Journal of Medical Licensure and Discipline(Vol82N2)
Transcription
Journal of Medical Licensure and Discipline(Vol82N2)
VOLUME 82 NUMI3ER 2 1995 66 Information for Authors 67 President's Message 70 Editorial: Itifi?rwcd Discre:tirirr 72 Medical Futility: An Evolving Ethical and Clinical Concept ■ Rrabert E. Porter, NID ■ Carl 1. Selociiberger, NID 80 The United States Medical Licensing Examination, Step 3: the First Year ■ John H. ]Iiorton, MD ■ Saneini G. Sc,Udnian 83 What Do the Certificates on Your Doctor's Wall Reailv Mectn? 90 Report of the American Medical Association and the Federation of State Medical Ad Hc)c Committcc. to Studv aNfr1 Proposals Boards: Ethics and Q uality of Care Rcgar(iiiig State Medical Societieti and []ualit)r af Ca:e Issues: ltot,crt E. Portcr, A'II7, Ciair 94 Remedial Education in Prescribing Controlled Da.ngerous Substances ■ Williaii: Vilcnskt', RPh, 170 98 101 Commentary: Mr'rfieal 1-'rstility: A Coframeslt ■ Thoni.ts Wnj. Mayo, ID From O ur International Exchanges: New South IVales, .3ustra.lia; On tario, Crcrrarla; (Jrr ilzrl Kiir.arlrtw From Our Member Board Exclt,tnges: Arizemri, Arkansas, ICentlrcPtM1, Lauisicrua, _lfaaylezrtd, NeFwrla, f])-e,qiyya, Rlxir•lc Island, tiVyar3ai7rrt 115 Medicolegal Decisions 117 Review: A ltc'rrtatin' :'blee'ficine: Ftpatadiykq _'41crficrrl Hwlizrms Letters to the Editor: Rcsponse lr, Dr. Wecd's Questions a rid 119 iLlertzcitm Robert W. UreLick , 0 EL7C13 A1Clallder, Jr, A1D ATlSwF7:V" (1?I RL'rT!/fYFIGL'1't9'!^q MD; Dr. Weed RE:spunds to Dr. 1-'rcliek , Lawrence L. Weed, NID FEDERATION BULLETIN THE JOURNAL OF MEDICAL LICENSURE AND DISCIPLINE Published Continuously Since 1913 Volume 82 Number 2 1995 All articles published, including editorials, letters, and book reviews, represent the opinions of the authors and do not reflect the official policy of the Federation of State Medical Boards of the United States or the institutions or organizations with which the authors are affiliated unless clearly specified. Editor Linda C. Chandler, MA Editors Emeritus Ray L. Casterline, MD Dale G Breaden Editorial Board Ronald C. Agresta, MD 2990 Johnson Road Steubenville, OH 43952 Ruth Horowitz, PhD 401 Rockwood Road Wilmington, DE 19802 Patrick W. Russell, DO Elkhart Clinic PO Box 201 Elkhart, IN 46515 Barbara S. Schneidman, MD, MPH American Board of Medical Specialties 1007 Church Street, Suite 404 Evanston, IL 60201 Thomas J. Scully, MD 1400 Ferris Lane Reno, NV 89509 Daniel J. West, PhD RD #1, 101 Birch Street Gouldsboro, PA 18424 Contributing Editors David S. Citron, MD Bryant L. Galusha, MD John H. Morton, MD Deborah Lewis Rodecker, JD Editorial Assistant Linda F. Vernale The Federsataoaa Bulletin: The Journal of Medical Licensure and Discipline (ISSN 0014-9306) is published quarterly by the Federation of State Medical Boards ofthe United 5tares, Inc; 400 Fu11er Wser Road; Suite 300; Euless, TX 760393855. Telephone 817-868-4000. Fax 817-868-4099. Printed by The Ovid Bell Press, Inc; Fulton, MO. Second-class postage paid at Fort Worth, Texas, and additional mailing offices. Subscription price is $35 a year; single copy is $10. Copyright 1995 by the Federation of State Medical Boards of the United States, Inc. Authorization to photocopy material under circumstances not within fair use as defined by the United States Copyright Law is granted by the Federation of State Medical Boards of the United States, Inc, provided that a fee of $1 per article plus 10 cents per page is paid through the Copyright Clearance Center, 21 Congress Street, Salem, MA 01970. Such photocopies may not be used for advertising or promotional purposes, for creating new collective works, or for resale. This publication is available in microform through University Microfilms International, 300 North Zeeb Road, Department PR, Ann Arbor, MI 48106. CHANGE OF ADDRESS: POSTMASTER, send all address changes to Feeleration Bulletan: Tdse jorernal ofMedirad Liceresure and Discipline, 400 Fuller Wiser Road, Suite 300, Euless, TX 76039-3855. NOTIFICATION OF ADDRESS CHANGE must be made at least six weeks in advance. Enclose new and old addresses, including zip code. Subscriptions and correspondence about subscriptions should be addressed to the Federation Bulletin: T6ie journul ofMedical Licensure and Discipline, Attention: Subscription Department, 400 Fuller Wiser Road, Suite 300, Euless, TX 760393855. Manuscripts, letters to the editor, and other materials to be considered for publication should be addressed to Linda C. Chandler, Editor, Federation Bulletin: The Journal of Medical Licensure and Discipline, 400 Fuller Wiser Road, Suite 300, Euless, TX 76039-3855. Federation Officers President: Robert E. Porter, MD* President Elect: James E. West, MD* Vice President: Susan M. SpauIding* Treasurer: Bruce H. Hasenkamp, )D* Secretary: James R. Winn, MD Federation Board of Directors Gerald J. Bechamps, MD* Leroy B. Buckler, MD* Ray Q. Bumgarner, JD William H. Fleming, Il:l, MD John T. Hinton, DO, MPH Philip M. Margolis, MD Dinesh Patel, MD Alan E. Shumacher, MD George Van Komen, MD *Executive Comrnittee Federation Executive Staff Executive Vice President: James R. Winn, MD Deputy Executive Vice President: Dale L. Austin, BSN, MA Assistant Vice President, Exam and Board Action Services: I. ICathryn Hill, MEd Assistant Vice President, Public Relations/Pub licati ons/Education: Carol A. Clothier, BA I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. -Thomas Jefferson (1743-1826) The Writan8s of Thom cssjefferson, vol. 10 Information for Authors The Editorial Board accepts original manuscripts for consideration of publication in the Federation Bulletin: ne joaarraal ofMedieal Licensure and Discipline. The Bulletin is a refereed journal, and all manuscripts are reviewed by Editorial Board members and/or appropriate consultants. (The review process takes six to eight weeks.) Manuscripts should focus on issues of medical licensure and discipline or related topics of education, examination, postgraduate training, ethics, peer review, quality assurance, and public safety. Queries and manuscripts should be sent to the attention of the Bulletin Editor, Federation of State Medical Boards, 400 Fuller Wiser Road, Suite 300, Euless, TX 76039-3855. Manuscripts should be prepared according to the following guidelines: 1. A cover letter should introduce the manuscript, name a corresponding author, and include full address, phone, and fax information. The letter should disclose any financial obligations or conflicts of interest related to the information to be published. 2. The title page should contain only the title of the manuscript. A separate list of all authors should include full names, degrees, titles, and affiliations. 3. The manuscript (including references and tables) should be typed double-spaced, with ampfe margins, on standard white paper. All pages should be numbered, and the length of the text should not exceed 5000 words. 4. References should follow the format of the AMA Manual of5tyle, including journal abbreviations from Irzdex Medicxs, and should be numbered in the order cited. The number of references should be appropriate to the length of the text. 5. Tables and figures should be submitted on separate pages. Note their placement within the text and number tables and figures separately in order of citation. Include appropriate titles or legends. Figures must be legible; black and white line drawings or photos are preferable. Any table or figure from another source must be referenced. Photos should be marked by label on the reverse side and up direction noted. 6. Commentary, letters to the Editor, and reviews are accepted for publication, subject to review of the Editorial Board. Such submissions and references should be concise but should conform to the format of longer submissions. 7. Four copies of the manuscript (including references, tables, and figures) and a computer disk copy should be submitted. The word processing program and the title of the appropriate file(s) should be indicated. 8. Manuscripts are reviewed in confidence. Editorial changes will be submitted to the corresponding author for approval. The original copy and disk will be returned if the submission is not accepted for publication. 66 FEDERATION BULLETIN PRESIDENT'S MESSAGE Making the Commitment Amid Changes and Challenges ROBERT E. PORTER, MD I stand before you as the 74th president of this outstanding organization. I am humbled, honored, challenged, and excited about the tasks at hand. I stand on the shoulders of the dedicated men and women who have gone before me-people like Morton, Cramblett, Galusha, Clark, Godinez, Sage, Jacott, McQuarrie, Cortese, Behrens, Yohn, Schneidman, Sigel, Rassekh, and last but not least, my good friend and leader this past year, Jerry Bechamps. And looking to the future, with the advice and support of people like Tom Bowles and Don Melnick and their National Board staff and Bob McAfee, Bill Jacott, and the AMA team, and with the strong liaison established between the Federation and AIM, under the leadership of Ray Bumgarner, how can we lose? With a committed Federation Board, outstanding Federation staff under the capable leadership of Jim Winn, our new headquarters facility, and electronic technology that will take us into the 21st century, how can we fail? I'll tell you how. Despite the best efforts of staff, your board of directors, and your elected officers, any complacency, any failure of commitment, any lack of understanding of your state boards' responsibility to your constituents-the public---cvuld cause the state board structure to disappear, the Federation to dissolve, and licensure and disciplinary activities to become federalized and administered with the same bureaucratic mindset that brought us $1000 toilet seats and $500 hammers. A remote possibility? Maybe. But let me read to you a summary profile of last session's House of Representatives Bill 4856-The Patient Safety Act of 1994-introduced by Gerald. Nadler (D-NY): "The Patient Safety Act applies to any health care professional who provides services requiring a license to perform. Its purpose is to improve the nation's health care by creating a comprehensive medical malpractice prevention program through the creation of independent, publicly accountable state medical boards and more stringent licensing procedures." Whose responsibility is it to meet challenges to our role as overseers? All of ours. But remember, we do not represent a constituency of physicians-that's Vol 82, No 2 1995 Robert E. Porter, MD. ^''resident, Federation of State Medical Boards of the United States, Inc. 67 the American Medical Association's responsibility. Nor are we consumer advocates for any particular group. We are health care professionals and public members, a unique mix, who have been appointed, hired, or elected to protect the public's interest. That is our primary charge. In carrying out this responsibility, we must provide competent practitioners and process applications in a timely fashion_ Four to six months to process any application for licensure sounds more like bureaucratic red tape than consumer protection. I urge those Boards that have problems to give a little in terms of requirements unique to your state that may be archaic or that slow down the process unnecessarily. The Federation's Endorsement Committee has recommended a uniform core of key information for initial licensure and subsequent portability, and their suggestions offer a means of accelerating the process without compromise of quality review. Similarly, a backlog of consumer complaints and provider review requiring more than a year's time for processing from initiation to resolution is inexcusable. Boards should recognize when there is a problem. Don't make excuses, such as limited funding, staff constraints, or legislative roadblocks. As board members, be positive and aggressive in finding answers to problems. Do not expect your executives to do the work you should be doing. You are charged with protecting the public's interests. Don't become a part of the logjam. Executives, make sure that you are educating your board members regarding their responsibilities. Their lobbying for changes to the Medical Practice Act will help your board carry out its mandate. We don't want another Congressional bill like H.R. 4856 to resurface. It shouldn't if you get the necessary support to do your jobs well. What can the Federation do to help individual boards carry out their charge more effectively? How can the Federation best serve you? First, we are providing to the National Governor's Conference a packet of information for each participant, which will remind the governors of the role of the Federation and the interaction between state medical boards and state government. The public is demanding quality care and quality providers. Every Board needs dedicated appointees, sufficient funds, and the independence to carry out the charges stated in its Medical Practice Act. With a few exceptions, boards can generate sufficient income to be self-supporting if permitted by law. Your Federation is already providing technical support. Through its future computerized network, state medical boards will access more easily the Federation's licensure repository information, examination results, disciplinary data, or other information. As the Federation designs future systems, needs of the State Medical Boards must be foremost. Boards are the Federation's "customers." If it means that a uniform hardware and software package be supplied to each member board, with the necessary instruction, then that approach must be considered. Signing on to the Federation BoardNet should be as easy as turning on the coffee pot in the morning. My own medical center is on-line-my desktop computer goes on with my light switch. Inpatient and outpatient notes and data are at my fingertips. All boards should have a computerized service that is just as convenient. 68 FEDERATION BULLETIN State medical boards are unusual hybrids-composed of members from the professions and the public sector appointed by the governor, frequently administered by state employees, and supported by a nonprofit Federation that provides examination administration, information, and other services. The medical board process of examination and licensure is the final qualifying hurdle to becoming a provider in the world's best system of professional medical care. We cannot fail to fulfi]I our responsibilities. Medical schools and other provider programs produce a product, but it is the Boards' job to evaluate and affix the stamp of approval. Computer technology should facilitate the process without quality review compromise. Use it and discover what a powerful aid it can be. The Federation can be a resource in disciplinary cases. Every state board has examples of unfit providers, as indicated in the Federation's recent press release documenting last year's disciplinary actions. These wayward individuals must be dealt with justly and expeditiously. Although some people look only to the number of license revocations as the mark of a board's effectiveness in dealing with these cases, head counts alone are superficial indices. While revocation is a necessary tool, it can, in some cases, represent a failure of early intervention and remediation. The Federation, the American Medical Association, the National Board of Medical Examiners, and some innovative state boards are positioning themselves to meet the challenges ofevaluation and remediation. The Federation, in support of state boards, must be in the forefront of this activity. We must provide support to help boards deal with the thorny aspects oflicense limitations, revocation, and legal challenges. We must continue to press for in-depth evaluations and for focused, high quality reeducation programs when appropriate. In closing, I want to stress that we must leam to deal efficiently with our day-to-day responsibilities, so that time may be devoted to tomorrow's problems. I encourage you to think more globally about your board's functions. Medical care today knows no state boundaries. Many large national managed care groups already exist. Interstate telemedicine is a fact. International health care consortiums are being developed by people like Bob Buchanan, ex-CEO of Massachusetts General Hospital. These developments present unique licensure problems. The Federation is positioning itself to be ready to aid state boards as new situations arise. Our long-range plan, our new initiatives, our future network, and our growing, dedicated staff are all geared to answer the needs of the future. Do we have a big challenge ahead of us? Yes. Can it be successfully met? I strongly believe so, or I assure you I would not be investing the time and energy this job will demand over the next year. The payback to all of us who do Federation work is the satisfaction of a task well done, the camaraderie that comes out of intense weekend-long committee retreats, and the friendships that develop with board members, executives, staff, and members of other professional organizations, all working together to ensure that our medical board system remains the best that it can be. I urge you to sign up for committee assignments with your state board. Advocate for improvement. Volunteer for service to the Federation. After all, it is your organization. Your advice is needed, your support is necessary, and your stewardship is essential. Vo182, No 2 1995 69 EDITQRIALS Informed Discretion State medical boards are charged with protecting the public interest. For many years, only physicians served on medical boards. Those board members had the responsibility to oversee the actions of other physicians, monitoring ethical obligations to the public. But with the growth of consumerism, public members were added to medical boards. The consumer movement not only brings a public perspective to boards but also rejects the paternalism of physicians' decision making. Paternalism in medicine said, "We know what is best for you." Consumerism says "Give me the information and allow me to make my own choices." This distinction is similar to what Jefferson wrote about self-determination in a democratic society. His conclusion was that if the people do not know enough to make informed choices, the solution is not removing their right to choose but educating their uninformed choices. At no time is our "wholesome discretion" challenged more than when we deal with life/death decisions for ourselves or our loved ones. We cannot expect to eliminate the power of emotion at such times of crisis. Family members and guardians as well as patients struggle to make the "right decisions," their minds often fraught with guilt, grief, remorse, and anxiety. For all, it is a confrontation with the end of the physical life. For many, it is also a test of philosophy or faith. How do we alleviate the stress patients and families feet at such times? The solution is not to make decisions for them, but to educate about these complex concepts before they are entangled in emotion. Life/death decisions are best made before life/death issues arise. Discussions of death and dying should be removed from our taboo list. Information about living wills and durable powers of attorney should be available in physicians' offices, alongside the pamphlets about diabetes and breast cancer. Questions about these issues should be added to the regular history taking and physical examination and answers noted in the patient's record. Hospitals now are required to ask about living wills and durable powers of attorney, but this opportunity comes only when a patient enters the hospital, so elements of stress and fear can muddy decision making. 