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✖ SDCMS Celebrates Its 140th Anniversary in 2010 ✖ Reaching 8,500 Physicians Every Month

february 2010

official publication of the san diego county medical society

Do the trial lawyers really believe we can live without medical care?

Is "I'm sorry" worth it?

Our Legal Landscape When the MBC comes Knockin'…

medical records perils 'n' pitfalls arbitration vs. jury trial

Why can't we unionize?

“Physicians United For A Healthy San Diego”


We hate lawsuits. We loathe litigation. We help doctors head off claims at the pass. We track new treatments and analyze medical advances. We are the eyes in the back of your head. We make CME easy, free, and online. We do extra homework. We protect good medicine. We are your guardian angels. We are The Doctors Company. Donald J. Palmisano, MD, JD, FACS Board of Governors, The Doctors Company Past President, American Medical Association

The Doctors Company is devoted to helping doctors avoid potential lawsuits. For us, this starts with patient safety. In fact, we have the largest Department of Patient Safety/Risk Management of any medical malpractice insurer. And, local physician advisory boards across the country. Why do we go this far? Because sometimes the best way to look out for the doctor is to start with the patient. The San Diego County Medical Society has exclusively endorsed our medical professional liability program since 2005. To learn more about our program for SDCMS members, call (800) 328-8831, extension 4390, or visit us at www.thedoctors.com/sdcms.

Exclusively endorsed by

B

SAN  D IEG O  P HYSICIAN .or g f e bru a ry 2010


At VITAS, the Focus is on Life VITAS Innovative Hospice Care® brings care near the end of life right to the home, whether that is a private residence, a nursing home or an assisted living community. We manage pain and other symptoms while focusing on quality of life for the patient and his or her family. And we do it one patient at a time, just as we did at the beginning. What began in 1978 as a volunteer effort supported by donations for a lucky few is now a Medicare benefit available at no cost to every qualified patient and family. With VITAS, there are no limits on quality of life.

1.800.93.VITAS • 1.800.938.4827 VITAS.com

february 2010 SAN  DIEGO  P HYSICIAN . o rg

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contributors John T. Alexander II, MD, JD Dr. Alexander is a board-certified plastic surgeon practicing in San Diego. In 2004, he enrolled in California Western School of Law and received his juris doctor degree while maintaining a full-time surgical practice. Dr. Alexander’s goal is to help physicians better understand the law and more easily navigate legal waters. See page 39 for a listing of SDCMS’ endorsed-partner benefits! RICHARD E. ANDERSON, MD Dr. Anderson is chairman and CEO of The Doctors Company and author of Medical Malpractice: A Physician’s Sourcebook. He has been invited to address numerous medical and legal forums and currently serves on the board of overseers of the RAND Institute for Civil Justice, the board of governors of the National Patient Safety Foundation, and the board of directors of Californians Allied for Patient Protection. Dr. Anderson is the first recipient of the PLUS Foundation’s Award for Outstanding Leadership in Healthcare Professional Liability. See page 39 for a listing of SDCMS’ endorsed-partner benefits! STORM ANDERSON, ESQ Mr. Anderson, an attorney with the law firm Barton H. Hegeler, Attorney at Law, specializes in healthcare law, employment law, and administrative law. For more information, visit BHHESQ.com. KITTY BAILEY Ms. Bailey is the executive director of the San Diego County Medical Society Foundation. DAVID BALFOUR, ESQ Mr. Balfour is a lawyer and partner in the medical malpractice defense law firm of DiCaro, Coppo & Popcke, with offices in San Diego and Orange Counties. He can be reached at (760) 918-0500 or at david.balfour@dcp-law.com. To learn more, visit them online at dcp-law.com. DAVID E.J. BAZZO, MD Dr. Bazzo, SDCMS-CMA member since 2005, is a clinical professor of family medicine at the UCSD School of Medicine and associate director of the UCSD Physician Assessment and Clinical Education (PACE) Program. He is a past president of the San Diego Academy of

Family Physicians and currently serves on the SDCMS board of directors. DANIEL J. BRESSLER, MD Dr. Bressler, SDCMS-CMA member since 1988, has been a long-time contributor to San Diego Physician, offering his creative writing talents to our San Diego County physician community. J. BRENNAN CASSIDY, MD Dr. Cassidy is current president of the California Medical Association. JAMES T. HAY, MD Dr. Hay, SDCMS-CMA member since 1985, is a family physician in full-time private practice in Encinitas. He founded North Coast Family Medical Group in 1978 and North County Physicians’ Medical Group (an IPA) in 1990. He is past president of SDCMS, past president of the SDCMS Foundation, current “Champion” of the Foundation’s Project Access San Diego (PASD), and is the current speaker of CMA’s House of Delegates. BARTON HEGELER, ESQ. Mr. Hegeler has been a trial lawyer for more than 30 years and has represented physicians for more than 20. His firm specializes in the representation of physicians in complex medical malpractice actions, administrative hearings, and actions by the Medical Board of California. For more information, visit BHHESQ.com. KATHY SENEY Ms. Seney is director of risk management and patient relations for Scripps Mercy Hospital, San Diego, and Scripps Mercy Hospital, Chula Vista. She has 20 years experience in healthcare, with 15 of those in patient relations and risk management. LAUREN WENDLER Ms. Wendler is your (outgoing) SDCMS office manager advocate. This will be Lauren’s last issue writing “Ask Your Office Manager Advocate” as she has decided to return to school to become a nurse. Thank you Lauren for your hard work and perennially positive attitude, and best of luck with your future career in nursing!

››Send your letters to the

editor to Editor@SDCMS.org 4

SAN  D IEG O  P HYSICIAN .or g f ebru a ry 2010

Managing Editor Kyle Lewis Editorial Board Van L. Cheng, MD, Adam F. Dorin, MD, Kimberly M. Lovett, MD, Theodore M. Mazer, MD, Robert E. Peters, MD, PhD, David M. Priver, MD, Roderick C. Rapier, MD Marketing & Production Manager Jennifer Rohr Sales Director Dari Pebdani Project Designer Lisa Williams Copy Editor Adam Elder SDCMS Board of Directors Officers President Lisa S. Miller, MD Immediate Past President Stuart A. Cohen, MD, MPH President-elect Susan Kaweski, MD Treasurer Robert E. Wailes, MD Secretary Sherry L. Franklin, MD geographic and geographic alternate Directors East County William T. Tseng, MD, Heywood “Woody” Zeidman, MD (Alternate: Venu Prabaker, MD) Hillcrest Steven A. Ornish, MD, Niren Angle, MD (Alternate: Eric C. Yu, MD) Kearny Mesa Adam F. Dorin, MD, John G. Lane, MD (Alternate: Jason P. Lujan, MD) La Jolla J. Steven Poceta, MD, Wayne Sun, MD (Alternate: Matt H. Hom, MD) North County Arthur “Tony” Blain, MD, Douglas Fenton, MD, James H. Schultz, MD (Alternate: Steven A. Green, MD) South Bay Vimal I. Nanavati, MD, Michael H. Verfolin, MD (Alternate: Andres Smith, MD) At-large Directors John W. Allen, MD, David E.M. Bazzo, MD, V. Paul Kater, MD, Jeffrey O. Leach, MD, Mihir Parikh, MD, Robert E. Peters, MD, PhD, David M. Priver, MD At-large alternate Directors James E. Bush, MD, Richard O. Butcher, MD, Ben Medina, MD, Jerome A. Robinson, MD, Alan A. Schoengold, MD, Edward L. Singer, MD, Carol L. Young, MD Communications Chair Theodore M. Mazer, MD Young Physician Director Kimberly Lovett, MD Young Physician alternate Director Van Le Cheng, MD Resident Physician Director Katherine M. Whipple, MD Resident Physician Alternate Director Steve H. Koh, MD Retired Physician Director (open) Retired Physician alternate Director John A. Bishop, MD Medical Student Director Jane Bugea Medical Student alternate Director Iain J. Macewan CMA Speaker of the House James T. Hay, MD CMA Past Presidents Robert E. Hertzka, MD, Ralph R. Ocampo, MD CMA Trustees Catherine D. Moore, MD, Theodore M. Mazer, MD, Albert Ray, MD, Diana Shiba, MD, Robert E. Wailes, MD AMA Delegates James T. Hay, MD, Robert E. Hertzka, MD AMA Alternate Delegates Lisa S. Miller, MD, Albert Ray, MD

Opinions expressed by authors are their own and not necessarily those of San Diego Physician or SDCMS. San Diego Physician reserves the right to edit all contributions for clarity and length as well as to reject any material submitted. Not responsible for unsolicited manuscripts. Advertising rates and information sent upon request. Acceptance of advertising in San Diego Physician in no way constitutes approval or endorsement by SDCMS of products or services advertised. San Diego Physician and SDCMS reserve the right to reject any advertising. Address all editorial communications to Editor@SDCMS.org. All advertising inquiries can be sent to DPebdani@SDCMS.org. San Diego Physician is published monthly on the first of the month. Subscription rates are $35.00 per year. For subscriptions, email Editor@SDCMS.org. [San Diego County Medical Society (SDCMS) Printed in the U.S.A.]


James Pieri, Jr. Associate Broker

february 2010 SAN  DIEGO  P HYSICIAN . o rg

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sdcmsseminars/webinars/events

Free to Member Physicians and Their Office Staff! Don’t See What You Need? Let Us Know!

For further information, visit SDCMS.org or contact SDCMS at (858) 565-8888 or at SDCMS@SDCMS.org.

SDCMS 2010 Seminars / Webinars / Events Date

Day

Time

Topic

Presenter

FEB 17 FEB 27

THU

10:00am – 12:00pm

Medicare

Michele Kelly, California Medical Association

x

SAT

9:00am – 1:00pm

Retirement (“End-game Planning”)

Jeffrey Denning, Practice Performance Group

x

9:00am – 4:00pm

Certified Medical Office Manager Course

Practice Management Institute

x

MAR 5–26 4 FRIDAYS

x

x

MAR 18

THU

11:30am – 1:00pm

Contract Management

Kim Fenton, Coastal Healthcare Consulting Group

x

APR 2

FRI

6:00pm – 9:00pm

New Member Social (T)

SDCMS

x

APR 14

WED

11:30am – 1:00pm

Best Practices ("What Every Physician Needs to Know About Their Practice")

California Medical Assoiciation

x

APR 14

WED

6:00pm – 8:00pm

Best Practices ("What Every Physician Needs to Know About Their Practice")

California Medical Assoiciation

x

APR 21

WED

6:30pm – 7:30pm

Risk Management (“eHealth: Telemedicine and Telehealth”)

The Doctors Company

x

x

APR 22

THU

11:30am – 12:30pm

Risk Management (“eHealth: Telemedicine and Telehealth”)

The Doctors Company

x

x

APR 28

WED

11:30am – 1:00pm

Medi-Cal

Therese Calcagno, EDS Corp.

x

x

MAY 6

THU

11:30am – 1:00pm

IT

Ofer Shimrat, SOUNDOFF Computing Corporation

x

x

MAY 12

WED

11:30am–12:30pm

e-Town Hall (T)

Tom Gehring, SDCMS

MAY 20

THU

11:30am–1:00pm

Workers’ Compensation Billing

CHMB Solutions

MAY 21

FRI

6:00pm–9:00pm

Young Physician Spring Social (T)

SDCMS

x

JUN 5

SAT

6:00pm–11:00pm

SDCMS Inaugural

SDCMS

x

8:00am–4:00pm

Leader’s Toolbox

Tom Gehring, SDCMS

x x

Jun 18-19 FRI-SAT JUN 24

Thu

11:30am–1:00pm

Sexual Harassment

Alliant Insurance Services

JUL 21

WED

6:30pm–7:30pm

Risk Management (“The Employee’s Role in Decreasing Liability Risks in the Physician Office”)

The Doctors Company

* "S" = Seminar • "W" = Webinar • "E" = Event

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S* W* E*

SAN  D IEG O  P HYSICIAN .or g f ebru a ry 2010

x

x x

x

x x


Imaging Healthcare Specialists provides expert radiology services in southern California, including: s s s s s

AccreditationBYTHE!MERICAN#OLLEGEOF2ADIOLOGY "OARD#ERTIFIED 3UBSPECIALIZED2ADIOLOGISTS #ONVENIENT,OCATIONSFROM#HULA6ISTATO SOUTHERN/RANGEAND2IVERSIDECOUNTIES 2EPORTSAND)MAGES/NLINEWITHIN-INUTES 4OP.OTCH#USTOMER3ERVICE

Your Partner in Health february 2010 SAN  DIEGO  P HYSICIAN . o rg

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communityhealthcarecalendar

To submit a community healthcare event for possible publication, email KLewis@SDCMS.org. All events should be physician-focused and should take place in San Diego County. 33rd Annual San Diego Postgraduate Assembly in Surgery Feb. 18–20 • Omni San Diego Hotel • cme.ucsd.edu/assemblyinsurgery

