Posts Tagged ‘patient safety’

Is it time to unionize?

Remember the dark days of the pandemic in March and April, when the true risk of caring for COVID patients started to become clear?  Remember when you could be censured by a nursing supervisor or administrator for wearing a mask in public areas lest you frighten patients or visitors?

Right around then, a third-year resident at UCLA decided to wear a mask wherever he went in the hospital, as testing wasn’t readily available yet for patients, and visitors still had full access. Someone with a clipboard stopped him and said he couldn’t wear a mask in the hallways. The resident politely responded that yes, he could. Why? Because his union representative said so. The discussion ended there.

The resident enjoyed backup that his attendings lacked because all UCLA residents are members of the Committee on Interns and Residents/SEIU, a local of the Service Employees International Union (SEIU). This union represents more than 17,000 trainees in six states and the District of Columbia.

As CMS threatens further pay cuts for anesthesiology services and other third-party payers are likely to follow suit, many attending anesthesiologists are asking:  Why can’t we form a union? Alternatively, why can’t the ASA function like a union and negotiate on our behalf?

Are you an employee?

You may be eligible to unionize if you are an employee without the power to “hire, fire, or make managerial decisions.” According to one estimate, more anesthesiologists are employed (55%) today than ever before, and this trend is accelerating as private practices are absorbed by large healthcare systems in mergers and acquisitions.

Hospitalists in Oregon elected in 2015 to form a union affiliated with the American Federation of Teachers. Primary care physicians employed by clinics in Washington State voted to be represented by the United Salaried Physicians and Dentists Union. Their vote to unionize was challenged by their employer on the grounds that some of their work was “supervisory”, but the National Labor Relations Board (NLRB) upheld the physicians’ argument that their clinical supervision duties did not constitute managerial decisions.

The important distinction here is that within the ASA, some members would meet the NLRB’s definition of employees – even if they direct the clinical work of anesthesiologist assistants or nurse anesthetists – because they are directly employed by hospitals, health centers, or foundations. They could vote to unionize.

Other ASA members, whether they work within a group partnership or on a 1099 basis, would be classified as self-employed or as independent contractors, depending on exactly how their contracts are written. A third group – those in leadership and managerial roles, such as department chairs – would be considered supervisors or managers. All these are excluded from collective bargaining as a central provision of the National Labor Relations Act.

The ASA can advocate for fair physician payment, but an ASA attempt to negotiate payment rates on behalf of all its members would constitute “a horizontal agreement among competitors to fix payment” and would violate antitrust law.

Could we strike without a union?

Anesthesiologists and other physicians can act collectively without any union affiliation, and they have done so before. If no union is involved, it doesn’t matter whether or not they are employees.

In California during the 1960s and 70s, jury awards for pain and suffering in medical malpractice cases rose exponentially, and malpractice insurance premiums rose too. By 1975, insurance companies either withdrew from the California market or raised anesthesia malpractice premiums by as much as 350%. (These events have been described in detail in an excellent column by Drs. Jane Moon and Mark Singleton, published on the website of the California Society of Anesthesiologists on May 13.)

Some anesthesiologists left the state or retired, and others decided to practice without coverage. In desperation, California anesthesiology leaders headed for Sacramento to demand legislative change. Anesthesiologists and surgeons in northern California began a dramatic protest by refusing for weeks to perform elective surgeries. Finally, on September 23, 1975, Gov. Jerry Brown signed the landmark Medical Injury Compensation Reform Act (MICRA), which capped “pain and suffering” awards at $250,000. Despite repeated challenges, MICRA still stands.

At first MICRA was vilified as unconstitutional until the California Supreme Court ruled to uphold it. While the court deliberated, anesthesiologists and surgeons in Los Angeles began their own month-long work slowdown in January 1976, again refusing to perform elective operations. This strike was studied extensively to determine if patients were harmed as a consequence. Though an estimated 25% to 50% of physicians participated, patient mortality decreased overall, and surveys by UCLA and the LA Times showed no significant negative effect on access to care.

Yes, but is it ethical?

Physicians today in many specialties are deeply unhappy about working conditions, production pressure, and how powerless they feel. The electronic health record is associated with burnout and disconnection from direct patient care. Could unionization be the best way forward, now that more and more physicians are employees of large healthcare systems?

According to Dr. Eric Topol, cardiologist and author, the answer to that question is yes. He believes it’s high time for a “new organization of doctors that has nothing to do with the business of medicine and everything to do with promoting the health of patients.” In his article titled “Why Doctors Should Organize”, published in the New Yorker last year, Dr. Topol asked, “Who will be in charge of our health as we move forward – doctors or their managers?”

The trouble with the word “union” is that it evokes the image of strikers picketing for better pay. The public will never sympathize with physicians if payment is our only cause. But patients and physicians might get behind “industrial action” in support of more time spent with patients, more and better PPE, fewer hours wasted with poorly designed electronic records – as long as patients are guaranteed that emergency coverage is always available.

Maybe it’s time to try a different approach. The right to organize and strike is supported by the United Nations and international law. Physician work stoppages or slowdowns can be conducted ethically, without patient harm.

Here’s one appealing idea for collective action. Take full care of the patients but document only the clinical care. Don’t waste your time ticking all the irrelevant boxes in the electronic record, which is a tool for billing and compliance-checking, not for patient care.

