2018 found that 42% of employed physicians were aiming for a promotion. Another physician survey by The Physicians Foundation found that 46% planned to change career paths in 2018 and that more than 12% planned to seek a nonclinical job in the next 1-3 years.
Interest in executive and leadership roles has also increased because of the COVID-19 pandemic, particularly as more physicians struggle financially and search for alternative compensation, said Peter B. Angood, MD, CEO and president for the American Association for Physician Leadership.
“Because of the COVID-19 impacts on health care and our country as a whole, the strengths of physician leadership have been better recognized at multiple levels,” Dr. Angood said. “As a result, there is definitely early interest as the ongoing impacts of COVID-19 are appreciated in how to further integrate physicians as leaders within the health care industry as a whole.”
Administration: Not for everyone
But as Dr. Dhand’s experience highlights, administration is not the right direction for every physician. Take the case of prominent surgeon and Harvard University professor Atul Gawande, MD, who in May stepped down as chief executive for Haven, the health care venture backed by Amazon, after just 2 years. In a statement, Dr. Gawande indicated he would be taking a less operational role with the company to devote more time to policy and activities associated with COVID-19.
Although the details of Dr. Gawande’s departure are unclear, his abrupt exit raises questions. Are physicians prepared for executive positions before making the move? Who makes the best fit for an administrative job?
“It’s certainly something most folks should not just jump into,” said Dr. Angood. “In the same way that physicians spend an awful lot of time developing their expertise to become an expert clinician, the same philosophy for becoming an expert administrative leader should be applied. You need to put in the same amount of energy and effort to truly be effective.”
The motivations behind moving to an administrative role vary among physicians, said Carson F. Dye, fellow and faculty member at the American College of Healthcare Executives and a leadership consultant. Some doctors make the shift because they have a natural proclivity for leading, whereas others want to make a greater impact on patient care and quality, Mr. Dye said. Still other physicians simply want a greater say in the everyday areas that affect them.
At the same time, there are more physician leadership opportunities than before. Positions such as chief quality officer, chief medical information officer, president of the employed medical group, and chief population health officer rarely existed 20 or 30 years ago, Mr. Dye noted.
“Moreover, nonclinical executives have begun to see the great value in having more physician leaders involved because it enhances physician engagement and provides valuable input for strategic change,” Mr. Dye said. “As a result, more physicians are coaxed into considering leadership roles.”
North Carolina internist Michael Lalor, MD, says leadership responsibilities landed in his lap early in his career and led to his ultimate post as a full-time administrator. Dr. Lalor was a couple years out of residency and working for a small private practice when the owner decided to retire early and asked him to take over the group, he explained.
After accepting, Dr. Lalor hired another physician, expanded the group, and later merged with a larger network.
“I loved it from the perspective of the intersection of business and medicine,” he said. “It really gave me experience you don’t get in training, such as the actual operations of running a medical group, contract negotiations, expansion plans, payroll, accounting. It was an entirely new experience that I really enjoyed.”
Dr. Lalor also served as a medical director for a small, nonprofit hospice in the area, which spurred him to become board certified in hospice and palliative medicine. He now acts as chief medical officer for a large hospice and palliative care organization based in North Carolina.
Chicago-area family physician John Jurica, MD, made his way up the executive ladder through a series of steps. Dr. Jurica said he felt drawn to committees and projects that addressed population health and quality issues. Tapping into this interest, he became medical director for Riverside Medical Center in Kankakee, Ill., followed by vice president of medical affairs and then chief medical officer for the hospital.
Along the way, Dr. Jurica volunteered with nonprofit organizations, served on hospital boards, and completed a master’s degree in public health.
“The more I got into it, the more I liked it,” he said. “I was wanting to be involved in helping larger numbers of patients in a different way, work on big problems, affect the community, and work on multidisciplinary teams.”
Today, Dr. Jurica is medical director and part owner of two urgent care centers. His career journey inspired him to create the VITAL Physician Executive blog, which offers advice about becoming a physician executive. He also hosts a podcast devoted to nonclinical careers for physicians.
Dr. Jurica said he hears a range of reasons for seeking a change from clinical care, including disillusionment with medicine; high debt; outside interests; and burnout.
“A number of physicians have said, ‘I really don’t enjoy medicine anymore,’ ” Dr. Jurica said. “ ‘The paperwork is onerous, I’m working long hours, I have to see more patients, and I’m getting paid the same or less. It’s just not what I thought it would be.’ ”
Although burnout prompts some physicians to pursue administrative roles, Dr. Angood cautions that this is like entering a rebound relationship after leaving a bad relationship. Making the move merely because of dissatisfaction with your current position can set you up for disappointment, he said.
“Too often, physicians who are frustrated with the complexities of clinical care will view administrative roles as a parachute for themselves out of that situation,” he said. “If they don’t understand the nuances of administrative work, they run the risk of moving into a role that will ultimately provide them a different level of dissatisfaction, rather than the higher level of satisfaction they were seeking. It is all about trying to ensure a good match in terms of expectations in order to obtain optimal outcomes.”
Who’s right for an administrative job?
Nearly any type of personality can make a good fit for an administrative post, said Dr. Jurica.
“If you look at most leadership teams, they usually have a team of people that have different personality types that complement one another,” he said. “You can be an extrovert, an introvert, Whatever kind of breakdown in personality you have can be successful.”
Certain attributes, however, are more helpful for executive positions, according to Mr. Dye, including comfort in dealing with ambiguity, a willingness to make difficult decisions, an aptitude for interpreting nonverbal cues, and the ability to demonstrate confidence, but not arrogance.
“Someone who is collaborative and cooperative, a good listener, and has a compelling vision for change in health care also makes a great leader,” he said.
The ability to balance and manage the needs of different groups is also key, said Heidi Moawad, MD, a neurologist, career consultant, and author of “Careers Beyond Clinical Medicine” (New York: Oxford University Press, 2013).
“Sometimes the needs of one group steps on the toes of the needs of another group,” said Dr. Moawad, who provides career resources for physicians at nonclinicaldoctors.com. “You have to be someone who isn’t so overwhelmed by pleasing everyone. You have to think fairly about the needs of all the groups involved, not just the loudest group.”
Is there a specialty best suited to an administrative role? Executive recruiters typically encounter more primary care physician candidates when conducting physician executive searches, according to Mr. Dye. This is likely because primary care doctors are usually the lowest paid of all specialties, and their pay scale may better fit with that of hiring organizations, he said. Higher-paid specialists, on the other hand, may be deterred from pursuing executive roles because of the possibility of lower pay. In addition, primary care physicians typically have traits that align well with administrative/executive functions.
“The nature of their clinical practice means that they are able to see the broad spectrum of the continuum of care and understand the system better,” he said.
Dr. Jurica stressed, however, that strong leaders can come from any specialty and that many medical backgrounds can fit an administrative or executive position.
“It’s more related to interests, desires, personality, and experiences over time as to whether they fit that role or mature into that role,” he said.
Just because you’re a great clinician doesn’t mean you’ll make a good administrative leader, Dr. Lalor said. Physicians can often fall into executive or leadership positions because they’re considered the best or most productive clinician in a group, he explained.
“The skill set is not 100% the same,” he said. “Not everybody is necessarily suited for it. They kind of fall into it and then have great missteps in their earliest experiences.”
Will you miss your former responsibilities?
Some physicians who enter the administrative realm really miss the clinical world and the satisfaction of helping patients directly, added Mr. Dye. He hears from many physicians who miss the “short-term nature” of clinical practice, meaning encountering a patient, determining an intervention, and moving on to another patient.
“Decisions are made, and the physician gets to see the result of those decisions,” he said. “One physician remarked to me that she lived her clinical life in ‘15-minute segments’ and that her executive world had many issues that went on for years, making it very frustrating to her that she was not really making progress.”
For physicians such as family physician Krista Skorupa, MD, who straddle both the clinical and administrative spheres, obstacles can arise in the form of time and balance. Dr. Skorupa splits her time between practicing family medicine and acting as vice president of medical practice for the M Health Fairview Primary Care Service Line in St. Paul, Minn.
“Most people will tell you it’s the balance that’s one of the hardest things,” she said. “You always feel like you’re doing one job not as well as you could because you’re trying to do two jobs at 100%.”
Dr. Skorupa said she has been fortunate to work for organizations that have provided the time and compensation for both jobs. But she warns that some institutions expect physicians to excel at dual clinical and administrative roles, yet fail to allot enough time or compensation for both.
Doctors going the executive route should also prepare for their work relationships to change – some for the worse.
Some peers may perceive a physician’s trek into administration as going to “the dark side,” Dr. Angood said. Attitudes from colleagues may change, and not everyone may be accepting of your new role, he advised.
And as Dr. Dhand experienced, conflict can stem from having to act as an intermediary between staff physicians and administrators. In his director position, Dr. Dhand had to relay administrative policies to his physician colleagues. The task was challenging because Dr. Dhand did not necessarily agree with the policies and felt they burdened already overworked physicians.
“I believe almost all physician leaders feel this way,” he said. “They walk in the same shoes as clinicians and know what a tough job it is. Yet, we are part of the system and have to follow rules and protocols. When you are the one giving bad news, you frequently become the fall guy.”
Is administration right for me?
To decide whether administration is right for you, start by talking to other physicians in the industry and asking questions, said Dr. Skorupa.
“I strongly encourage mentorship and network,” she said. “I learned a lot by just asking physicians who were in different leadership roles, to ‘Tell me your story. How did you get to where you’re at?’ It’s been hearing those stories that helped me craft my own.”
Consider joining committees within your local hospital or among your national specialty organization to evaluate whether the work interests you, Dr. Moawad advises.
“Getting some experience is important to see if it’s right for you,” she said.
Another way to measure your interest is by taking on a part-time job in physician leadership, Mr. Dye said. This allows physicians to try out leadership without leaving clinical practice behind.
“Dyad roles where physicians are paired with a nonphysician partner can also be helpful to physicians who are wanting to move slowly into leadership,” he said. “Typically, the physician partner in a dyad model also continues to practice clinically part time and thus does not lose that connection with medicine.”
In addition to getting some leadership experience, you may want to consider formal training in executive leadership. Many specialty societies offer formal coursework related to leadership, as do some hospital organizations.
The Society of Hospital Medicine offers a 3-course Leadership Academy that prepares clinical and academic leaders with skills traditionally not taught in medical school or typical residency programs. The society also offers a Leadership Capstone program for hospitalists with 3 or more years of experience, who are already leading or preparing to lead an academic, business, or clinical change initiative at their institution.
Physicians can find numerous courses and programs through AAPL, including the organization’s certified physician executive credential. The ACHE has a spectrum of career resources for health care professionals, including courses, competency assessments, and executive career coaches. Medscape’s Physician Business Academy also offers a course in leadership called “How to Become an Effective Leader,” which covers the attributes needed to become an effective leader and how to learn and develop relevant skills and traits.
Some physicians heading down the administrative road pursue more formal degrees, such as an MBA, MHA, or MMM, added Dr. Jurica. A business degree is not required, but degrees do have advantages, he said.
“The most important factor in preparing a physician for this career shift is taking on progressively more challenging duties managing people, running important projects, working with budgets, and honing your leadership skills,” he said. “However, there are benefits to having a degree. It provides formal education in these areas. Pursuing such a degree demonstrates a commitment to your leadership career and can be helpful when competing with other physician leaders for an attractive position.”
The reality is that more hospitals and health systems are recognizing the value of having physicians in leadership and executive functions, Dr. Angood said. Data show that health systems and hospitals with physician leaders perform better.
“This is because physicians not only have strong leadership and administrative capabilities, but they already have a strong sense of the clinical environment and how best to deliver good clinical care. It’s a double benefit nonclinical administrators are unable to match.”
As for Dr. Dhand, he doesn’t regret his stint in administration, despite finding out the path was not his calling.
“My experience was an eye-opener; I’m glad I did it,” he said. “I would change certain things looking back, like having lower expectations and understanding that change takes time. It’s also okay to be unpopular. I’m much happier now, though, only doing clinical medicine, and have found fulfillment through other nonclinical ventures.”
A version of this article originally appeared on Medscape.com.
After practicing clinical care for 4 years, hospitalist Suneel Dhand, MD, was ready for a change and eager for the chance to help improve the broader health care system.
So when the opportunity arose to direct an internal medicine program at a large hospital, Dr. Dhand gladly accepted the role. He aimed to enhance frontline staffing, expand his hospital medicine team’s influence, and raise the standard of care for patients.
Almost immediately, however, Dr. Dhand knew the administrative route was the wrong path for him.
“I realized very quickly that initiating change and being a positive force, while working with multiple competing interests, is far from easy,” said Dr. Dhand. “I didn’t particularly feel well supported by the high-level administrators. Without resources, it’s extra difficult to make things happen.”
A year and half into the role, Dr. Dhand left the position and returned to purely clinical work. He now practices as a Boston-area hospitalist while writing, filming, and podcasting about medicine on the side.
“I have no intention of leaving clinical medicine,” he said. “If somebody gave me a very highly compensated offer right now to come and be a hospital leader, I wouldn’t do it. It’s not me, and I wouldn’t enjoy it.”