Topics and Advances in Pulmonary and Critical Care Medicine Mar. 11–12 • Hilton San Diego Resort and Spa • cme.ucsd.edu/internalmed

“Where Are My Keys?” Understanding and Treating Alzheimer’s Disease in the 21st Century Feb. 25 • Leichtag Biomedical Research Building, Main Auditorium, UC San Diego School of Medicine Campus • (858) 279-4586, KDotson@SDCMS.org

3rd Annual UCSD Urology Postgraduate Course Mar. 13–15 • Hilton La Jolla Torrey Pines • cme.ucsd.edu/urology

Ensuring Access to Quality Cancer Care Forum: Cultural Competency Training for Physicians, Nurses, and Social Workers Who Work With Cancer Patients Feb. 25 • Doubletree San Diego Mission Valley • sdcms.org/files/ACCPamphletFINAL.pdf Topics and Advances in Internal Medicine Mar. 4–10 • Hilton San Diego Resort and Spa • cme.ucsd.edu/internalmed San Diego’s Maternal, Child, and Adolescent Health on Life’s Journey and Its Impact on the Health of Women, Children, and Families Mar. 5 • Marina Village Conference Center, San Diego • sdcms.org/files/MCAH.pdf

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SAN  D IEG O  P HYSICIAN .or g f ebru a ry 2010

20th Annual Nelson Butters’ West Coast Neuropsychology Conference Mar. 25–28 • Hilton San Diego Resort and Spa • cme.ucsd.edu/neuro 6th Annual San Diego Health Policy Conference — Pharmaceutical Crime: Investigating and Prosecuting Drug Diversion and Counterfeiting Mar. 26 • Hilton San Diego Airport / Harbor Island Hotel • prt@cwsl.edu 23rd Annual Review of Vascular and Interventional Radiology Apr. 3 • Hotel Del Coronado • cme.ucsd.edu 30th Annual Residents’ Radiology Review Course Apr. 4–9 • Hotel del Coronado • cme.ucsd.edu

13th Annual California Healthcare Leadership Academy — “The Era of Health Reform: Harnessing the Currents of Change” Apr. 9–11 • San Diego Marriott Hotel and Marina • cmanet.org/leadership Sharon’s Ride.Run.Walk for Epilepsy Apr. 25 • DeAnza Park Inside Mission Bay Park • All Money Raised Goes Directly to the Epilepsy Foundation of San Diego County • epilepsysandiego.org U.S. Public Health Service Scientific and Training Symposium May 24–27, 2010 • Sheraton Hotel and Marina • phscofevents.org Alzheimer’s Disease: Update on Research, Treatment, and Care May 27–28 • Omni San Diego Hotel • cme.ucsd.edu/alzheimers UCSD Conference on Limb Salvage and Functional Reconstruction: Orthopedic, Vascular, and Wound Care Team Approval Jun. 25–27 • Westin San Diego • cme.ucsd.edu Hugh Greenway’s 27th Annual Superficial Anatomy and Cutaneous Surgery Jul. 12–16 • San Diego Marriott Del Mar • cme.ucsd.edu


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february 2010 SAN  DIEGO  P HYSICIAN . o rg

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brieflynoted

Your Office Manager Advocate Has the Answers! By Lauren Wendler, Office manager advocate, SDCMS

Dear SDCMS Office Managers,

This will be my last time writing for you in San Diego Physician. I have decided to leave my position as your office manager advocate to begin a nursing program here in San Diego. It has been my pleasure meeting many of you here at our SDCMS office manager forums as well as in your own offices. Thank you for all of the help that you have provided me over the past two years. I was very encouraged by the enthusiasm that many of you have for serving your physicians and patients. I hope to see many of you in a different environment in the future.

›› Patients Seeing More Than One Doctor in a Group ›› Requests for a Deceased Patient’s Medical Record ›› Blue Cross 2010 Authorization Requirement 10

SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

QUESTION: Some of our patients see more than one doctor in the medical group. Can our physicians have access to other physicians’ records without authorization from the patient? answer: Yes. The law generally authorizes physicians to share medical information for treatment and billing purposes even in the absence of the patient’s written consent. Moreover, although the law is not entirely clear, the patient may well be viewed as the patient of both the treating physician and the group practice. For further information, consult CMA ON-CALL document #1100: “Medical Records: Most Commonly Asked Questions,” available free to SDCMS-CMA members at CMAnet.org. QUESTION: We received a request for a copy of a deceased patient’s medical records from a relative. Are we obligated to comply with the relative’s request?


answer: The beneficiary or personal representative of a deceased patient has a full right of access to the deceased person’s medical records under the same requirements that would apply to requests from the patient him- or herself. The HIPAA Privacy Rules do not change this result; however, it does require covered physicians to verify the identity and authority of any person requesting personal health information (PHI) that the physicians do not know, following written policies and procedures established for this purpose. The rules though provide that the physician may rely, if such reliance is reasonable under the circumstances, on documentation, statements, or representations that, on their face, meet the applicable requirements. Physicians who have a reason to question whether the individual requesting access to the deceased person’s records is a beneficiary or personal representative are best advised to request that the individual attach some documentation of their status as executor or beneficiary of the deceased patient’s estate to the request for record access. In the absence of such doubt, the individual’s attestation on the request form that he or she is the beneficiary or personal representative of the deceased patient should be sufficient, particularly to the extent that the individual is a family member or other person who was involved in the deceased patient’s care or payment for that care. For further information, consult CMA ON-CALL document #1150: “Patient Access to Medical Records,” — available free to SDCMS-CMA members at CMAnet.org. QUESTION: We received notice that Blue Cross will be implementing a new echocardiography pre-notification and pre-authorization program at the beginning of 2010. Is this program still going into effect? answer: The California Medical Association was advised that right now it is just a voluntary notification process even though the original documentation did not indicate such. Blue Cross is targeting April 2010 for the authorization requirement. Physicians will receive 90 days’ notice from Blue Cross before the authorization requirement is implemented. NOTE: See classifieds this issue for SDCMS “Medical Office Manager Advocate” job opening.

Physicians Get Noticed! Wish Your Legislators a Happy Birthday! Physicians: Let your legislators know that you’re paying attention and that you vote by wishing them a happy birthday! Birthday: FEBRUARY 11 Assemblyman Joel Anderson California State Assembly P.O. Box 942849 Sacramento, CA 94249-0077 T: 916-319-2077 F: 916-319-2177 E: assemblymember.anderson@assembly.ca.gov

Birthday: MARCH 21 Senator Denise Moreno Ducheny California State Senate P.O. Box 942848 Sacramento, CA 94248-0040 T: 916-651-4040 F: 916-327-3522 E: senator.ducheny@sen.ca.gov

Birthday: MARCH 17 Assemblymember Mary Salas California State Assembly P.O. Box 942849 Sacramento, CA 94249-0079 T: 916-319-2079 F: 916-319-2179 E: assemblymember.salas@assembly.ca.gov

Birthday: MARCH 24 Assemblyman Martin Garrick California State Assembly P.O. Box 942849 Sacramento, CA 94249-0074 T: 916-319-2074 F: 916-319-2174 E: assemblymember.garrick@assembly.ca.gov

Jeffrey Stoneberg, DO, Honored With National Award Jeffrey N. Stoneberg, DO, SDCMS-CMA member since 2008, is one of four American physicians named as recipients of the first Hastings Center Cunniff-Dixon Physician Awards. Dr. Stoneberg is a clinical medical director at The Institute for Palliative Medicine at San Diego Hospice. He is responsible for the medical care of home and inpatient hospice patients and for educating clinicians and other healthcare workers on care of seriously ill patients, including pain and symptom management. The award recognizes his outstanding clinical skills and his achievements in growing the Scripps Mercy Palliative Care Consultation Service, a local community healthcare system. “Dedication, excellence in patient care, and role model as teacher, those words describe Dr. Stoneberg well,” wrote his nominator, Laurel Herbst, MD, SDCMS-CMA member since 1990 and chief medical officer and vice president of San Diego Hospice and The Institute for Palliative Medicine. “Jeff’s level of professionalism and compassion has generated wide respect for his teaching and clinical skills by even the most senior physicians at Scripps Mercy Hospital.” In 2008, Scripps Mercy asked San Diego Hospice and The Institute for Palliative Medicine to take over and develop the palliative medicine consultation service, and Dr. Stoneberg became the Service’s clinical medical director. In that role he has significantly increased the pace of understanding, acceptance, and utilization of the palliative medicine service. He has started new services that have won over clinicians not traditionally involved with palliative care, such as trauma physicians. Congratulations, Dr. Stoneberg!

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brieflynoted

please welcome our and

New

Rejoining members SDCMS-CMA

Welcome Our New Members!

Nathan Ryan Brakke, MD Pediatrics San Diego • (858) 565-9666

Savita Malik, MD Obstetrics and Gynecology Rancho Santa Fe • (909) 590-5136

Paul Yousif Abou, MD Internal Medicine La Mesa • (619) 589-2535

Damon Marcus Dertina, MD Anesthesiology San Diego • (858) 565-9666

Wendy Gail Martin, MD Family Medicine Vista

Ashish Tulsidas Agrawal, MD Critical Care Medicine San Diego

Shaw Shahriar Eslamian, MD Internal Medicine La Mesa

Mansour Mofidi, DO Internal Medicine La Mesa • (619) 589-2535

Raed Adnan Al-Naser, MD Critical Care Medicine La Mesa • (877) 243-7087

Jamieson Scott Glenn, MD Orthopedic Surgery Escondido • (760) 943-6700

Shannon Yvette Moore, MD Hospice and Palliative Medicine San Diego

Giuseppe Ammirati, MD Diagnostic Radiology San Diego • (858) 454-4235

Anuj Gupta, MD Pain Medicine National City • (760) 285-8866

John Duane Paszek, MD Anesthesiology San Diego • (858) 565-9666

Gregory Stewart Anderson, MD Diagnostic Radiology Encinitas • (866) 558-4320

Richard Haberly, MD Anesthesiology San Diego • (858) 565-9666

Suman Kumar Sinha, MD Critical Care Medicine La Mesa

John Dean Barr, MD Neuroradiology San Diego • (858) 454-4235

Dawn Carla Hagan, MD Anesthesiology San Diego • (858) 565-9666

Sarah Alyce Stolldorf, MD Anesthesiology San Diego • (858) 565-9666

Lorenzo Lapo Pacelli, MD Surgery of the Hand La Jolla • (858) 554-8554

Navneet Kumar Boddu, MD Pain Medicine San Diego • (858) 565-9666

Jeremy Mason Hirst, MD Psychiatry San Diego

Meenal Swami, MD Pediatrics San Diego • (858) 592-4746

Sathya Pratap Pokala, MD Critical Care Medicine La Mesa • (619) 644-9315

Leila Sofia Bolandgray, MD Internal Medicine La Mesa

Osman Saleem Khawar, MD Nephrology Escondido • (760) 745-1551

James Drew Veltmeyer, MD Family Medicine El Cajon

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

Welcome Our Rejoining Members! Arwinnah Bautista, MD Internal Medicine La Mesa David John Golembeski, MD Neonatal-Perinatal Medicine San Diego • (858) 966-5818 Roy R. Johnson, MD Family Medicine Valley Center • (760) 749-0824 Seth Michael Krosner, MD Surgical Critical Care San Diego • (619) 260-7285 Peter Owen Newton, MD Orthopedic Surgery San Diego • (858) 966-6789


POLITICAL REALITY:

YOU’RE EITHER

AT THE

TABLE OR

YOU’RE ON THE

MENU SDCMS Is at the Table!

By choosing to join the San Diego County Medical Society (SDCMS), over 3,000 practicing physicians, resident physicians, and medical students in San Diego County have given voice to our patients and to our communities in the healthcare reform discussions and in every single healthcare issue being debated locally, in Sacramento, and in Washington, DC.

Ask your colleagues: “Are You a Member of SDCMS?” San Diego County Medical Society (SDCMS) | 5575 Ruffin Road, Suite 250 San Diego | 858.565.8888 | SDCMS.org february 2010 SAN  DIEGO  P HYSICIAN . o rg

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brieflynoted By Kitty Bailey, Executive Director, SDCMS Foundation

Helping Patients Achieve Wellness

Growing and Nurturing Our Program The San Diego County Medical Society Foundation and Project Access know that with or without healthcare reform, many San Diegan County residents will still need our help accessing care. Our program is designed to be flexible and scalable in order to

After Surgery Day, patients reported no missed days of work. meet the needs of the community. Situated at the San Diego County Medical Society, our Foundation is connected to nearly 3,000 physicians. Our program is growing with the community. Please see page 41 to learn more about how you can get involved!