This kind of collective action could get some real attention from health systems and large employers because it would affect their billing and revenue. They are the ones with the size and clout to negotiate better contracts with third-party payers, to demand better electronic health records, and to push back against regulation creep. We love to blame insurers, but employers share responsibility for physician exploitation and demoralization. As the AMA Journal of Ethics has stated, “It is morally acceptable for physicians to unionize and employ collective action, including striking, as long as patients’ best interests are their reason for doing so.”

Where do I sign?


This article originally appeared in the December 2020 edition of the ASA Monitor

When you tell anyone in healthcare that “sedation” to the point of coma is given in dentists’ and oral surgeons’ offices every day, without a separate anesthesia professional present to give the medications and monitor the patient, the response often is disbelief.

“But they can’t do that,” I’ve been told more than once.

Yes, they can. Physicians are NOT allowed to do a procedure and provide sedation or general anesthesia at the same time – whether it’s surgery or a GI endoscopy. But dental practice grew up under a completely different regulatory and legal structure, with state dental boards that are separate from medical boards.

In many states, dentists can give oral “conscious” sedation with nitrous oxide after taking a weekend course, aided only by a dental assistant with a high school diploma and no medical or nursing background. Deaths have occurred when they gave repeated sedative doses to the point that patients stopped breathing either during or after their procedures.

Oral surgeons receive a few months of education in anesthesia during the course of their residency training. They are legally able to give moderate sedation, deep sedation or general anesthesia in their offices to patients of any age, without any other qualified anesthesia professional or a registered nurse present. This is known as the “single operator-anesthetist” model, which the oral surgeons passionately defend, as it enables them to bill for anesthesia and sedation as well as oral surgery services.

Typically, oral surgeons and dentists alike argue that they are giving only sedation – as opposed to general anesthesia – if there is no breathing tube in place, regardless of whether the patient is drowsy, lightly asleep, or comatose.

The death of Caleb Sears

Against this backdrop of minimal regulation and infrequent office inspections, a healthy six-year-old child named Caleb Sears presented in 2015 for extraction of an embedded tooth. Caleb received a combination of powerful medications – including ketamine, midazolam, propofol, and fentanyl – from his oral surgeon in northern California, and stopped breathing. The oral surgeon failed to ventilate or intubate Caleb, breaking several of his front teeth in the process, and Caleb didn’t survive.

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The real surprise – to me, at least – came more than halfway through Dr. Atul Gawande’s keynote address at the opening session of the American Society of Anesthesiologists’ annual meeting in Boston.

Much of his talk on October 21 celebrated the virtues of checklists and teamwork, topics that have turned into best-selling books for the well-known surgeon and professor of public health. “We are trained, hired, and rewarded to be cowboys, but it’s pit crews we need,” he said.

Then Dr. Gawande posed this question to the packed room: “What are the outcomes that matter?”

He answered his own question somberly. “The most unsafe operation is the operation that shouldn’t be done,” Dr. Gawande said. “Does the operation serve the patient’s goals or not?”

“We’ve all been there,” he continued. “Taking people to the operating room and wondering what we’re doing.”

Those are comments I’ve heard from anesthesiologists many times before, but I never thought I’d hear them from a surgeon.

Flogging the dead

For any of us who practice anesthesiology in a major hospital – doing cardiac, thoracic, or liver cases, for instance – there are days when all our efforts are spent on behalf of a patient whose health is unsalvageable. “Flogging the dead” is a phrase sometimes used to describe prolonged and futile care in the operating room or ICU.

Sometimes aggressive interventions are driven by a family that wants “everything” done, because in their innocence the family members have no idea how terrible and dehumanizing the process of postponing death can be.

In other circumstances, however, the decision of whether to do surgery is driven by the mission and the financial motivation of the health system to provide care. If care doesn’t occur, if the surgery isn’t done, no one gets paid.

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No, I’m not talking about putting fentanyl into my own veins — a remarkably bad idea. I’m questioning the habitual, reflex use of fentanyl, a synthetic opioid, in clinical anesthesiology practice.

I’ve been teaching clinical anesthesiology, supervising residents and medical students, in the operating rooms of academic hospitals for the past 18 years. Anesthesiology residents often ask if I “like” fentanyl, wanting to know if we’ll plan to use it in an upcoming case. My response always is, “I don’t have emotional relationships with drugs. They are tools in our toolbox, to be used as appropriate.”

But I will say that my enthusiasm for using fentanyl in the operating room, as a component of routine, non-cardiac anesthesia, has rapidly waned. In fact, I think it has been months since I’ve given a patient fentanyl at all.

Here’s why.

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(This post chronicles the recent Los Angeles visit of ASA President Jeff Plagenhoef, MD, and his Grand Rounds presentation at USC. It originally appeared on the website of the California Society of Anesthesiologists. Above, Surgeon General Jerome Adams, MD, MPH, left, with Dr. Plagenhoef.)

“Who kicked whom off the anesthesia care team?” asked ASA President Jeff Plagenhoef, MD, FASA. Which professional association refuses to work amicably with the other, he inquired of his audience at the University of Southern California on September 15, as he delivered a powerful Grand Rounds address to the Department of Anesthesiology.

In his talk, “Professional Citizenship:  Responsibilities Shared by All Anesthesiologists”, Dr. Plagenhoef emphasized that physician anesthesiologists and the American Society of Anesthesiologists (ASA) fully support nurse anesthesia practice within the physician-led anesthesia care team. In his practice as Chair of the Department of Anesthesiology at Baylor Scott and White Hillcrest Medical Center in Waco, Texas, Dr. Plagenhoef works with nurse anesthetists and with certified anesthesiologist assistants (CAAs).

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