Taking on an administrative or executive role can sound appealing to many clinicians. The Medscape Physician Compensation Report 2018 found that 42% of employed physicians were aiming for a promotion. Another physician survey by The Physicians Foundation found that 46% planned to change career paths in 2018 and that more than 12% planned to seek a nonclinical job in the next 1-3 years.
Interest in executive and leadership roles has also increased because of the COVID-19 pandemic, particularly as more physicians struggle financially and search for alternative compensation, said Peter B. Angood, MD, CEO and president for the American Association for Physician Leadership.
“Because of the COVID-19 impacts on health care and our country as a whole, the strengths of physician leadership have been better recognized at multiple levels,” Dr. Angood said. “As a result, there is definitely early interest as the ongoing impacts of COVID-19 are appreciated in how to further integrate physicians as leaders within the health care industry as a whole.”
Administration: Not for everyone
But as Dr. Dhand’s experience highlights, administration is not the right direction for every physician. Take the case of prominent surgeon and Harvard University professor Atul Gawande, MD, who in May stepped down as chief executive for Haven, the health care venture backed by Amazon, after just 2 years. In a statement, Dr. Gawande indicated he would be taking a less operational role with the company to devote more time to policy and activities associated with COVID-19.
Although the details of Dr. Gawande’s departure are unclear, his abrupt exit raises questions. Are physicians prepared for executive positions before making the move? Who makes the best fit for an administrative job?
“It’s certainly something most folks should not just jump into,” said Dr. Angood. “In the same way that physicians spend an awful lot of time developing their expertise to become an expert clinician, the same philosophy for becoming an expert administrative leader should be applied. You need to put in the same amount of energy and effort to truly be effective.”
The motivations behind moving to an administrative role vary among physicians, said Carson F. Dye, fellow and faculty member at the American College of Healthcare Executives and a leadership consultant. Some doctors make the shift because they have a natural proclivity for leading, whereas others want to make a greater impact on patient care and quality, Mr. Dye said. Still other physicians simply want a greater say in the everyday areas that affect them.
At the same time, there are more physician leadership opportunities than before. Positions such as chief quality officer, chief medical information officer, president of the employed medical group, and chief population health officer rarely existed 20 or 30 years ago, Mr. Dye noted.
“Moreover, nonclinical executives have begun to see the great value in having more physician leaders involved because it enhances physician engagement and provides valuable input for strategic change,” Mr. Dye said. “As a result, more physicians are coaxed into considering leadership roles.”
North Carolina internist Michael Lalor, MD, says leadership responsibilities landed in his lap early in his career and led to his ultimate post as a full-time administrator. Dr. Lalor was a couple years out of residency and working for a small private practice when the owner decided to retire early and asked him to take over the group, he explained.
After accepting, Dr. Lalor hired another physician, expanded the group, and later merged with a larger network.
“I loved it from the perspective of the intersection of business and medicine,” he said. “It really gave me experience you don’t get in training, such as the actual operations of running a medical group, contract negotiations, expansion plans, payroll, accounting. It was an entirely new experience that I really enjoyed.”
Dr. Lalor also served as a medical director for a small, nonprofit hospice in the area, which spurred him to become board certified in hospice and palliative medicine. He now acts as chief medical officer for a large hospice and palliative care organization based in North Carolina.
Chicago-area family physician John Jurica, MD, made his way up the executive ladder through a series of steps. Dr. Jurica said he felt drawn to committees and projects that addressed population health and quality issues. Tapping into this interest, he became medical director for Riverside Medical Center in Kankakee, Ill., followed by vice president of medical affairs and then chief medical officer for the hospital.
Along the way, Dr. Jurica volunteered with nonprofit organizations, served on hospital boards, and completed a master’s degree in public health.
“The more I got into it, the more I liked it,” he said. “I was wanting to be involved in helping larger numbers of patients in a different way, work on big problems, affect the community, and work on multidisciplinary teams.”
Today, Dr. Jurica is medical director and part owner of two urgent care centers. His career journey inspired him to create the VITAL Physician Executive blog, which offers advice about becoming a physician executive. He also hosts a podcast devoted to nonclinical careers for physicians.
Dr. Jurica said he hears a range of reasons for seeking a change from clinical care, including disillusionment with medicine; high debt; outside interests; and burnout.
“A number of physicians have said, ‘I really don’t enjoy medicine anymore,’ ” Dr. Jurica said. “ ‘The paperwork is onerous, I’m working long hours, I have to see more patients, and I’m getting paid the same or less. It’s just not what I thought it would be.’ ”
Although burnout prompts some physicians to pursue administrative roles, Dr. Angood cautions that this is like entering a rebound relationship after leaving a bad relationship. Making the move merely because of dissatisfaction with your current position can set you up for disappointment, he said.
“Too often, physicians who are frustrated with the complexities of clinical care will view administrative roles as a parachute for themselves out of that situation,” he said. “If they don’t understand the nuances of administrative work, they run the risk of moving into a role that will ultimately provide them a different level of dissatisfaction, rather than the higher level of satisfaction they were seeking. It is all about trying to ensure a good match in terms of expectations in order to obtain optimal outcomes.”
Who’s right for an administrative job?
Nearly any type of personality can make a good fit for an administrative post, said Dr. Jurica.
“If you look at most leadership teams, they usually have a team of people that have different personality types that complement one another,” he said. “You can be an extrovert, an introvert, Whatever kind of breakdown in personality you have can be successful.”
Certain attributes, however, are more helpful for executive positions, according to Mr. Dye, including comfort in dealing with ambiguity, a willingness to make difficult decisions, an aptitude for interpreting nonverbal cues, and the ability to demonstrate confidence, but not arrogance.
“Someone who is collaborative and cooperative, a good listener, and has a compelling vision for change in health care also makes a great leader,” he said.
The ability to balance and manage the needs of different groups is also key, said Heidi Moawad, MD, a neurologist, career consultant, and author of “Careers Beyond Clinical Medicine” (New York: Oxford University Press, 2013).
“Sometimes the needs of one group steps on the toes of the needs of another group,” said Dr. Moawad, who provides career resources for physicians at nonclinicaldoctors.com. “You have to be someone who isn’t so overwhelmed by pleasing everyone. You have to think fairly about the needs of all the groups involved, not just the loudest group.”
Is there a specialty best suited to an administrative role? Executive recruiters typically encounter more primary care physician candidates when conducting physician executive searches, according to Mr. Dye. This is likely because primary care doctors are usually the lowest paid of all specialties, and their pay scale may better fit with that of hiring organizations, he said. Higher-paid specialists, on the other hand, may be deterred from pursuing executive roles because of the possibility of lower pay. In addition, primary care physicians typically have traits that align well with administrative/executive functions.
“The nature of their clinical practice means that they are able to see the broad spectrum of the continuum of care and understand the system better,” he said.
Dr. Jurica stressed, however, that strong leaders can come from any specialty and that many medical backgrounds can fit an administrative or executive position.
“It’s more related to interests, desires, personality, and experiences over time as to whether they fit that role or mature into that role,” he said.
Just because you’re a great clinician doesn’t mean you’ll make a good administrative leader, Dr. Lalor said. Physicians can often fall into executive or leadership positions because they’re considered the best or most productive clinician in a group, he explained.
“The skill set is not 100% the same,” he said. “Not everybody is necessarily suited for it. They kind of fall into it and then have great missteps in their earliest experiences.”
Will you miss your former responsibilities?
Some physicians who enter the administrative realm really miss the clinical world and the satisfaction of helping patients directly, added Mr. Dye. He hears from many physicians who miss the “short-term nature” of clinical practice, meaning encountering a patient, determining an intervention, and moving on to another patient.
“Decisions are made, and the physician gets to see the result of those decisions,” he said. “One physician remarked to me that she lived her clinical life in ‘15-minute segments’ and that her executive world had many issues that went on for years, making it very frustrating to her that she was not really making progress.”
For physicians such as family physician Krista Skorupa, MD, who straddle both the clinical and administrative spheres, obstacles can arise in the form of time and balance. Dr. Skorupa splits her time between practicing family medicine and acting as vice president of medical practice for the M Health Fairview Primary Care Service Line in St. Paul, Minn.
“Most people will tell you it’s the balance that’s one of the hardest things,” she said. “You always feel like you’re doing one job not as well as you could because you’re trying to do two jobs at 100%.”
Dr. Skorupa said she has been fortunate to work for organizations that have provided the time and compensation for both jobs. But she warns that some institutions expect physicians to excel at dual clinical and administrative roles, yet fail to allot enough time or compensation for both.
Doctors going the executive route should also prepare for their work relationships to change – some for the worse.
Some peers may perceive a physician’s trek into administration as going to “the dark side,” Dr. Angood said. Attitudes from colleagues may change, and not everyone may be accepting of your new role, he advised.
And as Dr. Dhand experienced, conflict can stem from having to act as an intermediary between staff physicians and administrators. In his director position, Dr. Dhand had to relay administrative policies to his physician colleagues. The task was challenging because Dr. Dhand did not necessarily agree with the policies and felt they burdened already overworked physicians.
“I believe almost all physician leaders feel this way,” he said. “They walk in the same shoes as clinicians and know what a tough job it is. Yet, we are part of the system and have to follow rules and protocols. When you are the one giving bad news, you frequently become the fall guy.”
Is administration right for me?
To decide whether administration is right for you, start by talking to other physicians in the industry and asking questions, said Dr. Skorupa.
“I strongly encourage mentorship and network,” she said. “I learned a lot by just asking physicians who were in different leadership roles, to ‘Tell me your story. How did you get to where you’re at?’ It’s been hearing those stories that helped me craft my own.”
Consider joining committees within your local hospital or among your national specialty organization to evaluate whether the work interests you, Dr. Moawad advises.
“Getting some experience is important to see if it’s right for you,” she said.
Another way to measure your interest is by taking on a part-time job in physician leadership, Mr. Dye said. This allows physicians to try out leadership without leaving clinical practice behind.
“Dyad roles where physicians are paired with a nonphysician partner can also be helpful to physicians who are wanting to move slowly into leadership,” he said. “Typically, the physician partner in a dyad model also continues to practice clinically part time and thus does not lose that connection with medicine.”
In addition to getting some leadership experience, you may want to consider formal training in executive leadership. Many specialty societies offer formal coursework related to leadership, as do some hospital organizations.
The Society of Hospital Medicine offers a 3-course Leadership Academy that prepares clinical and academic leaders with skills traditionally not taught in medical school or typical residency programs. The society also offers a Leadership Capstone program for hospitalists with 3 or more years of experience, who are already leading or preparing to lead an academic, business, or clinical change initiative at their institution.
Physicians can find numerous courses and programs through AAPL, including the organization’s certified physician executive credential. The ACHE has a spectrum of career resources for health care professionals, including courses, competency assessments, and executive career coaches. Medscape’s Physician Business Academy also offers a course in leadership called “How to Become an Effective Leader,” which covers the attributes needed to become an effective leader and how to learn and develop relevant skills and traits.
Some physicians heading down the administrative road pursue more formal degrees, such as an MBA, MHA, or MMM, added Dr. Jurica. A business degree is not required, but degrees do have advantages, he said.
“The most important factor in preparing a physician for this career shift is taking on progressively more challenging duties managing people, running important projects, working with budgets, and honing your leadership skills,” he said. “However, there are benefits to having a degree. It provides formal education in these areas. Pursuing such a degree demonstrates a commitment to your leadership career and can be helpful when competing with other physician leaders for an attractive position.”
The reality is that more hospitals and health systems are recognizing the value of having physicians in leadership and executive functions, Dr. Angood said. Data show that health systems and hospitals with physician leaders perform better.
“This is because physicians not only have strong leadership and administrative capabilities, but they already have a strong sense of the clinical environment and how best to deliver good clinical care. It’s a double benefit nonclinical administrators are unable to match.”
As for Dr. Dhand, he doesn’t regret his stint in administration, despite finding out the path was not his calling.
“My experience was an eye-opener; I’m glad I did it,” he said. “I would change certain things looking back, like having lower expectations and understanding that change takes time. It’s also okay to be unpopular. I’m much happier now, though, only doing clinical medicine, and have found fulfillment through other nonclinical ventures.”
A version of this article originally appeared on Medscape.com.
COVID-19: New group stands up for health professionals facing retaliation
Sejal Hathi, MD, and two colleagues had long kicked around the idea of starting a nonprofit group that would center on civic and legal advocacy.
Once the COVID-19 pandemic hit, the three friends – who have a mix of legal, medical, and advocacy backgrounds – began chatting by email and through Zoom video meetings about how to make the plan a reality.
“When COVID came around, we began talking about where we could make a difference and help people where help was needed most,” said Dr. Hathi, an internal medicine resident at Massachusetts General Hospital in Boston. “We decided the PPE issue makes a good first focus.”
The new organization – named Beacon – quickly mobilized, assembled their team, and launched a website. Beacon’s first project now aims to highlight and protect the legal rights of medical professionals who speak out about personal protection equipment (PPE) supply and other matters of public concern related to coronavirus.
