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Sheila Horn is no Arthur Andersen The issue of confidentiality of medical information has been in the forefront of medical thinking at least since the time of Hippocrates. Employed, salaried physicians can be put under enormous pressure, i.e. loss of employment, to violate the basic tenets of our profession despite the fact that the physician was hired specifically because of his or her license. Although the NYS Department of Health, the Office of Professional Medical Conduct and the medical society Peer Review Committees hold employed physicians to the same standards as any other physician, there appears to be neither the protection offered to the physician nor enforceable standards for the employer. The "corporate practice" of medicine is forbidden in New York State. To practice medicine or to employ a physician to practice medicine, you must be a physician, a professional corporation of physicians, or a "hospital" licensed by Article 28. "Hospital" has come to mean various health care entities including diagnostic and treatment facilities, ambulatory surgical centers, nursing homes and traditional hospitals. However, all "Article 28" facilities are carefully monitored and controlled by the NYS Department of Health even more vigorously than physician offices. HMOs can also employ physicians and are also strictly regulated. Physicians employed or working for/with these organizations have a significant degree of protection because the employer has as much to lose as the physician. However, non-medical corporations are permitted to employ physicians for medical purposes under some limited circumstances. Almost every major corporation employs a corporate medical director to review employee health, OSHA compliance, disability and other health related issues. Some corporations employ physicians to render direct medical care including pre-employment and sometimes ongoing employee medical care. Under these circumstances, the "duty of a physician" to the patient can conflict with the responsibilities of an 'employee." In the case of Sheila Horn, MD, just such a conflict arose. Dr. Horn, as reported on the MSSNY web site, refused to provide medical information that Dr. Horn felt was confidential and not in the proper purview of the non-medical leadership of The New York Times. Reportedly, Dr. Horn requested guidance from the NYS Department of Health who informed Dr. Horn that "such conduct violated her legal and ethical duty to patients." Dr. Horn then did what every physician should do, honor her commitment to patients and the responsibilities of her license, and was terminated from her employment for this action. Dr. Horn is now suing The New York Times because of a "wrongful dismissal." Notwithstanding whether she does or does not prevail in court, the only risk to The Times is the relatively minor employment civil action. The Times' right to publish and its existence is not at risk. Employed physicians must be exceptionally diligent about resisting non-medical pressures. An ever increasing number of physicians are employed by medical and non-medical entities and may face the dilemma of being employed specifically because of their medical license and then being asked to behave in a manner inconsistent with that license. Although as am employed physician, I have never faced this challenge, the physicians that bring honor to themselves, our profession and ultimately to their employer, are those that honor first and foremost, their professional responsibilities. It is ironic that the story of Dr. Horn is reported by MSSNY at the same time that MSSNY reported the softening of the federal HIPAA requirements. Physicians certainly don't need more federal regulation to remind them of responsibilities that we have recognized for thousands of years. Perhaps further thought should be given to those organizations who employee physicians and then forget why they needed to hire a licensed professional. There is not and hopefully never will be a medical Enron/Arthur Andersen Scandal.
Daniel J. Nicoll, MD
Hundreds of physicians and their supports braved the inclement weather and stepped out at 22 sites across the state to call attention to the increasingly serious medical liability situation in New York and across the country. In Mineola, an estimated 400 doctors and supporters from Nassau and Suffolk rallied on the steps of the State Supreme Court to demonstrate their concern that skyrocketing liability premium costs were eroding their ability to deliver patient care. "We now see that many physicians are struggling to cover their overheads," said MSSNY President Ann Cea, MD, "and are having to cut back on services. If physicians are unable to get some relief, then more cutbacks in medical services are inevitable. Against the backdrop of Medicare fee cuts, physicians are just out of room." As part of its comprehensive Tort Reform Action Plan, on April 1, MSSNY activated the Tort Reform Hotline (866) 728-3397 which will send a fax to state leaders urging enactment of the Civil Justice Reform Act (S.3453A/A.6956). Doctors are urged to call the hot line today.
