Water Carriers and Sheep

July 2006

Recently several people wrote to me about my next newsletter topic.  One recommended writing about the "hospital attorney who is the water carrier for the hospital".  Another spoke to me about the lack of care of the medical staffs and individual physicians about their relationships with the hospital.  This, to me, was a connected topic, the hospital water boy lackeys taking the hospital water to the sheep to drink.

I want to preface this discussion by stating that I believe that most hospitals and medical staffs do their best to work together.  There was just an interesting article on this in Southern California Physician. Not all agree with this position and believe that the only reason there is not more strife between the entities is the physicians (sheep) are too naive to know any better.  In my opinion there are only a few bad apples that make the headlines and force the state legislatures and courts to make law reining in the hospital and freeing the medical staffs.  I would love to see more attempts at working out differences together on equal footing and less entrenchment by both sides.  An example of this entrenchment was the Ventura Community Hospital case where the hospital attempted to force the medical staff to do things that were unconscionable.  They were sued by the medical staff and not only did they lose but the CEO and Medical Director lost their jobs.  The state hospital association tried and failed to influence the law suit by erroneously stating that the medical staff was a department of the hospital.  That didn't fly in court or with the physicians who took their patients elsewhere.  Even more disheartening for the hospitals was that the publicity generated new California State laws protecting the medical staffs from the hospitals.

I want first to discuss the "water carrier" attorneys.  These are in house or out house attorneys who give opinions only to please their clients and get more business.  They do not care about what is right or wrong, only that they get the next job.  These attorneys only work on the hospital side and in many cases also double as the attorney for the hospital board of directors and/or the medical staff.  This is a direct conflict of interest on most issues. 

I know of a hospital attorney that tells each member of the medical staff executive committee that they should only wear a hospital hat when they sit on the executive committee and that all at the meeting is confidential.  Both are untruths.  When one sits on the medical executive committee you are elected by your medical peers to a medical staff position and should act in the best interest of the medical staff, individually and collectively.  This is different than when a physician is either picked or elected to the hospital board.  This is a hospital position and the physicians should act in the best interest of the hospital. 

As for the second item relating to what the attorney told the medical staff regarding what happens in the committee, stays in the committee (sorry, Las Vegas). There is a school of thought that states that when confidential matters are discussed that only physicians be present and all guests and ex officio members be excused.  There is another school that states that physician be invited to sit as guests on the hospital board and that hospital board members be invited to sit as guests at the medical executive meetings. 

The matters of the Medical Executive Committee are not confidential with certain exceptions such as peer review discussions.  When I was Chief of Surgery one of the first things on my Department meeting agenda was what is going on at the Executive Committee.  This allows two way communication to flow with the free exchange of opinions. The medical executive committee at one meeting read a motion and voted on it at the next meeting.  This gave time for Departmental discussion and consensus building.  This always works better than being informed of a decision in which you had no  input.  The hospital also should and under the proposed new JCAHO standard MS.1.20 will have to share their rationalization of their decisions with the medical staff.  They will need to show a nexus between their desires and the furtherance of quality medical patient care.  They are fighting this tooth and nail.

When the hospital paid attorneys give their one sided opinions to the medical staff who are not their  clients, they are in conflict with the Rules of Professional Conduct and deserve to be reported to the respective State Bar Associations.  It is not uncommon for the hospital to use the attorney to give legal gobblygook to the medical staff in order to control them.  This happened in the above mentioned Ventura case and in a recent attempt by Florida's St. Louis County Hospital to control the medical staff.  The Florida Supreme Court ruled in favor of the medical staff's ability to determine quality.

Now, let's look at the other side of the coin; physicians are the sheep.  They allow themselves not to  question but to just follow along as good sheep will.  Part of this sheep mentality is the recent rash of sham peer review for physicians presumably being disruptive.  This is being used to control those who think and speak out for patient quality at the expense of other physicians, medical staffs or hospitals who don't have the same quality of care but the bottom line in their sights.  A good example of this is the recently decided case of Woods v Kaiser.  Woods was placed on leave and had a pay reduction after complaining about the filth and lack of quality in caring for patients at Kaiser Bellflower, the same hospital that was dumping homeless patients downtown in skid row.  While the trial, which Woods won, was going on his new hospital, Kaiser Fontana, was terminating his partnership status without any knowledge by Woods.  It is this type of foul play that dampens the ability of physicians to want to work with the hospital to improve quality.

Another problem is the control  of the medical staffs.  Many physicians are having less and less to do with the hospital and abrogating their patient care to hospital paid physicians.  This puts the physician at the office many hours a day and takes away time that used to be spent working on committees and being on the Executive Committee.  The physicians who used to be active are now finding the hospital is becoming more irrelevant to their needs.  Who does this leave for the important duty of running the medical staff and working on committees?  The only ones left are those who are paid by the hospital and who the hospital, by controlling the purse strings, control either indirectly or directly.   

In states where the hospital can employ physicians directly, the staff is under the direct thumb of the hospital.  In the other states with Corporate Practice of Medicine Acts, the control is by making individual physicians paid medical directors.  These now de facto employees are the only ones with the time to attend all the required meetings.  They will not go against the hand that feeds them the grass and so will baa on command.

How to change the above?  One way is to have individual attorneys for the various entities within the hospital.  There should be a separate attorney for the Board and the hospital as well as a separate attorney for and paid by the medical staff.  This is an imperative for the review of bylaws and other issues where there are potential conflicts if the medical staff attorney is paid by the hospital. All bylaws should be reviewed by a person who is medical staff friendly.  This means the collections of enough dues and the dues must be controlled by the medical staff.  When dues are collected the sheep may baa "What is this money for?".  This may get the sheep interested in the interrelated hospital, medical staff and their own concerns. 

Some physician attorneys are considering pushing for the incorporation of the medical staff as a separate entity from the hospital.  The entity would hire the medical staff office personnel and the medical staff attorney.  There is a potential downside to this as the medical staff and hospital would probably be considered separate entities for antitrust concerns and could be accused as conspiring against a third party. This is a major issue and needs to be discussed in detail between any medical staff considering incorporation and their own paid attorney.

The other way to get the sheep involved is to have open forums where physician friendly attorneys may dialog with the medical staff and focus on their bylaws, a most boring subject for most sheep.  They may even stop counting people and start reading the bylaws to get to sleep.

To sum up, I recommend medical staffs have their own paid attorney, that there be more discussion of the running of the hospital by the Board, administration and medical staff collectively and that physicians stop doing their baa mantra and start taking more of an interest in their own destiny.  One can only hope.