In recent months, health care professionals have reported being reprimanded or even terminated for publicly discussing PPE shortages or sharing safety concerns. Other clinicians say they can’t share their experiences for fear of reprisal by their hospitals.
“The centrality of adequate PPE is pretty undeniable at this point,” said John Paul Schnapper-Casteras, JD, an attorney and cofounder of the organization. “In terms of speaking up about matters of workplace safety and public concern, when health care workers share knowledge, correct problems – and in some cases, blow the whistle – it affirmatively benefits medical science, disease control, and the public interest,” he said in an interview. “We have seen in other countries, the disastrous consequences that can stem from silencing medical professionals who try to speak out.”
Letter highlights hospitals’ obligations
As part of their efforts, Beacon leaders drafted a strongly worded letter on behalf of health care workers outlining the legal obligations of hospitals to ensure workplace safety, underscoring the federal protections that bar retaliation against employees who exercise their workplace rights. Whistleblower protections under the Occupational Safety and Health Act, the False Claims Act, and the National Labor Relations Act, for instance, prohibit retaliation against employees for blowing the whistle on unsafe or unlawful conditions.
Beacon’s letter urges hospitals to adopt a uniform policy that recognizes “the importance and legitimacy of doctors, nurses, and medical professionals who research, write, and speak about the use and supply of PPE in addressing coronavirus.”
“We are deeply troubled by reports that medical professionals are being fired, retaliated against, disciplined, or threatened for speaking (or potentially speaking) about PPE shortages and related safety conditions that directly place their and their patients’ lives in danger,” the letter states. “As a matter of law, medical personnel have a wide range of rights that protect their employment status and ability to comment on matters of public concern (and provide a cause of action in court if these rights are violated).”
Dr. Hathi, who over the last decade has founded two social enterprises advancing women’s rights, said organizers have sent the letter to hospitals and health systems that were publicly reported or otherwise known to have threatened, terminated, or retaliated against employees for protesting PPE shortages or speaking up about unsafe working conditions during this crisis. The letter is available on the Beacon website.
“Many letters have been written [recently] criticizing hospitals for retaliating against their workers,” Dr. Hathi said. “Ours amplifies this voice. But it also serves as a tool for self-empowerment, a stark warning to health systems that their actions bear consequences, and an assurance to health workers across the country that we’re listening and we’re here to help them safeguard their rights and their dignity at work.”
Dr. Hathi and her colleagues have also circulated the letter on social media and other platforms as a petition that health care professionals and others can sign in support of fair and safe treatment of employees with respect to PPE. So far, the group has collected signatures from individuals, communities, and organizations representing about 35,000 people, Dr. Hathi said.
Workplace rights, legal options
Beacon leaders have also begun counseling and advising health care workers who have experienced retaliation or discipline associated with PPE issues. Educating medical professionals about their workplace rights and legal options is another key focus of the group, according to its founders.
“There are a flurry of reports coming our way about physicians and nurses, as well as other health care workers, who are for whatever reason being disciplined or retaliated against for simply seeking appropriate safety policies at their workplaces,” Dr. Hathi said. “What we’ve found is that many of them don’t even know what their options look like. Doctors, nurses, health care workers are not the typical type to engage politically, to speak out, [or to] advocate for themselves.”
In one instance, they heard from a physician who wanted to protect nurses at his hospital because they did not have masks and were being coughed on by COVID-19 patients. The doctor requested that his hospital supply masks to the nurses. After making the request, the physician was disciplined by hospital leadership, Dr. Hathi said. In another case, a physician assistant told the group she was terminated because she wanted to wear her own mask in a hospital that was treating COVID patients.
“She was not allowed to, and she was fired for even bringing it up,” said Sheel Tyle, JD, an attorney and Beacon cofounder.
Beacon intends to assist health care workers who face such retaliation and discipline in a number of ways, Mr. Tyle said. For instance, by helping an individual get compensation for what happened, aiding the professional in getting their job back, or helping the worker retain a severance package of some kind, he said.
“And then there is the larger public policy issue of preventing the hospital from being a bad actor,” Mr. Tyle said. “That can be done through state or federal complaints, largely under different statutes related to workplace protection or OSHA. Our group [has] lawyers that could represent clients individually as well as a number of friends who are attorneys in various states who we could partner with, depending on the situation.”
While the organization is positioned to represent health professionals in lawsuits if necessary, Mr. Tyle emphasized that litigation is not the intended goal of the group. Rather, they are seeking to deter hospitals and others from being “bad actors,” through any number of methods, including communication, advocacy, or complaints.
Ultimately, Dr. Hathi said she hopes the organization’s efforts activate health care workers as an organizing body and in the process, spark policy change at the federal level to better protect health care workers.
“The challenges we’re facing now – protecting workplace safety, employee voice, a living wage, adequate sick and family leave – long predate this pandemic,” Dr. Hathi said. “But they’ve deepened and acquired existential significance as, battered by policy failures and the unsparing virus itself, physicians shed their political indifference and join a growing nationwide chorus to restore workers’ rights and to fundamentally reimagine our broken healthcare system. Now, more than ever before, organizations like Beacon are vital for arming health workers in this fight.”
Sejal Hathi, MD, and two colleagues had long kicked around the idea of starting a nonprofit group that would center on civic and legal advocacy.
Once the COVID-19 pandemic hit, the three friends – who have a mix of legal, medical, and advocacy backgrounds – began chatting by email and through Zoom video meetings about how to make the plan a reality.
“When COVID came around, we began talking about where we could make a difference and help people where help was needed most,” said Dr. Hathi, an internal medicine resident at Massachusetts General Hospital in Boston. “We decided the PPE issue makes a good first focus.”
The new organization – named Beacon – quickly mobilized, assembled their team, and launched a website. Beacon’s first project now aims to highlight and protect the legal rights of medical professionals who speak out about personal protection equipment (PPE) supply and other matters of public concern related to coronavirus.
In recent months, health care professionals have reported being reprimanded or even terminated for publicly discussing PPE shortages or sharing safety concerns. Other clinicians say they can’t share their experiences for fear of reprisal by their hospitals.
“The centrality of adequate PPE is pretty undeniable at this point,” said John Paul Schnapper-Casteras, JD, an attorney and cofounder of the organization. “In terms of speaking up about matters of workplace safety and public concern, when health care workers share knowledge, correct problems – and in some cases, blow the whistle – it affirmatively benefits medical science, disease control, and the public interest,” he said in an interview. “We have seen in other countries, the disastrous consequences that can stem from silencing medical professionals who try to speak out.”
Letter highlights hospitals’ obligations
As part of their efforts, Beacon leaders drafted a strongly worded letter on behalf of health care workers outlining the legal obligations of hospitals to ensure workplace safety, underscoring the federal protections that bar retaliation against employees who exercise their workplace rights. Whistleblower protections under the Occupational Safety and Health Act, the False Claims Act, and the National Labor Relations Act, for instance, prohibit retaliation against employees for blowing the whistle on unsafe or unlawful conditions.
Beacon’s letter urges hospitals to adopt a uniform policy that recognizes “the importance and legitimacy of doctors, nurses, and medical professionals who research, write, and speak about the use and supply of PPE in addressing coronavirus.”
“We are deeply troubled by reports that medical professionals are being fired, retaliated against, disciplined, or threatened for speaking (or potentially speaking) about PPE shortages and related safety conditions that directly place their and their patients’ lives in danger,” the letter states. “As a matter of law, medical personnel have a wide range of rights that protect their employment status and ability to comment on matters of public concern (and provide a cause of action in court if these rights are violated).”
Dr. Hathi, who over the last decade has founded two social enterprises advancing women’s rights, said organizers have sent the letter to hospitals and health systems that were publicly reported or otherwise known to have threatened, terminated, or retaliated against employees for protesting PPE shortages or speaking up about unsafe working conditions during this crisis. The letter is available on the Beacon website.
“Many letters have been written [recently] criticizing hospitals for retaliating against their workers,” Dr. Hathi said. “Ours amplifies this voice. But it also serves as a tool for self-empowerment, a stark warning to health systems that their actions bear consequences, and an assurance to health workers across the country that we’re listening and we’re here to help them safeguard their rights and their dignity at work.”
Dr. Hathi and her colleagues have also circulated the letter on social media and other platforms as a petition that health care professionals and others can sign in support of fair and safe treatment of employees with respect to PPE. So far, the group has collected signatures from individuals, communities, and organizations representing about 35,000 people, Dr. Hathi said.
Workplace rights, legal options
Beacon leaders have also begun counseling and advising health care workers who have experienced retaliation or discipline associated with PPE issues. Educating medical professionals about their workplace rights and legal options is another key focus of the group, according to its founders.
“There are a flurry of reports coming our way about physicians and nurses, as well as other health care workers, who are for whatever reason being disciplined or retaliated against for simply seeking appropriate safety policies at their workplaces,” Dr. Hathi said. “What we’ve found is that many of them don’t even know what their options look like. Doctors, nurses, health care workers are not the typical type to engage politically, to speak out, [or to] advocate for themselves.”
In one instance, they heard from a physician who wanted to protect nurses at his hospital because they did not have masks and were being coughed on by COVID-19 patients. The doctor requested that his hospital supply masks to the nurses. After making the request, the physician was disciplined by hospital leadership, Dr. Hathi said. In another case, a physician assistant told the group she was terminated because she wanted to wear her own mask in a hospital that was treating COVID patients.
“She was not allowed to, and she was fired for even bringing it up,” said Sheel Tyle, JD, an attorney and Beacon cofounder.
Beacon intends to assist health care workers who face such retaliation and discipline in a number of ways, Mr. Tyle said. For instance, by helping an individual get compensation for what happened, aiding the professional in getting their job back, or helping the worker retain a severance package of some kind, he said.
“And then there is the larger public policy issue of preventing the hospital from being a bad actor,” Mr. Tyle said. “That can be done through state or federal complaints, largely under different statutes related to workplace protection or OSHA. Our group [has] lawyers that could represent clients individually as well as a number of friends who are attorneys in various states who we could partner with, depending on the situation.”
While the organization is positioned to represent health professionals in lawsuits if necessary, Mr. Tyle emphasized that litigation is not the intended goal of the group. Rather, they are seeking to deter hospitals and others from being “bad actors,” through any number of methods, including communication, advocacy, or complaints.
Ultimately, Dr. Hathi said she hopes the organization’s efforts activate health care workers as an organizing body and in the process, spark policy change at the federal level to better protect health care workers.
“The challenges we’re facing now – protecting workplace safety, employee voice, a living wage, adequate sick and family leave – long predate this pandemic,” Dr. Hathi said. “But they’ve deepened and acquired existential significance as, battered by policy failures and the unsparing virus itself, physicians shed their political indifference and join a growing nationwide chorus to restore workers’ rights and to fundamentally reimagine our broken healthcare system. Now, more than ever before, organizations like Beacon are vital for arming health workers in this fight.”
Sejal Hathi, MD, and two colleagues had long kicked around the idea of starting a nonprofit group that would center on civic and legal advocacy.
Once the COVID-19 pandemic hit, the three friends – who have a mix of legal, medical, and advocacy backgrounds – began chatting by email and through Zoom video meetings about how to make the plan a reality.
“When COVID came around, we began talking about where we could make a difference and help people where help was needed most,” said Dr. Hathi, an internal medicine resident at Massachusetts General Hospital in Boston. “We decided the PPE issue makes a good first focus.”
The new organization – named Beacon – quickly mobilized, assembled their team, and launched a website. Beacon’s first project now aims to highlight and protect the legal rights of medical professionals who speak out about personal protection equipment (PPE) supply and other matters of public concern related to coronavirus.
In recent months, health care professionals have reported being reprimanded or even terminated for publicly discussing PPE shortages or sharing safety concerns. Other clinicians say they can’t share their experiences for fear of reprisal by their hospitals.
“The centrality of adequate PPE is pretty undeniable at this point,” said John Paul Schnapper-Casteras, JD, an attorney and cofounder of the organization. “In terms of speaking up about matters of workplace safety and public concern, when health care workers share knowledge, correct problems – and in some cases, blow the whistle – it affirmatively benefits medical science, disease control, and the public interest,” he said in an interview. “We have seen in other countries, the disastrous consequences that can stem from silencing medical professionals who try to speak out.”
Letter highlights hospitals’ obligations
As part of their efforts, Beacon leaders drafted a strongly worded letter on behalf of health care workers outlining the legal obligations of hospitals to ensure workplace safety, underscoring the federal protections that bar retaliation against employees who exercise their workplace rights. Whistleblower protections under the Occupational Safety and Health Act, the False Claims Act, and the National Labor Relations Act, for instance, prohibit retaliation against employees for blowing the whistle on unsafe or unlawful conditions.
Beacon’s letter urges hospitals to adopt a uniform policy that recognizes “the importance and legitimacy of doctors, nurses, and medical professionals who research, write, and speak about the use and supply of PPE in addressing coronavirus.”
“We are deeply troubled by reports that medical professionals are being fired, retaliated against, disciplined, or threatened for speaking (or potentially speaking) about PPE shortages and related safety conditions that directly place their and their patients’ lives in danger,” the letter states. “As a matter of law, medical personnel have a wide range of rights that protect their employment status and ability to comment on matters of public concern (and provide a cause of action in court if these rights are violated).”