Project Access Patients

Patient Health Status Survey Suggests Project Access Improves Patients’ Lives

I

In April 2009, 41 patients accessed donated surgeries and gastroenterological procedures through the San Diego County Medical Society Foundation’s partnership with Kaiser Permanente. We surveyed patients before they received their care and asked them important questions about the quality of their health, the impact of their health on their ability to work, and their general wellbeing. In October 2009 — six months later — we asked these patients the same questions. The results were startling. Reducing Clinic Visits Patients surveyed self-reported that during

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

the six months prior to their surgeries, they visited their home clinics a combined total of 22 times due to poor health symptoms. After their surgeries, our patients only needed a total of two visits to their home clinics. Achieving Better Health Patients reported living with symptoms an average of 14 days during the 30-day period before their surgeries. Symptomatic days went down to an average of two days for the entire six months following their surgeries. Getting Back to Work One of the most meaningful outcomes for patients was getting the patients back to work. Before their surgeries, patients reported an average eight days of missed work due to illness during the month before their surgeries. After Surgery Day, patients reported no missed days of work.

•A  ll Project Access Patients are below at least 350% of the federal poverty level. • 1 00% of Project Access patients are uninsured. • 1 00% of Project Access patients have a medical home. • 1 00% of Project Access patients are San Diego County residents. • 9 8% of Project Access patients are adults between 18 and 54 years of age. • 2 % of Project Access patients are 55 years or older.

Project Access San Diego: 2009 Partners Alliance Healthcare Foundation Anesthesiology Services Medical Group California Endowment County of San Diego Grossmont Healthcare District Imaging Healthcare Services Kaiser Permanente Palomar Pomerado Hospital San Diego Pathology Group Supervisor Greg Cox Supervisor Ron Roberts The WebMD Foundation UC San Diego Medical Center Valley Radiology


Get in

touch

Your SDCMS and SDCMSF Support Teams Are Here to Help! SDCMS Contact Information 5575 Ruffin Road, Suite 250 San Diego, CA 92123 T (858) 565-8888 F (858) 569-1334 E SDCMS@SDCMS.org W SDCMS.org • SanDiegoPhysician.org CEO/Executive Director Tom Gehring at (858) 565-8597 or Gehring@SDCMS.org COO/CFO James Beaubeaux at (858) 300-2788 or Beaubeaux@SDCMS.org Director of Membership DevelopmenT Janet Lockett at (858) 300-2778 or at JLockett@SDCMS.org Director of Membership Operations and Physician Advocate Marisol Gonzalez at (858) 300-2783 or MGonzalez@SDCMS.org Director of Engagement Jennipher Ohmstede at (858) 300-2781 or at JOhmstede@SDCMS.org Director of Communications and Marketing Kyle Lewis at (858) 300-2784 or at KLewis@SDCMS.org Specialty Society Advocate Karen Dotson at (858) 300-2787 or at KDotson@SDCMS.org BUSINESS MANAGER Nathalia Aryani at (858) 300-2791 or NAryani@SDCMS.org administrative assistant Betty Matthews at (858) 565-8888 or at BMatthews@SDCMS.org Letters to the Editor Editor@SDCMS.org General Suggestions SuggestionBox@SDCMS.org

SDCMSF Contact Information 5575 Ruffin Road, Suite 250 San Diego, CA 92123 T (858) 565-8888 F (858) 560-0179 W SDCMSF.org Executive Director Kitty Bailey at (858) 300-2780 or KBailey@SDCMS.org Associate Director Tana Lorah at (858) 300-2779 or at TLorah@SDCMS.org Patient Care Manager Barbara Rodriguez at (858) 300-2785 or at BRodriguez@SDCMS.org PROJECT ACCESS PROGRAM DIRECTOR Brenda Salcedo at (858) 565-8161 or at BSalcedo@SDCMS.org SURGERY DAY PROGRAM MANAGER Alisha Mann at (858) 565-8156 or at AMann@SDCMS.org Healthcare Access Manager Lauren Radano at (858) 565-7930 or at LRadano@SDCMS.org

Personal: • Income Tax Planning • Wealth Management • Financial Planning

Local: • Employee Benefit Plans • Profitability Reviews • Outsourced professional services (CFO, Controller)

Ron Mitchell, CPA Director of Health Services rmitchell@aktcpa.com 760-431-8440

Global: • Organizational Structure • Succession Planning • Internal Control Review and Risk Assessment 5946 Priestly Drive, Ste. 200 Carlsbad, CA 92008

CPA’s and Consultants

SDCMS Tweets! Follow SDCMS on Twitter.com to keep abreast of H1N1 updates, the latest healthcare reform developments, SDCMS seminars, and more!

february 2010 SAN  DIEGO  P HYSICIAN . o rg

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Become a Certified Medical Office Manager in Four Days!

T

March 5, 12, 19, and 26, 2010

This program is recommended for experienced medical office managers who want to take their skills to the next level. Learn to initiate policies and protocols that will improve, protect, and stabilize the financial security of the practice. More physicians need “Certified Office Managers” who understand the newest business and regulatory issues. “Certified Medical Office Managers” help guard the practice against risks and motivate employees to improve productivity and increase revenue. Find out how to analyze managed care contracts, stay in compliance with OSHA, OIG, and HIPAA, and deliver exceptional patient service. Financial Management: • Developing and maintaining a budget. • Forecasting and revenue projecting. • Revenue and cost accounting. • Financial control. Managed Care and the Medical Practice: • Types of managed care plans and how to select the right ones.

• Evaluating contracts. • Organizing the fee-for-service practice. • MCO coordinator. • Physician utilization committee. • Utilization control techniques. • OIG compliance program guidance. • HIPAA compliance issues. Practice Administration: • Improving employee relations. • Operations management. • Facility management. • Risk management. • Terminating the patient-physician relationship. •Medical record keeping. • Time management and delegation. Personnel Management: • Job descriptions and training. • Maintaining valued employees. • Effective communication. • Terminating employees. • Dealing with difficult employees. • Unique employee relations issues.

Course Details: • “Certified Medical Office Manager” Course [Program #15075-0305] • Presented by Practice Management Institute (PMI) (pmimd.com) and Hosted by SDCMS • Four Fridays in March: 5, 12, 19, and 26, 9:00am–4:00pm (sign-in at 8:45am) • Held at the SDCMS Meeting Room, 5575 Ruffin Rd., Ste. 250, San Diego, CA 92123 • Cost for SDCMS Members and Their Staff Is $499 (includes breaks, lunch, and instructional materials) • Cost for Nonmembers/Staff Is $999 Registration Limit: Course limited to 30 registrants. Sign up early! Fill out this form and fax back to SDCMS at (858) 569-1334. Cancellation Policy: A full refund less $20 processing fee if cancellation is received seven-plus days prior to program start date. A 50 percent refund if cancellation is six days to 48 hours prior to start date. No refund if cancellation is less than 48 hours in advance. Upon registration, custom materials are printed, refreshments are ordered, and seating is reserved. Due to this, PMI strictly adheres to this policy.

REGISTRATION FORM

Complete and Fax to SDCMS at (858) 569-1334 before March 4, 2010.

Registrant (one form per registrant)

SDCMS Member Physician Full Name

Address/City/State/ZIP

Telephone Fax Email

» PAYMENT:

o Visa

o MasterCard

o American Express

o Discover

o Check (Payable to “Practice Management Institute”)

Credit Card # Exp. Date Total Amount

Cardholder Name

Cardholder Signature

NOTE: See classifieds this issue for SDCMS “Medical Office Manager Advocate” job opening.

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


FAST. ACCURATE. POWERFUL. THAT’S HOW CANCER TREATMENT SHOULD BE. At San Diego Radiosurgery, we offer treatment using the Novalis Tx platform for image-guided radiosurgery. Novalis Tx incorporates advanced imaging, treatment planning, and treatment delivery technologies from Varian Medical Systems and BrainLAB, enabling fast, highly precise, non-invasive radiosurgery treatments for cancers and other conditions in the brain, head, neck and body. Offering a dose rate of 1,000 MU per minute, Novalis Tx is the most powerful and fastest radiosurgery system available, penetrating deeper to treat tumors previously considered inoperable. Call or visit our website for more information. Palomar Medical Center Department of Radiation Oncology 555 East Valley Parkway | Escondido, CA 92025 760-739-3835 / SDRadiosurgery.com

San Diego Radiosurgery is a service of Palomar Medical Center.

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[Legal Landscape]

Antitrust “Why Can’t We Unionize?” By James T. Hay, MD, SDCMS-CMA Member Since 1985, Current Speaker of CMA's House of Delegates

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


F

The battle between organized medicine and the government to allow collective bargaining by physicians and thereby level the playing field with those who dictate their terms to us has literally gone on for decades.

rom the first days of the current health system reform debate to the present, physicians have frequently asked for a better way to deal with the health plans that control so much of our business today. Between 1994 and 2001, there were 275 mergers and acquisitions of health plans nationwide, and many more since. Now the overwhelming majority of insured patients are insured by one of five or six plans in California, and by only one or two in some states. How can the individual physician ever expect to effectively negotiate contract terms or fee schedules against such mega-companies? And why is it reasonable that the antitrust laws should apply to us and not to the payers who have the control of a virtual oligopsony? The battle between organized medicine and the government to allow collective bargaining by physicians and thereby level the playing field with those who dictate their terms to us has literally gone on for decades. Let’s look at what the laws actually say, why we can’t be a union, what we can and can’t do, and what efforts have been made to improve the bargaining power of physicians.

The Laws Section 1 of the Sherman Anti-Trust Act says, “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal.” Penalties for violation of this act are huge: imprisonment up to three years and/or fines up to $350,000 per violation! “Contracts” can be oral or implied, even just from a verbal agreement among a group of “competitor” physicians in a private meeting if that leads to a joint withdrawal from a plan contract or an effort to strengthen a negotiation by group action. “Combinations/ trusts” can be any organization formed that is made up of competitors. “Restraints of trade” can be “per se” illegal if they so clearly are anti-competitive (price fixing, group boycotts, market allocations) or else can be judged by “the rule of reason” after a balancing of the anticompetitive effects against the pro-competitive benefits. There is a wealth of case law dealing with attempts by physicians to form systems that improve their ability to manage contracts without running afoul of these laws. The Clayton Act, the Norris LaGuardia Act, the National Labor Relations Act, the Labor Management Relations Act (Taft-Hartley), and the Labor Management Reporting and Disclosure Act all pertain to what a group of employees can do in collective bargaining, but the key word is “employees.” AMA surveys as of 2008 estimated that 45 percent of U.S. physicians are now employed (as opposed to self-employed), and the SEIU says that that number is 48 percent. In any case, the percentage is increasing each year. So 52–55 percent of

physicians are unable even to consider collective action right from the start. But what about the ones who are employed? Even if they could form a bargaining unit to negotiate with their employers, physicians face several nearly impossible hurdles. Many of the “employed” physicians are employed by their own physician organizations, hence “owner-employers” as well as employees. Most of the rest of us are considered to be in the role of supervisors because we oversee the work of those to whom we give medical orders. The labor laws cited above pertain to the supervised, not the supervisors. Very few among the employed then can qualify to do collective bargaining. State and other governmentally employed physicians, some residents in training, and some employees of companies who can demonstrate that they are not supervisors can consider joining or forming a union. Most importantly, the concept that physicians might be considered “employees” of the insurers who pay our fees through HMO, PPO, or FFS contracts has been tested and does not pass the test of the labor laws. So the laws currently offer no hope for those of us who would like the ability to collectively bargain in order to resist the downward pressure on incomes by too powerful payers. AMA spent $3.6 million in the early part of this decade forming “Physicians for Responsible Negotiation (PRN)” to attempt to organize the physicians and residents who could qualify as “non-supervisory” into bargaining units, and then abandoned the effort by 2004, apparently because there weren’t any.

What Can You Do? Most of this article is drawn from CMA ON-CALL documents #0210 (“The Antitrust Laws: What Physicians Can Do”), #0211 (“The Antitrust Laws: Analysis of Physician Group Mergers”), and #0212 (“Physicians and Unions”). Document #0210 gives explicit detail on what physicians can do legally: 1. Act independently. 2. Make your own decision (we can talk to each other about low fee schedules, the motives of the health plans, and about the need to change the system, as long as we don’t collectively act on those discussions). 3. Create a medical group or expand an existing one (being careful not to be so large as to be anticompetitive, estimated to be more than 60–70 percent of the market share in a given area). 4. Use a broker/“messenger model.” Care must be taken here as well, but a messenger can: a. Convey to purchasers information obtained individually from providers about the prices or price-related terms the providers are willing to accept; b. Convey to providers all contract offers made by purchasers;

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19


[Legal Landscape] There is a wealth of case law dealing with attempts by physicians to form systems that improve their ability to manage contracts without running afoul of these laws.

c. Help providers understand the contract offered by providing objective or empirical information about the terms or an offer; and d. Receive from individual providers some authority to accept contract offers on their behalf. There are many examples of successful “messenger models” in California. Bay Area Preferred Physicians in Northern California is one good example, and there are some in San Diego and other Southern California counties as well. 5. Create or join a physician network joint venture (PPO, IPA, etc.) as long as the physicians in it share “substantial” financial risk or otherwise clinically integrate so that the network is considered a single entity. Most importantly, get expert legal advice whenever attempting to do anything collectively. This is a very specialized area of the law, and, just like in Medicine, sometimes we need to get the help of only the most experienced and skilled when the risk is high. Mergers of physicians’ practices or groups of practices are a special consider-

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

ation as well and addressed in detail in ONCALL document #0211.

