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Editorials

Last 50 Editorials

(Click on title to be directed to posting, most recent listed first)

A Labor Day Warning
Keep Your Politics Out of My Practice
The Highest Paid Clerk
The VA Mission Act: Funding to Fail?
What the Supreme Court Ruling on Binding Arbitration May Mean to
   Healthcare 
Kiss Up, Kick Down in Medicine 
What Does Shulkin’s Firing Mean for the VA? 
Guns, Suicide, COPD and Sleep
The Dangerous Airway: Reframing Airway Management in the Critically Ill 
Linking Performance Incentives to Ethical Practice 
Brenda Fitzgerald, Conflict of Interest and Physician Leadership 
Seven Words You Can Never Say at HHS
Equitable Peer Review and the National Practitioner Data Bank 
Fake News in Healthcare 
Beware the Obsequious Physician Executive (OPIE) but Embrace Dyad
   Leadership 
Disclosures for All 
Saving Lives or Saving Dollars: The Trump Administration Rescinds Plans to
Require Sleep Apnea Testing in Commercial Transportation Operators
The Unspoken Challenges to the Profession of Medicine
EMR Fines Test Trump Administration’s Opposition to Bureaucracy 
Breaking the Guidelines for Better Care 
Worst Places to Practice Medicine 
Pain Scales and the Opioid Crisis 
In Defense of Eminence-Based Medicine 
Screening for Obstructive Sleep Apnea in the Transportation Industry—
   The Time is Now 
Mitigating the “Life-Sucking” Power of the Electronic Health Record 
Has the VA Become a White Elephant? 
The Most Influential People in Healthcare 
Remembering the 100,000 Lives Campaign 
The Evil That Men Do-An Open Letter to President Obama 
Using the EMR for Better Patient Care 
State of the VA
Kaiser Plans to Open "New" Medical School 
CMS Penalizes 758 Hospitals For Safety Incidents 
Honoring Our Nation's Veterans 
Capture Market Share, Raise Prices 
Guns and Sleep 
Is It Time for a National Tort Reform? 
Time for the VA to Clean Up Its Act 
Eliminating Mistakes In Managing Coccidioidomycosis 
A Tale of Two News Reports 
The Hands of a Healer 
The Fabulous Fours! Annual Report from the Editor 
A Veterans Day Editorial: Change at the VA? 
A Failure of Oversight at the VA 
IOM Releases Report on Graduate Medical Education 
Mild Obstructive Sleep Apnea: Beyond the AHI 
Multidisciplinary Discussion (MDD) in Interstitial Lung Disease; Some
   Reflections 
VA Administrators Breathe a Sigh of Relief 
VA Scandal Widens
Don’t Fire Sharon Helman-At Least Not Yet 

 

For complete editorial listings click here.

The Southwest Journal of Pulmonary and Critical Care welcomes submission of editorials on journal content or issues relevant to the pulmonary, critical care or sleep medicine.

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Monday
Sep032018

A Labor Day Warning

Today is Labor Day, a public holiday honoring the American labor movement and the contributions that workers have made to the strength, prosperity, laws, and well-being of the country. Though this holiday dates back to the end of the nineteenth century, the concept of organized labor is under increasing attack. While many of the physician and nurse readers may think that “labor” does not apply to them, after all they are professionals, management would likely disagree.

In Arizona v. Maricopa County Medical Society in 1982, the Supreme Court ruled that when physicians negotiate collectively with insurers about fees, and as a consequence do not compete with one another, such negotiations represent a horizontal agreement among competitors to fix prices (1). This was based on the concept of physicians being independent from hospitals or healthcare systems. However, more physicians are now hospital employed which has been in no small part due to cuts in physician compensation by Medicare with the insurers rapidly following. This increase in physician employment has been associated with increased billings leading to increased profits and decreased physician compensation (2,3).