Dr. Hathi, who over the last decade has founded two social enterprises advancing women’s rights, said organizers have sent the letter to hospitals and health systems that were publicly reported or otherwise known to have threatened, terminated, or retaliated against employees for protesting PPE shortages or speaking up about unsafe working conditions during this crisis. The letter is available on the Beacon website.
“Many letters have been written [recently] criticizing hospitals for retaliating against their workers,” Dr. Hathi said. “Ours amplifies this voice. But it also serves as a tool for self-empowerment, a stark warning to health systems that their actions bear consequences, and an assurance to health workers across the country that we’re listening and we’re here to help them safeguard their rights and their dignity at work.”
Dr. Hathi and her colleagues have also circulated the letter on social media and other platforms as a petition that health care professionals and others can sign in support of fair and safe treatment of employees with respect to PPE. So far, the group has collected signatures from individuals, communities, and organizations representing about 35,000 people, Dr. Hathi said.
Workplace rights, legal options
Beacon leaders have also begun counseling and advising health care workers who have experienced retaliation or discipline associated with PPE issues. Educating medical professionals about their workplace rights and legal options is another key focus of the group, according to its founders.
“There are a flurry of reports coming our way about physicians and nurses, as well as other health care workers, who are for whatever reason being disciplined or retaliated against for simply seeking appropriate safety policies at their workplaces,” Dr. Hathi said. “What we’ve found is that many of them don’t even know what their options look like. Doctors, nurses, health care workers are not the typical type to engage politically, to speak out, [or to] advocate for themselves.”
In one instance, they heard from a physician who wanted to protect nurses at his hospital because they did not have masks and were being coughed on by COVID-19 patients. The doctor requested that his hospital supply masks to the nurses. After making the request, the physician was disciplined by hospital leadership, Dr. Hathi said. In another case, a physician assistant told the group she was terminated because she wanted to wear her own mask in a hospital that was treating COVID patients.
“She was not allowed to, and she was fired for even bringing it up,” said Sheel Tyle, JD, an attorney and Beacon cofounder.
Beacon intends to assist health care workers who face such retaliation and discipline in a number of ways, Mr. Tyle said. For instance, by helping an individual get compensation for what happened, aiding the professional in getting their job back, or helping the worker retain a severance package of some kind, he said.
“And then there is the larger public policy issue of preventing the hospital from being a bad actor,” Mr. Tyle said. “That can be done through state or federal complaints, largely under different statutes related to workplace protection or OSHA. Our group [has] lawyers that could represent clients individually as well as a number of friends who are attorneys in various states who we could partner with, depending on the situation.”
While the organization is positioned to represent health professionals in lawsuits if necessary, Mr. Tyle emphasized that litigation is not the intended goal of the group. Rather, they are seeking to deter hospitals and others from being “bad actors,” through any number of methods, including communication, advocacy, or complaints.
Ultimately, Dr. Hathi said she hopes the organization’s efforts activate health care workers as an organizing body and in the process, spark policy change at the federal level to better protect health care workers.
“The challenges we’re facing now – protecting workplace safety, employee voice, a living wage, adequate sick and family leave – long predate this pandemic,” Dr. Hathi said. “But they’ve deepened and acquired existential significance as, battered by policy failures and the unsparing virus itself, physicians shed their political indifference and join a growing nationwide chorus to restore workers’ rights and to fundamentally reimagine our broken healthcare system. Now, more than ever before, organizations like Beacon are vital for arming health workers in this fight.”
COVID-19 exacerbating challenges for Latino patients
Disproportionate burden of pandemic complicates mental health care
Pamela Montano, MD, recalls the recent case of a patient with bipolar II disorder who was improving after treatment with medication and therapy when her life was upended by the COVID-19 pandemic.
The patient, who is Puerto Rican, lost two cousins to the virus, two of her brothers fell ill, and her sister became sick with coronavirus, said Dr. Montano, director of the Latino Bicultural Clinic at Gouverneur Health in New York. The patient was then left to care for her sister’s toddlers along with the patient’s own children, one of whom has special needs.
“After this happened, it increased her anxiety,” Dr. Montano said in an interview. “She’s not sleeping, and she started having panic attacks. My main concern was how to help her cope.”
Across the country, clinicians who treat mental illness and behavioral disorders in Latino patients are facing similar experiences and challenges associated with COVID-19 and the ensuing pandemic response. Current data suggest a disproportionate burden of illness and death from the novel coronavirus among racial and ethnic groups, particularly black and Hispanic patients. The disparities are likely attributable to economic and social conditions more common among such populations, compared with non-Hispanic whites, in addition to isolation from resources, according to the Centers for Disease Control and Prevention.
A recent New York City Department of Health study based on data that were available in late April found that deaths from COVID-19 were substantially higher for black and Hispanic/Latino patients than for white and Asian patients. The death rate per 100,000 population was 209.4 for blacks, 195.3 for Hispanics/Latinos, 107.7 for whites, and 90.8 for Asians.
“The COVID pandemic has highlighted the structural inequities that affect the Latino population [both] immigrant and nonimmigrant,” said Dr. Montano, a board member of the American Society of Hispanic Psychiatry and the officer of infrastructure and advocacy for the Hispanic Caucus of the American Psychiatric Association. “This includes income inequality, poor nutrition, history of trauma and discrimination, employment issues, quality education, access to technology, and overall access to appropriate cultural linguistic health care.”
Navigating challenges
For mental health professionals treating Latino patients, COVID-19 and the pandemic response have generated a range of treatment obstacles.
The transition to telehealth for example, has not been easy for some patients, said Jacqueline Posada, MD, consultation-liaison psychiatry fellow at the Inova Fairfax Hospital–George Washington University program in Falls Church, Va., and an APA Substance Abuse and Mental Health Services Administration minority fellow. Some patients lack Internet services, others forget virtual visits, and some do not have working phones, she said.
“I’ve had to be very flexible,” she said in an interview. “Ideally, I’d love to see everybody via video chat, but a lot of people either don’t have a stable Internet connection or Internet, so I meet the patient where they are. Whatever they have available, that’s what I’m going to use. If they don’t answer on the first call, I will call again at least three to five times in the first 15 minutes to make sure I’m giving them an opportunity to pick up the phone.”
In addition, Dr. Posada has encountered disconnected phones when calling patients for appointments. In such cases, Dr. Posada contacts the patient’s primary care physician to relay medication recommendations in case the patient resurfaces at the clinic.
In other instances, patients are not familiar with video technology, or they must travel to a friend or neighbor’s house to access the technology, said Hector Colón-Rivera, MD, an addiction psychiatrist and medical director of the Asociación Puertorriqueños en Marcha Behavioral Health Program, a nonprofit organization based in the Philadelphia area. Telehealth visits frequently include appearances by children, family members, barking dogs, and other distractions, said Dr. Colón-Rivera, president of the APA Hispanic Caucus.
“We’re seeing things that we didn’t used to see when they came to our office – for good or for bad,” said Dr. Colón-Rivera, an attending telemedicine physician at the University of Pittsburgh Medical Center. “It could be a good chance to meet our patient in a different way. Of course, it creates different stressors. If you have five kids on top of you and you’re the only one at home, it’s hard to do therapy.”
Psychiatrists are also seeing prior health conditions in patients exacerbated by COVID-19 fears and new health problems arising from the current pandemic environment. Dr. Posada recalls a patient whom she successfully treated for premenstrual dysphoric disorder who recently descended into severe clinical depression. The patient, from Colombia, was attending school in the United States on a student visa and supporting herself through child care jobs.
“So much of her depression was based on her social circumstance,” Dr. Posada said. “She had lost her job, her sister had lost her job so they were scraping by on her sister’s husband’s income, and the thing that brought her joy, which was going to school and studying so she could make a different life for herself than what her parents had in Colombia, also seemed like it was out of reach.”
Dr. Colón-Rivera recently received a call from a hospital where one of his patients was admitted after becoming delusional and psychotic. The patient was correctly taking medication prescribed by Dr. Colón-Rivera, but her diabetes had become uncontrolled because she was unable to reach her primary care doctor and couldn’t access the pharmacy. Her blood sugar level became elevated, leading to the delusions.
“A patient that was perfectly stable now is unstable,” he said. “Her diet has not been good enough through the pandemic, exacerbating her diabetes. She was admitted to the hospital for delirium.
Compounding of traumas
For many Latino patients, the adverse impacts of the pandemic comes on top of multiple prior traumas, such as violence exposures, discrimination, and economic issues, said Lisa Fortuna, MD, MPH, MDiv, chief of psychiatry and vice chair at Zuckerberg San Francisco General Hospital. A 2017 analysis found that nearly four in five Latino youth face at least one traumatic childhood experience, like poverty or abuse, and that about 29% of Latino youth experience four or more of these traumas.
Immigrants in particular, may have faced trauma in their home country and/or immigration trauma, Dr. Fortuna added. A 2013 study on immigrant Latino adolescents for example, found that 29% of foreign-born adolescents and 34% of foreign-born parents experienced trauma during the migration process (Int Migr Rev. 2013 Dec;47(4):10).
“All of these things are cumulative,” Dr. Fortuna said. “Then when you’re hit with a pandemic, all of the disparities that you already have and all the stress that you already have are compounded. This is for the kids, too, who have been exposed to a lot of stressors and now maybe have family members that have been ill or have died. All of these things definitely put people at risk for increased depression [and] the worsening of any preexisting posttraumatic stress disorder. We’ve seen this in previous disasters, and I expect that’s what we’re going to see more of with the COVID-19 pandemic.”
At the same time, a central cultural value of many Latinos is family unity, Dr. Montano said, a foundation that is now being strained by social distancing and severed connections.
“This has separated many families,” she said. “There has been a lot of loneliness and grief.”
Mistrust and fear toward the government, public agencies, and even the health system itself act as further hurdles for some Latinos in the face of COVID-19. In areas with large immigrant populations such as San Francisco, Dr. Fortuna noted, it’s not uncommon for undocumented patients to avoid accessing medical care and social services, or visiting emergency departments for needed care for fear of drawing attention to themselves or possible detainment.
“The fact that so many people showed up at our hospital so ill and ended up in the ICU – that could be a combination of factors. Because the population has high rates of diabetes and hypertension, that might have put people at increased risk for severe illness,” she said. “But some people may have been holding out for care because they wanted to avoid being in places out of fear of immigration scrutiny.”
Overcoming language barriers
Compounding the challenging pandemic landscape for Latino patients is the fact that many state resources about COVID-19 have not been translated to Spanish, Dr. Colón-Rivera said. He was troubled recently when he went to several state websites and found limited to no information in Spanish about the coronavirus. Some data about COVID-19 from the federal government were not translated to Spanish until officials received pushback, he added. Even now, press releases and other information disseminated by the federal government about the virus appear to be translated by an automated service – and lack sense and context.
The state agencies in Pennsylvania have been alerted to the absence of Spanish information, but change has been slow, he noted.
“In Philadelphia, 23% speaks a language other than English,” he said. “So we missed a lot of critical information that could have helped to avoid spreading the illness and access support.”
Dr. Fortuna said that California has done better with providing COVID-19–related information in Spanish, compared with some other states, but misinformation about the virus and lingering myths have still been a problem among the Latino community. The University of California, San Francisco, recently launched a Latino Task Force resource website for the Latino community that includes information in English, Spanish, and Yucatec Maya about COVID-19, health and wellness tips, and resources for various assistance needs.
The concerning lack of COVID-19 information translated to Spanish led Dr. Montano to start a Facebook page in Spanish about mental health tips and guidance for managing COVID-19–related issues. She and her team of clinicians share information, videos, relaxation exercises, and community resources on the page, among other posts. “There is also general info and recommendations about COVID-19 that I think can be useful for the community,” she said. “The idea is that patients, the general community, and providers can have share information, hope messages, and ask questions in Spanish.”
Feeling ‘helpless’
A central part of caring for Latino patients during the COVID-19 crisis has been referring them to outside agencies and social services, psychiatrists say. But finding the right resources amid a pandemic and ensuring that patients connect with the correct aid has been an uphill battle.
“We sometimes feel like our hands are tied,” Dr. Colón-Rivera said. “Sometimes, we need to call a place to bring food. Some of the state agencies and nonprofits don’t have delivery systems, so the patient has to go pick up for food or medication. Some of our patients don’t want to go outside. Some do not have cars.”
As a clinician, it can be easy to feel helpless when trying to navigate new challenges posed by the pandemic in addition to other longstanding barriers, Dr. Posada said.
“Already, mental health disorders are so influenced by social situations like poverty, job insecurity, or family issues, and now it just seems those obstacles are even more insurmountable,” she said. “At the end of the day, I can feel like: ‘Did I make a difference?’ That’s a big struggle.”
Dr. Montano’s team, which includes psychiatrists, psychologists, and social workers, have come to rely on virtual debriefings to vent, express frustrations, and support one another, she said. She also recently joined a virtual mind-body skills group as a participant.
“I recognize the importance of getting additional support and ways to alleviate burnout,” she said. “We need to take care of ourselves or we won’t be able to help others.”