So Where Is Organized Medicine in All This?

Many things have already been done, including the passage in California of the CMA-sponsored Healthcare Provider’s Bill of Rights (see ON-CALL document #1070, “Managed Care Contractual Protections”) and CMA-sponsored AB 1455, the Unfair Payment Practices Act (see ON-CALL document #1051, “Physicians Complaints About Managed Care Plans”). Former California congressman Tom Campbell authored HR 1304 and introduced it with CMA and AMA support in early 1999. It was a bill with simple language to declare physicians as not exempt from the labor laws applying to employees and, therefore, eligible for collective bargaining. While there was little difficulty getting passage in the House of Representatives, there was not a second democratic senator to support our own Diane Feinstein to allow passage in the Senate.


CMA ON-CALL Documents: Free to Members

SDCMS-CMA member physicians can access — free of charge — thousands of pages of medical-legal, regulatory, and reimbursement information, through CMA’s online library. For further information about CMA ON-CALL, contact CMA at (415) 8825144, at legalinfo@cmanet.org, or visit CMAnet.org. To access your CMA website username and password, contact CMA or Marisol Gonzalez, your SDCMS physician advocate, at (858) 300-2783 or at MGonzalez@SDCMS.org. ON-CALL Documents Mentioned in This Article: • Document #0210, “The Antitrust Laws: What Physicians Can Do” • Document #0211, “The Antitrust Laws: Analysis of Physician Group Mergers” • Document #0212, “Physicians and Unions” • Document #1070, “Managed Care Contractual Protections” • Document #1051, “Physicians Complaints About Managed Care Plans”

With the even greater current dominance in Washington, DC, of those who favor the regulation of our profession, the climate is not good for any change to the labor or antitrust laws in the near future, though the federal enforcers have increasingly been willing to allow combinations where there is clinical integration that promotes quality. Hopes were dimmed further by declarations in 2004 by both the Federal Trade Commission and the Department of Justice that “governments should not enact legislation to permit independent physicians to bargain collectively” as this activity would “harm consumers financially and is unlikely to result in quality improvements.”

Conclusion While we are not likely to be unionists any time soon, there is much that we can do. Please read the CMA ON-CALL documents mentioned above for much greater detail on these issues. Feel free to contact me or any of your SDCMS or CMA leaders if you have questions or feedback.

25%

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Contact Dari Pebdani at 858-231-1231 or DPebdani@sdcms.org

february 2010 SAN  DIEGO  P HYSICIAN . o rg

21


[Legal Landscape]

We Can Live Without "

Medical

Jus

but We Cannot Live Without

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


l Care,

stice

"

— Gerry Spence, Personal Injury Lawyer

We and Our Patients Cannot Afford to Lose MICRA

By J. Brennan Cassidy, MD, President, California Medical Association “I want to ask you which would be more important: If all of the doctors in the country somehow disappeared or all the trial lawyers in America somehow disappeared? We can live without medical care, but we cannot live without justice.”

T

his quote is from an acceptance speech delivered by personal injury lawyer Gerry Spence after he was awarded the Lifetime Achievement Award from the Consumer Attorneys of California in late 2008. Consumer Attorneys of California is the trade association representing California’s personal injury lawyers. This remark was not given tongue-in-cheek and underscores a very real threat. The personal injury lawyer lobby will go to all ends to promote a lawyer’s ability to sue to reap huge profits, even if it means shuttering California’s financially fragile healthcare provider network. Many of you will remember the mid-1970s medical malpractice crisis when personal injury lawyers in California were in hot pursuit of “justice.” Lax laws allowed opportunistic personal injury lawyers to file meritless lawsuits against doctors and healthcare providers, sending medical malpractice insurance rates sky high.

Physicians were forced to go without insurance, to leave California, or leave the practice of medicine altogether. And, of course, that meant that patients were the ultimate losers. In many cases, patients were unable to find doctors or clinics to treat them. Luckily, and with much work by CMA members and their spouses, California avoided a complete meltdown by passing the Medical Injury Compensation Reform Act (MICRA), a landmark law that accomplished several important reforms: 1. I t ensured injured patients receive fair compensation. 2. It tightened the medical malpractice legal environment, allowing for legitimate cases and discouraging illegitimate “fishing expeditions” by trial lawyers. 3. It stabilized skyrocketing medical liability rates, which helped keep physicians in practice and ensured that patients maintained access to healthcare providers. Since MICRA has been in force, it has continued to work for

february 2010 SAN  DIEGO  P HYSICIAN . o rg

23


[Legal Landscape] We expect 2011 to be a busy year in Sacramento with respect to attempts to change MICRA. With a new governor comes new hope for personal injury lawyers that they might be able to weaken the law for their own financial benefit.

patients and healthcare providers. MICRA allows injured patients to receive unlimited compensation for any and all economic damages, including all past and future medical costs, all past and future lost wages, and unlimited recovery of punitive damages. MICRA also set up a sliding scale for attorneys’ fees so more money goes to patients instead of to their lawyers. The only limit in MICRA is a $250,000 cap on non-economic damages, also known as pain and suffering awards. This limit dissuades lawyers from filing meritless lawsuits that drive up malpractice rates, drive up defensive medicine costs, and drive up the cost of healthcare. But personal injury lawyers have, of course, been seeking to overturn the cap in the courts and in the California Legislature since MICRA’s inception. So far, efforts to undo the provision making it more difficult to bring meritless lawsuits have been unsuccessful because it’s clear that MICRA works to benefit California’s patients, providers, and the entire healthcare system, and because the California Medical Association, the San Diego County Medical Society, hospitals, community clinics, dentists, and other healthcare providers have fought to protect it. We expect 2011 to be a busy year in Sacramento with respect to attempts to change MICRA. With a new governor comes new hope for personal injury lawyers that they might be able to weaken the law for their own financial benefit. A look at other states without MICRA-like protections demonstrates why rolling back MICRA or weakening this law would be a disaster for patients and our profession. According to the Journal of the American Medical Association, states with lower medical malpractice premiums tend to have more doctors per capita, including surgeons and specialists. In New York, a state without reforms, eight counties are without obstetricians, according to the Center for Health Workforce Studies. The Center also found that 18 of New York’s counties have fewer than five practicing OB/GYNs. California medical malpractice rates are one-third the rates in other parts of the nation. We suffer less of a shortage of specialists. And while there are still lawyers filing lawsuits, defensive medicine costs in California are no doubt lower because doctors are less likely to be looking over their shoulders waiting to be slapped with a lawsuit. According to a December 2009 report from the Congressional Budget Office, medical liability reforms at the national level could cut the federal deficit by $54 billion over 10 years. The public strongly supports medical liability reforms as well. A November 2009 Associated Press/Stanford University poll found that 54 percent of Americans favor making it harder to sue healthcare providers.

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

Because of the strong factual evidence in support of medical liability reforms and MICRA and strong public support, personal injury lawyers have shifted gears and are hiding behind names and front groups that purport to represent “consumers” in the pursuit of “justice.” At the national level, the Association of Trial Lawyers of America changed its name to the American Association for Justice. In California, personal injury lawyers are known as the Consumer Attorneys of California and urge their members to contribute money to another group called Consumer Watchdog, which carries their water. Make no mistake. These groups’ main goal is to gain more opportunities for more lawyers to file more lawsuits. In contrast, Californians Allied for Patient Protection (CAPP) is a coalition of California healthcare groups dedicated to protecting MICRA. The coalition, based in Sacramento, includes CMA, county medical societies, including the San Diego County Medical Society, statewide specialty societies, the California Hospital Association, the California Dental Association, Planned Parenthood of California, community clinics statewide, and many others. Each and every one of these groups strongly supports MICRA and will work to protect it against assault. The California Medical Association, the San Diego County Medical Society, and other groups advocating in support of MICRA will need your help to protect a law we know works. We need you to restart talking to your local legislators now — if you haven’t already — and tell them how important MICRA is to you, to your practice, and, most importantly, to your patients. Doctors face many challenges practicing in California with the state’s budget crisis and low reimbursement rates. We, and our patients, cannot afford to lose MICRA.

Protect MICRA — Get Involved! One way to get more involved with our efforts to protect MICRA is through political action. CALPAC, the California Medical Association Political Action Committee, supports candidates and legislators who understand and embrace the House of Medicine’s agenda and are supportive of our efforts to protect MICRA. To contribute to CALPAC, please call (916) 444-5532 or, for more information about MICRA, please contact Nicole Madani at (916) 551-2571.


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[Legal Landscape]

Question and

Answer on MICRA With Richard Anderson, MD, Chairman and CEO, The Doctors Company By San Diego Physician f the many laws affecting the practice of medicine, there are few as important and perhaps few as poorly understood as California’s Medical Injury Compensation Reform Act (MICRA). However, the survival of MICRA directly impacts your practice. The plaintiffs’ bar is continuously looking for cases to overturn MICRA that would end the caps on noneconomic damages in malpractice suits. More than 35 years after MICRA’s passage, the fight isn’t over, and the reforms will probably remain under threat for the foreseeable future. In May 2009, Van Buren v. Evans became the latest of many court challenges to MICRA. While the case was dismissed by the California Supreme Court without a hearing, other challenges are being developed that seek to test a different component of law. Were MICRA’s opponents to win, it would return the practice of medicine in California to the era of the original malpractice crisis in the mid-1970s. California’s resolution of that crisis through MICRA has served as a template for tort reform nationwide. San Diego Physician recently spoke with Richard E. Anderson, MD, chairman and CEO of The Doctors Company, a tort reform thought leader and one of MICRA’s strongest defenders.

O

Access to care was threatened throughout the state. Ultimately, then-Governor Jerry Brown called a special session of the California legislature to deal with the crisis, and physicians succeeded in enabling the passage of legislation that became MICRA. There are four principal components to MICRA, but the most important is the $250,000 limitation on noneconomic damages, notably pain and suffering. This increased the predictability of payouts and ended the wildly different outcomes of litigation of similar cases from courtroom to courtroom. The other key components of the law place limits on attorney contingency fees, allow for the periodic payment of damages, and introduce collateral source testimony that prevents double dipping, i.e., collecting a second time for damages that have already been paid by a third party. MICRA’s effect on California has been dramatic. Though the state remains highly litigious with an average of 50 percent more malpractice claims than the other 49 states, premiums in California are one-third to one-half lower than in other large states. According to Californians Allied for Patient Protection (CAPP), OB/ GYNs in Southern California may pay premiums up to $90,000 per year, but in a state like New York, where there are no damage limits, premiums can exceed $200,000.

San Diego Physician: In 1975, Governor Jerry Brown called a special session of the California legislature to solve the “malpractice crisis.” What led to the crisis, and how did the governor and legislature respond? Dr. Anderson: Malpractice insurance premiums are based on claim severity and frequency. Eighty percent of the malpractice claims in California in the 20th century were filed between 1970 and 1975. Malpractice premiums escalated hundreds of percent annually for several years until most commercial insurance companies simply left the state, concluding that the practice of medicine in California was uninsurable.

San Diego Physician: How has MICRA helped patients and their physicians since it was enacted? Dr. Anderson: By lowering malpractice insurance rates, MICRA has kept physicians in practice in California. MICRA is directly responsible for increasing access to healthcare by keeping doctors, nurses, and other healthcare providers in practice and hospitals and clinics open. California now has some of the best malpractice premiums in the United States, and the American Medical Association and the American Hospital Association hail MICRA as a model for the country. It also saves the state’s healthcare system billions of dollars by keeping rates relatively affordable.

Eighty percent of the malpractice claims in California in the 20th century were filed between 1970 and 1975.

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


Healthcare finance today is a zero-sum game, and monies not directed to a few injured patients and their attorneys are available to pay the direct costs of medical care for the state’s citizens.

MICRA’s effect on California has been dramatic. Though the state remains highly litigious with an average of 50 percent more malpractice claims than the other 49 states, premiums in California are one-third to one-half lower than in other large states.