The Nation’s largest healthcare system is the Department of Veterans Affairs (VA). The pace of VA hiring has not kept pace with the growth of patients leading to prolonged wait times first reported in Phoenix (4). Two recent decisions will likely affect physician hiring and retention at the VA. First, President Trump announced cancellation of the the planned salary increase for civilian employees (5). Second, VA Secretary Robert Wilkie, cancelled collective bargaining rights when it comes to professional conduct and patient care by VA providers (6). In the private sector, hospital employed physicians seem to becoming increasingly discontented because of 1. Having to deal with a lot of rules; 2. Having to deal with a large bureaucracy. 3. Not having a staff under their control; and 4. Having little control over compensation models (7).

All in all, this does not bode well for physicians or patients. The data suggest that the Medicare has helped destroy independently employed physicians while over compensating hospital employed physicians whose fees are collected by the hospital (7). This trend will likely continue until Medicare realizes that the existence of the independent practitioner keeps healthcare costs down. By financially squeezing the independent practitioner Medicare’s actions lead to decreased competition and increased healthcare costs.

Richard A. Robbins, MD

Editor, SWJPCC

References

  1. Halper HR. Arizona v. Maricopa County: a stern antitrust warning to healthcare providers. Healthc Financ Manage. 1982 Oct;36(10):38-42. [PubMed]
  2. Lowes R. Hospital-employed physicians cost Medicare more, study says. Medscape. November 16, 2017. Available at: https://www.medscape.com/viewarticle/888772#vp_1 (accessed 9/3/18).
  3. Kane L. Medscape physician compensation report 2018. Medscape. April 11, 2018. Available at: https://www.medscape.com/slideshow/2018-compensation-overview-6009667#12 (accessed 9/3/18).
  4. Davidson J. VA doctor shortage fueled by management issues, poor pay The Washington Post. July 16, 2018. Available at: https://www.washingtonpost.com/news/powerpost/wp/2018/07/16/va-doctor-shortage-fueled-by-management-issues-poor-pay/?utm_term=.070275d06e2a  (accessed 9/3/18).
  5. Liptak K. Trump cancels pay raises for federal employees. CNN. August 31, 2018. Available at: https://www.cnn.com/2018/08/30/politics/trump-cancels-federal-employee-pay-raises/index.html (accessed 9/3/18).
  6. Department of Veterans Affairs. VA secretary clarifies collective bargaining authority for patient care. August 29, 2018. Available at: https://www.managedhealthcareconnect.com/content/va-secretary-clarifies-collective-bargaining-authority-patient-care?hmpid=cmlja3JvYmJpbnNAY294Lm5ldA== (accessed 9/3/18).
  7. Mertz GJ. Physicians employed by hospitals. Medscape. January 01, 2018. Available at: https://www.medscape.com/viewarticle/891120#vp_1 (accessed 9/3/18).
  8. Lowes R. Hospital-employed physicians cost medicare more, study says. Medscape. November 16, 2017. Available at: https://www.medscape.com/viewarticle/888772 (accessed 9/3/18).

Cite as: Robbins RA. A labor day warning. Southwest J Pulm Crit Care. 2018;17(3):95-6. doi: https://doi.org/10.13175/swjpcc106-18 PDF 

Friday
Jul272018

Keep Your Politics Out of My Practice

“Nothing so needs reforming as other people's habits. Fanatics will never learn that, though it be written in letters of gold across the sky.”

-Mark Twain

Politicians have repeatedly inserted themselves into exam rooms and under hospital gowns, telling doctors what they can and cannot discuss with patients; forcing providers to recite scripted medical advice they know to be factually inaccurate; and even instructing physicians to prioritize the financial interests of private companies over the health of their patients (1,2).