Focusing on resilience during the current crisis can be beneficial for both patients and providers in coping and drawing strength, Dr. Posada said.
“When it comes to fostering resilience during times of hardship, I think it’s most helpful to reflect on what skills or attributes have helped during past crises and apply those now – whether it’s turning to comfort from close relationships, looking to religion and spirituality, practicing self-care like rest or exercise, or really tapping into one’s purpose and reason for practicing psychiatry and being a physician,” she said. “The same advice goes for clinicians: We’ve all been through hard times in the past, it’s part of the human condition and we’ve also witnessed a lot of suffering in our patients, so now is the time to practice those skills that have gotten us through hard times in the past.”
Learning lessons from COVID-19
Despite the challenges with moving to telehealth, Dr. Fortuna said the tool has proved beneficial overall for mental health care. For Dr. Fortuna’s team for example, telehealth by phone has decreased the no-show rate, compared with clinic visits, and improved care access.
“We need to figure out how to maintain that,” she said. “If we can build ways for equity and access to Internet, especially equipment, I think that’s going to help.”
In addition, more data are needed about the ways in which COVID-19 is affecting Latino patients, Dr. Colón-Rivera said. Mortality statistics have been published, but information is needed about the rates of infection and manifestation of illness.
Most importantly, the COVID-19 crisis has emphasized the critical need to address and improve the underlying inequity issues among Latino patients, psychiatrists say.
“We really need to think about how there can be partnerships, in terms of community-based Latino business and leaders, multisector resources, trying to think about how we can improve conditions both work and safety for Latinos,” Dr. Fortuna said. “How can schools get support in integrating mental health and support for families, especially now after COVID-19? And really looking at some of these underlying inequities that are the underpinnings of why people were at risk for the disproportionate effects of the COVID-19 pandemic.”
Disproportionate burden of pandemic complicates mental health care
Disproportionate burden of pandemic complicates mental health care
Pamela Montano, MD, recalls the recent case of a patient with bipolar II disorder who was improving after treatment with medication and therapy when her life was upended by the COVID-19 pandemic.
The patient, who is Puerto Rican, lost two cousins to the virus, two of her brothers fell ill, and her sister became sick with coronavirus, said Dr. Montano, director of the Latino Bicultural Clinic at Gouverneur Health in New York. The patient was then left to care for her sister’s toddlers along with the patient’s own children, one of whom has special needs.
“After this happened, it increased her anxiety,” Dr. Montano said in an interview. “She’s not sleeping, and she started having panic attacks. My main concern was how to help her cope.”
Across the country, clinicians who treat mental illness and behavioral disorders in Latino patients are facing similar experiences and challenges associated with COVID-19 and the ensuing pandemic response. Current data suggest a disproportionate burden of illness and death from the novel coronavirus among racial and ethnic groups, particularly black and Hispanic patients. The disparities are likely attributable to economic and social conditions more common among such populations, compared with non-Hispanic whites, in addition to isolation from resources, according to the Centers for Disease Control and Prevention.
A recent New York City Department of Health study based on data that were available in late April found that deaths from COVID-19 were substantially higher for black and Hispanic/Latino patients than for white and Asian patients. The death rate per 100,000 population was 209.4 for blacks, 195.3 for Hispanics/Latinos, 107.7 for whites, and 90.8 for Asians.
“The COVID pandemic has highlighted the structural inequities that affect the Latino population [both] immigrant and nonimmigrant,” said Dr. Montano, a board member of the American Society of Hispanic Psychiatry and the officer of infrastructure and advocacy for the Hispanic Caucus of the American Psychiatric Association. “This includes income inequality, poor nutrition, history of trauma and discrimination, employment issues, quality education, access to technology, and overall access to appropriate cultural linguistic health care.”
Navigating challenges
For mental health professionals treating Latino patients, COVID-19 and the pandemic response have generated a range of treatment obstacles.
The transition to telehealth for example, has not been easy for some patients, said Jacqueline Posada, MD, consultation-liaison psychiatry fellow at the Inova Fairfax Hospital–George Washington University program in Falls Church, Va., and an APA Substance Abuse and Mental Health Services Administration minority fellow. Some patients lack Internet services, others forget virtual visits, and some do not have working phones, she said.
“I’ve had to be very flexible,” she said in an interview. “Ideally, I’d love to see everybody via video chat, but a lot of people either don’t have a stable Internet connection or Internet, so I meet the patient where they are. Whatever they have available, that’s what I’m going to use. If they don’t answer on the first call, I will call again at least three to five times in the first 15 minutes to make sure I’m giving them an opportunity to pick up the phone.”
In addition, Dr. Posada has encountered disconnected phones when calling patients for appointments. In such cases, Dr. Posada contacts the patient’s primary care physician to relay medication recommendations in case the patient resurfaces at the clinic.
In other instances, patients are not familiar with video technology, or they must travel to a friend or neighbor’s house to access the technology, said Hector Colón-Rivera, MD, an addiction psychiatrist and medical director of the Asociación Puertorriqueños en Marcha Behavioral Health Program, a nonprofit organization based in the Philadelphia area. Telehealth visits frequently include appearances by children, family members, barking dogs, and other distractions, said Dr. Colón-Rivera, president of the APA Hispanic Caucus.
“We’re seeing things that we didn’t used to see when they came to our office – for good or for bad,” said Dr. Colón-Rivera, an attending telemedicine physician at the University of Pittsburgh Medical Center. “It could be a good chance to meet our patient in a different way. Of course, it creates different stressors. If you have five kids on top of you and you’re the only one at home, it’s hard to do therapy.”
Psychiatrists are also seeing prior health conditions in patients exacerbated by COVID-19 fears and new health problems arising from the current pandemic environment. Dr. Posada recalls a patient whom she successfully treated for premenstrual dysphoric disorder who recently descended into severe clinical depression. The patient, from Colombia, was attending school in the United States on a student visa and supporting herself through child care jobs.
“So much of her depression was based on her social circumstance,” Dr. Posada said. “She had lost her job, her sister had lost her job so they were scraping by on her sister’s husband’s income, and the thing that brought her joy, which was going to school and studying so she could make a different life for herself than what her parents had in Colombia, also seemed like it was out of reach.”
Dr. Colón-Rivera recently received a call from a hospital where one of his patients was admitted after becoming delusional and psychotic. The patient was correctly taking medication prescribed by Dr. Colón-Rivera, but her diabetes had become uncontrolled because she was unable to reach her primary care doctor and couldn’t access the pharmacy. Her blood sugar level became elevated, leading to the delusions.
“A patient that was perfectly stable now is unstable,” he said. “Her diet has not been good enough through the pandemic, exacerbating her diabetes. She was admitted to the hospital for delirium.
Compounding of traumas
For many Latino patients, the adverse impacts of the pandemic comes on top of multiple prior traumas, such as violence exposures, discrimination, and economic issues, said Lisa Fortuna, MD, MPH, MDiv, chief of psychiatry and vice chair at Zuckerberg San Francisco General Hospital. A 2017 analysis found that nearly four in five Latino youth face at least one traumatic childhood experience, like poverty or abuse, and that about 29% of Latino youth experience four or more of these traumas.
Immigrants in particular, may have faced trauma in their home country and/or immigration trauma, Dr. Fortuna added. A 2013 study on immigrant Latino adolescents for example, found that 29% of foreign-born adolescents and 34% of foreign-born parents experienced trauma during the migration process (Int Migr Rev. 2013 Dec;47(4):10).
“All of these things are cumulative,” Dr. Fortuna said. “Then when you’re hit with a pandemic, all of the disparities that you already have and all the stress that you already have are compounded. This is for the kids, too, who have been exposed to a lot of stressors and now maybe have family members that have been ill or have died. All of these things definitely put people at risk for increased depression [and] the worsening of any preexisting posttraumatic stress disorder. We’ve seen this in previous disasters, and I expect that’s what we’re going to see more of with the COVID-19 pandemic.”
At the same time, a central cultural value of many Latinos is family unity, Dr. Montano said, a foundation that is now being strained by social distancing and severed connections.
“This has separated many families,” she said. “There has been a lot of loneliness and grief.”
Mistrust and fear toward the government, public agencies, and even the health system itself act as further hurdles for some Latinos in the face of COVID-19. In areas with large immigrant populations such as San Francisco, Dr. Fortuna noted, it’s not uncommon for undocumented patients to avoid accessing medical care and social services, or visiting emergency departments for needed care for fear of drawing attention to themselves or possible detainment.
“The fact that so many people showed up at our hospital so ill and ended up in the ICU – that could be a combination of factors. Because the population has high rates of diabetes and hypertension, that might have put people at increased risk for severe illness,” she said. “But some people may have been holding out for care because they wanted to avoid being in places out of fear of immigration scrutiny.”
Overcoming language barriers
Compounding the challenging pandemic landscape for Latino patients is the fact that many state resources about COVID-19 have not been translated to Spanish, Dr. Colón-Rivera said. He was troubled recently when he went to several state websites and found limited to no information in Spanish about the coronavirus. Some data about COVID-19 from the federal government were not translated to Spanish until officials received pushback, he added. Even now, press releases and other information disseminated by the federal government about the virus appear to be translated by an automated service – and lack sense and context.
The state agencies in Pennsylvania have been alerted to the absence of Spanish information, but change has been slow, he noted.
“In Philadelphia, 23% speaks a language other than English,” he said. “So we missed a lot of critical information that could have helped to avoid spreading the illness and access support.”
Dr. Fortuna said that California has done better with providing COVID-19–related information in Spanish, compared with some other states, but misinformation about the virus and lingering myths have still been a problem among the Latino community. The University of California, San Francisco, recently launched a Latino Task Force resource website for the Latino community that includes information in English, Spanish, and Yucatec Maya about COVID-19, health and wellness tips, and resources for various assistance needs.
The concerning lack of COVID-19 information translated to Spanish led Dr. Montano to start a Facebook page in Spanish about mental health tips and guidance for managing COVID-19–related issues. She and her team of clinicians share information, videos, relaxation exercises, and community resources on the page, among other posts. “There is also general info and recommendations about COVID-19 that I think can be useful for the community,” she said. “The idea is that patients, the general community, and providers can have share information, hope messages, and ask questions in Spanish.”
Feeling ‘helpless’
A central part of caring for Latino patients during the COVID-19 crisis has been referring them to outside agencies and social services, psychiatrists say. But finding the right resources amid a pandemic and ensuring that patients connect with the correct aid has been an uphill battle.
“We sometimes feel like our hands are tied,” Dr. Colón-Rivera said. “Sometimes, we need to call a place to bring food. Some of the state agencies and nonprofits don’t have delivery systems, so the patient has to go pick up for food or medication. Some of our patients don’t want to go outside. Some do not have cars.”
As a clinician, it can be easy to feel helpless when trying to navigate new challenges posed by the pandemic in addition to other longstanding barriers, Dr. Posada said.
“Already, mental health disorders are so influenced by social situations like poverty, job insecurity, or family issues, and now it just seems those obstacles are even more insurmountable,” she said. “At the end of the day, I can feel like: ‘Did I make a difference?’ That’s a big struggle.”
Dr. Montano’s team, which includes psychiatrists, psychologists, and social workers, have come to rely on virtual debriefings to vent, express frustrations, and support one another, she said. She also recently joined a virtual mind-body skills group as a participant.
“I recognize the importance of getting additional support and ways to alleviate burnout,” she said. “We need to take care of ourselves or we won’t be able to help others.”
Focusing on resilience during the current crisis can be beneficial for both patients and providers in coping and drawing strength, Dr. Posada said.
“When it comes to fostering resilience during times of hardship, I think it’s most helpful to reflect on what skills or attributes have helped during past crises and apply those now – whether it’s turning to comfort from close relationships, looking to religion and spirituality, practicing self-care like rest or exercise, or really tapping into one’s purpose and reason for practicing psychiatry and being a physician,” she said. “The same advice goes for clinicians: We’ve all been through hard times in the past, it’s part of the human condition and we’ve also witnessed a lot of suffering in our patients, so now is the time to practice those skills that have gotten us through hard times in the past.”
Learning lessons from COVID-19
Despite the challenges with moving to telehealth, Dr. Fortuna said the tool has proved beneficial overall for mental health care. For Dr. Fortuna’s team for example, telehealth by phone has decreased the no-show rate, compared with clinic visits, and improved care access.
“We need to figure out how to maintain that,” she said. “If we can build ways for equity and access to Internet, especially equipment, I think that’s going to help.”
In addition, more data are needed about the ways in which COVID-19 is affecting Latino patients, Dr. Colón-Rivera said. Mortality statistics have been published, but information is needed about the rates of infection and manifestation of illness.
Most importantly, the COVID-19 crisis has emphasized the critical need to address and improve the underlying inequity issues among Latino patients, psychiatrists say.
“We really need to think about how there can be partnerships, in terms of community-based Latino business and leaders, multisector resources, trying to think about how we can improve conditions both work and safety for Latinos,” Dr. Fortuna said. “How can schools get support in integrating mental health and support for families, especially now after COVID-19? And really looking at some of these underlying inequities that are the underpinnings of why people were at risk for the disproportionate effects of the COVID-19 pandemic.”
