Is Government Practicing Medicine Without License?

[Reply from Dr. Michael Strickland to a question posed, and a noted attorney’s citation of a Supreme Court decision (NYLCARE) indicating otherwise]

The government (and swarms of others, health insurers first and foremost) ARE practicing medicine without license.  If the Supreme Court says otherwise, then they are either wrong, or the legislature is wrong in the law it is writing.  Highly trained and experienced medical professionals are, overnight (although creeping in very slowly for years before the cultural revolution of MAObama – and I say this as one who voted for the President, and initially supported healthcare reform) being directed, day by day and minute by minute, how to practice our profession, like puppets on strings, by untrained individuals who do not assume responsibility for the consequences, as do the patient and the physician.  How can it be practice without license to step into the exam room or the OR as an unstrung actor and perform these actions, and not to string and restrain highly trained actors, and perform these exact same actions on living feeling patients at their most vulnerable, and with the exact same consequences?  It is no different, regardless of legal technicality.  If the law or the court say slavery is right, it is still wrong!  I will share the stories of a number of cases, where patients have unnecessarily suffered and died (not to mention vast sums of money wasted) as a result, if desired.

The issues are much more than just coverage or denial of coverage for a prescribed test or treatment.  I suppose that is a contract matter between the contracting parties of insurer and insured.  I understand doctors, like anyone else, cannot be handed a blank check with someone else’s money.  I have published a simple, straightforward, efficient and effective method for interacting with insurers on this issue, which I am also happy to share.  If the payer wants information and input on what they are paying for, in an efficient and mutually respectful manner like the one I have outlined, I am very willing, but if I am forced to turn my attention from my patients, several times a day, every day, and do things like go to their website, log in to their system, re-type the same information I have already entered in my own system, or – get on their phone system, wade through multiple “Press 1 for” menus, talk with multiple people, wait on hold, then get to the person I am supposed to be talking with, who may or may not be medically trained or of the same specialty, but who certainly has never seen the patient themselves, and has usually not read the patient encounter note I have sent them, which of course outlines in detail why I am ordering.. this process often takes 30 minutes or more, in the complicated patients I see, and may be repeated several times/day.  I am a pilot, and when I go to an airport, I often see a sign on the gate:  “If you trespass onto this property, and interfere with a pilot in control of an aircraft, you will be prosecuted.”  Why not at the clinic?

I am certain this issue affects some specialties much more than others currently.  I believe this reflects ‘divide and conquer’.  When I asked my academic emergency physician stepson about prior authorization, he proudly replied: “We are Emergency.  We don’t have time to ask anyone to okay our orders!”  Drs. Venu and Vinay Julapalli told me about their experience with their mother’s recent ruptured cerebral aneurysm.  They said the acute critical care was outstanding, but when they got into the subacute stabilization period, things began to go south quickly.

As a primary care physician, if I remain in the mainstream system, I am told how many patients I will see per hour, how I will document, have to ‘prior authorize’ my orders, as though I were a medical student or intern again, and that I must, on an on-going yearly basis and at the cost of thousands of dollars, be re-certified to make sure I still know what I’m doing.  Then I read over and over about the “shortage of primary care doctors”.  Duh!!  Meanwhile, we are told that nurse practitioners, with training equivalent to a newly minted intern, nine months into the 3+ years of his or her postgraduate training, and with no ongoing recertification process, can do my job just as well!  (I have worked with excellent NPs.  We work best, when we work together.)  My wife, as an oncologist in the same hospital as me, is to dictate her notes as she always has, and is much less interfered with.  The ER and critical care docs continue to write and execute their orders as they always have, while I and my subacute and chronic care colleagues must play an endless and daily game of “mother-may-I”.  I don’t know why we cannot sue for discrimination.  In any case, this has a very real and detrimental impact on our ability to help our patients, and does in fact constitute practice without license, as others are determining our practice.

When the law exempts insurers from anti-trust law, as it does (although there is a provision of the McCarran-Ferguson Act that says that federal exemption is void if they are acting in a monopsonistic fashion), while the rest of us are threatened with civil and criminal anti-trust action if we discuss our business over a cup of coffee, and we find ourselves with 1-3 payers dominating our regional markets, such that we, as smaller practices, or even larger ones, are routinely handed take it or leave it contracts, then the deck has been severely slanted.

The greatest issue in my own (internal medicine) practice, which is primarily a cerebral activity, has been this government’s dictation of the structure of the main tool I use in performing my job: the patient record.  (Note that I have used electronic records since 2005.  Those designed by physicians, in collaboration with IT professionals, with patient care in mind, were excellent.  Those mandated by the government, and therefore designed without concern for the input of practicing physicians, were bad or worse for patient care.)  I see a new patient, often one with multiple, intractable problems, which may have eluded diagnosis or successful treatment, and I must do a detective job, to try to locate and fit together the jumbled pieces of the puzzle, into what will hopefully and finally become a clear, and therefore useful, picture, much like (I hope) this piece today.  These initial workup notes become the foundation for what is done in the months and years to come, exactly like a home or building, and exactly in the same way, if the foundation is a jumbled mess, you can be sure that the rest of the building structure will follow suit.  Can you image the documents we would be creating as we participate in this physician and patient movement, and therefore their effectiveness, if we were not allowed to write in normal conversation as we wish, but rather were required by force to use preplanned click boxes, drop down lists and templates designed by people who did not have our passion nor experience?  This has turned the notes of the best, most eloquent specialist medical colleagues of mine into the disjointed, barely readable notes of third year medical students, and much worse, after being so hamstrung and distracted day after day for years now, even when I speak with them on the phone, their thinking is beginning to sound the same way!

Will the courts, the legislatures, the media and others who support the current healthcare structure do the same in their own work?

Finally (and I’ll shut up for now;) our hospitals, with administrators paid six and seven figure salaries, and paid by the government 2-3x what we private docs are paid for the same services, are declared ‘non-profit’ and relieved of paying taxes!  There is no chance that we can compete or survive in this system as it stands, and there is no chance that I am going to cooperate in my own demise by playing along on such a vertically slanted playing field.  The government’s regulation of medicine should be like its rules of the road: simple, straightforward, understandable without a law degree, designed to keep us from running over each other.  Otherwise, please get out of the way, and let us drive our vehicles to where we want to go.

Michael Strickland, MD

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