September 26, 2016

An anesthesiologist filed a $9 million whistleblower retaliation and wrongful termination lawsuit against his former employer in July alleging he had been fired for voicing concerns about hospital policies and procedures that required anesthesiologists to cut corners on patient safety.  We have no opinion on the merits of the lawsuit, nor any information supporting or refuting the plaintiff’s allegations, but physicians and hospitals might consider the issues raised by this scenario.

The suit alleges the anesthesiologist, a clinician with 19 years of experience who managed adult, pediatric and obstetric cases, was retaliated against during his second year at the institution for questioning an approach to perioperative care that favored production over safety.  According to the complaint, administrators told him that co-workers had complained about him and that he should complete a communication course, which he did; but seven months later, the hospital told him his expiring contract would not be renewed.  The case has not yet gone to trial.  (We are following it and will provide updates as information becomes available.)

Among other things, the lawsuit alleges that, in order to hasten discharges, the hospital instructed anesthesiologists to withhold preoperative Versed and postoperative Dilaudid, and to give only the minimum dose of fentanyl in surgery.  The policy of skimping on anesthesia to bolster production and cut costs allegedly extended to pediatric patients as well.   

Another policy required surgical patients to be brought to the operating room by 7:30 a.m., even if more time was needed for preoperative evaluation and preparation.  The anesthesiologist was occasionally late when attending to a patient’s medical needs or responding to a request for more information.  In a meeting, the chief of anesthesia reportedly stressed the importance of having patients in the OR by the deadline, telling the anesthesiologists to “take the patient in with their street clothes on if you have to.”

The anesthesiologist expressed concern to hospital administration when he was assigned to supervise the care of four patients simultaneously.  He told them, “I would not want my child to have surgery under that anesthesia model.”

The hospital allegedly breached standards regarding the supervision of CRNAs as well.  In an email, the director of obstetric anesthesia asked the anesthesiologists not to go into the OR during cesarean sections unless it was absolutely necessary.  The anesthesiologist raised concerns about these instructions, noting that anesthesiologists supervising CRNAs should feel free to be in the OR as they deem necessary in order to provide appropriate supervision and ensure safety.

What We Know

The suit raises interesting questions about hospital employment and physician-hospital relationships, including whether and to what extent physicians are being expected to jeopardize safety, quality and professionalism in the interests of market demands and financial goals—and how they should respond.  How common is it for hospital administrators to impose policies and procedures that essentially ask hospital-employed anesthesiologists to put OR turnover and production before patient safety and medical judgment?  How would you respond in an environment in which you were expected to cut corners on quality and safety in order to move patients through more quickly?

While the frequency of physician-hospital conflicts like those in this lawsuit are hard to quantify, the Medscape Employed Doctors Report 2016 offers glimmers of insight through a survey of employed physicians’ current discontents—and satisfactions.  For those considering employment, an article in the March issue of the Annals of Internal Medicine (see below) highlights potential ways in which employment contracts can compromise patients and professionalism. 

In the Medscape study, which surveyed 5,000 physicians across multiple specialties, employed physicians often cited lack of control and autonomy when asked what they didn’t like about their work situations.  These included categories such as limited influence in decision-making (cited by 35 percent), less control over work and their schedules (28 percent), too many rules (26 percent), being "bossed around" (22 percent) and less autonomy (20 percent).  Hospital standardization programs often contribute to frustration among employed physicians because they can lead to “a plethora of rules and multilayered hierarchies that can get in the way of efficient patient care,” consultant Greg Mertz of Physician Strategies Group notes in the report. 

As a whole, self-employed physicians are somewhat more satisfied with their work situations than employed physicians—63 percent compared with 55 percent—because “they are willing to risk losing some income in exchange for more control, Mertz’s colleague Marc Mertz says.  In a private practice, "when the owner speaks, things happen, but when an employed doctor speaks, it has less effect," he says.  Work satisfaction has taken a nose dive since 2014 for both groups; from 74 percent to 63 percent for self-employed physicians, and an even bigger drop, from 73 percent to 55 percent, for employed physicians.