Pamela Montano, MD, recalls the recent case of a patient with bipolar II disorder who was improving after treatment with medication and therapy when her life was upended by the COVID-19 pandemic.
The patient, who is Puerto Rican, lost two cousins to the virus, two of her brothers fell ill, and her sister became sick with coronavirus, said Dr. Montano, director of the Latino Bicultural Clinic at Gouverneur Health in New York. The patient was then left to care for her sister’s toddlers along with the patient’s own children, one of whom has special needs.
“After this happened, it increased her anxiety,” Dr. Montano said in an interview. “She’s not sleeping, and she started having panic attacks. My main concern was how to help her cope.”
Across the country, clinicians who treat mental illness and behavioral disorders in Latino patients are facing similar experiences and challenges associated with COVID-19 and the ensuing pandemic response. Current data suggest a disproportionate burden of illness and death from the novel coronavirus among racial and ethnic groups, particularly black and Hispanic patients. The disparities are likely attributable to economic and social conditions more common among such populations, compared with non-Hispanic whites, in addition to isolation from resources, according to the Centers for Disease Control and Prevention.
A recent New York City Department of Health study based on data that were available in late April found that deaths from COVID-19 were substantially higher for black and Hispanic/Latino patients than for white and Asian patients. The death rate per 100,000 population was 209.4 for blacks, 195.3 for Hispanics/Latinos, 107.7 for whites, and 90.8 for Asians.
“The COVID pandemic has highlighted the structural inequities that affect the Latino population [both] immigrant and nonimmigrant,” said Dr. Montano, a board member of the American Society of Hispanic Psychiatry and the officer of infrastructure and advocacy for the Hispanic Caucus of the American Psychiatric Association. “This includes income inequality, poor nutrition, history of trauma and discrimination, employment issues, quality education, access to technology, and overall access to appropriate cultural linguistic health care.”
Navigating challenges
For mental health professionals treating Latino patients, COVID-19 and the pandemic response have generated a range of treatment obstacles.
The transition to telehealth for example, has not been easy for some patients, said Jacqueline Posada, MD, consultation-liaison psychiatry fellow at the Inova Fairfax Hospital–George Washington University program in Falls Church, Va., and an APA Substance Abuse and Mental Health Services Administration minority fellow. Some patients lack Internet services, others forget virtual visits, and some do not have working phones, she said.
“I’ve had to be very flexible,” she said in an interview. “Ideally, I’d love to see everybody via video chat, but a lot of people either don’t have a stable Internet connection or Internet, so I meet the patient where they are. Whatever they have available, that’s what I’m going to use. If they don’t answer on the first call, I will call again at least three to five times in the first 15 minutes to make sure I’m giving them an opportunity to pick up the phone.”
In addition, Dr. Posada has encountered disconnected phones when calling patients for appointments. In such cases, Dr. Posada contacts the patient’s primary care physician to relay medication recommendations in case the patient resurfaces at the clinic.
In other instances, patients are not familiar with video technology, or they must travel to a friend or neighbor’s house to access the technology, said Hector Colón-Rivera, MD, an addiction psychiatrist and medical director of the Asociación Puertorriqueños en Marcha Behavioral Health Program, a nonprofit organization based in the Philadelphia area. Telehealth visits frequently include appearances by children, family members, barking dogs, and other distractions, said Dr. Colón-Rivera, president of the APA Hispanic Caucus.
“We’re seeing things that we didn’t used to see when they came to our office – for good or for bad,” said Dr. Colón-Rivera, an attending telemedicine physician at the University of Pittsburgh Medical Center. “It could be a good chance to meet our patient in a different way. Of course, it creates different stressors. If you have five kids on top of you and you’re the only one at home, it’s hard to do therapy.”
Psychiatrists are also seeing prior health conditions in patients exacerbated by COVID-19 fears and new health problems arising from the current pandemic environment. Dr. Posada recalls a patient whom she successfully treated for premenstrual dysphoric disorder who recently descended into severe clinical depression. The patient, from Colombia, was attending school in the United States on a student visa and supporting herself through child care jobs.
“So much of her depression was based on her social circumstance,” Dr. Posada said. “She had lost her job, her sister had lost her job so they were scraping by on her sister’s husband’s income, and the thing that brought her joy, which was going to school and studying so she could make a different life for herself than what her parents had in Colombia, also seemed like it was out of reach.”
Dr. Colón-Rivera recently received a call from a hospital where one of his patients was admitted after becoming delusional and psychotic. The patient was correctly taking medication prescribed by Dr. Colón-Rivera, but her diabetes had become uncontrolled because she was unable to reach her primary care doctor and couldn’t access the pharmacy. Her blood sugar level became elevated, leading to the delusions.
“A patient that was perfectly stable now is unstable,” he said. “Her diet has not been good enough through the pandemic, exacerbating her diabetes. She was admitted to the hospital for delirium.
Compounding of traumas
For many Latino patients, the adverse impacts of the pandemic comes on top of multiple prior traumas, such as violence exposures, discrimination, and economic issues, said Lisa Fortuna, MD, MPH, MDiv, chief of psychiatry and vice chair at Zuckerberg San Francisco General Hospital. A 2017 analysis found that nearly four in five Latino youth face at least one traumatic childhood experience, like poverty or abuse, and that about 29% of Latino youth experience four or more of these traumas.
Immigrants in particular, may have faced trauma in their home country and/or immigration trauma, Dr. Fortuna added. A 2013 study on immigrant Latino adolescents for example, found that 29% of foreign-born adolescents and 34% of foreign-born parents experienced trauma during the migration process (Int Migr Rev. 2013 Dec;47(4):10).
“All of these things are cumulative,” Dr. Fortuna said. “Then when you’re hit with a pandemic, all of the disparities that you already have and all the stress that you already have are compounded. This is for the kids, too, who have been exposed to a lot of stressors and now maybe have family members that have been ill or have died. All of these things definitely put people at risk for increased depression [and] the worsening of any preexisting posttraumatic stress disorder. We’ve seen this in previous disasters, and I expect that’s what we’re going to see more of with the COVID-19 pandemic.”
At the same time, a central cultural value of many Latinos is family unity, Dr. Montano said, a foundation that is now being strained by social distancing and severed connections.
“This has separated many families,” she said. “There has been a lot of loneliness and grief.”
Mistrust and fear toward the government, public agencies, and even the health system itself act as further hurdles for some Latinos in the face of COVID-19. In areas with large immigrant populations such as San Francisco, Dr. Fortuna noted, it’s not uncommon for undocumented patients to avoid accessing medical care and social services, or visiting emergency departments for needed care for fear of drawing attention to themselves or possible detainment.
“The fact that so many people showed up at our hospital so ill and ended up in the ICU – that could be a combination of factors. Because the population has high rates of diabetes and hypertension, that might have put people at increased risk for severe illness,” she said. “But some people may have been holding out for care because they wanted to avoid being in places out of fear of immigration scrutiny.”
Overcoming language barriers
Compounding the challenging pandemic landscape for Latino patients is the fact that many state resources about COVID-19 have not been translated to Spanish, Dr. Colón-Rivera said. He was troubled recently when he went to several state websites and found limited to no information in Spanish about the coronavirus. Some data about COVID-19 from the federal government were not translated to Spanish until officials received pushback, he added. Even now, press releases and other information disseminated by the federal government about the virus appear to be translated by an automated service – and lack sense and context.
The state agencies in Pennsylvania have been alerted to the absence of Spanish information, but change has been slow, he noted.
“In Philadelphia, 23% speaks a language other than English,” he said. “So we missed a lot of critical information that could have helped to avoid spreading the illness and access support.”
Dr. Fortuna said that California has done better with providing COVID-19–related information in Spanish, compared with some other states, but misinformation about the virus and lingering myths have still been a problem among the Latino community. The University of California, San Francisco, recently launched a Latino Task Force resource website for the Latino community that includes information in English, Spanish, and Yucatec Maya about COVID-19, health and wellness tips, and resources for various assistance needs.
The concerning lack of COVID-19 information translated to Spanish led Dr. Montano to start a Facebook page in Spanish about mental health tips and guidance for managing COVID-19–related issues. She and her team of clinicians share information, videos, relaxation exercises, and community resources on the page, among other posts. “There is also general info and recommendations about COVID-19 that I think can be useful for the community,” she said. “The idea is that patients, the general community, and providers can have share information, hope messages, and ask questions in Spanish.”
Feeling ‘helpless’
A central part of caring for Latino patients during the COVID-19 crisis has been referring them to outside agencies and social services, psychiatrists say. But finding the right resources amid a pandemic and ensuring that patients connect with the correct aid has been an uphill battle.
“We sometimes feel like our hands are tied,” Dr. Colón-Rivera said. “Sometimes, we need to call a place to bring food. Some of the state agencies and nonprofits don’t have delivery systems, so the patient has to go pick up for food or medication. Some of our patients don’t want to go outside. Some do not have cars.”
As a clinician, it can be easy to feel helpless when trying to navigate new challenges posed by the pandemic in addition to other longstanding barriers, Dr. Posada said.
“Already, mental health disorders are so influenced by social situations like poverty, job insecurity, or family issues, and now it just seems those obstacles are even more insurmountable,” she said. “At the end of the day, I can feel like: ‘Did I make a difference?’ That’s a big struggle.”
Dr. Montano’s team, which includes psychiatrists, psychologists, and social workers, have come to rely on virtual debriefings to vent, express frustrations, and support one another, she said. She also recently joined a virtual mind-body skills group as a participant.
“I recognize the importance of getting additional support and ways to alleviate burnout,” she said. “We need to take care of ourselves or we won’t be able to help others.”
Focusing on resilience during the current crisis can be beneficial for both patients and providers in coping and drawing strength, Dr. Posada said.
“When it comes to fostering resilience during times of hardship, I think it’s most helpful to reflect on what skills or attributes have helped during past crises and apply those now – whether it’s turning to comfort from close relationships, looking to religion and spirituality, practicing self-care like rest or exercise, or really tapping into one’s purpose and reason for practicing psychiatry and being a physician,” she said. “The same advice goes for clinicians: We’ve all been through hard times in the past, it’s part of the human condition and we’ve also witnessed a lot of suffering in our patients, so now is the time to practice those skills that have gotten us through hard times in the past.”
Learning lessons from COVID-19
Despite the challenges with moving to telehealth, Dr. Fortuna said the tool has proved beneficial overall for mental health care. For Dr. Fortuna’s team for example, telehealth by phone has decreased the no-show rate, compared with clinic visits, and improved care access.
“We need to figure out how to maintain that,” she said. “If we can build ways for equity and access to Internet, especially equipment, I think that’s going to help.”
In addition, more data are needed about the ways in which COVID-19 is affecting Latino patients, Dr. Colón-Rivera said. Mortality statistics have been published, but information is needed about the rates of infection and manifestation of illness.
Most importantly, the COVID-19 crisis has emphasized the critical need to address and improve the underlying inequity issues among Latino patients, psychiatrists say.
“We really need to think about how there can be partnerships, in terms of community-based Latino business and leaders, multisector resources, trying to think about how we can improve conditions both work and safety for Latinos,” Dr. Fortuna said. “How can schools get support in integrating mental health and support for families, especially now after COVID-19? And really looking at some of these underlying inequities that are the underpinnings of why people were at risk for the disproportionate effects of the COVID-19 pandemic.”
Justices appear split over birth control mandate case
U.S. Supreme Court justices appear divided over whether the Trump administration acted properly when it expanded exemptions under the Affordable Care Act’s contraception mandate.
During oral arguments on May 6, the court expressed differing perspectives about the administration’s authority to allow for more exemptions under the health law’s birth control mandate and whether the expansions were reasonable. Justices heard the consolidated cases – Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania – by teleconference because of the COVID-19 pandemic. They are expected to make a decision by the summer.
Associate justice Ruth Bader Ginsburg, who participated in the telephone conference call from a hospital where she was recovering from a gallbladder condition, said the exemptions ignored the intent of Congress to provide women with comprehensive coverage through the ACA.
“The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage,” she said during oral arguments. “This leaves the women to hunt for other government programs that might cover them, and for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.”
Associate Justice Samuel Alito Jr., meanwhile, indicated that a lower court opinion that had blocked the exemptions from going forward conflicts with the Supreme Court’s ruling in a related case, Burwell v. Hobby Lobby.
“Explain to me why the Third Circuit’s analysis of the question of substantial burden is not squarely inconsistent with our reasoning in Hobby Lobby,” Associate Justice Alito said during oral arguments. “Hobby Lobby held that, if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That’s precisely the situation here. Reading the Third Circuit’s discussion of the substantial burden question, I wondered whether they had read that part of the Hobby Lobby decision.”
The dispute surrounding the ACA’s birth control mandate and the extent of exemptions afforded has gone on for a decade and has led to numerous legal challenges. The ACA initially required all employers to cover birth control for employees with no copayments, but exempted group health plans of religious employers. Those religious employers were primarily churches and other houses of worship. After a number of complaints and lawsuits, the Obama administration created a workaround for nonprofit religious employers not included in that exemption to opt out of the mandate. However, critics argued the process itself was a violation of their religious freedom.