70 FEDERATION BULLETIN In terminal cases, when a patient wants to exercise control over his medical care, the physician must avoid paternalism and allow the patient (or family/guardian) to decide. The average patient will not be "enlightened enough" about the repercussions of medical treatment options. It is the physician's duty to explain, to educate, to offer options, but not to decide. The decisions belong to the patient. The physician' cannot impose a personal philosophy or faith. This applies both when the physician thinks it is too early to give up treatment and when the patient demands continued futile treatment. If what the patient (or family/guardian) wants is, in the physician's opinion, unreasonable or unattainable, the physician can, and should, allow the patient to seek another physician. Removing the decision making from the patient is not the solution. In recent years, we have encountered another element of paternalism in the form of managed care. In managed care, patients may be deprived of decision making, not under the paternalistic good intentions of "father knows best," but under the law of averages and rules of the game. In managed care, physicians, too, may be deprived of decision making, but they must advocate what is best for the patient and defend patient choices, not allow decisions to be taken from them. Decision makers in managed care entities also must be educated. Already, conflicts of patient-physician-managed care choices are being settled in the courts. Ifwe continue to ignore the role of education in informed choice, courts will increasingly be the venue of the power struggle for the right to make health care decisions. How much better it would be to allow patients to exercise their informed discretion in matters of their personal health! Vol 82, No 2 1995 71 Medical Futility: An Evolving Ethical and Clinical Concept CARL I. SCHOENBERGER, MD Overviem: Mediccxl faatility refers to clinical interventions that cannot result in benefatfor the patient. Although controversies persist about bow benefst is defined and abotat futility's quantitative aspects, the emerging consensus is that at least some treatments in some clinical circumstances are both clinically and ethically inappropriate. Whatever the conclusion, the debate itself has fostered among physicians and patients closer attention to thegoals oftreatrnent and the likelihood of achieving them. Such physician -pcttient interchange will result in better informed decisions by patients, who will be less inclined to opt for aggressive therapies that offer little or no potential benefit. The importance of truth-telling and the distinctions between rnedicctl futility and medical rationing are critical issases to consider. Carl I. Schoenberger, MD. President of the Medical and Affiliate Staff, Medical Director offntensxve Care, and Medical Director of Respiratory 7berapy; Shady Grove Adventist Hospita4Rockville, Maryland. 72 From the earliest days as students and residents, physicians are taught the twin obligations which ethicists refer to as benificence and nonmalificencethe duty always to help our patients and never to knowingly harm them. In the explosion of medical technology which followed World War II, this philosophy usually was equated with using in lavish amounts the latest modalities for every patient. It was not long, however, before the adverse effects of treatment began to dampen this enthusiasm. In the mid-19 5 Us, side effects of radiation therapy for cancer led to one of the landmark case decisions concerning autonomy and informed consent.' Several years later, Jick2 and others focused attention on adverse drug reactions and pointed out the significant number of hospital admissions and deaths that were directly attributable to drug therapy. During the 1980s, several other trends led to discussion of the concept of medical futility. First was the "Outcomes Movement" spawned by the work of Paul Ellwood3 and John Wennberg ¢ These authors encouraged physicians to examine carefully the outcomes of therapy to be more certain about which interventions led to superior clinical results and by what degree of magnitude. Second, the rapidly rising costs of health care and the increasing share of the gross domestic product devoted to it led many to look at limiting medical interventions as a way of cutting costs. While there is a clear distinction between futility (stopping or limiting treatment which cannot help) and rationing (stopping or limiting potentially beneficial treatment purely for reasons of cost), the impact of cost nevertheless encouraged attention to FEDERATION BULLETIN futility as a concept. Third, the field of bioethics itself has undergone an evolution. From a paradigm of pure paternalism during the middle of the century, ethicists began to return from the more extreme views of absolute patient autonomy popular in the late 1970s and early 1980s toward a more balanced view of the potential limits on patient autonomy. History The term futility derives from the Latin futilis or "leaky." This term was used in the mythical tale of the 49 daughters of Danaus who conspired to kill their husbands while they slept. As punishment, they were condemned to Hades, where they eternally drew water from a river in leaky jars, a task which no matter how often repeated or how expertly done, can never achieve its goal of bringing water back to the home.' Hippocrates recognized this concept as applied to medicine in his Art.- "Whenever therefore a man suffers from an ill which is too strong for the means at the disposal of medicine, he surely must not ever expect that it can be overcome by medicine." Lawrence Schneiderman,' a prolific author on the topic of futility, cites a "qualitative" allusion to the concept from Plato's Repxablic,ft in which Asclepius placed limits on his patients' treatment: "For those, however, whose bodies were always in a state of inner sickness, he did not attempt to prescribe a regimen . . . to make their lives a prolonged misery." The roots of the modern debate lie in antiquity. When medicine has nothing to offer a patient, physicians must say so. We are not obligated to provide and, in fact, are ethically barred from offering or We are not obligated to provide and, in ficct, are ethically bcarrert from off'ering or cadrninisterirag therapies whicb we knoiv to be futide. administering therapies which we know to be futile. DeFinitions of Futility The literature describes two principal schools of thought concerning the definition of medical futility. The first, which might be described as the more purist or absolute in orientation, holds that an intervention is futile when it fails to achieve any measurable physiologic effect. This stance would apply to performing CPR on a patient already without vital signs for an hour or more or to administering mannitol to a patient already clinically brain dead. Neither of these treatments has any chance of effecting the desired result, and all clinicians would agree that they are futile. The second, or relativist camp, tries to weave into its definition the inevitable vagaries and uncertainties that are part not only of medicine, but of all fallible human endeavor. This school, championed by Sc€xneiderman' and others, holds that futility can be given qualitative and quantitative dimensions, even in the absence of absolute certainty. This is sometimes referred to as a "patient-centered" or "clinical" definition of medical futility. Proponents of the "physiologic" definition argue that few clinical decisions are backed by enough data to demonstrate absolute efficacy or absolute futility. The classic example cited is pre-hospital CPR for cardiac arrest. VVhile many studies have shown poor results of CPR in this situation, it is striking to note that the overall "success" rates, whether measured by restoration of vital signs, emergence from intensive care, discharge from the hospital, or return to prc-arrest levels of function, vary considerably y Attempts to develop "predictors" of poor outcome in this setting also have yielded inconsistent findings. Some authors have attributed such differences to the modes of organization Vol 82, No 2 1995 Proponents of the "phvsiologic" definition argue thratfezv clinical decisions are backed by enough data to demon strate absolute efficacy or aabsolute fistilit,v. 73 the state does have a potentical role in protectirag incompetent iradividaeals ivithosit advance directives from liberal definitions of of EMS personnel or to variations in the training of lay people in CPR. Whatever the reasons, the fact remains that when one discovers an arrest victim, one cannot predict with certainty the likelihood of successful CPR, however it is defined, for that individual patient. McIntyre10 and others would argue that it is not ethical to withhold CPR except in cases of decapitation, rigor mortis, or other convincing evidence ofclinical death, or when a patient's advance directives against CPR are known to the physician. Carried to its logical extension, this is also the view held by the United States Circuit Court" in its decision concerning "Baby K" in Virginia. This unfortunate child, born with anencephaly, was placed on ventilatory support after several months of life on the insistence of the mother. Against all expectations, the baby was extubated and continued under custod'zal care through several additional bouts of respiratory failure. Convinced that such repeated life support for a child who was clearly terminal was illogical and unethical, the physicians and administrators of Fairfax Hospital in Virginia went to court to obtain permission to withhold future ventilatory support.'2 Finding for the mother, the Court ruled that because the ventilator was successful in restoring respiration, it could not be viewed as "futile." The issue of whether the child's entire existence was "futile" was held by the judicial opinion to be within the realm of "values," which are decisions of the individual and not within the purview of the courts or the physicians.' The relativist school, on the other hand, would argue that the continued existence of an anencephalic child on long-term or repeated life support had an intrinsic value that is below any generally accepted community standard. The Maryland legislature, which in 1993 passed the Health Care Decision Act, recognized the concept of "medically ineffective treatment" (ie, medical futility) but placed a fairly strict definition in the statute: "Medically ineffective treatment is a treatment that, to a reasonable degree of medical certainty, will neither prevent or reduce the deterioration of the health of an individual nor prevent the impending death of an individual." According to an opinion letter from Jack Schwartz, General Counsel for the Attorney General of Maryland, Joseph Curran, the legislature took this position to prevent any wholesale withholding or withdrawal of life-sustaining treatments from patients in the absence of advance directives. This wording is in concert with the flavor of the US Supreme Court decision in the Cruzan case.13 Although competent adult patients generally are held to have an absolute right to refuse treatment for any reason, even if that treatment is not futile, the state does have a potential role in protecting incompetent individuals without advance directives from liberal definitions of inedical futility, what Younger'¢ refers to as "giving naerlicalftatility .... opinions disguised as data." Under the Maryland statute, if a potentially The relativist school ... zvould aryme that the continued existencL of an aneneephalic child on donq-terrn or repeated life support had an intrinsic value that is belo7.v anyAenerallv accepted corrz»atsnitr standard, iife-sustaining treatment (such as CPR) is to be withheld or withdrawn, the patient must be certified by two physicians to be in a "terminal" or "end-stage condition," in effect, a condition in which death is expected to be imminent. Therefore, futility decisions in Maryland, because by definition they involve the unilateral withholding or withdrawal of care by the physician, must be held to the strictest standard. The proposed intervention, even when expertly performed, must be incapable of keeping the patient alive even for a short time, or it is, by definition, not futile. 74 FEDERATION BULLETIN At approximately the same time, the Roman Catholic Bishops of MarylandIs issued a Pastoral Letter that echoed some of these concepts. Seeking to offer spiritual guidance to patients and families of the Roman Catholic faith, the bishops stated that because life itself was the gift of God, and the "foundation for all his other gifts," one must never "adopt a course of action or inaction which is intended to cause death, even if the motive is to alleviate suffering." However, the next section of the Pastoral Letter states, This does not mean that all possible remedies must be used in each circumstance. Patients and their families frequently need help in deciding which level of care is appropriate to fulfill the God-given duty of preserving life.... No patient is obliged to accept or demand useless medical interventions.... A medical treatment is "useless" to aparticular patient if it cannot bring about the effect for which it is designed. The example given is the use of an antibiotic to which an infecting organism is resistant. The bishops go on to say that Patients and their loved ones need to rely on health care professionals who can help them decide which forms of treatment are effective and, thus, useful and which are ineffective and, therefore, useless. However, no one-including the patient, family members, medical professionals, ... the bishops stated that... one naust never "adopt a course oferction or inaction which is intended to cause death, even if the rnotive is to alleviate satffErtng." or members of the clergy-ever has the right to decide that a patient's life is useless, even when a patient is no longer able to perform basic human functions. We are stewards, not owners of the gift of human life. The bishops are clearly in the camp of "physiologic futility" by the strict definition and would likely agree that keeping Baby K'Z alive is required under the moral doctrine of their Pastoral Letter. A leading voice of the relativist camp, Lawrence Schneiderman,' argued in 1990 for defining "futility" as "any effort to achieve a result that is possible but that reasoning and experience suggests is highly improbable and that cannot be systematically produced." Futility judgments, in Schneiderxnan's view, have a quantitative and a qualitative aspect. Quantitatively, he proposes that treatments be considered futile when no success has occurred in at least 100 cases of personal or peer experience or in the reported literature. Qualitatively, certain "poor results fall outside the range of the patient's autonomy and need not be offered as options. The clearest of these qualitatively poor results is continued biologic life without conscious autonomy." This qualitative viewpoint also was adopted by the American Thoracic SocietyI6 in its 1991 Consensus Statement on Withholdng and Withdrawing Life-Sustaining Therapy: A life-sustaining intervention is fiitile if reasoning and experience indicate that the intervention would be highly unlikely to result in a meaningful survival for that patient. Here, meaningful survival specifically refers to a quality and duration of survival that would have value to that patient as an individual. Survival in a state with permanent loss of consciousness, ie, completely lacking cognitive and sentient capacity, may be generally regarded as having no value for such a patient. Quantitative thresholds are a difficult issue in this context. On one hand, because every application of a treatment or intervention is an independent event, even 100 repeated failures do not prove that the 101st trial will be Vol $2, No 2 1995 The clearest of these qualitatively poor results is continued biologic life without conscious autorxony. 