In 2011 Florida passed a sweeping law barring doctors from routinely asking patients whether they had guns in their homes, counseling them on common-sense firearm storage measures or recording any information about gun ownership in their medical files. Four states (Pennsylvania, Ohio, Colorado, and Texas) have passed legislation relating to disclosure of information about exposure to chemicals used in the process of hydraulic fracturing (“fracking”). Some new laws require physicians to discuss specific practices that may not be necessary or appropriate at the time of a specific encounter with a patient. For example, New York enacted legislation in 2010 that requires physicians and other health care practitioners to offer terminally ill patients “information and counseling regarding palliative care and end-of-life options appropriate to the patient, including . . . prognosis, risks and benefits of the various options; and the patient's legal rights to comprehensive pain and symptom management.” Still other laws would require physicians to provide — and patients to receive — diagnostic tests or medical interventions whose use is not supported by evidence, including tests or interventions that are invasive and required to be performed even without the patient's consent. In Virginia, a bill requiring women to undergo ultrasonography before having an abortion was passed despite objections from the American College of Physicians. Arizona required physicians to tell women that drug-induced abortions may be “reversible” a claim that is unsupported by scientific evidence. A growing number of states have instituted mandatory waiting periods for abortions when there is no apparent medical need.

Healthcare providers who do not observe with these laws could face fines, license revocation, and even jail time for failure to comply. Fortunately, many have been struck down by the courts. However, a new tact for some has been to allow objection to certain types of medical treatment such as abortions based on the healthcare provider’s religious or moral beliefs. These providers have a new defender in the Trump administration (3). The top civil rights official at the Department of Health and Human Services (HHS) is creating the Division of Conscience and Religious Freedom to “protect” doctors, nurses and other health care workers who refuse to take part in procedures like abortion or treat certain people because of moral or religious objections. "Never forget that religious freedom is a primary freedom, that it is a civil right that deserves enforcement and respect," said Roger Severino, an anti-abortion Catholic lawyer who directs HHS's Office for Civil Rights. Here in Arizona healthcare professionals are not required to provide services that conflict with their religious beliefs, including abortion, abortion-inducing medication, emergency contraception, end of life care, and collection of umbilical cord blood (4).

Two recent incidents in Arizona involving pharmacists have brought this law under scrutiny (5). Hilde Hall, a transgender woman in Arizona, was allegedly denied hormone prescriptions by a CVS pharmacist in Fountain Hills. She was unable to fill the prescription at that location and despite her doctor requesting it, the pharmacist refused to transfer the order. CVS apparently fired the pharmacist. This comes within weeks of the case of Nicole Arteaga, who was denied medication for a nonviable pregnancy by a Walgreens pharmacist in Peoria, Brian Hreniuc PharmD. The Arizona State Board of Pharmacy has agreed to review Ms. Arteaga’s complaint against Dr. Hreniuc.

The Arizona Republic put it well. “The person in the white coat behind the counter should be there to help. To answer questions and ensure that the patient understands what the medicine is, how to take it and is aware of possible side-effects. Not to humiliate, question or refuse to serve the client” (5).  Assuming the accounts in the Arizona Republic are accurate, both pharmacists committed several transgressions of the code of ethics of the American Pharmacists Association including a commitment to the patient’s welfare; protecting the dignity of the patient; serving the patient in a private and confidential manner; respecting the autonomy and dignity of each patient; promoting the right of self-determination; recognizing individual self-worth; and acknowledging that colleagues and other health professionals may differ in the beliefs and values they apply to the care of the patient (6).

Whether the Arizona State Board of Pharmacy will decide to enforce professional standards or uphold a politically motivated law is unclear. At a time when pharmacists seek to extend their scope of practice, the behavior of these two pharmacists make one question who they would serve if given more responsibility-the patient or themselves? Also disappointing has been the lack of condemnation from other pharmacists and pharmacy professional groups such as the Arizona Pharmacists Association. This lack of action makes expansion of the scope of practice questionable. We as healthcare providers are entitled to our politics just like anyone else but the line is crossed when you impose your politics on me or my patients.  