The issue led to the case of Zubik v. Burwell, a legal challenge over the mandate exemption that went before the U.S. Supreme Court in March 2016. The issue was never resolved however, and in May 2016, the Supreme Court vacated the lower court rulings related to Zubik v. Burwell and remanded the case back to the four appeals courts that had originally ruled on the issue.
In 2018, the Trump administration announced new rules aimed at broadening exemptions to the ACA’s contraceptive mandate to entities that object to services covered by the mandate on the basis of “sincerely held religious beliefs.” A second rule allowed nonprofit organizations and small businesses that had nonreligious moral convictions against the mandate to opt out.
Thirteen states and the District of Columbia then sued the Trump administration over the rules, as well as Pennsylvania and New Jersey in a separate case. Little Sisters of the Poor, a religious nonprofit operating a home in Pittsburgh, intervened in the case as an aggrieved party. An appeal court temporarily barred the regulations from moving forward.
During oral arguments, Solicitor General for the Department of Justice Noel J. Francisco said the exemptions are lawful because they are authorized under a provision of the ACA as well as the Religious Freedom Restoration Act (RFRA).
“RFRA at the very least authorizes the religious exemption,” Mr. Francisco said during oral arguments.
Chief Deputy Attorney General for Pennsylvania Michael J. Fischer argued that the Trump administration’s moral and religious exemption rules rest on overly broad assertions of agency authority.
“First, the agencies twist a narrow delegation that allows the Health Resources and Services Administration to decide which preventive services insurers must cover under the Women’s Health Amendment into a grant of authority so broad it allows them to permit virtually any employer or college to opt out of providing contraceptive coverage entirely, including for reasons as amorphous as vaguely defined moral beliefs,” he said during oral arguments. “Second, the agencies claim that RFRA, a statute that limits government action, affirmatively authorizes them to permit employers to deny women their rights to contraceptive coverage even in the absence of a RFRA violation in the first place.”
U.S. Supreme Court justices appear divided over whether the Trump administration acted properly when it expanded exemptions under the Affordable Care Act’s contraception mandate.
During oral arguments on May 6, the court expressed differing perspectives about the administration’s authority to allow for more exemptions under the health law’s birth control mandate and whether the expansions were reasonable. Justices heard the consolidated cases – Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania – by teleconference because of the COVID-19 pandemic. They are expected to make a decision by the summer.
Associate justice Ruth Bader Ginsburg, who participated in the telephone conference call from a hospital where she was recovering from a gallbladder condition, said the exemptions ignored the intent of Congress to provide women with comprehensive coverage through the ACA.
“The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage,” she said during oral arguments. “This leaves the women to hunt for other government programs that might cover them, and for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.”
Associate Justice Samuel Alito Jr., meanwhile, indicated that a lower court opinion that had blocked the exemptions from going forward conflicts with the Supreme Court’s ruling in a related case, Burwell v. Hobby Lobby.
“Explain to me why the Third Circuit’s analysis of the question of substantial burden is not squarely inconsistent with our reasoning in Hobby Lobby,” Associate Justice Alito said during oral arguments. “Hobby Lobby held that, if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That’s precisely the situation here. Reading the Third Circuit’s discussion of the substantial burden question, I wondered whether they had read that part of the Hobby Lobby decision.”
The dispute surrounding the ACA’s birth control mandate and the extent of exemptions afforded has gone on for a decade and has led to numerous legal challenges. The ACA initially required all employers to cover birth control for employees with no copayments, but exempted group health plans of religious employers. Those religious employers were primarily churches and other houses of worship. After a number of complaints and lawsuits, the Obama administration created a workaround for nonprofit religious employers not included in that exemption to opt out of the mandate. However, critics argued the process itself was a violation of their religious freedom.
The issue led to the case of Zubik v. Burwell, a legal challenge over the mandate exemption that went before the U.S. Supreme Court in March 2016. The issue was never resolved however, and in May 2016, the Supreme Court vacated the lower court rulings related to Zubik v. Burwell and remanded the case back to the four appeals courts that had originally ruled on the issue.
In 2018, the Trump administration announced new rules aimed at broadening exemptions to the ACA’s contraceptive mandate to entities that object to services covered by the mandate on the basis of “sincerely held religious beliefs.” A second rule allowed nonprofit organizations and small businesses that had nonreligious moral convictions against the mandate to opt out.
Thirteen states and the District of Columbia then sued the Trump administration over the rules, as well as Pennsylvania and New Jersey in a separate case. Little Sisters of the Poor, a religious nonprofit operating a home in Pittsburgh, intervened in the case as an aggrieved party. An appeal court temporarily barred the regulations from moving forward.
During oral arguments, Solicitor General for the Department of Justice Noel J. Francisco said the exemptions are lawful because they are authorized under a provision of the ACA as well as the Religious Freedom Restoration Act (RFRA).
“RFRA at the very least authorizes the religious exemption,” Mr. Francisco said during oral arguments.
Chief Deputy Attorney General for Pennsylvania Michael J. Fischer argued that the Trump administration’s moral and religious exemption rules rest on overly broad assertions of agency authority.
“First, the agencies twist a narrow delegation that allows the Health Resources and Services Administration to decide which preventive services insurers must cover under the Women’s Health Amendment into a grant of authority so broad it allows them to permit virtually any employer or college to opt out of providing contraceptive coverage entirely, including for reasons as amorphous as vaguely defined moral beliefs,” he said during oral arguments. “Second, the agencies claim that RFRA, a statute that limits government action, affirmatively authorizes them to permit employers to deny women their rights to contraceptive coverage even in the absence of a RFRA violation in the first place.”
U.S. Supreme Court justices appear divided over whether the Trump administration acted properly when it expanded exemptions under the Affordable Care Act’s contraception mandate.
During oral arguments on May 6, the court expressed differing perspectives about the administration’s authority to allow for more exemptions under the health law’s birth control mandate and whether the expansions were reasonable. Justices heard the consolidated cases – Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania – by teleconference because of the COVID-19 pandemic. They are expected to make a decision by the summer.
Associate justice Ruth Bader Ginsburg, who participated in the telephone conference call from a hospital where she was recovering from a gallbladder condition, said the exemptions ignored the intent of Congress to provide women with comprehensive coverage through the ACA.
“The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage,” she said during oral arguments. “This leaves the women to hunt for other government programs that might cover them, and for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.”
Associate Justice Samuel Alito Jr., meanwhile, indicated that a lower court opinion that had blocked the exemptions from going forward conflicts with the Supreme Court’s ruling in a related case, Burwell v. Hobby Lobby.
“Explain to me why the Third Circuit’s analysis of the question of substantial burden is not squarely inconsistent with our reasoning in Hobby Lobby,” Associate Justice Alito said during oral arguments. “Hobby Lobby held that, if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That’s precisely the situation here. Reading the Third Circuit’s discussion of the substantial burden question, I wondered whether they had read that part of the Hobby Lobby decision.”
The dispute surrounding the ACA’s birth control mandate and the extent of exemptions afforded has gone on for a decade and has led to numerous legal challenges. The ACA initially required all employers to cover birth control for employees with no copayments, but exempted group health plans of religious employers. Those religious employers were primarily churches and other houses of worship. After a number of complaints and lawsuits, the Obama administration created a workaround for nonprofit religious employers not included in that exemption to opt out of the mandate. However, critics argued the process itself was a violation of their religious freedom.
The issue led to the case of Zubik v. Burwell, a legal challenge over the mandate exemption that went before the U.S. Supreme Court in March 2016. The issue was never resolved however, and in May 2016, the Supreme Court vacated the lower court rulings related to Zubik v. Burwell and remanded the case back to the four appeals courts that had originally ruled on the issue.
In 2018, the Trump administration announced new rules aimed at broadening exemptions to the ACA’s contraceptive mandate to entities that object to services covered by the mandate on the basis of “sincerely held religious beliefs.” A second rule allowed nonprofit organizations and small businesses that had nonreligious moral convictions against the mandate to opt out.
Thirteen states and the District of Columbia then sued the Trump administration over the rules, as well as Pennsylvania and New Jersey in a separate case. Little Sisters of the Poor, a religious nonprofit operating a home in Pittsburgh, intervened in the case as an aggrieved party. An appeal court temporarily barred the regulations from moving forward.
During oral arguments, Solicitor General for the Department of Justice Noel J. Francisco said the exemptions are lawful because they are authorized under a provision of the ACA as well as the Religious Freedom Restoration Act (RFRA).
“RFRA at the very least authorizes the religious exemption,” Mr. Francisco said during oral arguments.
Chief Deputy Attorney General for Pennsylvania Michael J. Fischer argued that the Trump administration’s moral and religious exemption rules rest on overly broad assertions of agency authority.
“First, the agencies twist a narrow delegation that allows the Health Resources and Services Administration to decide which preventive services insurers must cover under the Women’s Health Amendment into a grant of authority so broad it allows them to permit virtually any employer or college to opt out of providing contraceptive coverage entirely, including for reasons as amorphous as vaguely defined moral beliefs,” he said during oral arguments. “Second, the agencies claim that RFRA, a statute that limits government action, affirmatively authorizes them to permit employers to deny women their rights to contraceptive coverage even in the absence of a RFRA violation in the first place.”
FDA tightens requirements for COVID-19 antibody tests
The U.S. Food and Drug Administration is tightening requirements for companies that develop COVID-19 antibody tests in an effort to combat fraud and better regulate the frenzy of tests coming to market.
The updated policy, announced May 4, requires commercial antibody test developers to apply for Emergency Use Authorization (EUA) from the FDA under a tight time frame and also provides specific performance threshold recommendations for test specificity and sensitivity. The revised requirements follow a March 16 policy that allowed developers to validate their own tests and bring them to market without an agency review. More than 100 coronavirus antibody tests have since entered the market, fueling a congressional investigation into the accuracy of tests.
When the March policy was issued, FDA Commissioner Stephen M. Hahn, MD, said it was critical for the FDA to provide regulatory flexibility for serology test developers, given the nature of the COVID-19 public health emergency and an understanding that the tests were not meant to be used as the sole basis for COVID-19 diagnosis.
“As FDA has authorized more antibody tests and validation data has become available, including through the capability at [the National Cancer Institute] the careful balancing of risks and benefits has shifted to the approach we have outlined today and our policy update,” Dr. Hahn said during a May 4 press conference.
The new approach requires all commercial manufacturers to submit EUA requests with their validation data within 10 business days from the date they notified the FDA of their validation testing or from the date of the May 4 policy, whichever is later. Additionally, the FDA has provided specific performance threshold recommendations for specificity and sensitivity for all serology test developers.
In a statement released May 4, FDA leaders acknowledged the widespread fraud that is occurring in connection to antibody tests entering the market.
“We unfortunately see unscrupulous actors marketing fraudulent test kits and using the pandemic as an opportunity to take advantage of Americans’ anxiety,” wrote Anand Shah, MD, FDA deputy commissioner for medical and scientific affairs in a joint statement with Jeff E. Shuren, MD, director for the FDA’s Center for Devices and Radiological Health. “Some test developers have falsely claimed their serological tests are FDA approved or authorized. Others have falsely claimed that their tests can diagnose COVID-19 or that they are for at-home testing, which would fall outside of the policies outlined in our March 16 guidance, as well as the updated guidance.”
At the same time, FDA officials said they are aware of a “concerning number” of commercial serology tests that are being inappropriately marketed, including for diagnostic use, or that are performing poorly based on an independent evaluation by the National Institutes of Health, according to the May 4 statement.
In addition to tightening its requirements for test developers, the FDA also is introducing a more streamlined process to support EUA submissions and review. Two voluntary EUA templates for antibody tests are now available – one for commercial manufacturers and one for Clinical Laboratory Improvement Amendments-certified high-complexity labs seeking FDA authorization. The templates will facilitate the preparation and submission of EUA requests and can be used by any interested developer, according to the FDA.
To date, 12 antibody tests have been authorized under an individual EUA, and more than 200 antibody tests are currently the subject of a pre-EUA or EUA review, according to the FDA.
Many unknowns remain about antibody tests and how they might help researchers and clinicians understand and/or potentially treat COVID-19. Antibody tests may be able to provide information on disease prevalence and frequency of asymptomatic infection, as well as identify potential donors of “convalescent plasma,” an approach in which blood plasma containing antibodies from a recovered individual serves as a therapy for an infected patient with severe disease, Dr. Shah wrote in the May 4 statement.
“There are a lot of unanswered questions about this particular issue,” Dr. Hahn said during the press conference. “We need the data because we need to understand this particular aspect of the disease and put it as part of the puzzle around COVID-19.”
The U.S. Food and Drug Administration is tightening requirements for companies that develop COVID-19 antibody tests in an effort to combat fraud and better regulate the frenzy of tests coming to market.
The updated policy, announced May 4, requires commercial antibody test developers to apply for Emergency Use Authorization (EUA) from the FDA under a tight time frame and also provides specific performance threshold recommendations for test specificity and sensitivity. The revised requirements follow a March 16 policy that allowed developers to validate their own tests and bring them to market without an agency review. More than 100 coronavirus antibody tests have since entered the market, fueling a congressional investigation into the accuracy of tests.
