These are clearly the times that try men’s souls, or at least their patience. As health care reform is being contemplated throughout the country, there are more and more chances that we’ll get it wrong as opposed to getting it right. However, disagreements aside, emergency physicians need to come together and decide what goals we will put forward. We need to stop wasting time asking whose name is on the bill and start asking if the policies will meet the long-term goals of our specialty. There are many policy areas where emergency physicians need to get involved, from services rendered to workforce issue, but let’s begin with the medical-legal structure since we are most likely to get some unanimity in this area. I’ll give some ideas that I think are straightforward and could be a win-win situation for the government.

Ever since the passage of EMTALA, emergency physicians have been de facto employees of the federal government. We don’t get to decide whom we see. We have no way of deciding who walks in the door or whether we’re ever going to see a dime for the services rendered. We also have no way of knowing if those patients, who may not even pay the bill, are going to sue us. I think that there are multiple things that can be done right now with the Obama administration to address this issue.

The first thing is to agree that rendering care to those in need is not the problem. One of my greatest badges of honor is the ability to say that I have never denied anyone health care based on their ability to pay. We are the physicians who carry the staff of Asclepius the highest. We are the ones who, any moment of the day and night, see anyone and give out health care. This is part of who we are and should not change. But give me a break! This ought to be recognized and rewarded in at least two ways. First, emergency physicians should be able to calculate the value of the free care they were mandated to give out in a given year and then deduct some portion of that amount from their income taxes. If, in a year, I give out $160,000 of free care – which I’m perfectly happy to do – the government ought to be perfectly happy to let me at least write the loss off on my taxes. What’s wrong with this idea? I understand that this would reduce the income coming to the government, but if they actually had to pay for that same care, it would cost even more.  The federal government needs to recognize that emergency physicians are acting as conscripted government workers and should receive some sort of compensation.  Don’t give me 100%. No insurance company gives me 100% (and ever since California cancelled balanced billing none of us will ever again expect to see 100% of charges) but don’t let me drown in red ink! The logic is straightforward. As tax-paying citizens, we do not expect Boeing to make planes for the U.S. government and not get paid for it. Why would we expect physicians to give out health care and not get paid?

Second, there is no reason for EPs to bear the liability of every patient who walks into the emergency department. We need to have some reasonable liability relief. I believe that since we have essentially been named the de facto employees of the federal government, we should be covered by the federal government like any other federal employee. If the mailman runs over your mailbox, the government handles that liability. The concept is called “respondeat superior,” or “let the master answer.” Well since our master, the federal government, has decided what we will do and what we will get, let him also be involved in the malpractice issue. For physicians of any specialty who are mandated by law to see ED patients, liability should be handled through a no-fault system paid for by the federal government. In some states, this might mean as much as $40,000 savings in insurance costs. Having a federal system that would, without fear or favor, use a no-fault system to evaluate harm and properly compensate patients who are truly damaged, would work out for the benefit of physicians and patients alike.

And finally, it has been estimated that less than 15% of the funds that go into malpractice insurance policies actually wind up in the pockets of patients. Most reasonable physicians could look at a situation and decide whether a patient was truly harmed by the actions of other physicians. So be it. But do not let 40% of the money go directly into the pockets of attorneys. Both plaintiff and defense attorneys strip us down for money. Do not let people who are on the fringes of health care continuously drain the pockets of emergency physicians. It just doesn’t make sense. A simple act of assuming liability and creating boards which look at the extent of injuries would go a long way towards lowering health care costs, making physicians more comfortable with their clinical decision-making and stopping the mindless ordering of tests which are part of the “cover-your-ass” medicine which supposedly protects us from lawsuits. These few simple actions could be just the teaspoon of sugar needed to help the bitter pill of health care reform go down smoothly.

I sat transfixed reading the email from a friend. I couldn’t believe what I was reading. Finally my wife broke into my thoughts. “What are you doing? I’ve been calling you for ten minutes. And when I find you, you’re staring at the computer, shaking your head and mumbling.”

“I can’t believe what I’m reading,” I mumbled. “This health care debate has turned everything on its head.”

“What ARE you talking about?”

“You know that story I used to tell about calling that lazy urologist up late one night? I asked for his help to cath a patient with a stricture and he says, ‘How old’s the patient?’. When I tell him the patient’s 81, he just growls “He’s peed enough,” and slams down the phone. Do you remember that story?”

“Yes,” she said with a scowl. “I hate that story.”

“Well, that seems to be the new strategy for reducing the cost of health care while extending it to the uninsured. This article that David sent me is about a guy who feels guilty for getting treated for his prostate cancer.”