Richard A. Robbins, MD*

Editor, SWJPCC

References

  1. Weinberger SE, Lawrence HC 3rd, Henley DE, Alden ER, Hoyt DB. Legislative interference with the patient-physician relationship. N Engl J Med. 2012 Oct 18;367(16):1557-9. [CrossRef] [PubMed]
  2. Rampell C. Politicians are invading our medical exam rooms. Washington Post. October 19, 2015. Available at: https://www.washingtonpost.com/opinions/politicians-playing-doctor/2015/10/19/7b1af280-769e-11e5-bc80-9091021aeb69_story.html?utm_term=.ae6df6d65643 (accessed 7/22/18).
  3. Kodjak A. Trump admin will protect health workers who refuse services on religious grounds. NPR. January 18, 2018. Available at: https://www.npr.org/sections/health-shots/2018/01/18/578811426/trump-will-protect-health-workers-who-reject-patients-on-religious-grounds (accessed 7/22/18).
  4. Center for Arizona Policy. Arizona religious freedom laws. January 2014. Available at: http://www.azpolicypages.com/religious-liberty/arizona-religious-liberty-laws/ (accessed 7/22/18).
  5. Price TF. CVS pharmacist who refused transgender patient's prescription abused Arizona law. Arizona Republic. July 20, 2018. Available at: https://www.azcentral.com/story/opinion/op-ed/2018/07/20/hilde-hall-transgender-prescription-denied-cvs-pharmacy/809450002/ (accessed 7/22/18).
  6. American Pharmacists Association. Code of Ethics. October 27, 1994. Available at: https://www.pharmacist.com/code-ethics (accessed 7/22/18).

Cite as: Robbins RA. Keep your politics out of my practice. Southwest J Pulm Crit Care. 2018;17(1):42-4. doi: https://doi.org/10.13175/swjpcc096-18 PDF 

*The views expressed are the author's and do not necessarily represent those of the American Thoracic Society or its affiliates.

Sunday
Jul152018

The Highest Paid Clerk

Physicians are the highest paid clerks in healthcare, but we only have ourselves to blame. At one time charts were often unavailable or illegible and x-rays or outside medical records were often missing. How we longed to have searchable records available. Now we have them but digital medicine has come at a cost. For every hour physicians spend with patients nearly two hours are spent with the electronic healthcare record (EHR) (1). Nurses in the hospital spend nearly as much time with the EHR (2). If a picture is worth a thousand words, the drawing by a 7-year-old depicting her visit to the doctor may say it best with the doctor staring at a computer with his back to the patient (Figure 1).

Figure 1. Drawing by a 7-year-old of her visit to the doctor (3).

The EHR has done some very positive things. It has reduced medication errors; it assembles laboratory and imaging information; it allows visualization of X-rays; the notes are always legible; and although introduction of an EHR results in an initial increase in mortality, there appears to be an eventual reduction (3,4). However, EHRs were not built to enhance patient care but to augment billing. Despite the effort that goes into collecting and recording data, much of the data is unseen or ignored (3). Our daily progress notes have become cut-and-paste spam monsters that are mostly irrelevant and nearly impossible to interpret. The diagnoses can be difficult to locate, the documentation for the diagnosis is often incomprehensible, and the plan is unintelligible. Of course, billings have increased but not due to improved care, but because of the electronic gobbledygook that serves as a record. 

Several other recent examples illustrate that doctors are viewed and being used mainly as clerks. I recently, applied to renew my hospital privileges. This involved completing about a 25-page on-line form to including uploaded documentation of all licenses, board certifications, CME hours, a TB skin test and a DTaP vaccination. For this privilege, not only are medical staff dues paid but a $100 fee needs to accompany the application. Pity the poor physician who goes to several hospitals. In our office every piece of paperwork is scanned into the computer and signed by the physician. This includes the insurance forms, notes from co-managing physicians, the prescriptions that I have written and signed, the pulmonary function tests that I have interpreted and signed, the scored Epworth sleepiness scales that the patient has completed and are included in my note, etc.