The report found that employed physicians who became self-employed were much more likely to report satisfaction with their change than self-employed physicians who became employed (71 percent versus 40 percent, respectively).  Physicians who make the switch back to independent practice need to be highly motivated, says Greg Mertz, and success in making that transition tends to breed professional satisfaction.  On the other hand, physicians who become employed “often feel the hospital wasn’t completely open with them about what employment would mean,” says Marc Mertz.  While they enjoy the financial security employment offers, they feel stifled by their lack of organizational influence and decision-making authority. 

Over a third (37 percent) of employed physicians report having been at least occasionally pressured to make patient care decisions they disagreed with, while 28 percent report that this never happens.  Almost two thirds (65 percent) of employed physicians say that their institutions put patient outcomes before financial interests, but about 14 percent disagree.

Employment on the Rise

The number of employed physicians has been growing. According to a 2015 report by Accenture, in 2000, 57 percent of physicians practiced independently, but by 2013, that figure had dropped to 37 percent, and it is expected to decline to 33 percent by the end of 2016.  Despite this trend, recent figures indicate that about 68 percent of anesthesiologists are practice owners.  However, that trend could shift more toward employment as large national companies continue to take over the anesthesia franchise at more hospitals. 

Anesthesiologists pondering employment would do well to acquaint themselves with specific employment contract provisions that could impinge on their professionalism and interfere with patient safety (see Table below).  Roy M. Poses, MD, and Wally R. Smith, MD, of the Foundation for Integrity and Responsibility in Medicine (FIRM) highlight these provisions in an article in the March 2016 issue of the Annals of Internal Medicine.  According to the authors:

. . . clauses in the contracts that physicians sign with their employers or that their employers sign with third parties may be part of a growing class of subtle but protean and pernicious restrictions on employed physicians' professionalism and autonomy. These provisions may financially benefit employers and their management. No clear arguments that they benefit patients or support physicians' professionalism have been made. Because these contractual provisions are not well-studied or well-reported, physicians may start working for these organizations under the naive delusion of unthreatened professionalism.

Ann Intern Med. 2016;165(1):55-56. © 2016 American College of Physicians
This article was published at www.annals.org on 1 March 2016.

Blanket confidentiality clauses present some of the most significant threats to physicians entering into employment contracts, the authors note.  They caution physicians to know the differences between ironclad confidentiality clauses that prohibit them from publicly discussing their situations and any other significant matters about their employers, and those protecting patient confidentiality, trade secrets and proprietary information.  They add, however, that even these confidentiality clauses can be so broad that they become virtually as binding as blanket confidentiality clauses.

“We have seen a contract clause that defined confidential proprietary information as ‘all records, files, reports and documents, including any electronic or digital version of the same and any software provided by the hospital system pertaining to services, operations, plans, or methods’ of the system,” they write.  Such clauses may bury evidence of poor quality or safety problems, inhibit whistleblowers, or conceal mismanagement and malfeasance. “Because these clauses are confidential, they have rarely been discussed in public, and corporate managers have never been called to justify their existence,” they argue.

Poses and Smith suggest naïveté among physicians about the potential for conflicts between their professional values and the more business-oriented values of their employers probably leads many physicians to enter into contractual relationships that become problematic down the road.  “Physicians should have their employment contracts reviewed by competent legal counsel and attempt to negotiate the most egregious provisions. However, managers of large organizations may not be willing to meaningfully negotiate with individual physicians, claiming that the contract ‘can't be changed and needs to be accepted as is.’ Such intransigence may reflect employers' market dominance.”  Nevertheless, it is important to attempt to obtain modifications consistent with the physicians’ professional obligations.

With best wishes,

Tony Mira
President and CEO