San Diego Physician: Is tort reform something only Republicans can support? Dr. Anderson: No. MICRA enjoys considerable support in both parties in California because MICRA preserves access to healthcare while ensuring that injured patients can be fully indemnified. Democrats and Republicans alike understand the adverse impact an unstable liability insurance market can have on the availability of doctors. The threat to accessible care is particularly acute in underserved communities and in high-risk specialties such as neurosurgery, orthopedics, and obstetrics. MICRA was enacted by a Democratic majority in the state legislature and signed into law by then-Governor Jerry Brown, and has endured nearly 35 years of Democratic Party majorities in the legislature. It is policy that transcends party lines.

San Diego Physician: MICRA has been attacked both in the courts and in the legislature over the years. What are the best ways to protect MICRA in the future?

Dr. Anderson: The broad coalition of physicians, nurses, hospitals, clinics, women’s health advocates, and others must continue to work together to reinforce the message to our state and federal lawmakers that MICRA-type reforms work and must be protected. Individual physicians and the healthcare community need to support, through political action, pro-MICRA candidates of both parties in both primary and general elections.

San Diego Physician: What can physicians do to help safeguard MICRA? Dr. Anderson: Contribute to political action committees that support pro-MICRA candidates. The California Medical Association and your liability insurer both operate committees that need your support to be effective. Communicate with your legislators to let them know how important MICRA is to your ability to continue providing quality healthcare in California. Primary elections provide a particularly good opportunity to directly question candidates about where they stand on MICRA and to help pro-MICRA candidates by contributing to their campaigns financially and as a volunteer. You are our strongest advocates for medical liability reform.

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[Legal Landscape]

Medical

Records PERILS AND PITFALLS By David E.J. Bazzo, MD [Note: Special acknowledgment to William Norcross, MD, Sara Fernandez Taylor, and Timothy Blanchard, JD, MHA, for providing pertinent information and support in creating this article.]

C

ommunication: It’s a universal skill needed by all physicians. However, when we hear this word, we immediately think of verbal interaction. Only as an afterthought do we think of the medical record as a form of communication. Nevertheless, this written form of communication is of paramount importance when dealing with both concurrent patient care and review of past care. Medical record keeping certainly does have downsides that we know all too well. It is time-consuming. It is likely the least enjoyable part of physician practice. It can be expensive, especially if the physician is paying for transcription or an electronic health record. And, for the majority of our charting that does not undergo scrutiny, there is no immediate or long-term behavioral reward. However, charting is necessary and does have many benefits related to patient care. As primary care and specialty physicians contribute to care of an individual, the prin-

cipal mode of sharing information is the written record, the chart note. The note is responsible for communicating information in a clear, logical manner with oneself and others (1,2): it can be used as the yardstick by which performance is measured; it can be used as a tool to improve care; and it is a legal document. In our litigious society, managing risk has become very important in the healthcare profession. The quality of the medical record is essential in managing risk. It is the living record of the care that was delivered to a patient and can serve as the testimony documenting events in the past. In articles on reducing malpractice risk, the importance of thorough and proper documentation is constant across specialties (2,3,4,5). The medical record can be your best friend or worst enemy during litigation. A chart that is organized and thorough may be sufficient to answer queries on medical care delivered and lead to the dismissal of the case early in the evidencediscovery phase. It is also integral to defense attorneys’ ability to contest allegations and prove a doctor’s course of action (2,6). The Medical Board of California (MBC) considers it unprofessional conduct for the “failure of a physician and surgeon to

The Medical Board of California (MBC) considers it unprofessional conduct for the “failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients.”

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


maintain adequate and accurate records relating to the provision of services to their patients” (California Business and Professions Code § 2266). The MBC also holds that “complete medical records are necessary not only to document the quality of patient care, but also contribute to quality by facilitating the continuity of care” (1). Medical care is complex and often delivered by multiple people in multiple locations. The MBC may assume that examinations, testing, or discussions that are not recorded did not occur, and the physician’s license may be put in needless jeopardy. Medical care is complex and often delivered by multiple people in multiple locations. Coordination of care requires appropriate documentation in a longitudinal fashion with the members of the care team being able to locate information easily. The medical record is also the document by which payers validate the level of charge. CPT code justification is based on the medical record. The Office of Inspector General (OIG) has stepped up enforcement in seeking fraud. Initial review that may trigger an investigation is based on the medical record and determining if the documentation justifies the payment. The OIG may pursue the Civil False Claims Act, and, if found guilty, the defendant is liable for treble damages — and a minimum $5,500 to $11,000 civil money penalty per claim (each CPT code) — potential government program exclusion, and potential criminal prosecution. There are tools that can improve and facilitate the creation of health records. An easy-to-use and relatively inexpensive tool is voice-recognition software. If one dictates, they tend to include more information. After initial set-up, the software is relatively accurate in transcribing voice, including those who speak with an accent or with English as their second language. The more the software is used, the better the accuracy. Prices range from less than $100 (nonmedical version) to $1,500 (medical versions with recording devices). The most sophisticated tool that can be used to facilitate documentation is the electronic health record (EHR). While it is beyond the scope of this article to discuss the EHR in detail, it is recognized that all of American medicine will be required to use this tool in the near future. The United States Department of Health and Human Services has enacted many aggressive health information technology goals to implement universal adoption of this modality. Much of the current work at improving patient safety involves the EHR. As information systems improve, data may be gathered that allows prospective and visit-independent care (care that occurs when the patient is not in front of the physician) for patients. Physicians will have the ability to monitor the health information for patients in ways that could lead to improved care for the population of patients by monitoring parameters for chronic disease management and enacting treatment earlier in disease progression. There are pitfalls of the EHR. While facilitating the creation of records with templates, caution must be exercised at review of the final note with careful removal of inaccurate documentation. The record that is “too complete” and without variation from patient to patient can be viewed as suspect as much as the incomplete record. The UC San Diego Physician Assessment and Clinical Education (PACE) Program (7) provides competency assessment and education to physicians. The program receives referrals from state medical boards, hospitals, medical groups, and others for those with a demonstrated need for additional clinical education. The majority

of requests for remediation that the PACE Program receives are in the area of medical records. The program provides education to more than 200 physicians per year on this topic alone — an indication of the scope of issues surrounding insufficient record keeping.

Medical Record Keeping: “Helpful Hints” 1. C  reate records in a timely fashion. Details of the care delivered may fade with passing time. 2. C  reate records that are legible. 3. P  hone calls, emails, and other forms of communication with the patient must be recorded in the chart. 4. Document instructions given to patients including follow-up care and timeframe for return. 5. I f you write records, do not squeeze in information by writing along the margins of the page. This writing is usually difficult to read and does not reproduce well. Continue writing on the following page or use addenda to add additional information to a chart entry. Always time and date the additional information even if it relates to an earlier time period. 6. Don’t erase errors. Cross out the erroneous entry with a single horizontal line, rewrite the correction, initial and date the correction. 7. D  o not alter records fraudulently or after notification of intent to sue or review. Alteration of records is a violation of the law and may subject the physician to civil and disciplinary actions. 8. E  ach patient encounter should include: the date and reason for the encounter, appropriate history and physical exam, review of lab, X-ray data, and other ancillaries, assessment, and plan of care. 9. If using templates, make sure to have variable fields that can be customized to the individual patient. 10. W  hen using an EHR, if you didn’t perform a specific task or exam, make sure it doesn’t show up in your documentation. Avoid the “over-documentation” pitfall. 11. M  ake sure that your documentation justifies your CPT coding. The creation of medical records may seem mundane; however, its importance cannot be overemphasized. The medical record is one of the key items related to patient safety and improved care. In the end, when it is scrutinized, the medical record can be your best friend or your worst enemy. References: 1. McCready LA. Guidebook to the Laws Governing the Practice of Medicine. Sacramento, CA: Medical Board of California, Department of Consumer Affairs; 1998. 2. N  ebel EJ. Malpractice: Love Thy Patient. Clin Orthop. Feb 2003(407):19-24. 3. M  inkin MJ. Protect Yourself From Malpractice Suits. Fertil Steril. Mar 2004;81 Suppl 2:41-44. 4. S ullivan GH. Does Your Charting Measure Up? RN. Mar 2004;67(3):61-65. 5. R  oberts RG. Seven Reasons Family Doctors Get Sued and How to Reduce Your Risk. Fam Pract Manag. Mar 2003;10(3):29-34. 6. A  llen J, Burkin A. How Plaintiffs’ Lawyers Pick Their Targets. Med Econ. Apr 24 2000;77(8):94-96, 99, 103-104 passim. 7. h  ttp://paceprogram.ucsd.edu

february 2010 SAN  DIEGO  P HYSICIAN . o rg

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[Legal Landscape]

Interacting With the

Medical

Calif

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


Boardof

fornia Four Enlightened Rules By Barton Hegeler, Esq. and Storm Anderson, Esq.

F

or physicians practicing in California, it is probably not a matter of if their care of a patient will ever be investigated by the Medical Board of California but rather when. Investigations are generally prompted by one of two events: 1) involvement in a medical malpractice action; or 2) a patient complaining directly to the Medical Board. The approach taken by physicians in responding to these inevitable inquiries can have a significant impact on the result of the investigation. Most physicians agree that being a defendant in a medical malpractice action is the single most stressful experience of their professional careers. The stress of being a defendant is only magnified when the Medical Board investigates with potential ramifications to a physician’s ability to practice medicine. It is the gravity of potential licensing implications that often results in the wrong approach in interacting with the Medical Board. Instead of an aggressive “take no prisoners” attitude toward the Medical Board, physicians and their attorney representatives are better served by an approach characterized by cooperation, an attitude of assistance to the Medical Board in understanding the care rendered, and, if appropriate, forthright admissions. A good starting point for physicians and attorneys is to under-

february 2010 SAN  DIEGO  P HYSICIAN . o rg

31


[Legal Landscape] stand and accept the proposition that the Medical Board, its investigators, and the deputy attorneys general assigned to the investigation are not “the enemy” and they do not like to be treated as such. Just like physicians, Medical Board investigators and prosecutors want to be respected and appreciated for their role in ensuring the good quality of medical practice. It is also important to understand that the Medical Board is a powerful investigative body with all of the sophisticated resources of other more visible government law enforcement and investigative agencies. For too long, attorneys representing physicians in investigations with the Medical Board have “stonewalled” investigators and have refused to acquiesce to reasonable requests. Investigators are disarmed when shown a cooperative and reasonable approach by attorneys and physicians. The Medical Board appreciates and responds favorably to cooperation. Deputy attorneys general assigned to prosecute cases on behalf of the Medical Board are uniform in their opinion that those physicians (and attorneys) who cooperate with investigations invariably benefit from this approach.

Rule 1: Do Not Appear Adversarial The “first rule” of a sophisticated interac-

tion with the Medical Board is that it should not appear to be adversarial. When the initial response is aggressive or confrontational, it only serves to entrench the investigator. For example, rather than refuse to respond to a request for a narrative summary by the Medical Board, a physician should first contact an attorney to interact with the Board regarding the request. A request for a summary of patient care will not “just go away.” A reasonable interaction with the Board’s investigator will universally result in an extension to respond to an inquiry.

Rule 2: Retain an Attorney The “second rule” of interacting with the Medical Board is to always retain an attorney to assist in the response. A typical reason stated for not having an attorney send a response on the physician’s behalf is that “it will make me look guilty or like I have something to hide.” Interestingly, this not an interpretation shared by investigators. The investigators understand: 1) that most physicians have insurance that provides for legal counsel under these circumstances; and 2) that utilizing an experienced attorney is not an admission of guilt but is evidence that the physician is taking the

Medical Board investigators are disarmed when shown a cooperative and reasonable approach by attorneys and physicians.

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inquiry seriously. Too often physicians take the approach that they can write a summary of care but fail to consider all of the potential ramifications that are readily apparent to a lawyer experienced in defending these types of administrative actions. More importantly, physicians frequently fail to understand that the attorney can write the letter on the physician’s behalf and that any statements made by the attorney are not construed as admissions of guilt by the physician in any later proceeding.

Rule 3: Be Proactive

More importantly, physicians frequently fail to understand that the attorney can write the letter on the physician’s behalf and any statements made by the attorney are not construed as admissions of guilt by the physician in any later proceeding.

The “third rule” of interacting with the Medical Board is to be proactive in analyzing the situation and identifying potential problems. The Medical Board is interested in making sure that physicians understand the standard of good practice and comply with it. If an attorney and physician identify an area of weakness early, it is possible to initiate a plan prior to drafting a response to the Board. The Medical Board responds favorably to physician recognition of problems, statements of remorse, or acknowledgement

of suboptimal care, and a willingness to address practice deficiencies through education. The PACE program is a vehicle for physicians to take refresher courses in basic topics such as record keeping, prescription writing, and ethics (see page 28). The Board responds favorably to reasonable, proactive plans like early enrollment in PACE classes.