A recent court decision may further increase the physician clerical load. The Pennsylvania Supreme Court in a 4-to-3 decision ruled that a physician may not "fulfill through an intermediary the duty to provide sufficient information to obtain a patient's informed consent” (5). What this essentially means is that a physician, presumably the operating surgeon, must obtain an informed consent which usually involves signing a piece of paper. However, signing an informed consent form does not assure informed consent and the form’s main purpose is to protect the hospital or surgical center against litigation by shifting culpability to the surgeon. Now a surgeon must not only inform the patient about the operation but must have a form signed to protect the hospital and discuss every adverse outcome and all alternatives, a clearly impossible task. Will it be long before an unintelligible informed consent is required before prescribing an aspirin?

Many physicians, including myself, have resorted to voice recognition software using a template to generate notes due to increasing documentation requirements. Although this seems to decrease documentation time and increase face-to-face time with the patient, a recent article points out that voice recognition makes mistakes (6). Although there is little doubt that this is true, other documentation methods have their problems such as typographical errors, spelling errors, and omissions in documentation. Hopefully, a hullabaloo will not be made over voice recognition mistakes like was made over copying-and-pasting (7,8). Copy-and-paste errors seem to be mostly trivial and the information they contain is mostly for billing and probably does not need repeating in the medical record in the first place.

Physicians have cowered too long to insurer or hospital interests to avoid being labeled as “disruptive”. Many physicians would be happy to carefully proof every note or spend an hour getting the hospital’s informed consent form signed, but only if adequately compensated. Whining about physician lack of autonomy and increased clerical load either in the doctor’s lounge or in the pages of a medical journal will have no effect. The trend of shifting clerical workload to the healthcare providers will likely continue until either physicians refuse to do these clerical tasks or receive fair compensation for their services.

Richard A. Robbins, MD

Editor, SWJPCC

References

  1. Verghese A. How tech can turn doctors into clerical workers. NY Times. May 16, 2018. Available at: https://www.nytimes.com/interactive/2018/05/16/magazine/health-issue-what-we-lose-with-data-driven-medicine.html (accessed 7/13/18).
  2. Stokowski LA. Electronic nursing documentation: Charting new territory. Medscape. September 12, 2013. Available at: https://www.medscape.com/viewarticle/810573_1 (accessed 7/13/18).
  3. Toll E. A piece of my mind. The cost of technology. JAMA. 2012 Jun 20;307(23):2497-8.
  4. Lin SC, Jha AK, Adler-Milstein J. Electronic health records associated with lower hospital mortality after systems have time to mature. Health Aff (Millwood). 2018 Jul;37(7):1128-35. [CrossRef] [PubMed]
  5. Fernandez Lynch H, Joffe S, Feldman EA. Informed consent and the role of the treating physician. N Engl J Med. 2018 Jun 21;378(25):2433-8. [CrossRef] [PubMed]
  6. Zhou L, Blackley SV, Kowalski L, et al. Analysis of errors in dictated clinical documents assisted by speech recognition software and professional transcriptionists.  JAMA Network Open. 2018;1(3):e180530. [CrossRef]
  7. Centers for Medicare and Medicaid Services. Electronic Healthcare Provider. December 2015. Available at: https://www.cms.gov/Medicare-Medicaid-Coordination/Fraud-Prevention/Medicaid-Integrity-Education/Downloads/docmatters-ehr-providerfactsheet.pdf (accessed 7/13/18).
  8. The Joint Commission. Preventing copy-and-paste errors in EHRs. QuickSafety. February 2015. Available at: https://www.jointcommission.org/assets/1/23/Quick_Safety_Issue_10.pdf (accessed 7/13/18).

Cite as: Robbins RA. The highest paid clerk. Southwest J Pulm Crit Care. 2018;17(1):32-4. doi: https://doi.org/10.13175/swjpcc089-18 PDF 

Friday
Jun082018

The VA Mission Act: Funding to Fail?

