Whistle-blower Doc Fired, Questioned Patient Safety

Modern Healthcare Print Version

January 17, 2014

Cloyd Gatrell, M.D., was working as an emergency physician at the Carlisle (PA) Regional Medical Center when he began raising staffing-related patient-safety concerns. He accused the hospital of not hiring enough nurses, which led to emergency department (ED) waits of up to eight hours.

His allegations, made in 2009, led to unannounced inspections by the state Health Department and scrutiny from the Joint Commission. Those complaints were eventually dropped. Gatrell was later fired, and he filed a wrongful termination lawsuit against the hospital and EmCare, the staffing firm that was his direct employer.

EmCare, a Dallas-based provider of emergency, radiology and anesthesiology services, declined to comment on the litigation. Publicly traded Health Management Associates (HMA), which owns Carlisle Regional and has been named in several physician whistle-blower suits that the federal government has joined, declined to comment on the specifics of Gatrell's case but said, "We believe Gatrell's claims are false." Kirk Ogrosky, an attorney for HMA, said, "HMA is fully committed to and promotes policies to assure that only doctors make healthcare decisions at HMA facilities."

The conflict between the staffing firm and one of its employed doctors highlights a growing problem for hospitals and other healthcare institutions that have turned to outside vendors to supply critical physician services. While the outside firms bring greater efficiencies and standardized practices, their growth has ratcheted up tensions, especially among those physicians who used to belong to independent practices or who enjoyed greater professional autonomy as direct hospital employees.

Some of these newly employed doctors say they are being pressured to generate increased revenue or put up with conditions that impair quality or patient safety. There sometimes are similar issues between hospitals and doctors they directly employ. Among those who feel most under the gun are hospital-based specialists such as emergency physicians, anesthesiologists and hospitalists. Many now work for contractors that may find it easier than hospitals to fire them if they speak up about professionally unacceptable conditions.

"Employed physicians can find themselves at risk because they don't have job security," said William Durkin Jr., M.D., president of the American Academy of Emergency Medicine (AAEM). "They have no due-process rights and could get let go for causing problems."

While the AAEM says large specialty contractors are problematic, some experts say these staffing firms are leading large-scale quality-improvement efforts that improve patient care. They "do a lot to improve quality," said Jesse Pines, M.D., director of George Washington University's Office for Clinical Practice Innovation. Such groups increasingly are facilitating care coordination, and they bring economies of scale that increase efficiency and reduce costs. The result will be "bigger and bigger groups."

This split perspective on outside physician contracting has long divided physicians, especially those who specialize in emergency medicine. Two decades ago, a group of emergency room docs split from the American College of Emergency Physicians (ACEP) to form the AAEM because of what they perceived as ACEP's silence about abuses by contracting companies. The group now has about 8,000 members.

The AAEM mission statement declared that the practice of emergency medicine is best conducted by an emergency medicine specialist in an environment that includes provisions for due process and "the absence of restrictive covenants."

Durkin said contractors can hire and fire doctors at will, especially in large metropolitan markets where one contractor is dominant. "I was working for a single-contract dictator," said Durkin, who is now a self-employed clinician and consultant. "Then I thought, why should I forfeit 20 to 25% of the money I'm bringing in to someone who is doing little more than drawing up a schedule?"

While acknowledging that "there are some well-run groups," Durkin characterizes many contractors that hire physicians as "hired guns" with little connection to the communities where their doctors work. "We ought to not have fear for our jobs when we advocate on behalf of our patients and do what's right for them," he said.

The tensions between physicians and outside staffing firms also are being felt by hospitals that increasingly are acquiring practices and hiring physicians. Surveys and anecdotal evidence from physician recruitment firms confirm the existence of widespread tension.

Peter Cebulka III, director of recruiting development and training for Merritt Hawkins, a Dallas-based physician search firm, said certain specialists, even those in high demand, fear being labeled as troublemakers and thus keep their opinions to themselves. "We do come across it quite a bit, and it's one reason why physicians are looking to relocate," Cebulka said. Doctors want to fix problems, but they are also concerned that being outspoken "may reflect poorly on them down the line."

The results of a survey released last week by Physicians Wellness Services, a behavioral health company, and St. Louis-based physician recruiter Cejka Search highlight the disconnect between physicians and the administrators for whom they work. One of the 1,666 physicians participating in the survey wrote: "Many hospital administrators seem to think they can demand engagement."

Physicians were asked what elements of engagement were important to them and to what degree those elements exist at the facilities where they worked. The biggest gaps were found in the statements like "feeling that my opinions and ideas are valued" and having "a voice in clinical operations and processes."

The recruiters suggest that if physicians encounter problems after speaking out, it often arises from the less than ideal way they do it. They counsel physicians to hone their diplomacy skills and work through established staff processes to address ethical or quality concerns.

Cebulka also recommended that physicians insist on "professional autonomy" clauses in their contracts, which ensure they can't be ordered to provide care or engage in practices they think are not medically or ethically appropriate. They also should ask for clauses requiring employers to provide adequate resources and staffing to provide excellent care, he said.

The American Medical Association (AMA) sought to address these issues with a statement of principles for physician employment that the AMA House of Delegates approved in November 2012. The principles address conflicts of interest, advocating for patients and professional standards, hospital medical staff relations, peer review and performance evaluation, and payment agreements.

AMA board member Joseph Annis,M.D., an anesthesiologist from Austin, TX, said that while cases of physicians being "compromised" were not widespread, there were enough to catch the attention of the AMA. "These are principles both sides should go by," Annis said. "Hopefully, we've put forth a mechanism in which a physician can speak up without fear of being penalized."

Annis said formerly independent physicians may need some mentoring upon becoming employed by a hospital or contractor. Doctors who "never played team sports" may lack the diplomacy skills needed to find solutions to problems they identify, he said. Even when there are processes in place to register complaints, "they want to go straight up, nose-to-nose."

Annis said the AMA also has supported physicians by developing model physician employment agreements. Through its Litigation Center, the AMA has worked with state medical societies to support doctors' right to exercise professional judgment. Most recently, it worked with the California Medical Association to write a friend-of-the-court brief on behalf of Mark Fahlen, M.D., who alleges his privileges were revoked at Sutter Central Valley Hospitals after raising concerns about patient care.

But Gatrell contends the AMA's protections do not go far enough. For instance, one principle states that "unless specified otherwise in the employment agreement," termination of employment should not automatically mean the loss of hospital privileges. Gatrell argues that termination by a contractor should never lead to a loss of hospital privileges, at least partly because termination removes the doctor's due-process protections as a staff member. He said he told the AMA that its statement of principles was "meaningless" because doctors generally don't have the leverage to get their preferred terms into the contract.

T. Clifford Deveny, M.D., senior vice president for physician services for Catholic Health Initiatives (CHI), which employs about 2,000 physicians, said his system expects doctors to act in the best interest of their patients. CHI has put in place a system where physicians can register complaints and concerns, with the goal of having them craft constructive solutions. He said many conflicts are between physicians whose practice cultures may not mesh well. CHI has held meetings "to introduce people and break down barriers and misconceptions," Deveny said.

But, Deveny added, conflicts can arise when upper management has to deal with "low performers" in an acquired practice or a surplus of specialists in a given area after an acquisition. "If you have a group of 20 cardiologists, what do you do when two are not meeting expectations?" he says. "Or what if you hired 20 but only need 15?"

Looking back at his experience at his former hospital, Gatrell's advice is for doctors to watch their backs and show professional unity. "It's risky to stick up for patients," he said. "But it is the right thing to do, and doctors need to do it."

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