Rule 4: Recognize a Practice Deficiency Early

The “fourth rule” of interacting with the California Medical Board is a willingness to accept the proposition that the Medical Board reacts favorably to an early recognition of a practice deficiency. Too often physicians and attorneys take a hard-line approach and will never admit to a problem. An early admission of a mistake often leads to a reasonable response by the Board. The vast majority of Medical Board investigations in which this approach is utilized result in favorable outcomes and satisfied physicians.

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[Legal Landscape]

"I'm Sorry" how much is an apology worth?

By Kathy Seney, Director, Risk Management/Patient Relations, Scripps Mercy Hospital, San Diego, and Scripps Mercy Hospital, Chula Vista

P

eople don’t sue people they like, and most patients don’t want to sue you. They want to like you, and when you show how deeply you care and how badly you feel, they want to forgive you. As the director of patient relations at a local hospital for the past 15 years, I’ve listened to thousands of patient complaints and managed hundreds of lawsuits. The physicians who are on the receiving ends of these complaints and lawsuits are not the physicians with the worst complication rates or the most deaths, or any other statistic for that matter. The physicians who get sued, time and time again, are the ones who appear not to care about what has happened.

Case Study “Carrie” was a 24-year-old female who came in for outpatient gynecologic surgery. An artery was nicked during the procedure, but the injury wasn’t identified during the case. In the recovery room, Carrie began to show signs of hypotension. The nurse and the anesthesiologist managed her with medications and Trendelenburg. Carrie’s blood pressure came up nicely and she was discharged home. Four hours later, Carrie was back in the emergency room with a massive retroperitoneal hematoma, requiring emergent surgery, blood transfusions, and two weeks of hospitalization, with resulting permanent nerve damage. Carrie’s surgeon rushed to her bedside when called by the emergency department physician. “Carrie, I am so sorry! Your surgery went so well. There were no complications, and I looked so carefully for bleeders before closing you up. I feel awful about this. I’m going to be waiting for you when you get out of surgery. I’ll be with you every step of the way.” Carrie recovered … and sued. She sued the hospital, the nurse, and the anesthesiologist, but she didn’t sue the surgeon! When asked why she didn’t sue the one who caused the problem, she

34

SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

answered, “Because he owned it. He made no excuses for what happened, and he apologized for an honest mistake. I understand mistakes. We’re all human. I’m not suing my surgeon!” So, how much is an apology worth? In Carrie’s case about $400,000. While Carrie’s story illustrates an extreme example of how effective an honest apology can be, it does not speak to the 98 percent of cases that never make it to litigation. Any time there is an unexpected or untoward outcome in a patient’s care, California law mandates that we disclose the outcome to the patient and/or designated decision-maker and that we document the disclosure. How we convey this information becomes pivotal for the patient’s emotional wellbeing, the relationship between the patient and the caregivers, as well as often being the determining factor in whether a patient will seek legal counsel at all. As we are painfully aware, attorneys do not sue the individual care provider who committed the “error,” but, rather, they will name every single practitioner whose signature appears in the medical record. Thus, a kind, caring practitioner can save multiple care providers from litigation by a single act of caring. In all its irony, I have had numerous patients who express great gratitude to us after an untoward event! Why? Certainly not because the untoward event occurred. Their gratitude is extended due to our willingness to express sympathy and to care for them emotionally and physically after the event has occurred. Can my expression of sympathy be held against me in court? The short answer is “No.” California law states that benevolent gestures expressing sympathy, or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to the person or to the family of that person is inadmissible as evidence of an admission of liability. So be comfortable doing what you learned in kindergarten! Your world will be a better place because of it.


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CASE STUDIES 1. Sold a neurology practice with only seven weeks remaining on the clock. There were more practice transfer (purchase or sale) clients in 2009 than in the previous five years. 2. Coached, trained, and monitored new managers promoted from within, building on their experience, attitudes, and native intelligence. 3. Drafted a business plan for a pediatric practice’s growth into a new territory. 4. Re-ignited a marketing effort for an orthopedic practice on the wane. 5. Coached the neurosurgery division of a faculty practice through negotiations to re-engineer their overhead allocations and compensation plan. 6. Counseled against two proposed mergers and prepared implementation plans for three others that represented smart positioning.

“We can prescribe business antidotes, but it’s loads easier to avoid business poison." — Judy Bee, Management Consultant, Practice Performance Group

Member Benefit The consultants of Practice Performance Group have been helping physicians with the central business question — “What should I do?” — since 1978. They provide help with: • Becoming more productive. • Billing right and collecting it all. • Organizing and motivating the practice team. • Making tough business decisions and communicating better. • Making practices better places to work. • Recruiting physicians and managers. • Practice sales, acquisitions, and mergers. • Dispute resolution and litigation support. Services offered include: • Management by objectives planning facilitation. • Total immersion (top to bottom) management consulting. • Physician and support staff productivity. • Money transaction integrity and effectiveness. • Support team organization and motivation. • Decision process design and communication. • Practice refinement. • Management training and continuing business education for physicians and their team members. • Management and physician recruiting. • Group practice formations, acquisitions, sales, and mergers. • Mediation and litigation support.

To learn more about Practice Performance Group benefits available exclusely to SDCMS member physicians, contact Jeffrey J. Denning at (858) 459-7878 or at Jeff@PPGconsulting.com, or visit them online at PPGconsulting.com.

february 2010 SAN  DIEGO  P HYSICIAN . o rg

35


[Legal Landscape]

The Eye of the

Beholder Physician-Patient Perceptions of Arbitration Agreements By John T. Alexander II, MD, JD

I

n 2005, the American Medical Association identified 20 states — up from 12 in 2001 — as being in “full-blown medical liability crisis,” with skyrocketing liability insurance rates forcing doctors to close their practices, and patients rapidly losing access to healthcare (1). While legislation has proven effective in helping to curb similar crises in other states, all too often, efforts to pass reform are met with legal challenges. Fortunately, there may be another solution to help bring spiraling liability rates back down to Earth. Binding arbitration has proven to be superior to litigation in efficiency, cost, and fairness (2). And trained and experienced arbitrators can effectively reduce

36

SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

skyrocketing “pain and suffering” awards, the most commonly implicated culprit in the malpractice crisis. With these advantages, it would seem that doctors, especially those in crisis states, would avail themselves more of the benefits of arbitration. But, surprisingly, they don’t.

The Medical Malpractice Crisis Medical malpractice insurance premiums continue to escalate in states that have not implemented malpractice tort reform. Rate hikes are partly due to decreases in the number of insurance companies providing malpractice coverage and to increases in the


number of lawsuits. But a larger issue is that the size of jury awards has grown exponentially, exceeding actual increases in medical damages and economic inflation (3,4). As a result, consumers are increasingly in danger of losing access to healthcare. In 2002, the only level-one trauma center in Las Vegas, serving four states, closed when surgeons walked out after concluding they could no longer afford their liability premiums. Florida, West Virginia, and New Jersey have suffered similar walkouts in recent years (5). In the meantime, the number of people 65 or older is projected to double over the next 30 years, while the number of caregivers is expected to grow only 7 percent. States will face providing medical care for a growing elderly population with fewer doctors, especially in high-risk specialties or in rural areas that already have difficulties attracting physicians (6).

Binding Arbitration in Medical Malpractice Disputes Arbitration is confidential, quick, cost-effective, and usually much less stressful than litigation. Because arbitration is contractual, parties can develop their own rules and format, hearings are held at their convenience, and they can select either one or several experienced and impartial arbitrators. Arbitration also involves less discovery than litigation and is not dependent on overloaded court dockets, so there is much more flexibility over the timing of cases. It also saves time by preventing appeals, except in cases in which a party questions an aspect of the arbitration process itself (7). Although arbitration agreements are becoming more common between doctors and patients, they are far from being the norm. Medical malpractice arbitration statutes exist in less than one third of states and vary in scope and protection provided. Only six states — Alaska, California, Colorado, Louisiana, South Dakota, and Utah — have statutory “pre-treatment” arbitration agreements.

Arbitration: An Attractive, but Neglected, Alternative Physicians often fear that requesting arbitration agreements might have a “chilling effect” on relationships with their patients. They worry patients may feel pressured to give up certain rights, or that the request is a red flag that a doctor has had many prior lawsuits. Doctors are less likely to broach the subject of arbitration if they practice in states with malpractice caps, do not perform high-risk procedures, are not sued frequently, or some combination of these factors. The more often a doctor faces the risk of lawsuit, the more amenable he or she might be to a less-taxing form of dispute resolution.

Survey of Doctors’ Perceptions Regarding Binding Arbitration A survey (8) of doctors in San Diego County supports the hypothesis that those who practice high-risk specialties are more likely to use binding arbitration than their colleagues in lower-risk specialties. Those who used arbitration were more likely to have been sued and have their malpractice insurance premiums increase. More than half of doctors not using arbitration did not know whether or not their carriers offered the option, and one-third said

they did not use arbitration because they did not know about it. The data suggests, however, that this knowledge would not have affected their choices. Most doctors don’t use arbitration because the threat of litigation is not high enough to overcome the perceived negatives associated with a request for arbitration. Doctors believed that even if patients had a reasonable explanation of arbitration, there would still be negativity in patient perception of the issue. Still, nearly all doctors recognize the benefits of arbitration and would be willing to request an agreement if they thought their patients would see such a request positively.

Patient Survey A survey (9) of 200 patients revealed that a comprehensive understanding of arbitration does make a big impact in patient perception. Patients were surveyed both before and after an overview of the arbitration process. Two-thirds believed they knew what binding arbitration was. However, significant changes in responses before and after reading about it suggest otherwise. Survey respondents viewed arbitration much more favorably after having it explained to them. The feeling of being “coerced or pressured” dropped from 56 percent to 6 percent simply after reading a few short paragraphs defining arbitration! The trust in the doctor-patient relationship also became a smaller issue once patients better understood how arbitration works. Most significantly, 77 percent of patients who understood the benefits of arbitration did not feel that broaching the subject of an agreement would add a negative element into the relationships with their doctors.

Conclusion Binding arbitration is an efficient, economical, and fair method of resolving medical malpractice claims. Doctors recognize the obvious benefits of arbitration, but most will consider asking patients to sign binding arbitration agreements only if they believe patients will see the request in a neutral or positive light. Given an appropriate presentation, patients will often view binding arbitration as a proactive attempt by their physicians to achieve a better outcome for both parties should a dispute arise. References 1. Anderson R.E., Effective Legal Reform and the Malpractice Insurance Crisis, Yale Journal of Health Policy, Law, and Ethics, V:1 2005, 343-355, 343. 2. 4 Pepp. Disp. Resol. L.J. 1. 3. http://www.iii.org/media/hottopics/insurance/medicalmal, March 2006. 4. Anderson RE., Effective Legal Reform, Yale Journal of Health Policy, Law, and Ethics, at 349. 5. Pate, R.W., The Heritage Foundation, 2006. 6. Who Will Take Care of an Older Generation Dennis Cauchon, USA Today, October 24, 2008. 7. Weiss, Steven A., A Litigator’s Perspective, 8-APR Business Law Today 30 (1999). 8. Author Survey, 2006. 375 San Diego Physicians, Plastic Surgery, Otolaryngology, Dermatology, Ophthalmology, Ob-Gyn. 9. Author Survey, 2006. 200 Patients, Plastic Surgery and Ob-Gyn.

february 2010 SAN  DIEGO  P HYSICIAN . o rg

37


[Legal Landscape]

arbitration vs. jury trial Why a Relatively Low Percentage of Practitioners Utilize Arbitration Agreements in California By David Balfour, Esq.

A

re there times when a physician would prefer a case be presented to a jury rather than an arbitrator? Yes. Actually, most of the time. Jurors need to trust doctors. They have their own health concerns, and most rely on physicians to treat them in their time of need. While jurors are instructed to judge without sympathy, passion, or prejudice, those are three of the most deeply ingrained and enduring human tools, and jurors use them all the time in their decision-making. So if a physician appears honest, conscientious, and caring, they are more likely to gain the favor of the twelve. The converse is true too, though, that jurors can award large verdicts when they become enraged by the pompous denial of a “guilty” physician, or by a sympathetic plaintiff, or both. But the former is more likely than the latter; doctors typically prevail 70–80 percent of the time in jury trials. Arbitrators, on the other hand, are more dispassionate than jurors. It’s not that they’re less human. They’ve seen many, many severe injuries over the course of their careers. They’re less inclined than jurors to forgive a physician’s minor technical omission because they like the physician. Plus, arbitrators are employed and typically paid by both sides. It’s hard to rule outright in favor of one side to the detriment of the other. And, most arbitrators don’t. Arbitrators too are entrusted with the ability to make equitable decisions, decisions based on principles of fairness rather than law. Fairness often equates to giving a little to both sides in the dispute. So, while arbitrators’ decisions/awards may be more tempered than jurors, they tend to “split the baby” too, which means arbitrators are more likely to rule in the plaintiff/patient’s favor than jurors. The MICRA $250,000 cap on pain and suffering damages applies equally in civil jury trials and in arbitrations, and plays a much more pivotal role in limiting verdicts and awards in cases against doctors.

