Published 9/1/2011
Herbert L. Kunkle Jr, MD

Time to say, “No more mandates, enough is enough!”

As physicians, we are highly skilled professionals and key stakeholders in arguably the most important sector of our country’s economy—health care. So why then do we complain and feel helpless, frustrated by a bureaucracy that impedes and controls the care we deliver and creates endless regulations and paperwork that have little to do with clinical situations or improving outcomes?

In talking with my colleagues, I hear four themes of woe: loss of autonomy, increasing regulations and paperwork, decreasing reimbursement, and a caustic tort system. But these problems are allowed to continue through our choices—our apathy; our lack of collegiality, professionalism, and support for those trying to make a difference; the fragmentation within medicine; the reluctance to “get involved.”

Douglas W. Jackson, MD, AAOS president in 1997, said then that patients and physicians needed to be empowered to develop practical solutions to the problems in the healthcare system and we as physicians should vigorously oppose any government actions that threaten our ability to provide the highest value-added care for our patients.

What have we seen and done since?
Our economy has become more fragile, and healthcare costs are soaring. As physicians, we have been bombarded with an alphabet soup of policies, delivery systems, and initiatives—from P4P to HMOs, and from ACOs to EMRs. We’ve been lectured to by politicians, filmmakers, policy wonks, and pundits—none of whom have a medical degree or experience in health care, but all of whom are sure they know what the problem is and how to fix it.

We are now faced with healthcare “reform,” the Patient Protection and Affordable Care Act—more than 2,800 pages, including more than 400 new regulations and 160 new departments. There will be Public Health Investment Funds, Health Affordability Credits, National Priorities for Performance Improvement, Cultural and Linguistic Competence Training, Federal Mandates for Website Design, Financial Disclosure Report Committees, Language Demonstration Projects, Independent Payment Advisory Boards, and more.

This law, the largest and costliest in our history, will lead to more work for consultants, compliance officers, and attorneys. It and resultant new regulatory offices/dictums will, no doubt, cause further frustrations among physicians, encumbering our clinical work and distancing us from the patients we serve. There will be rules and penalties, unintended consequences and increased costs, but no evidence-based improvement of the system.

We have only to look at previous mandates—all well-meaning and most underfunded—to see the problems we face. For example, the Emergency Medical Treatment and Active Labor Act (EMTALA) was meant to ensure that patients who needed immediate care were not turned away because they could not pay. But over the years, EMTALA requirements expanded, increasing the financial and legal liability for providing care to the poor and uninsured.

With regard to tort reform, the new healthcare reform law mandates statewide initiatives. Yet caps—the only solution that has provided predictability, financial stability, and actuarial confidence—are not included. Without true liability reform, physicians will avoid new technologies and methods and continue to practice defensive medicine.

As clinicians, we have little time to waste on unnecessary administrative details and redundant requirements. We should not have to recertify virtually any service the patient requires or to search for salient patient information buried in reams of purposeless, formulaic language.

Even electronic medical records (EMRs), which have tremendous potential, are being undermined by the push for mandated short-term EMR adoption. Documented problems demonstrate a technology that has not caught up with existing high expectation rates. Not all complex healthcare problems will be solved by EMRs, and many small hospitals and practices do not have the information technology support or the funds to be able to purchase or upgrade systems as meaningful use and certification requirements change.

The new reform law also created incompatible incentive programs and mandates with unrealistic timelines and penalties. It does not consider the aggregate impact of the unprecedented scope of changes physicians are required to make very quickly. Provisions of one law have not even been implemented before additional requirements are mandated in another.

As for quality initiatives, I find it ironic that quality experts note that government is not a quality (waste-reducing) activity. Regulatory overlay does not add value, and the associated costs and unintended consequences are significant.

Quality improvement begins with the recognition that all work occurs as part of a process, and all processes have variations, especially those involving biologic systems. Attempts to improve a process, especially in a complex and poorly understood system, cannot simply focus on an isolated step. Doing so can adversely affect other processes and overall performance. Increased documentation and regulation will not mitigate the variations and complications of a system as complex as health care.

True quality improvement and waste reduction would begin with streamlining the regulatory system under which healthcare services are provided and allowing and empowering physician providers to lead—if we will step up and believe.

Studies have shown that of the 6,500 hospitals and healthcare systems in this country, the 235 that are run by physician administrators show marked improvements in quality. It’s not all that different from sports teams that do better when coached by former top players or engineering firms actually run by engineers.

So, the question and the challenge remain. Will medicine (in general) and orthopaedic surgery (in particular) remain divided as a profession? Will we, as physicians, continue to waste each other’s time complaining in the surgical lounge and intensive care unit, watching preventable problems fester instead of taking positive actions to effect sustainable change? Will we allow Congress and our state legislators, who don’t understand how their actions affect our patients and us, to mandate the way we practice medicine?

We’ve invested much of our lives learning medicine, accepting the sacrifices and the responsibilities. It’s a profession physicians deeply understand and most still enjoy. We are best positioned to level the playing field. We should make the rules.

We must begin by getting involved and advocating for our patients and our profession. Each of us can find a way to participate, based on our talents and time. We—as physicians and as citizens—have a responsibility to lead in structuring a healthcare system for the future that protects the patient-physician relationship.

We must understand the consequences if we continue to do nothing. If we do not take leadership, we will get the health care we deserve.

Herbert L. Kunkle Jr, MD, is a member of the AAOS Advocacy Resource Committee. He is in private practice in Eastern Pennsylvania.