Yesterday on D-Day, the 74th anniversary of the invasion of Normandy, President Trump signed the VA Mission Act. The law directs the VA to combine a number of existing private-care programs, including the so-called Choice program, which was created in 2014 after veterans died waiting for appointments at the Phoenix VA (1). During the signing Trump touted the new law saying “there has never been anything like this in the history of the VA” and saying that veterans “can go right outside [the VA] to a private doctor”-but can they? Although the bill authorizes private care, it appropriates no money to pay for it. Although a bipartisan plan to fund the expansion is proposed in the House, the White House has been lobbying Republicans to vote the plan down (2). Instead Trump has been asking Congress to pay for veteran’s programs by cutting spending elsewhere (2).

We in Arizona are very familiar with what is likely ahead if the VA Mission Act goes unfunded. One example is Arizona Child Protective Services (CPS). After enduring years of funding cuts after the 2007 recession, many CPS employees left and the caseloads of those remaining became unmanageable. In 2013 a scandal erupted when it was uncovered that over 6000 cases of child abuse or neglect were not investigated (3). Many legislators who were responsible for the funding cuts blamed poor management and eventually CPS was reformed as a separate agency.

Arizona schools may be going to the same direction as CPS. After reducing funding to the point that Arizona schools spend less per pupil that any state in the nation, Governor Doug Ducey and many of the Arizona legislators favor charter/private schools (4). However, tax dollars are funneled away from public schools by the expansion of the charter/private school voucher system (4).

The VA may also be getting this “funding to fail” treatment with the VA Mission Act. If confirmed, Veterans Affairs Secretary nominee, Robert Wilkie, would lead the effort to implement the VA Mission Care Act (2). With no funding Wilkie will undoubtedly need to take money from other VA programs leading to their failure. Down the road, he can expect criticism for the failed programs and be fired by a tweet as did the previous Secretary for Veterans Affairs (5).

Un- or under-funded mandates have become a favorite of politicians who take credit for voting for something good but avoid the blame of voting to pay for it. However, at the moment the economy seems sufficiently strong that Congress enacted a $1.5 trillion tax cut and can fund an expensive border wall. The VA Mission Act can provide the healthcare the VA has been unable to perform but only if accompanied by the $50 billion funding it requires to be successful.

Richard A. Robbins, MD

Editor, SWJPCC

References

  1. Slack D. Trump signs VA law to provide veterans more private health care choices. USA TODAY. June 6, 2018. Available at: https://www.usatoday.com/story/news/politics/2018/06/06/trump-signs-law-expanding-vets-healthcare-choices/673906002/ (accessed 6/7/18)
  2. Werner E, Rein L. Trump signs veterans health bill as White House works against bipartisan plan to fund it. Washington Post. June 6, 2018. Available at: http://www.chicagotribune.com/news/nationworld/politics/ct-trump-veterans-health-bill-20180606-story.html (accessed 6/7/18)
  3. Santos F. Thousands of ignored child abuse allegations plague Arizona welfare agency. NY Times. December 10, 2013. Available at: https://www.nytimes.com/2013/12/11/us/thousands-of-ignored-abuse-allegations-plague-arizona-welfare-agency.html (accessed 6/7/18)
  4. Alan Singer. How charter schools buy political support. Huffington Post. August 10, 2017. Available at: https://www.huffingtonpost.com/entry/how-charter-schools-buy-political-support_us_598c3149e4b08a4c247f287d (accessed 6/7/18).
  5. Robbins RA. What does Shulkin's firing mean for the VA? Southwest J Pulm Crit Care. 2018;16(3):172-3. [CrossRef]

Cite as: Robbins RA. The VA mission act: Funding to fail? Southwest J Pulm Crit Care. 2018;16(6):334-5. doi: https://doi.org/10.13175/swjpcc074-18 PDF 

Tuesday
May222018

What the Supreme Court Ruling on Binding Arbitration May Mean to Healthcare 

The Supreme Court ruled Monday (5/21/18) that companies can prohibit workers from using class-action litigation to resolve workplace disputes. In a 5-4 decision on three consolidated cases, the justices said companies can include clauses in employment contracts that require employees to use individual arbitration to resolve disputes.