38

SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

A Difficult Informed Consent to Obtain Repeated studies have shown the manner in which a physician communicates with a patient is much more determinative in identifying which doctors will be sued when a patient suffers an untoward outcome. Doctors would be wise to consider whether an interruption in their communication relationship with their patient such as might be created by initiating an arbitration policy is outweighed by the benefits of arbitration. California Code of Civil Procedure section 1295 requires that a contractual arbitration agreement start with the following paragraph: “It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration.” Informing a patient you wish them to waive their constitutional right to a jury trial so you can save in malpractice premiums frequently causes patients to wonder what malpractice history you may be hiding from them. What risks and benefits of arbitration versus jury trials do you provide patients prior to their signing such an agreement? Do you inform them — as you would when obtaining an informed consent for any medical procedure — that there are alternatives to arbitration? Namely, you cannot refuse to provide care solely because of the patient’s refusal to sign an arbitration agreement.


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SDCMS

Endorsed Partner Benefits

Total Potential Value to SDCMS Members:

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february 2010 SANâ&#x20AC;&#x2C6; DIEGOâ&#x20AC;&#x2C6; P HYSICIAN . o rg

39


[Legal Landscape] No Appeal

Repeated studies have shown the manner in which a physician communicates with a patient is much more determinative in identifying which doctors will be sued when a patient suffers an untoward outcome

While putting a case in front of a jury can feel like rolling the dice, what happens if the arbitrator gets the decision wrong (or decides it would be more fair to award the plaintiff a little bit for their suffering even though the breach of the standard of care was minimal and did not likely cause the harm suffered)? You’re stuck. Runaway jury verdicts frequently are reduced by judges immediately following the verdict — or on appeal — for insufficient evidence or legal bases. On the other hand, arbitration decisions are, except under extraordinary circumstances, final, binding, and unappealable. In those BIG cases, having everything riding on one decision-maker can be scary.

Arbitration Myth: They Are Less Expensive One of the platitudes cited by arbitration advocates is that arbitration is much less expensive than the civil justice system. It’s not clear exactly what these over-generalizations are based on. Arbitrators are paid judges. Initiating an arbitration requires up-front payment to retain the arbitrator. These up-front deposits for arbitration greatly surpass the initial cost in civil court, known as the first appearance fee. More often than not, plaintiffs file suit in civil court and the defendant is forced to answer there and pay the first appearance fee — and then make a motion to compel the case to arbitration. And, the court continues to hold status-update meetings and maintains jurisdiction over the dispute through judgment (more on this below, but this means the amount of any arbitration award becomes public through this process). Does preparation for an arbitration require less attorney time/ fees? The first point to keep clear: Most cases are fought and settled prior to hearing. If your attorneys prepare less, it costs less. And you — the client — risk more. The costs of litigation and arbitration must be balanced at some level against the importance of winning, including the intangible factors of maintaining a professional reputation and clean record in addition to obtaining the correct result. These intangible benefits may or may not be proportionate to the amount of money at stake. Do attorneys prepare less in arbitration? Not substantially. In practice, discovery is conducted in arbitrations of medical malpractice cases the same as if the matter were in California state courts. Written interrogatories, document exchange, depositions of parties and witnesses, expert discovery, and basic trial preparation are essentially the same under either system. Some savings in arbitration can be realized because the formalized discovery and motion practices in court practice can be substituted with more informal contact directly with the arbitrator. But the perception of flexibility in arbitration is largely unavailable in practice with medical malpractice cases. Another one of the major costs of medical malpractice cases

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010

is the cost of medical experts. Medical experts are required in arbitration just as they would be in court, with the patient’s side presenting medical expert testimony of a breach in the standard of care causing harm to the patient, and the defense medical experts providing contrary testimony. To be sure, there are efficiencies to be had within the arbitration hearing itself. The arbitration hearing may tend to be less expensive if the case gets that far (of course, the great majority of cases settle prior to trial or arbitration). Arbitrators are more flexible with their time, so the scheduling of witnesses can typically be condensed. Plus, arbitrations usually involve less wrangling about admissibility of evidence as the arbitrators feel they can deconstruct the admissible and inadmissible evidence themselves.

Myth About Arbitration: They Are More Private The arbitration hearing itself is usually confidential, and members of the public cannot view the proceedings. But, the reality is that most malpractice cases do not make good fodder for television news shows. Unless your case contains allegations of fraud or other intentional misconduct, you are not likely to be seen on television cameras in court for malpractice cases. As far as impacting your physician practice, the difference between arbitrations and jury trials is smaller than the arbitration advocates make it out to be. Arbitration awards — which, remember, are more frequent though perhaps more tempered — must be reported to the California Medical Board (MBC), and the amount of the award becomes public information through posting on MBC’s website. Arbitration awards of any amount mandate investigation by MBC or the Osteopathic Medical Board. An arbitration award of any amount must also be reported to the National Practitioner Databank. Most insurance plans require you to disclose any civil judgment or arbitration award on renewal applications or sooner, often triggering an investigation by the plans. These reports can lead to actions with severe consequences for your practice, such as: enforcement actions seeking discipline against your license; restrictions on your ability to practice; or being dropped from insurance panels.

Conclusion Arbitration has been an available alternative in California since the 1920s. Still, a relatively low percentage of practitioners utilize arbitration agreements. Why? Primarily because doctors prevail in 70–80 percent of medical malpractice cases taken to trial before a jury. That rate of victory, to most practitioners, outweighs any perceived benefits of arbitration in flexibility, timeliness, or expense.


Project Access

San Diego

Volunteerism Made Easy The heart of the program is to link low-income, uninsured adults in San Diego County with specialist volunteers who agree to see a limited number of patients per year in their office for free. • Physician Volunteer Flexibility: Physicians set their own volunteer commitment (ideal is one patient per month). Project Access patients are seen in the private office setting so you do not have to travel far to provide care for the medically underserved. • Enrolling Patients Based on Need: Patients are referred to us exclusively from the community clinics in the area and do not qualify for any type of public health insurance program. Specialty care is a significant challenge for the clinics, and many patients endure wait times of up to six months to see a volunteer specialist at their clinic. • Making Appropriate Referrals: Project Access publishes referral guidelines for community clinic

use. Our Chief Medical Officer also reviews each case individually so that specialists see only the most appropriate referrals. • Providing Enabling Services: We provide services such as transportation and translation so that you don’t have to wonder if a patient is going to miss an appointment or if there will be a language barrier. • Providing Case Management Services: We work with each patient one-on-one to coordinate followthrough on all medical needs. • Providing All Needed Services: Through our partnerships, we ensure that a full scope of services is available to all of our patients, from hospital and ancillary services to a defined pharmacy benefit.

Join over 75 specialists as a Project Access volunteer! Project Access is actively recruiting physicians, hospitals, and ancillary service providers to participate in our program. Together we can ensure that our vulnerable populations have access to needed healthcare services. Your commitment to Project Access is needed for our success! Please visit our website at SDCMSF.org to learn more and to sign up.

Sign up NOW at SDCMSF.org We need your volunteer commitment to help even one patient. Our Medical Community Liaison, Rosemarie Marshall Johnson, MD, can answer your questions. Dr. Johnson can be paged at 619.290.5351. You may also contact Lauren Radano, Healthcare Access Manager, at 858.565.7930. february 2010 SAN  DIEGO  P HYSICIAN . o rg

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classifieds CLINICAL STUDIES CLINICAL STUDY: Dr. Timothy Bailey, boardcertified endocrinologist and ACRP-certified physician investigator, invites you to participate in a research study to determine if treating obstructive sleep apnea (OSA) may lead to improvements in diabetes control and other health benefits for people with type 2 diabetes. Tests results obtained from wearing a sleep-screening device in your home overnight may indicate whether or not you have OSA. If positive, you will be scheduled for an overnight visit to a sleep clinic and then assigned to sleep apnea therapy and lifestyle counseling or you will receive lifestyle counseling with sleep apnea therapy occurring upon completion of the study, if you would like treatment. If you are interested in this study or would like more information, please call (877) 567-2627 or email us at info@amcrinstitute.com. [731] OFFICE SPACE Beautiful Office in Scripps La Jolla Ximed Building to Share/Sublet: Scripps La Jolla Ximed office to sublet/share. Upscale décor; currently equipped for ophth. Could work well for derm, cosmetic, bariatric, neuro, IM, etc., or even consultant. Days/fees negotiable/reasonable, ~1700ft2, could share staff/phones, etc. (858) 449-9867 or fwlmd@cox.net. [787]

10 minutes from Grossmont Hospital. Looking to share with part-time or full-time physician. Fully furnished, fully equipped, with X-ray equipment and three exam rooms. Please call (619) 6680900 or email either rcham1000@aol.com or carmen@drcham.com. [784]

Reach 8,500 doctors by advertising in San Diego Physician magazine. Contact Dari Pebdani today! 858-231-1231 or DPebdani@SDCMS.org

NEW MEDICAL BUILDING ALONG I-15: Pinnacle Medical Plaza is a new 80,000 SF building recently completed off Scripps Poway Parkway. The location is perfect for serving patients along the I-15 from Mira Mesa to Rancho Bernardo and reaches west with easy access to Highway 56. Suites are available from 1,000—11,000 SF and will be improved to meet exact requirements. FREE RENT INCENTIVES and a generous improvement allowance is provided. For information, contact Ed Muna at 619-702-5655, ed@lankfordsd.com www.pinnaclemedicalplaza.com SORRENTO VALLEY/MIRA MESA OFFICE SPACE TO SHARE: Space includes physician’s office, three exam rooms, and space for receptionist. This office is available Monday, Wednesday, and Friday afternoons. Reduce your overhead by sharing space. Call us at (858) 458-0940 or fax your letter of interest to (858) 458-3688. [785] OFFICE SPACE TO SHARE: Currently occupied by orthopaedic surgeon situated in La Mesa, five minutes away from Alvarado Hospital and

MEDICAL OFFICE SPACE TO LEASE, ALL OR PART: Up to 1,100ft2. Owner may also be willing to sell. Great location in medical/dental complex in Poway, next to Pomerado Hospital (borders Rancho Bernardo). Open treatment areas and private treatment rooms, two bathrooms, waiting room/ lobby, front office. Second floor. Elevator/stair access. Beautiful view of the hills. Ideal for medical, physical therapy, chiropractic, acupuncture, complementary/alternative medicine, massage/body work, etc. Patients/clients from Poway, Rancho Bernardo, Carmel Mountain, 4-S Ranch, Scripps Ranch, Escondido, Ramona, etc. Contact Debbie Summers at (858) 382-8127 or debjsummers1@ yahoo.com. [782] 1,200FT2–1,600FT2 OF OFFICE SPACE IN EAST SAN DIEGO/LA MESA AVAILABLE FOR LEASE: Ideal as a satellite clinic or administrative office, on University Ave. near 70th St. Very visible tower signage provides outstanding visibility and exposure to cars and pedestrians on University Ave. Adjacent to a pediatrics office, and with easy access from Highways 8, 94, 125, and 15, Alvarado

and Grossmont College, La Mesa, El Cajon, Spring Valley, Lemon Grove, points south and north. Plenty of parking and directly across from the Joan Kroc Recreation Center (over 3,000 families visit each week). Fixed rent for three years $1.95/ ft2 per month, includes lighted tower signage, and NO additional charges for common areas or services. Please contact Venk at (619) 504-5830 or by email at venk@gpeds.sdcoxmail.com. [777] MEDICAL OFFICE SPACE: Multi-specialty medical office with large office available with view of San Diego harbor/downtown. Share three fully equipped exam rooms, reception, lobby, and common areas. Lab on site, underground parking available. Phone (619) 233-4044 or email hivdocs@ yahoo.com. [775] LA JOLLA MEDICAL OFFICE AVAILABLE FOR PART-TIME SUBLEASE: Beautiful ScrippsXimed office offers two consultation offices and one exam room. Receptionist help provided if needed. Contact Cindi at (858) 452-6226. [774] NORTH COUNTY THERAPIST OFFICE SPACE AVAILABLE IN THE TRI-CITY AREA: 2–3 days a week. Spacious, ocean view, fully furnished office suite. Contact Laura at (760) 967-5898. [772] TURNKEY MULTI-MILLION OFFICE MEDICAL SUITE: Spectacular design with a history of successful medical practices in this suite. We have a multi-million dollar practice out of this 1,700ft2 facility. We have outgrown our space, and we are moving to a larger suite in the same building. Over 150K in tenant improvements have been made. Furniture is also included at this turnkey suite. Up to four exam rooms, small procedure room, doctor’s office, elective procedure consultation room, and two waiting rooms. Office is for sale for a very reasonable rate - much less than a build-out. Rent is extremely reasonable. Furniture and improvements also included. Be ready to practice nearly instantly! Located in Mission Valley in a prime location. Contact Dr. Tony at tpinvestor@yahoo.com or cell phone (858) 3352266. [770] PROFESSIONAL OFFICE SPACE TO SHARE OR LEASE: Part time, full time, flexible terms and incentives. Up to 1,400ft2 in a medical complex. Near Alvarado Hospital, SDSU college area. Ample parking. High visibility street location. Ideal for any specialty or allied medical professionals. Call (858) 243-2425. [733] MISSION VALLEY HEIGHTS-AREA MEDICAL OFFICE SPACE AVAILABLE TO SHARE: Medical office space available to share in existing 2,700ft2 orthopedic office in Mission Valley

To submit a classified ad, email Kyle Lewis at KLewis@SDCMS.org. SDCMS members place classified ads free of charge (excepting “Services Offered” ads). Nonmembers pay $150 (100-word limit) per ad per month of insertion.