75 Despite Schneiderman's claim of clear canirraunity standards of treatment outcomes that are so poor they "need not be unsuccessfizl. Repeated failure merely raises the probability that each additional effort will be unsuccessful. On the other hand, many treatments and interventions with failure rates well below 100% are placed on the scrap heap. Qualitatively, the debate really boils down to one's personal value system. Despite Schneiderman's claim of clear community standards of treatment outcomes that are so poor they "need not be offered as options," our exceedingly diverse society has not reached such a consensus. Roman Catholic teaching as detailed above, the spiritual guide for tens of millions ofAxnericans, comes down foresquare on the side of "physiologic futility." And any physician who deals with terminal or end-stage illness will attest to the large number of patients and families who believe that a "continued biologic life without conscious autonomy" is indeed worth saving, for whatever reasons. offered as options,"our exceedingly diverse society has not reached such a consensus. Doctors and patients both need to be reminded of the end resaalts. Futility in Clinical Practice A number of hospital medical staffs around the country have formulated guidelines for making medical futility judgments. These policies typically concentrate on the key feature of physician-patient and physician-family communication. Our current practice climate, in which long-term relationships between physicians and patients are increasingly less common, the application of technology is often the easiest way out of an unpleasant set of choices, physicians' communication skills are not often nurtured during the educational process, and physicians are increasingly pressured to see more and more patients in order to earn decreasing incomes, serves as a barrier to effective communication. Nevertheless, this is the key to avoiding conflict about treatment decisions. Ideally, questions concerning aggressiveness of therapy should occur before a crisis, in the physician's office. Studies have repeatedly shown that patients and families are almost always receptive to discussions about advance directives when the physician raises the subject. When the patient's wishes are known, when clear decision-making authority is delegated via a power of attorney, when the patient has a realistic view of treatment alternatives and their respective likelihoods of success, unilateral futiliry judgments by physicians rarely are needed. Unfortunately, in many cases this scenario is not played out. Rather, a patient presents to an emergency room acutely ill and with multiple underlying chronic illnesses, is seen by an emergency physician or covering specialist or resident, and is subjected to a barrage of tests and a variety of interventions with no knowledge of his wishes. The sudden stress of acute illness makes effective communication more difficult. Even here, though, good decisions still can be made by reasonable patients, families, and physicians if information is freely and honestly given. Too often, physicians focus on the organ system or body part that is damaged or malfunctioning and suggest the knee-jerk response of what is available to "fix" it. We fail to focus on the big picture: Can a bowel resection really help a 90-year-old who is demented, diabetic, hypertensive, and contracted, even if she does have colon cancer? Can a ventilator really help an elderly patient with metastatic lung cancer who has respiratory failure? Can CPR really help a 30-year-old septic leukemic patient with no white blood cells who has already failed chemotherapy? Doctors and patients both need to be reminded of the end results. A study done at the 76 FEDERATION BULLETIN Cleveland Clinic" demonstrated vastly overoptimistic assumptions about the success rates of CPR by the residents and attending staff of the institution. Physicians owe it to themselves and to their patients to have realistic concepts of the success rates for treatments recommended in each particular patient's clinical context. In many cases, careful assessment at the beginning will clearly demonstrate the futility of aggressive care. In others, the data are equivocal, and the chances may be worth taking if expectations are realistic up front. Sometimes conflicts arise despite the best efforts at communication and realistic prognostication. For these times, a hospital medical staff policy about tutility can be helpful. At Santa Monica Medical Center in California, futile care is defined as "any clinical circumstance in which physicians and their consultants, consistent with the available literature, conclude that further treatment cannot, within a reasonable possibility, cure, ameliorate, improve, or restore a quality of life that would be satisfactory to the patient."'x This definition adheres closely to the philosophy of Schneiderman' and the Thoracic Societv'6 statements. In 1994, at Holy Cross Hospital in Silver Spring, Maryland, a Subcommittee on Futility developed the following definition: "Physicians are not obligated to offer treatment alternatives that will be extremely unlikely to result in a benefit which can be appreciated by that patient or which will result in excessive burdens to that patient." This covers a middle ground between relativist and physiologic positions on futility. As a Roman Catholic institution, the Ethical Advisory Committee and Board of Trustees of Holy Cross were satisfied that this guideline was compatible With the Maryland Bishops' Pastoral Letter.'' Both these hospital policies require an Ethics Committee consultation as a check-and-balance mechanism before any unilateral action by the physician. However, many states, including Maryland, require hospitals to offer the patient and family a transfer of physician and/or institution if they continue to resist the physician's decision. Another approach is that taken by Massachusetts General Hospital, a teaching institution in Boston. There the Ethics Committee can actually write a "Do Not Resuscitate" (DNR) order if care is judged to be futile by the committee. In a recent lawsuit,19 the first in which futility itself was the central theme, the daughter of a patient who died at Massachusetts General sued for emotional distress because a DNR order was entered without her knowledge or consent. The elderly patient, who was too sick even to have a broken hip repaired, suffered from Parkinson's Disease, diabetes, heart disease, and status epilepticus and had a history of stroke and breast cancer. Upon authorization of the hospital's ethics committee, a DNR order was written. The patient died three days later without resuscitative attempts. In its decision, the jury reached two important conclusions: First, that had the patient been able to express her own wishes, she would have opted for CPR, and second, that had CPR been attempted, it would have consituted futile care, even satisfying the strict definitions of physiologic futility.20 After all, the clinical and ethical issue was whether this patient would have survived the cardiac arrest even with CPR The literature amply demonstrates that an elderly patient with that constellation of problems added to an acute illness has no chance of leaving the hospital after a cardiac arrest, with or without CPR. Vol 82, No 2 1995 Hoivever, many states ... require hospitals to offer the patient cand faarnily a trccnsfer ofphysician and/or institution if they continue to resist the physicican's decision. There is not universal agreement about ivhich treatments are beneficial, so we certainly can expect continuing disagreement about which ones are futile. 77 We can expect more such court cases as the approach to this issue evolves. There is not universal agreement about which treatments are beneficial, so we certainly can expect continuing disagreement about which ones are futile. From the ethical and philosophical viewpoint, economically based limits should always be so identifaed, so that they are not confused xrath futility judgments. ... treatment decisions can be made inappropriately under theguise offutility when, in fact, the physician is merely fiailing to respect patient autonomy orfailirag to obtain informed consent. Such conduct, in egregious circumstances, could be actionRble. 78 Futility and Rationing Today it seems that almost all health care issues are viewed by some observers through the economic prism. Articles have been written debating how many health care dollars could be saved if futile care were avoided or if more patients consented to limits on aggressive therapy. While we cannot ignore the economic aspects of these decisions for individual patients, particularly those who pay some or all of their health care bills out of pocket, we should never confuse the philosophical bases of the concepts of futility and rationing. Futility, by definition, connotes the leaky jar. It is care that on some level, cannot help-the patient. Rationing, on the other hand, by definition, connotes the doling out of a limited but useful commodity. This is true whether the case is water during a drought or hearts for transplantation. By definition, the number of patients who can potentially benefit from rationed care exceeds the availability of that care. By definition, the number of patients who can benefit (however defined) from futile care is zero. If our society intends to make true rationing decisions for health care, such as placing age limits on dialysis or coronary bypass operations, those decisions must be formed in the public policy arena, not at the bedside. The now famous Medicaid debate in Oregon is an example of this approach. There, the state's elected officials acknowledged that certain beneficial treatments would be withheld so that other beneficial treatments could be given to a larger group of patients. Public consensus was sought concerning which treatments would be provided and which would not. From the ethical and philosophical viewpoint, economically based limits should always be so identified, so that they are not confused with futility judgments. Regulatory Aspects We can expect more states to enact legislation addressing futile care. As with most other contentious issues, medical futility decisions likely will appear on the agendas of state licensing boards in the form of disciplinary actions. It is conceivable that treatment decisions can be made inappropriately under the guise of futility when, in fact, the physician is merely failing to respect patient autonomy or failing to obtain informed consent. Such conduct, in egregious circumstances, could be actionable. More commonly, however, the issue will be whether the conduct in question was in concert with local hospital policies and with applicable state law. Investigations under this heading will need to focus on the physician's pattern of interaction with patients and the adequacy of communication and documentation, which is doubly critical when a conflict exists with the patient and family. The safeguards of second opinions and ethics consultations that are in place in most institutions will help physicians avoid such potential licensing actions. FEDERATION BULLETIN References 1. Salgo v. Leland Stanford, jr, University Board of Trautees. ( 1957) 154 Cal. 2d 500, 317 Pac.2d 170. 2. Jick H, Miettinen OS, Shapiro S, et al. Comprehensive drug surveiilancc. JAMA. 1970; 213:1455-1460. 3. Ellwood PM. Outcomes management: a technology of patient experience. N Eri,gl jlblecL. 1988; 318:1549-1556. 4. Wennberg JE, Mulley AG Jr, Hanley D, et al. An assessment of prostatectomy for benign urinary tract obstruction: geographic variations and the evaluation of medical care outcomes. JAMA. 1988; 259:3027-3030. 5. Hamilton E. Mytholog,v. Boston, Mass: Little Brown & Co; 1942:415-417. 6. Hippocratic corpus, The Art. In Reiser SJ, Dyck AJ, Curran WJ, eds. Ethics in Medicine: Historical Perspectives and Cnnternporary Concerns. Cambridge, Mass: e'IIT Press; 1977:6-7. 7. Schneiderman LJ, Jecker NS, Jonsen AR. Medical futility: its meaning and ethical implications. Ann Intern Med. 1990; 112:949-954. 8. Grube GM, trans. Plato's Repu&lic. lndianapoiis, Ind: Hackett Publishing; 1981:76-77. 9. Rosenberg M, Wang C. Hoffman-Wilde S, Hickam D. Results of cardiopulmonary resuscitation: failure to predict survival in two community hospitals. Arch Intern Mert. 1993; 153:1370-1375. 10. McIntyre KM. Loosening criteria for withholding pre-hospiral cardiopulmonarr resuscitation. Arch Intern Med. 1993; 153:2189-2192. 11. In the matter ofBa6y K. 16 F. 3d 590 (4th Cir. 1994) 832 F. Supp. 1022 {E.D.Va. 1993). 12. Annas Gj. Asking the courts to set the standard of emergency care: the case of Baby K. N Engl j Med. 1994; 330:1542-1545. 13. Cruzan v. Director, Missouri Depszrtsnent of Hertlth. {1990} 497 U.S. 261, 111 L.Ed.2d 224, 110 S.Ct. 2841. 14. Younger ST. Who defines futility? JAMA. 1988; 260:2[]94-2095. 15. Marvland Catholic Conference. Pastoral Letter on the Care of the Sick and Dying fi'om the Roman Catholic Bishops of Maryland. October 14, 1993. 16. American Thoracic Society. Withholding and withdrawing life-sustaininn therapy. Am Rev ResPir Dir. 1991; 144:726-731. 17. Miller DL, Gorbien Mj, Simbarth LA, Jahnigan DW. Factors influencing physicians' recommendations concerning in-hospital cardiopulmonary resuscitation. Arch Intern Med. 1993; 153:1999-2003. 18. Hudson T. Are futile care policies the answer? Hosp Health News. Feb 20, 1994. 19. Gilgunn v. Massachusetts General Hospital. Suffolk County Sup. Ct. (iass. ) 92-4820-H. May 1995. 20. Kolata G. Court ruling limits rights of patients: care deemed futile may be withheld. The New Yark Times. April 22, 1995:25. Vol 82, No 2 1995 79 The United States Medical Licensing Examination, Step 3: the First Year JOHN H. MORTQN, MD Overviem: The first aclrniraistratiorts of the United States Mediccel Licensing Examination (USMLE) Step 3 occurred in June and December 1994. Failure rates, the composition of the examinations, and the implications of fiataare computer-bersed examinations are discussed. Candidates who perform inconsistently across the exavnzncataon's rnatr'Px and the predictability ofscw-ang fixctors in compxaterizecl examinations are two fc^ctors that require further staaclv by the Examination Board. 1 ltter a number of years of planning and preparation, the United States Medical Licensure Examinations came to fruition when Step 3 was administered in June and December 1994. The first Step 3 was given to 856 candidates in June, and. 3883 individuals were examined in December. During 1994, a number of physicians qualified for independent licensure by successfully completing either the National Board sequence or FLEX. Part III of the National Board examinations was administered for the last times in March and May of 1994. FLEX Component 2 was given for the final time in December 1993. Two extra administrations of FLEX Component 1 were offered in June and December 1994 to candidates who previously had successfully completed Component 2. In 1995, no licensure examinations will be available for allopathic physicians in the United States except the United States Medical Licensing Examinations. For this reason, the nurnber of candidates taking USMLE Step 3 in June and December 1995 should increase dramatically. John H. Morton, MD. University of Rochester Medical Center, Rochester, NY, Past presiderat, Ferlerration of State Medical Bocsrcls; consailtant to the Federation Examination ,8oarcd; contribxatirag editor, Federation Bulletin. 