Testimony of Dr. John Hill before the EMTALA/TAG committee chaired by CANS’ member John Kusske, MD.

(The EMTALA Technical Advisory Group is comprised of 19 physicians who are charged with helping CMS [Centers for Medicare and Medicaid Services] develop rules to protect individual rights while minimizing unnecessary burdens on health care providers.)

My name is John Hill. I am an orthopedic surgeon in private practice from Ventura California. I am the chairman of the Organized Medical Staff Section of the California Medical Association (CMA) and I am speaking on behalf of the CMA. I would like to begin by thanking you for allowing me to speak before the EMTALA TAG. We are very concerned about the oncall issues that are being discussed and we want to make our position on these issues known.

We are particularly concerned about the proposal to require physicians to take emergency room call as a condition of participation in Medicare. We feel that this plan is filled with all sorts of unintended consequences and would be ill-conceived if instituted. This proposal could well affect the viability of the Medicare program as we know it.
Multiple reports have indicated that the medical work force is already in trouble and this proposal might well be the event that precipitates the ultimate crisis. In 2002 it was stated that almost 40% of the 740,000 U.S. physicians were 50 years of age and over. Also, we know that 50% of the medical school graduates are women and it is a reality that many of them alter their practice levels and patterns because of family concerns. Additionally, it has been reported that new graduates have greater concerns for their quality of life and don’t plan to work with the intensity that typified physicians in the past.

As an orthopedic surgeon involved at the National level, I learned at a Board of Councilors meeting that there has been a steady decrease in the number of orthopedic residents, 3029 in 1993-1994 vs. 2759 in 1998-1999. Between 2002-2003 there was an 8% drop in the number of orthopedic residents entering the work force. Earlier this year I had the opportunity to speak at a symposium at Stanford University and one of the other speakers reported some very grim statistics. Among physicians there had been a 60% increase in disability claims since 1995. 40% of California physicians identified themselves as burned out. 33% of physicians would not choose a medical career again. There was a 15 to 40% fall in physician income in California since 1995. 48% of the physicians older than 50 years of age planned to retire within the next 36 months. Even more shocking was the statistic that there had been a 500% increase in physician suicide since 1990. None of this presents an optimistic picture.

Our concerns of an impending crisis are additionally amplified by the 4.7% decrease in Medicare reimbursement for this year and the projected up to almost 30% decrease in reimbursement over the next five years, and all of this heaped upon the decreases of the previous years. Orthopedic surgeons, for example, are paid less for a total hip replacement than they were in 1976 in spite of ever increasing overhead. A recent MGMA report revealed that operating costs for orthopedic medical group practices rose faster than the median total medical revenue from 2001 to 2003. Also, based on 2003 data, mean total medical revenue grew by 14.8% while operating costs increased 23.5%. These factors alone have the potential to drive many physicians from participation in Medicare.

I have practiced orthopedic surgery for 34 years and for most of those years taking call was never an issue for me or for my colleagues. Unfortunately, things are not what they used to be and being on call has turned into a liability. In the past we were paid fairly for the work that we had done and we were able to continue to cover our office overhead when our nights and our regular appointment schedules were disrupted by having to attend to emergencies. This is no longer the case. Unfortunately, our overhead has continued to spiral and our reimbursement has continued to decrease to the point where these lines are almost ready to cross. For us to remain viable it is imperative that we work as efficiently as we can in our offices and any disruption has a significant financial impact upon all practitioners. I would like to give you some figures from a recent California Medical Association survey that will illustrate my point. Nearly 80% of the physicians that responded to this survey reported significant difficulty in obtaining payment for ER patients who were either privately insured or covered by government programs. More than half of the physicians received no payment for their emergency services and 42% of the respondents reported significant underpayment or payment delays. In spite of this 70% of the surveyed physicians continued to serve on call panels, but for how long is unknown. In 1998 and 1999 the California Medical Association estimated that physicians experienced losses of $100 million when providing emergency room coverage. When I first started practice, covering the emergency room was a way to build a practice but all of that has changed. The emergency room is now a liability. In California and other border states we’ve had a huge influx of patients who are not, and never will be, able to pay for the services we deliver. It is estimated that there are 6.5 million people with no medical insurance in California . We all are confronted with providing care for patients who are covered by HMOs and insurance companies with which we are not contracted and as I mentioned previously, in these cases, payment is problematical at best. Also, these patients are generally transferred from our care once we have stabilized their problems and there is a tremendous liability risk when you have operated upon someone and their care is then taken over by another individual, of unknown qualifications, who has no idea what you confronted at the time of surgery and what you did for the patient in the operating room. Another example of potential liability involves what would appear to be simple phone calls received from the emergency room. In one instance I was called about a case by the emergency room physician and I was given a hypothetical care question. The patient was never named, and I was never asked to see the patient, but I was subsequently listed in a lawsuit because the emergency room doctor put my name on the chart.

Speaking as an orthopedic surgeon, but acknowledging that other specialties have similar experience, I am greatly concerned about any mandatory call linked to Medicare participation. More and more surgeons have the option to leave the hospital as they are able to do ever-increasing amounts of surgery in the outpatient setting. This proposal would be the final straw and would result in a greater physician exodus that would inflict hardship on the hospital’s patients and their revenue stream. Also, we have the issue of current clinical competence. For example, in orthopedics we have spine surgeons, hand surgeons, foot surgeons, total joint surgeons, and others. These are all individuals that limit their practice and their clinical privileges to their area of expertise. To require them to take general ER call and deal with the major traumatic injuries which they would encounter would be doing a disservice to the patients and to the doctors and create a liability nightmare. A 2004 California Orthopedic Association survey revealed 13% of the hospitals at which the surveyed surgeons practiced, already exempted subspecialty providers from general call for this reason. Also, of interest in this survey was that 31% of all respondents were no longer taking emergency room call for a variety of reasons. An even more telling figure was that 12% of respondents had already dropped out of Medicare.

Another problem which may not be unique to California but certainly has a significant impact in our area is that we are experiencing tremendous difficulty recruiting new young physicians because we are unable to pay them enough to allow them to afford to purchase of a house. As a result of this we are seeing a graying of the practitioners in our area. Many are fast reaching the age when they no longer want to, or no longer can, spend all night caring for emergencies and expect to function the next day. Any requirement for mandatory call would result in a significant number of physicians changing their practice or opting for retirement.

In summary, we have several well delineated issues which affect the physician’s willingness to provide emergency room call. At top of the list is the payment problem. Through no fault of our own medicine has become a business. We are all faced with increasing overhead as a result of higher malpractice insurance rates, higher Worker’s Compensation insurance rates, higher employee health insurance premiums, increasing salaries for our employees, and the very high costs of the modern technologies that are necessary to run an office. We also are inundated by unfunded mandates in the form of HIPAA, OSHA, EMTALA and others. The reality is that we must be paid fairly for the services we provide or the practice of medicine as we know it will longer be viable.

Other factors, not necessarily in order of importance are the manpower issue which is the result of a lack of applicants for critical specialty residencies, the decrease in the number of certain residency positions, the subspecialty issue, the graying of the physician population, and the demand for a better lifestyle by young physicians and women physicians. Also, of major concern is the medical liability crisis which is affecting all areas of the country and has the potential to create significant access problems for all patients. With these issues already on the table I would predict that if a ruling were made tying Medicare participation to emergency room coverage we would see a crisis of care for the Medicare population as well as other health care consumers as more and more physicians opted out of the system or retired. The basic underlying problems need to be addressed. This proposal is not a solution!