In one of the cases, Jacob Lewis sued Epic, the electronic health record vendor, for denying him and others overtime pay. Epic contended that its contracts prohibited employees from such group litigation and required them to individually undergo arbitration. The Supreme Court ultimately agreed with Epic, saying that companies can require employees to resolve disputes individually outside of court, even if the situation affects many people.

"The virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace" if workers gathered their complaints under class action lawsuits, Justice Neil Gorsuch wrote for the court (1). "This is a major victory for employers," said Richard Glovsky, co-chair of Locke Lord's labor and employment practice group (1). "The court's ruling clears the path, and a judicial logjam, to employers restricting the rights of employees to participate in class actions and who insist that they have their day in court."

Justice Ruth Bader Ginsburg read her dissent from the bench, a sign of profound disagreement. In her written dissent, she called the majority opinion “egregiously wrong.” In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers.” Binding arbitration seems to favor the defendant with lower win rates and lower awards for the plaintiff compared to litigation (3). Arbitration clauses in employment contracts are a recent innovation, but they have become quite common. In 1992, Justice Ginsburg wrote, only 2 percent of non-unionized employers used mandatory arbitration agreements, while 54 percent do so today (2). Under those contracts, Justice Ginsburg wrote, it is often not worth it and potentially dangerous to pursue small claims individually. “By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation,” she wrote.

The contracts may also encourage misconduct, Justice Ginsburg wrote (2). “Employers, aware that employees will be disinclined to pursue small-value claims when confined to proceeding one-by-one, will no doubt perceive that the cost-benefit balance of underpaying workers tips heavily in favor of skirting legal obligations,” she wrote, adding that billions of dollars in underpaid wages are at issue.

Although one of the Supreme Court cases involved Epic, the decision doesn't single out healthcare companies and won't have a unique impact on the industry. Arbitration clauses with class waivers are now commonplace in contracts for things like cellphones, credit cards, and rental cars. Generally, binding arbitration has been seldom used in healthcare, and when used, it has been between patients and nursing homes, and to a much lesser extent, between patients and hospitals or physicians. Arbitration has rarely been used in healthcare disagreements between employers and employees. However, it seems likely as healthcare organizations become larger and increasingly consolidate healthcare providers as employees this will likely change. Currently, many physicians, including myself, must sign an agreement prohibiting litigation against the hospital as conditions for hospital privileging. This Supreme Court ruling continues the trend of favoring corporations at the expense of individuals (4).

Justice Ginsburg called on Congress to fix the problem of forced binding arbitration. It seems unlikely that this will be immediately forthcoming. However, when Congressional makeup changes as it always does, the members of Congress may wish to also include healthcare providers, not as professionals, but as the employees they are increasingly becoming. 

Richard A. Robbins, MD

Editor, SWJPCC

References

  1. Arndt RZ. Supreme court rules in favor of Epic in arbitration case. Modern Healthcare. May 21, 2018. Available at: http://www.modernhealthcare.com/article/20180521/NEWS/180529998 (accessed 5/21/18).
  2. Liptak A. Supreme court upholds workplace arbitration contracts barring class actions. NY Times. May 21, 2018. Available at: https://www.nytimes.com/2018/05/21/business/supreme-court-upholds-workplace-arbitration-contracts.html (accessed 5/21/18).
  3. Alexander J.S. Colvin AJS. An empirical study of employment arbitration: Case outcomes and processes. Journal of Empirical Legal Studies 2011;8(1):1-23. Available at: https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?referer=http://scholar.google.com/&httpsredir=1&article=1586&context=articles (accessed 5/22/18).
  4. Liptak A. Corporations find a friend in the Supreme Court. NY Times. May 4, 2013. Available at: https://www.nytimes.com/2013/05/05/business/pro-business-decisions-are-defining-this-supreme-court.html (accessed 5/22/18).

Cite as: Robbins RA. What the Supreme Court ruling on binding arbitration may mean to healthcare. Southwest J Pulm Crit Care. 2018;16(5):283-4. doi: https://doi.org/10.13175/swjpcc068-18 PDF