80 Failure Rates Medical school graduation is an eligibility requirement for Step 3. In 1994, 2284 graduates of American or Canadian medical schools were examined. Among them were 2119 individuals who had not previously taken NBME Part III, FLEX Component 2, or Step 3. The failure rate among these first-time candidates was 5%, a figure consonant with the initiai projections of the Step 3 committee before the first administration of the examination. Performance by American and Canadian first-time examinees was essentially the same in the two administrations during 1994. During these two administrations, 650 international medical graduates were examined in June and 1805 in December. In this group, 392 were first-time FEDERATION BULLETIN candidates in June and 1195 in December. The passing rate for the first-time examinees was 78% for each examination. For both the American-Canadian group and the international medical graduates, passing rates were significantly lower for those individuals who had previously failed one of the final licensing examinations (49% of the 165 members of the American-Canadian group and 30% of the 868 international medical graduates). When repeaters and first-time candidates are considered together, 2078 of the 2284 American or Canadian examinees (91%) were successful. Among the international medical graduates, 332 of 650 candidates Thefiailure rate among these passed in June (51%) and 1155 of 1805 passed in December (64%). Overall, first-time candidates was 530, approximately 75% of the 4739 examinees were successful. In all recent administrations of FLEX Component 1 and Component 2, American citizens studying outside the United States or Canada have had higher failure rates than any other group. This disparity continued with the initial administrations of USMLE Step 1. (The failure rate in 1992 for students from US or Canadian schools was 15%, for foreign citizens trained in foreign medical schools, 63%; and for US citizens trained in foreign medical schools, 77%.)' Because of the limited number of candidates who took Step 3 in 1994, it is impossible to determine whether this difference persists. afigure consonant with the initial projections ofthe Step 3 committee before the frst administration of the examination. Composition of Step 3 Examinations All items on the two-day examination were in the multiple choice format. Examinees in June 1994 believed that the examination was too long. In response to this complaint, the number of items was slightly reduced in December (672 scorable items as compared to 686 in June). National Board statisticians confirmed that this change in length would not adversely influence examination reliability. In an effort to make the 6xamination reflective of medical practice, each test item was introduced by a clinical vignette. The blueprint which the committee adopted was followed closely in a three-dimensional matrixxx. The first dimension involved the type of care, with initial workup covered by 20% to 30% of items, continuing care 55% to 65% and emergency care 10% to 20%. The second dimension dealt with physician tasks. Taking a history and doing a physical examination covered 8% to 12% of items, carrying out diagnostic studies 8% to 12%, making a diagnosis 8% to 12%, assessing outcome and prognosis 8% to 12%, applying basic science concepts to clinical problems 8% to 12% and patient management 409'a to 60%. Patient management was further broken down into health maintenance 5% to 9%, clinical intervention 18% to 22%, therapeutics 12% to 16% and legal or ethical issues 4% to 8%. For the third dimension, a mathematical model was not used, but items were selected to evaluate several areas important in office practice. Common disorders seen in ambulatory practice and symptom complexes related to organ systems were included. The third dimension was included in an effort to ensure coverage of In an effort to make the examination reflective of medical practice, each test item was introduced by a clinical vignette. the broad range of activities encountered by a physician practicing primary care. At present, the pass-fai.l decision is made entirely on overall examination performance. In other words, a candidate who performs very well on continuing care and does poorly on both initial workup and emergency care may achieve the same grade as an examinee whose performance is even across all three areas. In Vol 82, No 2 1995 Si the future, the committee will decide whether it is appropriate for a candidate to pass with markedly uneven performance across the parts of the matrix. The USMLE Composite Committee's strategic plan ccslls for the eventual adoption of a computer-based examination. Computer-based Examinations and Grading The USMLE Composite Committee's strategic plan calls for the eventual adoption of a computer-based examination. When this plan is realized, the Step 3 Committee will face another decision. With the computer grading the answers while the candidate is taking the examination, it may be possible to determine rather quickly and with fewer test items that a candidate will certainly pass or will certainly fail. Candidates at either end of the curve could be excused when a reliable pass-fail decision is reached. On the other hand, the examination could be extended as long as necessary to reach appropriate pass-fail decisions for those individuals falling near the minimal pass point. This technique, which is known as adaptive testing, was never feasible with pencil and paper examinations, but it has been employed successfully in examinations in national nursing licensure. If this strategy were adopted, the committee would need to pay particular attention to coverage in the various parts of the matrix. Uneven performance in the separate areas would assume greater significance if passing a shorter examination led to a license for independent medical practice. One effect of this technique would be that only a pass-fail decision, not a score ranking for passing candidates, would be reported. Many individuals are concerned about the emphasis placed on the actual grade by medical schools and residency training programs, and they would be pleased if examination grading were abandoned. Others believe that the actual grades provide important information about medical schools and individual physicians. Definitive decisions on these points would be essential before adaptive testing could be adopted. Reference 1. 82 Skolnick AA. Government report gives Department of Education and some offshore medical schools failing grades. JAMA. 1995: 273;1162-1163. FEDERATION BULLETIN What Do the Certificates on Your Doctor's Wall Really Mean? SANDRA G. BD0DMAN Overview: The American Board of Medical Specialties remains the standard in board certificcttiQn. Self-derignated boards have proliferated since the 1975 Federal Trade Commission suit against the American Medical Association's prohibition of plrysician advertising and more recently have been driven by managed care and hospitRl plans. Such boards vary -avidely in their requirements. The public is easily misled by board certification clairns ofdisreptatablepdrysicictns, andfra udulent claims have been integrally linked to quality of care issues. Caveat emptor applies. Like many doctors, Arlington [Va] physician Denise E. Bruner believes that advertising her credentials is the way to attract new patients. In an advertisement, the 42-year-old doctor says she is "the only area physician Board Certified in Bariatric Medicine." In the 199 3 and 1994 editions of the Washington Physicians Directory, Bruner is listed as being board certified in internal medicine; the 1994 directory lists her subspecialty as bariatric medicine. What Bruner's prospective patients probably don't know is that bariatric medicine, the study and treatment of obesity, has not been recognized by the American Board of Medical Specialties (ABMS), the sole widely accepted authority on board certification. The American Board of Bariatric Medicine, an independent organization located in a suburb of Denver, is one of more than 100 unofficial-=or self-designated-boards that certify doctors. Bruner is one of 80 physicians certified by the bariatric medicine board, according to its executive director. Bruner says that if patients ask about her bariatric medicine credentials, "I tell them quite frankly what it entails, that the exam I took was just as difficult" as the one she took for the official American Board of Internal Medicine. But according to records of the American Board of Internal Medicine, Bruner has never been board certified in internal medicine. She did not return several telephone calls after questions about her credentials arose. As the juggernaut of managed care inexorably transforms the medical landscape, physicians are scrambling to adapt. For many, that means getting on lists approved by giant networks, such as Kaiser Permanente and Cigna, that are providing both health insurance and health care to a growing number of Americans. For consumers and corporations alike, the term "board certified" has become an essential credential that signifies quality medicine. Vol 82, No 2 1995 Sandra G. Boodman. Washington Post staff writer. Reprinted with permission from The Washington Post. "Health. A July 12, 1 994. 23-I4, I7. 83 Once an academic distinction, certifaccrtion by an Once an academic distinction, certification by an official specialty board is now a rite of passage for most new specialists, particularly in urban and suburban areas where competition among doctors is fierce and likely to intensify. In 1973, only 46 percent of doctors were board certified; today, an estimated 66 percent of physicians are board certified. Known in medicine as "the boards," the grueling exams are given annually in 24 core specialties such as internal medicine, and 110 subspecialties including pediatric surgery, aerospace medicine and forensic psychiatry. (See Table 1.) For decades, the only boards that certified doctors were a relative handful of specialty groups that make up the ABMS, founded in 1933, official specialty board is now a rite ofpassage for most new specialists, par- Table 1.-Specialry Boards Recognized by ABMS ticularly in urban and suburban are[as.... Below are the 24 specialty boards recognized by the American Board of Medical Specialties. Most boards also award certifications in subspecialties. To determine whether a subspecialty is officially recognized or whether a doctor is board certified, call the ABMS at I-800-776-2378. Allergy & Immunology Anesthesiology Colon & Rectal Surgery Dermatology Hospitals and managed care companies are ... refusing to hire well-regarded physicians who haven't passed their boards. 84 Qrthopaedic Surgery Otolaryngology Pathology Pediatrics Emergency Medicine Physical Medicine & Rehabilitation Family Practice Plastic Surgery Internal Medicine Preventive Medicine Medical Genetics Psychiatry & Neurology Neurological Surgery Radiology Nuclear Medicine Surgery Obstetrics & Gynecology Thoracic Surgery Ophthalmology Urology In addition to the 24 specialty boards, ABMS members include the pillars of the medical establishment: the American Medical Association, the American Hospital Association, the American Association of Medical Colleges, and the Federation of State Medical Boards. Unlike a medical license, which every state requires, board certification is entirely voluntary. Even so, doctors are finding it increasingly difficult to get a job without it. Hospitals and managed care companies are demanding it, sometimes refusing to hire well-regarded physicians who haven't passed their boards. A 1992 survey by the American Hospital Association found that 95 percent of hospitals are requiring board certification of new doctors seeking privileges; a growing number of hospitals also are insisting on board certification before renewing the privileges of doctors already on their stafFs. Kaiser Permanente, the nation's largest health maintenance organization, requires that physicians become board certified within three years of being hired. FEDERATION BULLETIN "Board certification has become the gold standard for doctors," says Paul G. Ramsey, chairman of the department of medicine at the University of Washington School of Medicine in Seattle. Rise of Unofficial Boards The accelerating demand for board certification by health plans and hospitals has also led to the proliferation of unofficial, self-designated boards that certify physicians. There are at least 126 self-designated boards, according to the Chicago-based ABMS. (See Table 2.) Among them: the American Academy ofAingside Medicine and Surgery; the American Academy of Bloodless Medicine and Surgery, and the Council of board certification . . . has also led to the proliferation of Non-Board Certified Physicians. unofficial, sedf designc^ted The accelerating demund for boards. . . . Table 2.-Self-designated Subspecialty Boards Following is a list of 126 unofficial boards compiled by the American Board of Medical Specialties. These self-designated boards certify physicians and sometimes non-physicians as w•ell. Some have rigorous requirements. Others grant board certificates after a weekend course. Unless otherwise indicated, each is known as the American Board of Abdominal Surgeons Acupuncture Medicine Addiction Medicine Addictionology Adolescent Psychiatry Aesthetic Plastic Surgery Alcoholism & Other Drug Dependencies (AMSAODD) Algology (Chronic Pain) Alternative Medicine Ambulatory Anesthesia Ambulatory Foot Surgery Anesthesia Arthroscopy (Board of North America) Arthroscopic Surgery Bariatric Medicine Bionic Psychology Bloodless Medicine & Surgery Cardiac Catheterization & Angiography Chelation Therapy Clinical Dependence Clinical Chemistry Clinical Ecology Clinical Medicine & Surgery Neurology Neurophysiology Neurosurgery Nutrition Clinical Orthopaedic Surgery Clinical Pharmacology Clinical Clinical Clinical Clinical Vo182, No 2 1995 Clinical Polysomnography Clinical Psychiatry Clinical Psychology Clinical Toxicology Cosmetic Plastic Surgery Cosmetic Surgery Council of Non-Board Certified Physicians Critical Care in Medicine & Surgery Dermalogy Disability Evaluating Physicians Electrodiagnostic Medicine El e ctroencep halography Electromyography & Electrodiagnosis Environmental Medicine Epidemiology (College ) Eye Surgery Facial Cosmetic Surgery Facial Plastic & Reconstructive Surgery Forensic Examiners Forensic Psychiatry Forensic Toxicology Hand Surgery Head, Facial & Neck Pain & TMJ Orthopedics Health Physics Homeopathic Physicians Homeotherapeutics Hypnotic Anesthesiology (Nat'l Board for) Industrial Medicine & Surgery Insurance Medicine Int'l Cosmetic & Plastic Facial Reconstructive Standards 85 Some self-designRted boards have rigorous stcsrtdards Others are membershipgroups that provide a doctor with an Some self-designated boards have rigorous standards. Others are membership groups that provide a doctor with an impressive-looking certificate, suitable for framing, in exchange for a fee. "If a doctor is board certified, a patient has a guarantee that the physician has satisfactorily completed an approved training program under supervision, has had practice in that specialty, and has passed a rigorous exam, usually two-part, in that specialty. With a self-designated board, there is no guarantee they have done any of these things," says ABMS vice president Barbara Schneidman. "You can say you're `board certified' and have a plaque on the wall in illegible script and consumers cannot tell the difference," says Julia M. Reade, a physician who co-authored an article about doctors' credentials published in the New England Journal ofMedicine in 1987. irnpre.ssive-looking certifacate in exchanae for afte. Table 2.-Self-designated Subspecialty Boards (continued) InterventionaI Radiology Laser Surgery Law in Medicine Longevity Medicine/Surgery Malpractice Physicians MaxilIofacial Surgeons Medical Accreditation (American Federation for) Medical Hypnosis Medical Laboratory Immunology Medical-Ixgal Analysis of Medicine & Surgery Medical-Legal Consultants Medical-Legal & Workers Comp. Medicine & Surgery Medical Management Medical Microbiology Medical Preventics (Academy) Medical Psychotherapists Medical Toxicology Microbiology (Medical Microbiology) Military Medicine Mohs Micrographic Surgery & Cutaneous Oncology Neuroimaging Neurologic & Orrhopaedic Dental Medicine & Surgery Neurological & Orthopaedic Medicine Neurological & Orthopaedic Surgery Neurological Microsurgery Neurology Neuromuscular Thermography Neuro-Orthop. Dental Medicine & Surgery Neuro-Orthop. Electrodiagnosis Neuro-Orthop. Laser Surgery Neuro-Orthop. Psychiatry 86 Neuro-Orthop. Thor. Medicine & Surgery Neurorehabilitation Nutrition Orthopaedic Medicine Orthopaedic Microneurosurgery Otorhinolaryngology Pain Management (American Academy of) Pain Management Specialties Pain Medicine Percutaneous Diskectomy Plastic Esthetic Surgeons Prison Medicine Professional Disability Consultants Psychiatric Medicine Psychiatry (American National Board of) Psychoanalysis (American Exam. Board in) Psychological Medicine (International) Quality Assurance & Utilization Review Radiology & Medical Imaging Rheumatologic Surgery Rheumatological & Reconstructive Medicine Ringside Medicine & Surgery Skin Specialists Sleep Medicine (Polysomnography) Spinal Cord Injury Spinal Surgery Sports Medicine Sports Medicine/Surgery Toxicology Trauma Surgery Traumarologic Medicine & Surgery Tropical Medicine Ultrasound Technology Urological Surgery Urologic Allied Health Professionals Weight Reduction Medicine FEDERATION BULLETIN Reade's study found that 12 percent of doctors listed in the Hartford, Conn, Yellow Pages who claimed that they were specialists were not board certified. Some lied about their credentials and claimed to be board certified by an ABMS board when they weren't; most listed certification by self-designated boards. "There are some extremely reputable jself-designated] boards with very reputable people," Reade adds. "Then there are these cranks who run these insane diploma mills." In most states, doctors, armed with only a valid medical license, may practice virtually any specialty they choose. That means that a doctor with a medical degree and no specialized training can set up a practice as a cardiologist or a cosmetic surgeon. And while a surgeon would probably have a hard time obtaining hospital privileges without residency training and board certification, he or she could legally perform some procedures, such as liposuction or ner'e is some evidence that board certified doctors are superior to those who are not certifed by an official specialty board. other kinds of cosmetic surgery, in his or her office. Link to Quality In the past decade, health care researchers have searched for ways to measure quality. As the University of Washington's Ramsey notes, "There's been an increased interest in developing methods that assess doctors' performance and are feasible, affordable, and meaningfitl." Those markers, he says, are board certification and where a doctor trained. "After that, it becomes subjective." There is some evidence that board certified doctors are superior to those who are not certified by an official specialty board. A 1989 study by Ramsey found that board certified doctors performed significantly better on written competency exams and were more highly rated by colleagues than their non-certified colleagues. The study, published in the Annals of.Fnterncsl Medicine, involved 250 internists, 185 of them board certified within 10 years after they completed residency training. While officials at the American Board of Medical Specialties agree that board certification is no assurance of quality, they say it indicates that a doctor has met standards that are higher than those required to obtain a medical license in any state. "Board certification