“I don’t get it.”

“Yeah, he says maybe he should’ve just died and saved the money for the system.”

“That’s kind of twisted,” she said with a shrug. “I can maybe see someone deciding to forgo treatment if there isn’t any hope of recovery.”

“That’s OK if you are deciding for yourself. But this guy got his treatment. He has a good chance of full recovery. And now he’s trying to guilt other people into forgoing treatment in the interest of saving money.”

“Just for the sake of argument . . . ” she started.

“I can always depend on you to be the devils advocate. I can see you starting to sprout horns already.”

“No, seriously,” she said, “haven’t you always said that people spend more in the last year of life than in all the other years combined? Couldn’t the system save a lot by foregoing a lot of needless treatment?”

“Who says it’s needless? You never really know if a treatment is going to work. What doesn’t work for one person might work just fine for you. I don’t want anybody making that decision for my life, but me.”

“But what if you are too senile to make that decision,” she said, starting to warm to the debate. “You wouldn’t want us to spend everything we had on every unproven treatment, would you?”

“I will concede that we shouldn’t be using insurance money to pay for treatments that have not been shown to work. But if I’ve been paying into the system all my life, shouldn’t I get a chance to try some experimental treatments?”

“Well . . . ”

“And I hate it when you throw the ‘senile’ thing at me.” I furrowed my brow and gave her a suspicious pout. “There’s nothing wrong with a little senility.”

“Oh, come on. You don’t want to just sit around in a nursing home and drool like that lady you used to tell me about, the one you had to change a diaper for all the time.”

“The lady you’re talking about was named Gladys and she seemed perfectly content to smile, drool, and poop in her diaper. Like I said, there’s nothing wrong with a little senility. The fact is that I’m sort of looking forward to a little dementia. I want to live with one of our kids when I get senile. It will pay them back for all the years that I changed their diapers.”

“When did you ever change a diaper?” she snapped back.

“Do you remember that time that we were…you know…having a little roll in the sack and one the babies started crying. And you ran in and brought him to our bed and he threw up on me. Do you remember that? Talk about ruining the moment.”

“Talk about holding a grudge,” she said shaking her head.

“I can still feel the sensation of baby vomit running down my bare legs. I spent the rest of the night picking chunks of beets out of my chest hair.”

“That made quite and impression, didn’t it?”

“It’s a nightmare I’ll never forget,” I said, mocking her mocking me. “I’m just saying that we took care of the kids when they were babies. Why shouldn’t they take care of us when we are old.”

“OK,” she replied slowly. “But you lost me on how this relates to the health care reform debate.”

“Don’t you see? The whole debate is turning things upside down. People who haven’t paid anything into the system are claiming that they have a right to healthcare. And people who have been paying into the system for years are being guilted into refusing to take what is rightfully owed to them. The throw-up story was just a colorful aside.”

“But you’re not denying that we spend a disproportionate amount of the total health care expenditure of the country on the elderly?” she said trying to score a minor victory.

“OK, maybe we do a little. But all kidding aside. Every day of every life is valuable. And we shouldn’t be pitting one group against another in an effort to balance the health care budget. It’s not a zero sum game.”

“Well, one thing’s for sure. The country can’t continue to spend more and more on health care.”

“Do you hear what you’re saying? You’re beginning to sound just like all those bureaucrats in Washington. People should be able to spend their money on whatever is important to them. It’s pooled insurance money, or worse, government insurance money, that has people thinking that how they spend their health care dollar is the business of other people.”

“So you would like to see us go back to a purely free enterprise medical system? First, that’s not going to happen. This isn’t the 50’s. And second, what would happen to the people who don’t have enough to pay for expensive medical care. I know that you can be a cold, heartless, S.O…”

“Hey, don’t start talking about lawyers again.”

“… but I don’t think you are advocating cutting people out of the system.”

“Of course not,” I said, becoming serious again. “There’s more than enough excess in the system to pay for truly needed medical care for everyone. And if you want something that has marginal value, you should be able to get it. But you should have to pay for it. If you can’t afford something that has marginal value, then you shouldn’t get it. It’s that simple.”

“It’s that simple, huh? You seem to have it all figured out. So why is Congress having such a tough time with this?”

“They’re asking the wrong questions. And they are pitting one group against another, like they always do.”

“There’s just one question remaining, smarty pants. Who is going to decide what is ‘truly needed medical care’?”

“We are,” I said confidently. “Physicians are the only ones who can make that decision. All we need are education and ethics. The basics. And we need protection from the lawyers when we have to make a close call or when a bad outcome occurs.”

“Now you’re the one talking about lawyers.”