In a related issue, the HEALTH (Help Efficient, Accessible, Low-cost Timely Healthcare) Act has been introduced in the U.S. House of Representatives by Congressmen Jim Greenwood (R-PA), Christopher Cox (R-CA), John Murtha (D-PA), Collin Peterson (D-MN), Jim Moran (D-VA) and Ken Lucas (D-KY). The legislation would establish federal tort liability guidelines for those states which have not acted to do so, such as New York. Among major provisions of the bill are much-needed lawsuit reforms designed to ensure patient access to quality, affordable health care services, including; apportioning awards according to the various party's liability in the case; ensuring that all economic damages, irrespective of amount, are paid to the injured patients; directing greater amounts of award to injured parties away from the trial attorney's pockets; establishing a reasonable "clear and convincing" standard of evidence for punitive damage claims and limiting their amount; providing for periodic payment of future medical expenses, and; establishing a $250,000 limit on unqualifiable non-economic awards, such as pain and suffering. As physicians, hospitals and others can attest, skyrocketing insurance premiums are debilitating New York's health care delivery system. Absent the enactment of meaningful tort reform on the state level, this federal legislation is desperately needed to stem the exodus of physicians from the practice of medicine in order to ensure that access to quality care will continue. Physicians are encouraged to learn more about the AMA's efforts to work with the state and local societies to enact tort reform by visiting their web site at: These actions are being taken in concert with MSSNY's and our own continuing aggressive campaign to enact tort reform on the state level.
Representatives of Empire Blue Cross/Blue Shield addressed the March 19th meeting of the Peer Review Committee to discuss complaints by physicians of "down coding" by Empire. According to representatives at that meeting, Empire has identified about 15% of its participating physicians as being responsible for about 90% of what it considers "up coded" claims. According to EBC/BS, these are the physicians who will have their codes automatically down coded. They will need to appeal their claims if they believe that they deserve the higher code, and they will have to submit their office notes as documentation. EBC/BS also noted that if there are other diagnoses along with the initial diagnosis, then the additional codes must also be submitted. It should also be noted that the primary factor in determining the proper code is time which should include and document patient consultation. When discussing a diagnosis with a patient and specific equipment is used, this information should be so documented. Finally, EBC/BS reminds all that it is vital to include all I.D. numbers when inquiring about a claim.
The New York City Department of Health has been notified of two confirmed measles cases in Pakistani-American babies who are residents of Queens and Brooklyn. The first case is an 11-month old baby girl who returned from a visit to Pakistan with her mother on March 28, 2002. On April 3, the baby presented to a physician with a 2-week history of cough and diarrhea. Three days later, the baby was taken to a Queens hospital emergency department with the same symptoms, plus a 100.3F fever and rash onset on her face, abdomen, back and genital area. The baby was admitted to the hospital with a diagnosis of gastroenteritis and URI. The diagnosis was changed to measles when conjunctivitis developed. Blood for measles IgM antibody drawn on April 9, tested positive. The second case is a two-and -a-half month old boy who developed a rash illness on April 4, 2002. His mother had developed a rash illness on March 21 after contact with relatives who returned from Pakistan. She had initially tested negative for measles. The baby presented to the emergency department of a Brooklyn hospital with a fever of 101F, diarrhea, otitis media, cough and conjunctivitis. The baby was then transferred to another hospital where it could be kept in respiratory and contact isolation. Blood for measles IgM antibody drawn on April 9, tested positive. Both case investigations are ongoing. All confirmed and suspect cases of measles should be immediately reported to the Nassau County Department of Health at 571-3471.
Prescription drugs, medical devices and new medical treatments were "among the biggest contributors" to the double-digit increases in health insurance premiums between 2001 and 2002, according to a study released by the American Association of Health Plans. The study, conducted by Price Waterhouse Coopers, found that these factors accounted for 22% of the premium increases this year, which averaged 13.7% for large companies. Price Waterhouse Coopers, estimates that the cost of litigation and malpractice adds about 1% to the cost of healthcare premiums. This makes up 7% of the overall increase, representing $5 billion in increased premium costs.
About 9.7% of Manhattan residents (90,000 people) had symptoms of clinical depression in the month after Sept. 11, and 7.5% had symptoms of post-traumatic stress disorder, according to a study published in the New England Journal of Medicine (3/28).
Copies of the revised Nassau County Department of Health bulletin Lyme Disease and Other Tick Related Illnesses are available at no cost to physicians and other health care providers for distribution to their patients. The bulletin provides information to patients about Lyme Disease and the other diseases in this area that are caused by bites from infected ticks. The bulletin provides strategies to prevent disease, describes the proper way to remove ticks and lists the early symptoms of Lyme Disease, Ehrlichiosis, Babesiosis and Rocky Mountain Spotted Fever. The bulletin also includes recommendations for the use of Lyme Disease vaccine. The bulletin is available by contacting the Nassau County Department of Health at 516-571-2006 to obtain copies of the Lyme Disease and Other Tick Related Illnesses bulletin.