guarantees that if you go to a doctor who says he's a surgeon, he really is a surgeon," says the ABMS's Schneidman. "As a public health or consumer protection matter, it's really important, but personally I wouldn't use it as a benchmark," says Reade, coauthor of the New England ]oasrnctl study. "Every doctor knows someone who's not boarded and is very good. Board certification doesn't tell you whether a doctor is empathic or a good clinician." Lack of board certification, however, may reflect a serious problem with a doctor's training, competence, or character. A report prepared for the Medical Board of California, the state agency that polices physicians, found that of 69 doctors disciplined since 1991 for the most serious offenses-ranging from rape to gross negligence that resulted in a patient's death- -f 8 were not certified by an ABMS board. Board certification doesn't tell you whether a doctor is empathic or agood clinician. "It's an irrefutable statistic," said Dixon Arnett, executive director of the California board. Vol 82, No 2 1995 87 Advertising and the Law The clamor for doctors' credentials was fueled in 1975 when the Federal Trade Commission successfully sued the AMA, charging that it unlawfully barred advertising by doctors. Once the courts allowed doctors to advertise, all these pseudoboards started What makes it even more confiasingfQr consumers is that the names of many self-designated boards are strikingly similar to those of the official boards. forming" that attracted "people who weren't able to make it within the existing boards," says Mark Gorney a past president of the California Society of Plastic Surgeons. "What you're looking at is the very peculiar American phenomenon of entrepreneurism by practitioners who cannot be players in a big pond," says Gorney, a former official of the American Board of Plastic Surgery. "This, of course, results in enormous confusion in the public mind." What makes it even more confusing for consumers is that the names of many self-designated boards are strikingly similar to those of the official boards. The American Board of Neurology, for example, is a self-designated board; the official board is the American Board of Psychiatry and Neurology. The American Board of Radiology and Medical Imaging is an unofficial board. The American Board of Radiology is the ABMS group. In all but three states-California, Florida, and Colorado-there is no law that bars doctors certified by self-desig.nated boards from calling themselves specialists or from advertising that they are "board certified." In California, the primacy of the ABMS is being challenged by several groups, including the American Academy of Pain Management, a self-designated board based in Modesto. "Nobody says the ABMS model is not good, but it fails to recognize a multi-disciplinary approach," says executive director Richard M. Weiner. "It's an economic guild issue.... The public should be allowed to make its own informed decisions about specialists" and should be able to assess the credibility and competence of boards without government intrusion. "The ABMS has no acupuncture board, no herbalist board," Weiner adds. "When $1 out of every $3 is spent on alternative medicine, it would indicate that the ABMS is missing the boat." Academies, Societies, Fellowships, Etc. Deciphering the meaning of such terms as "fellow of," `diplomate," and "baard certified" ... is no easy task. 88 Board certification is not the only confusing credential. Most consumers find the arcane terminology and alphabet soup of initials after doctors' names both mystifying and impressive. Deciphering the meaning of such terms as "fellow of," "diplomate," and "board certified" (the last two are synonymous) is no easy task. In addition to board certification, many doctors advertise their membership in a professional specialty society. The standards ofthese societiesvary considerably. Being a fellow of the American Academy of Pediatrics, for example, may sound exalted, but it merely means that a pediatrician is board certified and has submitted two letters of recommendation from other fellows. A fellow of the American Academy of Family Physicians need not be board certified. Becoming a fellow of the American College of Surgeons is considerably more difficult. A doctor must be board certified, must have practiced in one location for at least two years, and must have a hospital appointment FEDERATION BULLETIN in good standing. Candidates also arc required to submit a year-long list of all procedures performed, as well as detailed reports of several cases. Determining whether a doctor's credentials are genuine can be daunting: Many physicians directories, Washington's included, print the information a doctor submits without verifying it. While it is uncommon, doctors do lie about their credentials. A 1988 study of 773 doctors who submitted clinical credentials to Humana found that 39 presented false credentials; 10 said they were board certified when they weren't. A 1987 congressional audit of 650 Veterans Administration Hospital physicians found that 1 I 5-nearly 18 percent-said they were board certified when they weren't. Officials of the American Board of Internal Medicine have uncovered 19 cases of fraudulent board certification since 1980 and arc currently conducting a multi-specialty study of faked credentials. "The whole area of credentials is largely unregulated, and some of these self-designated boards are very troubling," says Julia Reade. "For a layperson, it's very hard to get access to information about doctors-who's good and who's not-that physicians have. Board certification guarantees a minimal level of training and experience." Taking the Boards To be eligible to take the official specialty board exams, a doctor must have successfully completed one of the 7200 accredited American residency training programs. Graduates of foreign medical schools are eligible if they complete a US residency; doctors who successfully finished a residency in Canada or England may be exempt from this requirement. Residencies vary in length: Most are three years, although some surgery residencies can last seven years. Each specialty board sets its own rules governing when a new doctor is eligible to take the exam. Many specialties-psychiatry, internal medicine, pediatricsallow candidates to take the tests within a year after finishing a residency. Eight boards, most of them surgical, require that candidates practice for several years and perform a specific number of procedures as a prerequisite. Requirements established by the American Board of Plastic Surgery are among the most rigorous in medicine: Candidates must have completed five years of training, must have practiced plastic surgery exclusively for two years and must pass both a written and an oral exam. For years, the boards have inspired particular trepidation among doctors. Passing them is a badge of honor, and horror stories-about candidates who broke down in the exams or flunked repeatedly-are common among physicians. Swapping stories will undoubtedly become more commonplace; 19 boards now require newly credentialed doctors to take recertification exams every seven to 10 years. Failure rates vary among the boards. In internal medicine, the most popular specialty, about 60 percent of candidates pass the exams. Each board decides how many times a doctor who fails may retake the test. Vol 82, No 2 1995 Mccny pdrysicia nsdirectories ... print the information u doctor submits without yerifying it- ... 19 boards now require newly credentialed doctors to take recertifaccation exams every seven to 10 years. 89 Report of the American Medical Association and the Federation of State Medical Boards: Ethics and Quality of Care Overview: The Ad Hoc Committee to Study AMA Proposals Regarding State Medical Societies and Quality of Care Issues was established in 1992 as a result of an AMA proposal offering the assistance of state medical societies to state medical boards for the evaluation of quality of care complaints. This committee last met in December 1994. AMA representatives agreed to support the Federution's position that investigation of quality of care issues, as legislated in medical practice acts, is the responsibility of state medical boards. The report printed here represents the conclusions of the meetings and outlines areas ofcontinued cooperation between medical societies and state medical boards. It was approved by the Federation's House of Delegates in April. Committee members: -FSMB: Robert E. Porter, MD, Chair; Gerald J. Becharnps, MD; Leroy B. Buckler, MD; Peter E. Dans, MD; Bruce H. Hasenkamp, jD; Earle M. .L.eVernois, MD; Deborah L. Rodecker, JD; Stephen I. Schabel, MD; SusQn M. Spaulding. AMA: MichRellle, JD; William E. jcacott, MD; Kirk johnson, jD; James S. Todd, MD 90 1 lt its Interim Meeting in 1991, the American Medical Association (AMA) House of Delegates adopted Board of Trustees Report BBB: Council on Ethical and Judicial Affairs - Enforcement of the Code of Ethics. Among other things, that report called on the AMA to work with the Federation of State Medical Boards (FSMB) to (a) make a uniform part of the licensure examination knowledge by physicians of their unique ethical responsibilities, as described in the Principles of Medical Ethics and the Current Opinions of the Council, and (b) expand those medical society programs whereby, under the supervision of the state medical board and with its attendant investigating powers and civil suit immunity, medical societies examine and report to the boards with regard to quality of care complaints referred to the boards. Beginning in early 1992, the AMA and the FSMB held a series of meetings designed to explore ways in which these goals could be accomplished. The FSMB appointed an Ad Hoc Committee for this purpose, and the AMA was represented by a member of its Board of Trustees as well as senior stafF The most recent meeting of this group took place on December 15, 1994. The purpose of this document is to summarize the conclusions reached in this process and to identify prospects for continued cooperation. Quality of Care Cases State medical boards are charged by state law with the ultimate responsibility for assuring the quality of care provided by licensed physicians. The boards are directly accountable to the public for this activity. Most boards are made up of both physician and public members, and are served by full-time staff to investigate quality complaints. Yet the boards do not have on staff the wide FEDERATION BULLETIN variety of expertise needed to review the quality of all medical care provided by physicians today. Moreover, the boards are not in complete control of their resources. As state agencies, the boards are subject to the vagaries of the budget process. They may find themselves lacking full funding and staff complement. As a result of these factors, the boards necessarily rely on practicing physicians both to report colleagues who are not meeting the standards of the profession and to assist in reviewing quality of care complaints by serving as expert consultants. By participating in the process of the boards, physicians meet a fundamental obligation of members of the medical profession. One of the basic tenets of the profession is the duty of self-regulation, which is based on the unique qualifications physicians possess to evaluate the clinical performance of their colleagues and on the enduring commitment of physicians to safeguard the welfare and trust of the public. The medical profession has a long history of comprehensive peer review. Collegial review is part of the medical education process that begins in medical school and continues throughout every physician's career. As practitioners, physicians participate in, and are subject to, peer review as members of hospital medical staffs, medical societies, and increasingly, integrated health care delivery systems. Physicians spend countless additional hours in the development of practice parameters and related efforts to improve the quality of health care delivered today. State medical boards may not now be a regular part of these activities. The boards should reach out to the physicians who make up the profession's self-regula[ory infrastructure and rely, to the extent necessary and appropriate, on these expert peer reviewers. Likewise, state medical societies should work to assure that the peer review efforts of practicing physicians are extended to the assistance of state boards. Cooperative ventures between state boards and medical societies, such as with impaired physician programs and focused continuing medical education, may assist in this regard. By participating in the process of the boards, physicians meet a fundamentRl obligation of members of the medicQl profession. Making Appropriate Reports to the Boards The Council on Ethical and Judicial Affairs described a key aspect of this duty in a December 1991 report: Reporting Impaired, Incompetent, or Unethical Colleagues. That report, and the ensuing ethical opinion, require that physicians notify state boards of incompetence that poses an immediate threat to the health of patients as well as behavior that is potentially injurious to patients and continues despite remedial efforts. In sum, "Physlcians who receive reports of incompetence have an ethical duty to critically and objectively evaluate the reported information and to assure that identified deficiencies are either remedied or further reported to the state licensing board." State medical boards generally find that physician reports of incompetence State medical boardsgenerallyjnd that physician reports of incompetence by colleagues are among the most infrequent and yet the most reliable of the guality of care complaints received. by colleagues are among the most infrequent and yet the most reliable of the quality of care complaints received. It is critical that boards receive appropriate reports from physicians in a timely manner. As the 1991 CEJA report makes clear, this obligation extends beyond reporting incompetence that poses an immediate threat to the public. If other peer review actions, such as hospital medical staff remedial plans, faii to correct incompetent practice, then a report must be made to the medical board. This obligation takes on greater importance vol 82, No 2 1995 91 as medical practice moves increasingly outside the hospital setting, and traditional peer review opportunities become less available. State medical societies can, and should, facilitate reporting by physicians in their communities. Collectively, the physician community provides an invaluable potential resource which remains underused or, in some Jaarisdictions, largely untapped. It is time to ensure that staadents have an adequate knowledge of medical ethics when they sitfor the examination reguired for licensure throughout the United States, the USMLE. 92 Participating in Quality of Care Review The quality of the review process undertaken by state medical boards is determined in large part by the resources available to them. The most essential resource is physician review. Physicians possess the training and experience which uniquely qualify them to review the competence of their colleagues. Without access to an adequate supply of qualified physician reviewers, the boards simply cannot do the job they are mandated by law to do. State medical boards are a key element in the peer review system. The boards are accountable by law to identify and respond appropriately to the most serious quality of care complaints. They can do this most effectively by relying on the unmatched competence and experience of practicing physicians. Collectively, the physician community provides an invaluable potential resource which remains und.erused or, in some jurisdictions, largely untapped. The boards regularly report difficulty in securing practicing physicians to serve as peer reviewers. Whether this is caused by a lack ofunderstanding of the boards' role, suspicion oftheir activities, or some other cause, it is a condition that should be corrected. The AMA and the FSMB believe that state medical societies and state boards have a duty to establish a cooperative relationship that will foster better understanding of the role of each entity and provide an environment in which practicing physicians regularly incorporate work on behalf of the boards into their other peer review activities. Specific recommendations about how this might be accomplished are set forth at the end of this report. Ethics It is a fundamental obligation of the medical profession that its members have knowledge and appreciation of the principles of medical ethics. Indeed, one of the basic requirements of accredited medical schools is that [S]tudents "must be encouraged to develop and employ scrupulous ethical principles in caring for patients, in relating to patients' families, and to others involved in the care of the patients." The medical practice act in most, if not all, states requires that physicians behave ethically in order to acquire and maintain a medical license. It is time to ensure that students have an adequate knowledge of medical ethics when they sit for the examination required for licensure throughout the United States, the USMLE. The legal profession requires that all applicants for the bar pass a specific legal ethics examination, which is based on the American Bar Association's ethical code. To facilitate education and examination in ethics, the AMA will make its Code of Ethics available to every student entering medical school each year as well as to every student sitting for the USMLE. It can be an indispensable tool for discussing and addressing the central ethical issue faced by physicians today, and examination questions can be drawn from the code's opinions. The FSMB recognizes the importance of medical ethics in guiding the development and practice of physicians, and the vital role that ethics can play in protecting the public interest. The FSMB endorses the proposal that an FEI]@R,e4TIQN BULLETIN increased emphasis be placed on the examination of prospective licensees with respect to their knowledge of medical ethics. Recommendations The AMA and the FSMB recommend that the following specific actions be undertaken where feasible and that the state medical societies and state medical boards seek other means of improving the quality of care review of physicians as well as physician knowledge and appreciation of medical ethics in general. 