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


Heights area. Newer building with excellent parttime tenant, but may consider daily or half-day rental arrangements. Willing to rent space only or can provide full-service, turnkey environment. Contact Roger Freeman at (858) 277-9000. [768] MULTI-SPECIALTY MEDICAL OFFICE SPACE AVAILABLE IN BANKER’S HILL AREA: Large office with view of San Diego harbor, eight fully equipped exam rooms, lab on site, and underground parking. Please contact Chris Bobritchi at (619) 233-4044 or at hivdocs@yahoo.com. [767] BEAUTIFUL 2,000FT2 MEDICAL SUITE IN PRIME LOCATION AVAILABLE FOR SUBLEASE: Women’s healthcare office located next to Sharp Hospital in Chula Vista is available for sublease on Mondays, Wednesdays, and Thursdays beginning June 1. For more information please contact Jessica at (619) 397-2950, ext. 200. [766] SPACE AVAILABLE FOR SINGLE DOCTOR PRACTICE: Office located in the Alvarado Hospital area, near San Diego State College. Space includes a physician office and two exam rooms. Please call (619) 229-5055 or email cnc_case@ cox.net. [765] LA JOLLA OFFICE SPACE AVAILABLE AT XIMED MEDICAL BUILDING: Brand new, renovated office space available, preferably to a primary care MD to share. This is a rare opportunity to have a presence at the prestigious XiMed Medical Building right next to Scripps Memorial Hospital and to reduce your overhead by sharing space. Currently, the office is being used by a single physician part of the time. Flexible to any arrangement proposed. Call (858) 837-1540 or email melkurtulus@hotmail.com. [664] LA MESA OFFICE SPACE TO SHARE: Over 6,000ft2 OB/GYN office of three doctors, with space available immediately. Ideal for a medical practice or clinical studies and is located on Grossmont Hospital campus. Contact La Mesa OB/GYN at (619) 463-7775 or fax letter of interest to (619) 463-4181. [648]

nurse team present), all make for a very tolerable practice profile. Benefits include paid tail coverage included professional liability insurance, paid holidays/vacation/sick time off, paid practice expenses, professional dues, health and dental insurance, uniforms, CME, disability and life insurance. Please contact Venk at (619) 504-5830 or by email at venk@gpeds.sdcoxmail.com for a July–September placement. [778] PHYSICIAN: Profil Institute for Clinical Research Inc. (PICR) is an independent research institute conducting clinical phase I–II trials, primarily in diabetes and carbohydrate metabolism, under contract to the biopharmaceutical industry [http://www.profil-research.com]. We are seeking a physician who will ensure integrity of study data and provide medical leadership and supervision for human clinical trials within PICR. Will screen, review of I/E criteria, and determine suitability of study volunteers for enrolment. Provide supervision of clinical procedures for all ongoing clinical studies at Profil and provide medical expertise to all clinical staff. Works with the associate medical director and medical director in training of physicians and other clinical staff as needed. Requirements: medical doctor, current, unrestricted license to practice medicine in California and current advanced cardiac life support (ACLS) certification. Understanding of the drug development process and of basic physiology of glucose homeostasis, diabetes, and obesity. Ability to manage medical care of diabetics, obese subjects, and other common medical problems, including medical emergencies. Thorough understanding of good clinical practices and FD, a regulations governing conduct of clinical trials. Previous clinical research experience desirable. If interested, please send CV/resume to hrpicr@ profil-research.com. [779] THE COUNTY OF SAN DIEGO HAS AN EXCITING OPPORTUNITY FOR DEPUTY PUBLIC HEALTH OFFICR: The full posting can be found at sdcounty.ca.gov/hr. For questions, contact Carmen A. Padilla-Baluis, human resources analyst, at (619) 531-5144 or carmen.padillabaluis@sdcounty.ca.gov. [773]

PHYSICIAN POSITIONS AVAILABLE SEEKING BOARD-CERTIFIED PEDIATRICIAN FOR PERMANENT 3.5 DAYS PER WEEK POSITION (TO START): Private practice in La Mesa seeks pediatrician 3.5 days per week (to start) on a PARTNERSHIP track. Practice pediatrics in a modern office setting with a reputation for outstanding patient satisfaction for 14 years. Dedicated triage-pharmacy-referrals and education nurse takes routine calls off your hands, leaving you to focus on direct, quality patient care. Nine office staff provide experienced, attentive support. Clinic care is three patients per hour, 1-in-3 call is minimal, rounding at Sharp Grossmont on newborns, no high-risk delivery attendance (ALS

FAMILY PRACTICE DOCTORS NEEDED: Full time and part time. Days, nights, weekends available. Fax CV to La Costa Urgent Care at (760) 603-7719. [750] NONPHYSICIAN POSITIONS AVAILABLE SDCMS "MEDICAL OFFICE MANAGER ADVOCATE" JOB OPENING: SDCMS is currently accepting applications for a “Medical Office Manager Advocate,” an independent thinker with a “can-do” attitude who will provide exceptional support to the staffs of more than 1,000 small and medium-sized medical offices. Three-plus years medical office management experience re-

quired, and seminar planning and execution experience desired. Visit SDCMS.org/ed-classified for details. [789] PHYSICIAN ASSISTANT: Multi-site rheumatology practice is seeking a physician assistant to provide support and treatment of patients with rheumatoid arthritis as well as other diseases affecting the body’s connective tissues. Background in internal medicine is a must and rheumatology experience is helpful but not required. This position will require travel between our San Diego offices and our office in Imperial Valley. Qualified candidates may email CV to hr.providerjobs@ gmail.com. [788] PRACTICE ADMINISTRATOR NEEDED FOR BUSY NORTH COUNTY MEDICAL OFFICE: Must have a minimum of 5–7 years of medical management experience with cosmetic/sales/customer service experience a plus. The practice administrator will direct the daily operations of the administrative and medical staffs as well as the financial functions of the practice. The practice administrator must understand the business model of a cosmetic practice and be able to motivate staff to achieve revenue goals. This candidate will be responsible to develop and implement current and long-range policies, procedures, and programs as well as any required comprehensive compliance plans. Must develop, manage, and monitor the financial and fiscal aspects of the practice, including budget preparation, and will demonstrate a proven financial track record. Other duties include management of the equipment maintenance, personnel, payroll, creation of a quality improvement plan and follow through, accounts payable (QuickBooks experience), accounts receivable process, including creation of measurable results and ensuring accountability, front and back office, payer contracts, regular staff meetings, product sales, and marketing and business development. The practice administrator will maintain relationships with referring physicians, vendors, and the healthcare community, as well as perform other duties as requested. Please fax resumes to (615) 694-3611. [771] FULL-TIME FRONT DESK / BILLING POSITION (EAST COUNTY): Full time front desk/billing position available for a small, two-physician specialty office. Billing experience required. Please send resume to Debbie0774@gmail.com. [780] MEDICAL EQUIPMENT/OFFICE FURNITURE FOR SALE: BTE WORK SIMULATOR (SIM II): Gently used, excellent condition. Full set of tools. Use for work hardening, functional capacity evaluations, activity/job simulation, strengthening, and endurance. $19,000 or best offer (purchased new in 2003 for $32,000). Contact Debbie Summers at (858) 382-8127 or debjsummers1@yahoo.com. [783]

february 2010 SAN  DIEGO  P HYSICIAN . o rg

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theartofmedicine By Daniel J. Bressler, MD, SDCMS-CMA Member Since 1988

Finding no suitor in Oaxaca You convinced widowed mother and aunt To jump the easy border with you to San Diego. Crumpled 1950s dollars for hard labor Fed and housed your little family of women. Housekeeping instructions you learned, And The Pledge of Allegiance. I first met your mother at La Clinica de Salud. Her breathing was short and we had free med samples. At every visit she draped a silk scarf over her shoulders An irrevocable connection to feminine elegance Its burgundies and silvers a world away From the institutional exam room furniture.

Blancas

For three years starting in 1984, fresh out of my academic Harvard residency, I had the privilege of working at San Ysidro Health Center, a “stone’s throw” away from the Mexican border. Despite my poor Spanish language skills, I was welcomed into the lives and homes of my patients, many of whom spoke no English. When I left the Health Center to start a private practice, a number of my patients “came with me.” I still look after a number of these, my “original” patients, although their ranks are, understandably, thinning. One woman, who has since passed, is refreshed in my memory by the continuing visits of her surviving sister and niece. I have done my best to capture the delight and sadness of her memory in this poem, called, simply, “Blancas.” The names and other identifying information have been changed so as not to encroach on the confidentiality of these lovely people.

You yourself are now past 80, “Blanca Joven,” And no longer scrubbing floors in upscale Bonita. Unused to having problems of your own, You giggle apologies for your pains and debilities. Larded tamales and tortillas are not the usual diet I prescribe for edema and hypertension. And yet, the years roll on taking you with them. Twenty years now since we buried your mother. I, too, left La Clinica, that place where poverty Was always first on the problem list. You promised to follow me and true as your smile Here you are in my office, 3 bus changes Up from South County, always early, Always eager with your deaf aunt in tow Calling “Hola, doctor!” across the waiting room. I remember visiting your mother housebound at the end. She served me a sopa “reserved for honored guests” And honored I was by the broth and performance. She glanced flirtingly at me between gasps for oxygen. Half sorceress, delaying death with her spells; Half coquette taking the digoxin only to please her gringo doctor Hiding her bulging neck veins with that silk scarf. She smiled as you smile now, taking out Tia Herminia’s pills Laying them on the countertop of the exam room For my blessings and rearrangements. For so long I have felt overpaid by your family’s gifts: Your example of devotion to your mother and her sister; The way Herminia holds my face in her hands at each visit And beams, “Mi doctor!” as if a long search has just ended. The way “Blanca Vieja” used her scarf to signal me That love is a mystery stronger even than death.

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SAN  D IEG O  P HYSICIAN . or g f e bru a ry 2010


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S FOR DOCTORS

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nt, but do charge a minimum you keep a pre-set amount don’t have that much, the e advisers are flexible about FOR n an adviser but don’t meet ght want to inquire anyway. o require $1 million or less

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ked each adviser against the s and Exchange Commission arry has over 27 years experience as a wealth advisor, with hority to confirm that they had more than 10 of those years with Morgan Stanley Smith oing on a national level.

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Morgan Stanley Smith Barney ddition 101 West Broadway. 18th Floor • San Diego, CA 92101 ervices, visory andSource: non-advisory 150 Best Financial Advisors for Doctors, September 18, 2009 as identified by the Medical Economics using quantitative and qualitative criteria and selected from a pool of nominations. Financial Advisors in the 150 Best Financial Advisors for rage services clients Doctorsto should have a minimum of ten years of experience; require at least a minimum investment of at least one million dollars; acceptable compliance records and are not commission only based. Other factors considered were certifications that require continuing education and if they specialized in the physician business or the medical fields. The rating may not be representative of any one client’s experience. The rating is not indicative of the Financial Advisor’s future performance. Neither earned hisMorgan MAStanley fromSmith the Barney nor its Financial Advisors pay a fee to Medical Economics in exchange for the rating. february 2010 SAN  DIEGO  P HYSICIAN . o rg

O N E O F W O R T H M AG A Z I N E ’S TO P 2 5 0 W E A LT H A D V I S O R S F O R 2 0 0 8

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$5.95 | www.SANDIEGOPHYSICIAN.org San diego County Medical Society 5575 RUFFIN ROAD, SUITE 250 SAN DIEGO, CA  92123 [ RETURN SERVICE REQUESTED ]

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PRSRT STD U.S. POSTAGE PAID DENVER, CO PERMIT NO. 5377

February 2010  

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