When the March policy was issued, FDA Commissioner Stephen M. Hahn, MD, said it was critical for the FDA to provide regulatory flexibility for serology test developers, given the nature of the COVID-19 public health emergency and an understanding that the tests were not meant to be used as the sole basis for COVID-19 diagnosis.
“As FDA has authorized more antibody tests and validation data has become available, including through the capability at [the National Cancer Institute] the careful balancing of risks and benefits has shifted to the approach we have outlined today and our policy update,” Dr. Hahn said during a May 4 press conference.
The new approach requires all commercial manufacturers to submit EUA requests with their validation data within 10 business days from the date they notified the FDA of their validation testing or from the date of the May 4 policy, whichever is later. Additionally, the FDA has provided specific performance threshold recommendations for specificity and sensitivity for all serology test developers.
In a statement released May 4, FDA leaders acknowledged the widespread fraud that is occurring in connection to antibody tests entering the market.
“We unfortunately see unscrupulous actors marketing fraudulent test kits and using the pandemic as an opportunity to take advantage of Americans’ anxiety,” wrote Anand Shah, MD, FDA deputy commissioner for medical and scientific affairs in a joint statement with Jeff E. Shuren, MD, director for the FDA’s Center for Devices and Radiological Health. “Some test developers have falsely claimed their serological tests are FDA approved or authorized. Others have falsely claimed that their tests can diagnose COVID-19 or that they are for at-home testing, which would fall outside of the policies outlined in our March 16 guidance, as well as the updated guidance.”
At the same time, FDA officials said they are aware of a “concerning number” of commercial serology tests that are being inappropriately marketed, including for diagnostic use, or that are performing poorly based on an independent evaluation by the National Institutes of Health, according to the May 4 statement.
In addition to tightening its requirements for test developers, the FDA also is introducing a more streamlined process to support EUA submissions and review. Two voluntary EUA templates for antibody tests are now available – one for commercial manufacturers and one for Clinical Laboratory Improvement Amendments-certified high-complexity labs seeking FDA authorization. The templates will facilitate the preparation and submission of EUA requests and can be used by any interested developer, according to the FDA.
To date, 12 antibody tests have been authorized under an individual EUA, and more than 200 antibody tests are currently the subject of a pre-EUA or EUA review, according to the FDA.
Many unknowns remain about antibody tests and how they might help researchers and clinicians understand and/or potentially treat COVID-19. Antibody tests may be able to provide information on disease prevalence and frequency of asymptomatic infection, as well as identify potential donors of “convalescent plasma,” an approach in which blood plasma containing antibodies from a recovered individual serves as a therapy for an infected patient with severe disease, Dr. Shah wrote in the May 4 statement.
“There are a lot of unanswered questions about this particular issue,” Dr. Hahn said during the press conference. “We need the data because we need to understand this particular aspect of the disease and put it as part of the puzzle around COVID-19.”
The U.S. Food and Drug Administration is tightening requirements for companies that develop COVID-19 antibody tests in an effort to combat fraud and better regulate the frenzy of tests coming to market.
The updated policy, announced May 4, requires commercial antibody test developers to apply for Emergency Use Authorization (EUA) from the FDA under a tight time frame and also provides specific performance threshold recommendations for test specificity and sensitivity. The revised requirements follow a March 16 policy that allowed developers to validate their own tests and bring them to market without an agency review. More than 100 coronavirus antibody tests have since entered the market, fueling a congressional investigation into the accuracy of tests.
When the March policy was issued, FDA Commissioner Stephen M. Hahn, MD, said it was critical for the FDA to provide regulatory flexibility for serology test developers, given the nature of the COVID-19 public health emergency and an understanding that the tests were not meant to be used as the sole basis for COVID-19 diagnosis.
“As FDA has authorized more antibody tests and validation data has become available, including through the capability at [the National Cancer Institute] the careful balancing of risks and benefits has shifted to the approach we have outlined today and our policy update,” Dr. Hahn said during a May 4 press conference.
The new approach requires all commercial manufacturers to submit EUA requests with their validation data within 10 business days from the date they notified the FDA of their validation testing or from the date of the May 4 policy, whichever is later. Additionally, the FDA has provided specific performance threshold recommendations for specificity and sensitivity for all serology test developers.
In a statement released May 4, FDA leaders acknowledged the widespread fraud that is occurring in connection to antibody tests entering the market.
“We unfortunately see unscrupulous actors marketing fraudulent test kits and using the pandemic as an opportunity to take advantage of Americans’ anxiety,” wrote Anand Shah, MD, FDA deputy commissioner for medical and scientific affairs in a joint statement with Jeff E. Shuren, MD, director for the FDA’s Center for Devices and Radiological Health. “Some test developers have falsely claimed their serological tests are FDA approved or authorized. Others have falsely claimed that their tests can diagnose COVID-19 or that they are for at-home testing, which would fall outside of the policies outlined in our March 16 guidance, as well as the updated guidance.”
At the same time, FDA officials said they are aware of a “concerning number” of commercial serology tests that are being inappropriately marketed, including for diagnostic use, or that are performing poorly based on an independent evaluation by the National Institutes of Health, according to the May 4 statement.
In addition to tightening its requirements for test developers, the FDA also is introducing a more streamlined process to support EUA submissions and review. Two voluntary EUA templates for antibody tests are now available – one for commercial manufacturers and one for Clinical Laboratory Improvement Amendments-certified high-complexity labs seeking FDA authorization. The templates will facilitate the preparation and submission of EUA requests and can be used by any interested developer, according to the FDA.
To date, 12 antibody tests have been authorized under an individual EUA, and more than 200 antibody tests are currently the subject of a pre-EUA or EUA review, according to the FDA.
Many unknowns remain about antibody tests and how they might help researchers and clinicians understand and/or potentially treat COVID-19. Antibody tests may be able to provide information on disease prevalence and frequency of asymptomatic infection, as well as identify potential donors of “convalescent plasma,” an approach in which blood plasma containing antibodies from a recovered individual serves as a therapy for an infected patient with severe disease, Dr. Shah wrote in the May 4 statement.
“There are a lot of unanswered questions about this particular issue,” Dr. Hahn said during the press conference. “We need the data because we need to understand this particular aspect of the disease and put it as part of the puzzle around COVID-19.”
AAD offers guidance for reopening practices
Dermatology practices that are resuming in-person services amid the ongoing pandemic face a range of questions and concerns when it comes to restarting patient visits.
To address these questions and considerations, the . Among the subjects covered are how practices can properly prepare clinic space to ensure staff and patients are safe and how to organize and educate employees on social distancing and safety protocols.
“All along, [we have] had guidance to help practices continue taking care of patients for essential services,” George J. Hruza, MD, immediate past president of the AAD, said in an interview. “This is really an extension of those as some states are opening up and relaxing some of the restrictions on elective procedures. We wanted to help our practices that are going to be reopening or going back to more regular services so they have a bit of a road map.”
The first step to reopening and resuming services is understanding your community’s COVID-19 prevalence and keeping updated on transmission information from local and state authorities, according to the AAD guidance. Keep in mind the federal government has specified that there should be a downward trajectory of documented cases over a 14-day period before opening practices to elective visits and procedures.
Preparing the practice through sanitation and reorganizing to minimize patient contact is also essential when reopening or resuming services. This includes cleaning and disinfecting based on World Health Organization standards, adding markings where necessary to maintain appropriate social distance, and supplying additional hand sanitizers and wipes for patients and staff, according to the guidance.
A top challenge as practices reopen is making patients feel comfortable with coming back to the practice for in-person care, said Dr. Hruza, who practices in St. Louis and is president of the Missouri State Medical Association. The AAD’s road map recommends informing patients about the reopening or reexpansion of elective procedures and communicating the steps the practice is taking to prevent COVID-19 infections and keep patients safe. It may be necessary to start with fewer patients than normal to adjust to the new safety steps until it becomes routine, according to the guidance.
Educating staff on social distancing and personal protective equipment (PPE) also is key. Staff should wear PPE for office staff meetings or sit at least 6 feet apart, according to the AAD guidelines. Practices also must determine what procedures may require additional PPE.
“If you’re doing some laser procedures, there may be a little more of a problem with tissue getting into the air or in the environment, so you may need to increase your protections a bit more,” Dr. Hruza said. “That may be a setting where you want to wear a N95 [mask].”
The AAD advises that practices be prepared to take necessary steps if a resurgence of COVID-19 cases in their community or clinic arises after reopening. Follow recommendations as they develop, be flexible, and be prepared to respond and reschedule patients, if necessary, Dr. Hruza said.
Dermatology practices that are resuming in-person services amid the ongoing pandemic face a range of questions and concerns when it comes to restarting patient visits.
To address these questions and considerations, the . Among the subjects covered are how practices can properly prepare clinic space to ensure staff and patients are safe and how to organize and educate employees on social distancing and safety protocols.
“All along, [we have] had guidance to help practices continue taking care of patients for essential services,” George J. Hruza, MD, immediate past president of the AAD, said in an interview. “This is really an extension of those as some states are opening up and relaxing some of the restrictions on elective procedures. We wanted to help our practices that are going to be reopening or going back to more regular services so they have a bit of a road map.”
The first step to reopening and resuming services is understanding your community’s COVID-19 prevalence and keeping updated on transmission information from local and state authorities, according to the AAD guidance. Keep in mind the federal government has specified that there should be a downward trajectory of documented cases over a 14-day period before opening practices to elective visits and procedures.
Preparing the practice through sanitation and reorganizing to minimize patient contact is also essential when reopening or resuming services. This includes cleaning and disinfecting based on World Health Organization standards, adding markings where necessary to maintain appropriate social distance, and supplying additional hand sanitizers and wipes for patients and staff, according to the guidance.
A top challenge as practices reopen is making patients feel comfortable with coming back to the practice for in-person care, said Dr. Hruza, who practices in St. Louis and is president of the Missouri State Medical Association. The AAD’s road map recommends informing patients about the reopening or reexpansion of elective procedures and communicating the steps the practice is taking to prevent COVID-19 infections and keep patients safe. It may be necessary to start with fewer patients than normal to adjust to the new safety steps until it becomes routine, according to the guidance.
Educating staff on social distancing and personal protective equipment (PPE) also is key. Staff should wear PPE for office staff meetings or sit at least 6 feet apart, according to the AAD guidelines. Practices also must determine what procedures may require additional PPE.
“If you’re doing some laser procedures, there may be a little more of a problem with tissue getting into the air or in the environment, so you may need to increase your protections a bit more,” Dr. Hruza said. “That may be a setting where you want to wear a N95 [mask].”
The AAD advises that practices be prepared to take necessary steps if a resurgence of COVID-19 cases in their community or clinic arises after reopening. Follow recommendations as they develop, be flexible, and be prepared to respond and reschedule patients, if necessary, Dr. Hruza said.
Dermatology practices that are resuming in-person services amid the ongoing pandemic face a range of questions and concerns when it comes to restarting patient visits.
To address these questions and considerations, the . Among the subjects covered are how practices can properly prepare clinic space to ensure staff and patients are safe and how to organize and educate employees on social distancing and safety protocols.
“All along, [we have] had guidance to help practices continue taking care of patients for essential services,” George J. Hruza, MD, immediate past president of the AAD, said in an interview. “This is really an extension of those as some states are opening up and relaxing some of the restrictions on elective procedures. We wanted to help our practices that are going to be reopening or going back to more regular services so they have a bit of a road map.”
The first step to reopening and resuming services is understanding your community’s COVID-19 prevalence and keeping updated on transmission information from local and state authorities, according to the AAD guidance. Keep in mind the federal government has specified that there should be a downward trajectory of documented cases over a 14-day period before opening practices to elective visits and procedures.
Preparing the practice through sanitation and reorganizing to minimize patient contact is also essential when reopening or resuming services. This includes cleaning and disinfecting based on World Health Organization standards, adding markings where necessary to maintain appropriate social distance, and supplying additional hand sanitizers and wipes for patients and staff, according to the guidance.
A top challenge as practices reopen is making patients feel comfortable with coming back to the practice for in-person care, said Dr. Hruza, who practices in St. Louis and is president of the Missouri State Medical Association. The AAD’s road map recommends informing patients about the reopening or reexpansion of elective procedures and communicating the steps the practice is taking to prevent COVID-19 infections and keep patients safe. It may be necessary to start with fewer patients than normal to adjust to the new safety steps until it becomes routine, according to the guidance.
Educating staff on social distancing and personal protective equipment (PPE) also is key. Staff should wear PPE for office staff meetings or sit at least 6 feet apart, according to the AAD guidelines. Practices also must determine what procedures may require additional PPE.
“If you’re doing some laser procedures, there may be a little more of a problem with tissue getting into the air or in the environment, so you may need to increase your protections a bit more,” Dr. Hruza said. “That may be a setting where you want to wear a N95 [mask].”
The AAD advises that practices be prepared to take necessary steps if a resurgence of COVID-19 cases in their community or clinic arises after reopening. Follow recommendations as they develop, be flexible, and be prepared to respond and reschedule patients, if necessary, Dr. Hruza said.