1. State medical societies should disseminate widely the CEJA report "Reporting Impaired, Incompetent, or Unethical Colleagues" and should otherwise strive to make physicians aware of this obligation. 2. State medical societies should inform the boards of new ethical statements by CEJA, such as reports and opinions as they are published. 3. State medical societies and boards should facilitate reporting by physicians, for example, by assuring to the greatest extent possible the confidentiality of reports. 4. As prescribed by state law, state medical societies should forward quality of care complaints and the other alleged infractions to state boards. Complaints within the jurisdiction of the medical society should be resolved according to the AMA Guidebook for Medical Society Grievance Committees and Disciplinary Committees. Each state board and state medical society should develop a system for identifying and routing complaints to the appropriate entity. 5. State medical societies and boards should foster better communication and understanding among their members, for example, by a report from the board to the medical society's annual meeting, the joint sponsorship of continuing medical education activities, and the attendance of board meetings by medical society representatives. 6. State medical societies should assist the boards in securing physician reviewers for quality of care cases, perhaps by making the roster of its standing peer review committee available to the board or by developing and maintaining a list of physicians able and willing to serve as reviewers when requested to do so. 7. State medical societies and boards should discuss legislative issues of common interest and reach agreement, to the extent possible, of a desirable course that will protect the public and the rights of physicians under review. 8. State medical societies should provide to the appropriate agency a list of possible state medical board members from the society who demonstrate the qualities of honesty, faimess, impartiality, integrity, and dedication to the task 9. State medical societies and boards should cooperate with respect to impaired physician programs, remedial continuing medical education, and related matters. State medical societies and boards should work together to address the 10. issue of credentialing physicians who change their practice specialty after residency training is completed or who relocate their practice from one state to another. Vol 82, No 2 1995 State medical societies and boards should facilitate reporting by physiciRn s, for example, by assuring to the greatest extent possible the confidentiality of reports. State medical societies and boards should cooperate with respect to impaired physician programs, remedial continuing medical education, and related matters. 93 Remedial Education in Prescribing Controlled Dangerous Substances WILLIAM VILENSKY, RPh, DO Overviezv: Problem physicians who prescribe cQntrolled dangerous substances may never have had proper education about their use. Better medical school education could help prevent injudicious prescribing. The educational, remedial "rrtiniresidency" program described herein has had an exceptional success rate over its 12-year history. It is not a rehabilitative or therapeutic program for impaired plrysicians but works closely with boards that choose to mandate the course as part of disciplinary actions. T William Vilensky, RI'h, DO. Clinical Associate Professor of Family Medicine and Director of Controlled Dangerous Substances Programs, University of Medicine and Dentistry of New Jersey, Robert Wood johnson Medical School. Camden, New Jersey. 94 he injudicious prescribing of controlled dangerous substances (CDS) by health providers continues to be a significant problem. Many factors contribute to the issue. Medical schools fail to provide appropriate curriculum. Physicians' inadequate knowledge make them gullible and easily manipulated by drug-seekers. Impaired physicians may stoop to bartering drugs for sexual favors (sexual exploitation), sharing prescriptions written for patients, or distributing CDS. Physicians who have practice problems with CDS may be dated, deceived, dishonest, or disabled. One basic solution to the CDS prescribing problem would be for medical/ osteopathic schools to include focused courses, including examinations, about alcohol and substance abuse pharmacology; clinical recognition, diagnosis, confrontation, and intervention; and treatment or treatment referral. Prescribers need sharper cognitive skills to recognize the drug-scammer and to handle these patients without scorning their illness. The physician who prescribes inappropriately may become involved in malpractice litigation, sanctions from licensing boards, and/or felony charges for insurance or Medicaid and Medicare fraud, illegal distribution of CDS, or sexual exploitation. The concept of a mini-residency in the proper prescribing of controlled dangerous substances was approved by the New Jersey State Board of Medical Examiners in 1982 to aid in providing consumer protection and a positive option for physicians with problems in over- or misprescribing. It was initiated under the auspices of the University of Medicine and Dentistry of New Jersey (UMDNJ). Since 1994, the course has been cosponsored by the Forensic and Educational Consultants in Alcohol and Drug Abuse and Kennedy Memorial Hospital-University Medical Centers, a teaching affiliate of the UMDNJ. The course is held in a comfortable hotel in the Atlantic City-Philadelphia area and is conducted in a positive, friendly informal classroom setting. Many FEDERATION BULLETIN state boards do not choose to award continuing medical education (CME) credits for this course or to reward enrollees for required participation in remedial and/or disciplinary actions. Because a majority of state medical/ osteopathic boards in the United States require CME for relicensure, it is believed that awarding CME credits for this course would allow doctors to circumvent at least some new CME courses intended as relicertsing criteria. Table I. -Program Participants by Profession and Gender Profession: Male: Prescribers need sharper cognitive skills to recognize the Total: Female: these patients without scorning their illness. M.D. 251 12 263 D.D. 67 2 69 D.D.S./D.M.D. 33 2 35 4 (voluntary) I 1 D.P.M. 4 R.N. R.Ph. D.V.M. P.A. drug scarmrner and to handle 1 1 (record keeping only) 1 1 1 1 (Physician Assistant) 375 The format, a unique, step-building curriculum, was designed with a faculty of experts to deliver an all-encotnpassing 50-hour seminar comprising six full days and one clinical evening. Classes are held twice a year, in May and November, and are limited to 25 enrollees. The intent is to provide rerrted'zation for doctors who need to upgrade their general knowledge, whose licenses are subject to sanctions by a professional licensing board or quality assurance committee of such boards, or who are trying to retain or regain their licenses. Although the original and primary audience is MDs and DOs, registration has expanded to include 35 dentists, four podiatrists, a physician assistant, a nurse, a pharmacist, and a veterinarian. (See Table 1.) As a disciplinary action, this course work is a positive prophylaxis for repeat infractions and an alternative to imposing only negative penalties, fines, and suspended/revoked licenses. The course assumes that participants have never been appropriately taught, or have forgotten, issues of substance misuse and abuse. Therefore, all participants start at the same level. Some may have never learned newer concepts regarding CDS and prescribing. The course objectives are: 1. to ascertain the participants' level of knowledge of CDS prescribing before and after the course 2. to heighten the knowledge of the practicing physician or other health care provider about prescribing CDS Vol 82, No 2 1995 As a disciplinary action, this course work is ... an alternRtive to imposing only negative penalties, fines, and suspended/renoked licenses. 95 3. 4. 5. 6. This program is intended to educate health professionals. It does not attempt to provide therapy or rehabilitate the i»apaired physiciara. 7. 8. 9. to educate doctors and other participants in the most modem concepts of pharmacology of CDS to train participants in the pharmacology, diagnosis, and treatment options for chemical dependency and addiction to CDS to develop sensitivity to the patient who legitimately requires CDS for pain or anxiety to educate the health provider with a comprehensive knowledge of diagnosing and treating medical problems that involve the use and prescribing of narcotics for acute and chronic pain management, sedative/hypnotics, tranquilizers, stimulants, steroids, and drug combinations to make health providers aware of the psychology of the drug abuser and the dependent personality and the psychiatric component of substance abuse to stimulate the health provider in the evaluation of ethical values of the prescriber, dispenser, and user to assess physicians' prescribing habits, as they are affected by their own stress and by drug, physical, or emotional impairments 10. to elucidate state and federal laws regulating the prescribing and use of .., the fRculty has been serzsitized to the psychological aspects of working with this special8roup ofstudent professionals• 96 drugs in the categorized schedules under the federal Controlled Dangerous Substances Act of 1970 11. to help participants understand the role of regulating and licensing agencies that are consumer advocates 12. to convey the successful completion of this training program to state licensing and law enforcement agencies at the request of the participant This program is intended to educate health professionals. It does not attempt to provide therapy or rehabilitate the impaired physician. Over the years, however, approximately 15% of the participants in the course have had some alcohol and/or drug impairment due to their lack of knowledge of the effects on their own bodies. Both the provider and patient can benefit from the provider's experience in this course. The faculty is composed of experts in the fields of pharmacology, pharmacy, primary care, pain management, anxiety/depression, sleep disorders, obesity control, steroid abuse, psychiatric disorders associated with substance abuse, bioethics, medical record-keeping, addiction, the drug-seeking patient, state and federal controlled drug laws, and board rules and regulations. To reduce embarrassment and resistance, the faculty has been sensitized to the psychological aspects of working with this special group of student professionals. A pretest on the first day of the course identifies the weaknesses in knowledge of the participants. Although it is compared to the post-course exam administered on the sixth day, the major value of the test is to have this information to communicate to professional schools in the hope that education related to these deficits can be included in the core curriculum. For medical students, such information would be most appropriate in the fourth year, after they have finished courses in general pharmacology and are treating patients, and may be exposed to the drug-seeki.ng patient. The history of this course since 1983 shows that the dentist, podiatrist, physician assistant, pharmacist, and nurses all benefit equally and can assimilate the material and pass examinations as well as physicians, and in some cases, score higher. FEDERATION BULLETIN The course methods include formal lectures, interactive group discussions, slide and overhead presentations, video tapes, panel discussion with recovering addicts, and case study presentations. The broad-based educational program provides highly qualified experts; offers a comprehensive, individualized program in a learning environment; allows participants to make a constructive contribution to their community; and eliminates financial burden to the state or taxpayer because the tuition is paid by the participant. The program has become an important positive segment of disciplinary action used by 31 states and the College of Physicians and Surgeons of Ontario. (See Table 2.) It has been instrumental in the partial or total licensing and reinstatement of 99% of the 375 participants in the course to date. Of this number, only two of the physicians have been recharged with similar offenses as of May 1995. It has been instrumental in the partial or total licensing and reinstatement of 99% of the 375 participants in the course to dcate. Table 2. -Participants by State, through 25 Mini-residencies in CDS Arizona 2 Maryland 8 Pennsylvania 18 Alabama 2 Massachusetts 2 Rhode Island 2 California 5 Michigan I Tennessee 3 Colorado 10 Mississippi 7 Texas 2 Utah 2 Vermont 5 Virginia 46 Delaware 3 Missouri 4 Florida 2 Nebraska I Georgia 23 New Jersey Illinois 3 New York 5 Kansas 19 2 North Dakota 1 Kentucky Louisiana 4 Ohio Oklahoma 143 2 Wisconsin Ontario (Canada) 8 25 , IS Total Number of States (and Canada): 31 . . . state medical boards It is not surprising that doctors who have been mandated by their boards to take this remedial course question the level of knowledge about CDS of those board members. In May 1995, the New Jersey State Board of Medical Examiners sent its medical director to this course. He attended the entire 50 hours, took and passed the exam, and participated in all activities so that he can better assess doctors whose prescribing habits are matters of concern, now and in the future, to that state board. Statistics indicate that prevention through education is a successful approach. It should further indicate that state medical boards could implement a mechanism by which the public can be assured that licensees are knowledgeable and have at least minimal competency in the prescribing of CDS before they are licensed. Such programs would lead to the practice of better medicine and could prevent future sanctions. Vol 82, No 2 1995 could implement a mechanisrra by which the public can be assured that licensees . . . have at leQst minimal competency in the prescribing of CDS before they are licensed. 97 COMMENTARY Medical Futility: A Comment THOMAS Wm. MAYO, JD Associate Professor of Law, Southern Methodist University School of Law; Adjunct Associate Professor of Internal Medicine, University of Texas Southwestern Medical School; Counsel, Haynes and Boone, LLP; Dallas, Texas. The debate over medical futility has touched a raw nerve in the medical profession for many of the reasons mentioned by Dr. Schoenberger in his useful discussion of this topic. He is surely right that part of the reaction is a backlash against the perceived excesses of proponents of patient autonomy-most notably the courts and legislatures that have embraced that notion enthusiastically, if somewhat uncritically,''2 in the context of informed consent. More promising, however, is Dr. Schoenberger's suggestion that outcomes research and the current drive to rein in ever-increasing health care costs have focused attention as never before on the dilemma created by patient demands for interventions resisted by their physicians on futility grounds. Whether a physician responds to an outcomes-oriented professional ethos, to the abstract demands of society to make medicine more efficient and less expensive, or to the explicit financial incentives created by managed care contracts to reduce the costs of patient care, there is not much room these days for futile care. Dr. Schoenberger's attempt to distinguish the concept of futility from the rationing of health care is a useful analytical point that seems doomed to failure in a clinical setting. His distinction would limit the label "futility" to those interventions that provide no benefit, while "rationing" would refer to the self-conscious decision to withhold "a limited, but useful commodity." Since futile care is never usefiil, he reasons, a decision to withhoid it can never amount to rationing. 