On Thursday, April 4, an appellate court lifted a temporary stay that had put the new No-Fault "Regulation 68" on hold. This means that Regulation 68 is now in effect. Among other provisions, Regulation 68 implements the following:
MSSNY and other petitioners have fought the regulations since they were introduced two years ago. In June, 2000, the New York State Supreme Court in Manhattan ruled that Regulation 68 was null and void because the State Insurance Department (SID) failed to comply with the procedures required under the State Administrative Procedure Act (SAPA) in adopting the regulations. The Appellate Division, First Department affirmed the ruling in February, 2001. In August, 2001, SID re-issued Regulation 68. MSSNY and the other petitioners again instituted a legal challenge. In February, 2002, however, NYS Supreme Court Justice William Wetzel lifted the stay. However, the appellate court did not issue a written opinion or state the reasons for lifting the stay. MSSNY will continue with the appeal and seek to have Justice Wetzel's decision reversed.
Legislation to lessen some of the administrative hassles faced by physicians in managed care plans passed the Assembly last week. The measure would call upon the Health Commissioner and Insurance Superintendent, in conjunction with MSSNY, the Hospital Association and the Health Plan Association, to develop a uniform credentialing and recredentialing form by the purposes of participating on the panel of a health plan or obtaining employment or staff privileges at a hospital. The Medical Societies strongly support this legislation. The bill would also require the same parties to develop a uniform referral form. Moreover, the bill would require health plans to establish procedures to permit newly licensed physicians to provisionally render and receive payment for care to patients during the period of their application process. Similar, but not identical, legislation (S.6353, Hannon) is pending in the Senate Health Committee. MSSNY will work with both sponsors to facilitate the passage of a bill by both Houses.
The Center of Medicare and Medicaid Services, (CMS) has made available its model compliance extension form for the purpose of assisting physicians and other providers to receive a one-year extension for complying with the HIPAA standard transaction and code sets. Physician compliance with these standard code sets is required by October 16, 2002. However, a physician will receive a one-year extension (until October, 2003) if they submit an extension request to CMS by October 15, 2002. Physicians can access this model form and instructions for completing it at: http://www.cms.hhs.gov/hipaa/hipaa2/ascaform.asp
The form is 3 pages long and contains 26 questions, many of which are yes/no check boxes. A physician has the choice to either submit the form electronically to CMS or to print it out and mail it. It should be noted that a physician is not required to use the model form to apply for the extension, as long as equivalent information is provided on the physician's own extension request, including an implementation strategy for achieving compliance, whether a vendor will be used to assist in compliance, and assessment of compliance problems, and a time frame for beginning testing no later than April 16, 2003. If a physician chooses to mail the extension request, it should be mailed to:
Physicians should also be aware that the extension is specific to the HIPAA standard code sets, not the privacy regulations. The Privacy regulations must be complied with by April 14, 2003, and no extension is anticipated. The Nassau County Medical Society is in the process of developing a comprehensive workshop for members and their staffs which will provide needed information on the HIPAA compliance regulations. Information will be distributed to members as the program date is set.
The Medical Society of the State of New York is attempting to aggregate data on the number of physicians under the age of 55 who are leaving the state; retiring from practice; or limiting their practices. Any physicians who would like to provide this information to us so that we may forward it to the MSSNY, is asked to send us that information in writing along with data regarding the number of years in practice, the practice location, and the primary reason(s) for your decisions.
Emmett Campbell, MD, has received an award from the American Academy of Otolaryngology-Head and Neck Surgery Foundation for "distinguished services in the scientific programs, exhibits, and continuing education courses and instructional courses". Dr. Campbell is on the medical staff of Mercy Medical Center and is a recognized pioneer in ear surgery and surgical device innovation. He headed the first ever Cochlear Implant Center on Long Island in 1991, providing treatment to patients with total deafness. Ivan Rothman, MD, of Merrick, was named medical director of the oncology center at South Nassau Communities Hospital. Dr. Rothman has been associated with South Nassau for more than 20 years, and chairs the hospital's Institutional Review Board. He has served as clinical associate at the National Institutes of Health and is a consultant at Sloan-Kettering Cancer Center. Robert Waldbaum, MD, the director of the Division of Urology at North Shore Hospital in Manhasset, has received the Russell W. Lavengood Distinguished Service Award. The award honors the memory of a physician who was a leader in all areas of academic urology and who was also noted for the compassionate care of his patients. Dr. Waldbaum is clinical professor of urology at Cornell University Medical School and a member of the Board of Directors of the American Urological Association.
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