98 The problem with this distinction is that it turns on the slippery notion of "benefit," and there is no end to the mischief that is caused by that word in the current debate over futility. When the focus of the futility debate shifts to benefit, as it inevitably must, it raises many serious questions. Who defFnes what is beneficial and what is not? This question turns on the answer to a related question: Who establishes the goals for treatment, against which the benefit will be measured?3 The touchstone for Dr. Schoenberger's distinction between futility judgments and rationing-whether an intervention is beneficial or not-obviously depends on a great many clinical variables and the personal values through which those variables are processed. Put simply, a treatment may be beneficial to me, but not beneficial in the eyes of my physician. Withholding or withdrawing that treatment, far from being a treatment decision based upon futility, will appear to me to be rationing. This is a subjective view of the matter, and it might be argued that there must be a better answer to this dilemma than "it's in the eye of the beholder." The quest for a more objective standard, however, is an illusory one. Once we try to move past an essentially physiologic or quantitative standard for futility, we are in the realm of "one's personal value system,"4 and, as Dr. Schoenberger points out, even the quantitative standard is subject to that criticism. The difficulty inherent in the quest for "objective" value judgments is illustrated by the problem of DNR orders for patients in a persistent vegetative state. For Schneiderman, Jecker, and Jonsen,5 as well as for others,6 this is an easy case, an obvious instance of a futile intmention because, even ifspontaneous breathing and a pulse can be restored, there is no benefit to the patient. Dr. Schoenberger's own hospital ethics subcommittee's definition, which emphasizes "a benefit which can be appreciated by the patient," would seem to point in the same direction. But this is not the standard of care for many physicians who treat FEDERATION BULLETIN such patients. The chairman of the medical ethics committee at Columbia Presbyterian Medical Center in New York was presumably speaking for them when he recentlywrote, in the context of a discussion ofDNR orders, "[T]he definition of futility should most certainly not be applied to comatose patients who can survive for long periods with supportive care. To do so would be to start sliding down the slippery slope of explosive and arbitrary judgments as to what constitutes 'useful' or 'quality' life."' The American Heart Association$ and the A.iVfA Council on Ethical and Judicial Affairs appear to agree, as well. I am not arguing that the views of the AHA and the AMA should trump the American Thoracic Society and Lawrence Schneiderman, simply that there is precious little agreement within the profession and within society, even when the case is a relatively straightforward one. This is betause, as Beauchamp and Childress1Q write, "Professional standards in medicine are fashioned for medical judgments, but decisions for or against medical care, which are nonmedical, are rightly the province of the patient." These decisions can be made with the assistance ofphysicians, and often they are intelligible only with that assistance. But it is a conceptual and practical mistake, except in the narrowest of circumstances and the rarest of cases, to take these decisions out of the hands of patients through unilateral decisions by the physician. What gives the futility debate bite is that this unilateral right to force a particular result, which is an essentially coercive right, is met by the patient's claim to an equally coercive right based upon a demand that "everything be done." The futility debate is, thus, a struggle over power, and as long as the struggle is over foundational matters that are defined by bedrock personal and professional values, the power struggle is a draw. As Haavi Morreim" has suggested, the resolution of this struggle is not likely to be found in anyone's answers to the basic questions of whose values and whose goals for treatment are worthy or unworthy, but rather in a model for dispute resolution that minimizes the coercive effect of the claims of both sides to the dispute. Dr. Schoenberger's emphasis, therefore, on physician-patient communication and joint decision making is most welcome. In many cases, this is all that is required to produce a treatment plan that is acceptable to the patient (or surrogate) and physician. The plan may include a time-limited trial that tests the accuracy of the physician's predictions at the same time it gives the patient (or family members) time to adjust to new clinical realities. It may also include an agreement that certain interventions, including attempted resuscitation, will not be tried, while others will be. In the event that agreement cannot be reached, the requested interventions ordinarily should be provided, Vo182, No 2 1995 assuming they are capable of producing the physiological effect for which they are intesaded. On this assumption, the physician may still believe that a particular intervention is "futile," but in the more qualitative sense favored by Schneiderman. Discussions should continue, often with the assistance of social workers, pastoral care, or an ethics consultation team, until one of three likely outcomes occurs. Over time, the patient ^or surrogate) may change his mind and agree that a particular intervention is probably nonbeneficial in a sense that is meaningful to the patient. Alternatively, changed clinical circumstances may require an adjustment in the futility analysis, for or against the intervention, and require further communication and new decisions. And, particularly in the case of end-of-life decisions, the death of the patient may render the issue moot, unless the issue concerned a DNR order. This type of interdisciplinary support for and communication with the patient (or surrogate) may be costly both in financial and emotional terms, but it should be continued throughout this period. It promotes the autonomy of the patient, either directly or through a surrogate decision maker, at a relatively low cost to provider autonomy. It does require, however, that the physician be willing to recast the patient conflict and the apparent impasse. Rather than a bipolar dispute in which physician and patient (or surrogate) are adverse parties in a winner-takes-all contest, the parties must understand themselves to be partners in search of a treatment plan that is acceptable to both, recognizing that neither party likely will have his position totally vindicated by the process. This approach recasts the dilemma in terms of ongoing patient and provider education about the patient's condition, options, values, and goals in a cooperative, rather than adversarial, process. It sometimes will be difficult to tell whether an intervention is futile in the physiologic sense or only in the value-laden, qualitative sense. In other cases, probabilistic analysis of the disputed intervention may involve a clash of values, as well, if physiologic effect cannot be categorically ruled out and the care is deemed futile because the physician believes that the burdens of treatment far outweigh the benefits. To clarify the reasoning involved in futility judgments, an institution's policies might require that all futilitybased overrides be preceded by second opinions from physicians in a relevant specialty, consultation with the ethics committee of the hospital, and complete documentation in the patient's record.12 In addition to avoiding potential licensing actions (as Dr. Schoenberger suggests), these policies also would make it impossible to reject a patient's (or surrogate's) autonomous treatment choices without an institutional airing of the reasons for the override. These procedures 99 not only provide the patient's interests a measure of protection but also help to clarify institutional and individual provider's values and to establish a standard of care within the institution and the community. These procedural safeguards may provide some legal protection in the courts, as well. In the case discussed by Dr. Schoenberger involving Massachusetts General Hospital, it is far from clear whether the futifity argument relied upon by the physician and the hospital ethics committee was based on lack of physiologic effect or the more qualitative judgment that survival that falls short of discharge from the hospital was not worth the burden of the attempt. The judge's instruction to the jury, for example, required them to "balance [the patient's] preference [for continued ventilator support and CPR if she were weaned] against the medical judgment to withdraw such treatment in the context of not whether, but for how long, and at what cost, her life might be extended."13 Nonetheless, the jury found in favor of the physician and the hospital, presumably in part because the careful process by which consultants were involved, the ethics committee was consulted, and the decisions were made and documented in the patient's record helped to establish the reasonableness of the defendants' conduct in the minds of the jurors. References 3. Capron AIM. In re Helga Wanglie. Hastings Center Report. 1991; 21 [5]:26-28. 4. Schoenberger Cl. Medical futiIity: an evolving ethical and clinical concept. Fed Bull: J Med Licensure Discip. 1995; 82:70-77. 5. Schneiderman LJ, Jecker NS, Jonsen AR. Medical futility: its meanings and ethical implications. Ann Intern Med. 1990; 112:949-954, 6. American Thoracic Society. Withholding and withdrawing life-sustaining therapy. Ann Intern Med. 1991; 115, 478-485. 7. Prager K. When medical treatment is futile. Wall Street jonrnal. June 27, 1995: A16. 8. American Heart Association. Ethical considerations in resuscitation: guidelines for cardiopulmonary resuscitation and emergency cardiac care, part 8. JAMA. 1992; 268:2282-2288. 9. AMA Council on Ethical and Judicial Affairs. Guidelines for the appropriate use of do-not-resuscitate orders. JAMA. 1991; 265:1868-1871. 10. Beauchamp TL, Childress JF. Principles of Biomedical Lthics. 4th ed. New York, NY: Oxford University Press, Inc; 1994:148U. 11. Morreim EH. Profoundly diminished life: the casualties of coercion. Hastings Center Report. 1994; 24 (1 ):33-42. 12. Sadler JZ, Mayo TW. The Parkland approach to demands for "futile" trearment, H.E.C. Forum. 1993; 5{ 1 }:35-38. Schuck PH. Rethinking informed consent. Yale Law joaarnsal. 1994; 103 (4):899-959. Veatch RM. Abandoning informed consent. Hastings Center RePort. 1995; 25 {2):5-12. 100 13 Ellernent J. Jury sides with doctors on ending vmman's life support. Boston Globe. April 22, 1995; Metro/Region:18. FEDERATION 'SUT,LETIN FROM OUR INTERNATIONAL EXCHANGES NEW SOUTH WALES, AUSTRALIA GRADUATES OF THE YMP AIR1VLENT PROGRAM Most impaired doctors can continue to practise medicine, subject to appropriate restrictions which protect the public. The Board takes the view that its primary responsibility to protect the public can be met at the same time as the doctor is rehabilitated. The Board's rehabilitation program encourages doctors to take reponsibility for their own health. Where this is demonstrated, along with a successful treatment program, supervision by the Board may eventually be discontinued. Many practitioners who have adhered to their conditions for several years and who no longer need supervision are now ready to leave the program. From the Medical Board Newsletter of the New South Wales Medical Board March 1995 An example is Dr B., who came to the Board's attention in 1991 following long-term problems associated with the self-administration of narcotics. He agreed to continue treatment with a psychiatrist of his own choice, to regular review by a psychiatrist nominated by the Board, and to thrice-weekly urinalysis. Reports from the Board-nominated psychiatrist documented steady improvement in his overall condition and his cessation of narcotic abuse. The psychiatrist noted improvement in the doctor's style of practice, in the management of his own illnesses, and in relationships with his family. The doctor developed an understanding of his vulnerability and of his propensity to use narcotics when stressed. At his last interview, the Board concluded that he should take responsibility for his own well-being and that supervision should cease. The Board also recommended a return of his authority to prescribe narcotics. Vol 82, No 2 1995 Early detection, prompt intervention, and ongoing support will assist an impaired doctor in following his or her career. Over 100 doctors with psychiatric problems, self-administration of drugs, or alcohol problems are currently under Board supervision. Over the past seven years, the profession has become increasingly aware of this rehabilitation program. Reporting of impaired practitioners by their colleagues is steadily increasing, now that it is seen that the Board is acting positively in assisting these doctors. ONTARIO, CANADA CONSENT TO TREATMENT AND SUBSTITUTE DECISIONS ACTSAN OVERVIEW MICHAEL E. DIXON, MD Registrar, College of Physicians and Surgeons of Ontario The Consent to 7'reeatment, Substitute Decisions and AdvocacyActsare to be proclctimed law on April3, I995. Thefolloaving article offers physicians a basic overview of some of the likely and most immediate effects of the Consent to Treatment Act on their practices. It does not deal with the Substitute Decisions or Advocacy Acts nor is it intended to be a cornprehensive, all-inclu.rivegaeide to the Consent to Treatment Act. Other aspects of these laws will be discussed in future issues of Members' Dialogue. Some of the ramifications of these lcaivs may take years and several court decisions to become clear. Basic Concepts of the Legislation Physicians have always been expected to discuss treatment alternatives with their patients before seeking consent for the course oftreatment recommended. The common law as it pertains to consent has evolved over the years as a result of a series ofjudgments which have provided guidance to physicians as to the information 101 patients should receive prior to giving consent. However, provision for dealing with patients incapable of making decisions on their own behalf, or means for people to express wishes regarding treatment decisions they would want made when they become incapable, did not exist until the passage of this legislation. The legislation outlines the rights of patients and the duties of physicians. Unfortunately, its complexity, coupled with uncertainty about the interpretation of many sections, as well as the lack ofan adequate number of rights advisors, will very likely cause serious delays in the rendering of needed care to the public. personal care, and other matters described in section 3 of the regulations made under the Consent to Treatment Act. The legislation provides that patients who are incapable of understanding the risks and benefits of a proposed treatment involving a controlled act must be advised oftheir right to see a rights advisor and be given the opportunity to challenge the physician's finding of incapacity at a hearing of the Consent and Capacity Review Board. All this is to take place before their substitute is asked for a treatment decision. Unless the incapable person is experiencing "severe suffering" or is at risk of suffering "serious bodily harm," no treatment may be given to them [sic] until the appropriate substitute decision maker is found and gives consent on the person's behalf. Important Provisions of the Act The elements of the common law regarding consent are specified in the Consent to Treatment Act, which states that the consent must relate to the treatment, it must be informed, it must be given voluntarily, and it must be obtained without misrepresentation. The requirements for consent to be informed are also included. (See Table 1.) How the Consent Process Works in a Non-emergeney Situation Step I: Patient's capability of consenting to the proposed treatment is determined. The Act provides criteria to be considered. (See Table 1) If no reason exists to consider the patient incapable of consenting, the patient is informed about the proposed treatment and consent is requested. From Members' Dialogue, The College of Physicians and Surgeons of Ontario March 1995 Table 1-Consent is Informed if, Before Giving it, the person received the information about the treatment, alternative courses of action, the material effects, risks and side effects in each case and the consequences of not having the treatment that a reasonable person in the same circumstances would require in order to make decision; and the health practitioner responded to the person's requests for other information about the treatment, alternative courses of action, material effects, risks and side effects, and consequences of not having the treatment The definition of "treatment" extends beyond the usual therapeutic measures to include components of the physical examination which are controlled acts (such as a pelvic or rectal exam), as well as any x-ray, blood test, or invasive diagnostic procedure. However, certain things are excluded from the definition of treatment, such as the determination of capacity, the controlled act of diagnosis, the provision of basic 102 Table 2-Criteria for Determination of Capacity The person must demonstrate an understanding of: l. the condition for which the treatment is proposed 2. the nature of the proposed treatment 3. the risks and benefits of the treatment 4. the alternatives to the treatment presented by the health practitioner, including the alternative of not having treatment and... 1. the person must be able to acknowledge the fact that the condition for which the treatment is recommended may affect him or her 2. the person must be able to assess how the proposed treatment and alternatives to the treatment presented by the health practitioner, including the alternative of not having treatment, could affect the person's life or quality of life 3. the person's choice of treatment must not be substantially based on a delusional belief FEDERATION BULLETIN Step 2: If patient is found to be incapable of consenting to the proposed treatment, the following actions must be taken: 1. Advise the patient who is 14 years or older that they [sic] arc incapable. 2. Read the patient a 207 word notice of his or her rights. 3. Give the patient the completed and signed notice. 4. Ascertain if the patient wishes to see a rights advisor. 5. Call the rights advisor if patient requests (unless in a psychiatric facility where a rights advisor must be called). Components 2, 3, 4, and 5 of this step are not required for certain acts that are included in the definition of treatment such as the taking of blood samples, other than testing for HIV, IV hydration, administration of a substance by injection or inhalation in some circumstances, and other circumstances described in Section 7 of the regulations under the Consent to Treatment Act. Table 3-Substitute Decision Makers for Incapable Persons (in order of authority) 1. Validated attorney for personal care or appointed guardian of the person if authorized to act for the particular circumstance 2. Unvalidated attorney for personal care if authorized 3. Representative appointed by the Consent and Capacity Review Board 4. Spouse or partner 5. Child 6. Parent or, if under 16 years, guardian 7. Brother or sister 8. Other relative Step 3: If a rights advisor is called, no treatment can be given other than first aid or temporary assistance until the patient decides whether to appeal to the Review Board or until 48 hours has elapsed and no appeal is requested. Step 4: If the patient has decided not to appeal, or the appeal process has run its course and the finding of incapacity has been confirmed, a treatment decision can be sought from the substitute decision maker. The Act ranks substitute decision makers in order of authority. (See Table 3.) Step 5: If the substitute decision maker is a family member, he or she must make a required statement before giving or witholding consent. (See Table 4.) Vol 82, No 2 1995 Table 4-Required Statement by Family Members Before Giving Consent (May be Made Orally or in Writing) 1. State relationship to the incapable person 2. State belief that incapable person would not object 3. State belief that no other person claims authority to make the decision 4. State belief that attorney for personal care or other representative has not been appointed 5. State belief that no famiiv member of higher authority wishes to give or refuse consent and is available How the Consent Process Works in an Emergency Situation Step 1: Patient's capability of consenting to the proposed treatment is determined. Step 2: If patient is found to be incapable of consenting to the proposed treatment and ]„ is experiencing severe suffering, or 2. is at risk, if the treatment is not administered promptly, of suffering serious bodily harm, and 3. the substitute decision maker is not readily available, then . . . treatment may be given, pending the availability of the substitute. Problem Areas in the Legislation This article is not meant to be a comprehensive guide to the Act and, in any case, there are many areas and situations in which the Act is ambiguous. For example: 1. While consent may be given for a course or plan of treatment under the Act, it is uncertain which procedures can be considered part of the plan and which require a separate consent. 2. The determination of capacity must be done according to specific criteria which may not be possible to observe in all circumstances. 3. Informing patients who are confused, disoriented, or unable to communicate that they are incapable and that they have the right to see a rights advisor and appeal the finding of incapacity will likely be upsetting and confusing to many of them as well as time-consuming and disruptive. 4. Whether "severe suffering" and "serious bodily harm" exist for the purpose of deciding if the emergency provisions apply will be difficult to determine without clearer definitions. 103 5. It is unclear how relatives and physicians will find out if an incapable patient has appointed an attorney for personal care. 6. It is unclear how the office of the Public Guardian and Trustee will be able to give or withhold consent in a timely fashion when no other substitute decision maker is available. 7. Children of any age who are deemed incapable of giving consent can delay treatment by asking to see a rights advisor and making application to the Consent and Capacity Review Board. UNITED KINGDOM GOVEANMENT COMMITMENT TO EXPAND GMC POWERS On 16 March 1995, the Government introduced the Medical (Professional Performance) Bill. By amending the Medical Act 1983, the Bill will enable the GMC to implement the performance procedures which it proposed in 1992. Most doctors are doing a good job, often under difficult circumstances. They will not be directly af- 104 fected. However, the new powers will enable the GMC to deal with the small number of doctors whose pattern of professional performance gives rise to serious concern. Currently, the GMC can investigate allegations of serious professional misconduct or serious impairment of fitness to practise due to ill health. But the GMC has no powers to deal with cases where a doctor's pattern of performance is seriously deficient. From The GMC News Review of the Gcnercal Nfcdicul Council Winter I994/95 As with conduct, the new procedures will be invoked only where the allegations are serious. Sir Robert Kilpatrick, President of the GMC, makes the point that "the key question is whether the alleged pattern of performance calls into question the doctor's unrestricted registration." A wide range of organisations, both medical and non-medical, will be consulted before detailed rules of procedure are finalised and laid before Parliament. The need to develop assessment programmes for each specialty means that the first cases will probably not be considered by the GMC before 1997. FEDERATION BULLETIN FROM OUR MEMBER BOARD EXCHANGES ARIZONA stimtilation treatmcnts, ultrasound therapv, massage therapy, traction treat- MEDICAL ASSISTANTS: A REVIEW OF CURRENT RULES nll'.nCs and applying Transcutaneous Nerve Stimulation units and hot and cold packs - 20 hours; Frnsra the Arizoiia Osteopathic I3ullctin Board Dacember 1994 On May 3, 1993, the following Administrative Rules promulgated by the Board became effective. As such, they have the force of law and are administered in the same manner as are the Board's statutes. They are reprinted here in order to remind all licensees of the Board of their obligations with respect to the employment and use of medical assistants. R4-22-110 Approval of Educational Programs for Medical Assistants A. The Board shall approve an educational progrann for medical assistants when it has recci\=ed all of the information specified in paragraph ($ ) { 1) or (2), as applicable, concerning the program and the Board determines that the educational program provides at a minimum the folio^ving traitiing: 1. Cardiopulmonary resuscitation - 6 hours; 2. Patient assessment techniques, including blood pressure, temperature, height, ,,veight, administering EKG tests and administering pulmonary function tests - 20 hours; 3. Injections and sterile techniques, including blood drawing and specimen collection, administering injections, and applying and changing dressings on wounds and injuries - 20 hours; 4. Physical medicine modalities, including admi ni ste ring wiai ri pool tre atm en ts, diathermy treatments, electronic galvation Vol 82, No 2 1995 5. Medical ethics and confidentialitV recluirements - 16 hours. B. A provider of an educational program for medical assistants, seeking approval of its program, shall submit the 1co11owing itcros to the Board: i. Copies of all course materials; 2. Class content outlines on a session-bysession basis; 3. Sample examinations for each course; and 4. A list of all instructors and their qualifications. C. An individual seeking approval of an cducational program for medical assistants connpleted by that individual after December 31, 1985, shall submit the following items to the Board regarding the educational program: 1. Name and address of each educational program provider; 2. A list of the courses taken and a description of the content of each coiirse; 3. Documentation of completion of the educational program after December 31, 1985; and 4. Any other information which the Board may require in order to determine that the educational program meets the reqtiirements ofsubsection (A) and that the applicant has completed the educational program. D. The Board shall not approve an educational program for an individual if the individual completed the program prior to Januany 1, 1986. 105 E. Approval by the Board of an educational program for medical assistants shall remain valid so long as the program continues to satisfy the requirements of subsection (A). R4-22-111 Medical Assistants-Authorized Procedures Procedures authorized for medical assistants to engage in shall include the following: 1. Cardiopulmonary resuscitation; 2. Patient assessment techniques, including blood pressure, temperature, height, weight, administering EKG tests and administering pulmonary function tests; 3. Injections and sterile techniques, including blood drawing and specimen collection, administering injections and applying and changing dressings on wounds and injuries; 4. Physical medicine modalities, including administering whirlpool treatments, diathermy treatments, electronic galvation stimulation treatments, ultrasound therapy, massage therapy, traction treatments, and applying Transcutancous Nerve Sti.mulation units and hot and cold packs. R4-22-112 Qualification of Medical Assistants A medical assistant shall be 18 years of age or older and possess a high school degree or the equivalent thereof. R4-22-113 Regulation of Medical Assistants A medical assistant, when interacting with a patient or otherwise working as a medical assistant, shall wear a name tag which clearly identifies the medical assistant and states that the medical assistant is a medical assistant. R4-22-114 Physician Responsibility for Medical Assistants A physician employing a medical assistant shall ensure that such medical assistant complies with all statutes and rules applicable to employment as a medical assistant. A physician who utilizes the services of a medical assistant to assist the physician in the practice of medicine shall supervise and be responsible for all actions or failures ofthe medical assistant relating to the physician's practice of medicine. There are also two specific statutory references to medical assistants, these arc reprinted below: 106 A.R.S. § 32-1800 Definitions 14. "Medical Assistant" means an unlicensed person who has completed an education program approved by the Board, who assists in a medical practice under the supervision ofa doctor of osteopathic medicine and who performs delegated procedures commensurate within the assistant's education and training but who does not diagnose, interpret, design or modify established treatment programs or violate any statute. A.R.S. § 32-1853.01 Use of Title by a Medi.cal. Assistant It is unlawful for a person to use the title medical assistant or a related abbreviation unless the person is working as a medical assistant under the supervision of a doctor of osteopathic medicine pursuant to rules adopted by the board. This information is provided in order to remind physicians licensed by the Board of the rules regarding medical assistants. Individuals desiring additional information regarding this topic are asked to contact the Board's office. BOARD PROPOSES NEW RULES FOR SPECIALTY CERTIFICATION In August 1992, the Board adopted as an administrative rule the following language regarding specialist designation: R4-22-102 Specialist Designation A specialty board approved by the Board includes only those specialty boards recognized by the American Osteopathic Association and listed in the Yearbook and Directory of the American Osteopathic Association, 1991, page 643, or the American Board of Medical Specialties and listed in the Annual Report and Handbook of the American Board of Medical Specialties, June 1994, page 103, which are incorporated herein by reference and on file with the Office of the Secretary of State. In application, this rule precludes physicians who are certified by specialty boards not affiliated with either the A.O.A. or the AS.M.S. from advertising or holding themselves out to be specialists, and in conjunction with A.&S. § 32-1854(17), makes such a representation or advertisement an act of unprofessional conduct. Since adoption of this rule, the Board has heard from a large number of physicians who take issue with the rule FEDERATION BULLETIN and who have claimed that it is unduly restrictive and does not recognize that there may be legitimate specialty certifying boards, or entities, which are not affiliated with either the A.O.A. or the A.B.M.S. Their arguments, upon review, have been shown to have merit, and the Board thus sought some means of addressing this issue. The method chosen was that of developing amended wording for the current rule, a decision which led to the following language being drafted: R4-102 Approyal of Specialty Certifying Organizations A specialty board or certifying organization which seeks to be approved by the board shall comply with the following criteria and shall submit documentation thereof to the board: l. The organization has been granted 501 (c) status under the Internal Revenue Code; 2. The organization has full time administrative staff; 3. The organization has bylaws, a code of ethics to guide the practice of its members, and an internal review and control process, including budgetary practices; 4. The organization is national in scope and has, as a central purpose, the credentialing of physicians; 5. In granting certification, the organization shall establish and maintain procedures to ensure that any examination administered by, or on behalf of, the organization after the adoption and certification of this rule: a. Is of sufficient breadth and scope to cover the specialty field; b. That the examination(s) and answers thereto are maintained in a secure environment with access restricted to persons authorized by the organization to have access thereto; c. That a standard pass/fail grading system has been established in advance of administration of the examination; d. That proctoring of examinations is done by independent proctors who do not have any personal, professional, or financial association with those individuals being examined; e. That the granting or denial ofcertificadon is based upon objective performance, skill, and merit of the candidate as determined by measured performance on the certification examination(s); Vol 82, No 2 1995 6. The organization has a demonstrated interest in the continuing proficiency of its members, by requiring periodic recertifscation and/or documentation of attendance at continuing medical education programs as well as continued practice in the field of certification. Interested individuals who wish to comment on the proposed rule may send their comments to the Board office. All comments received will be incfuded in the Board's rule making record, and copies will be provided to all Board members. Following review for form and approval by the Governor's Regulatory Review Council {G.R.R.C.}, the proposed rule will be considered for adoption by the Board. This will be done during a regularly scheduled Board meeting, most likely in March. Actual scheduling of this will be set at a later date, with notice ofthe Board's action on the proposed rule included in the Notice of Meeting published by the Board. At that meeting, the Board may entertain comments on the proposed rule, prior to considering it for adoption. If the Board votes to adopt the proposed rule, it must be sent to the Attorney General for review, and then to the Office of the Secretary of State for certification. Following this latter action, the rule will be effective, and shall be enforced by the Board. Editor's Note: See page $3 for more information on this subject. ARKANSAS PRACTICING MEDICINE IS A PRIVILEGE W. RAY ]OUETT, MD Member, Arkansas State Medical Board From The Arkansas State Medical Board Newsletter Fall/Winter 1994 Practicing medicine is this state is considered to be a privilege rather than a right. But, before this privilege is granted, a physician must go through an in-depth credentialing process. You may ask, why such an extensive search into the educational, professional, and moral background? The answer is simple, to maintain the high standard of health care this state has supported for many years. In recent months, the Board has been questioned by physicians who are recruiting new doctors to their area as to why the Board cannot bypass a portion of the credentialing standard and quickly license a physician that is badly needed in their area. This question comes 107 especially when the physician has a license in another state. The reason is: in recent months, the Board has been informed by the Federation of State Medical Boards of known applicants who go throughout the United States using fraudulent names, education, and work experience to position themselves in unsuspecting areas of need. One such applicant who possessed falsified credentials had no actual medical education at all. The benchmark of all state medical boards is its credentialing process. How seriously it is taken, how aggressive and how demanding the process may be, all depend on the philosophy of the Board. The Arkansas State Medical Board conducts its own credentiaiing process and takes it very seriously. from four to eight The application process can weeks, depending on the length of time required to receive verifications back from the originating source. The license application is an all inclusive packet with instructions outlining all requirements necessary for licensure. The applicant completes all forms and mails them to the originating source for verification. These verifications are mailed direct to the Board office to eliminate the possibility of information being altered. When all verifications have been received in the office, the application is presented to the Board for review and vote. The office cannot present the application to the Board until the application is complete and all verifications are returned. Because verifications are accepted from the originating source, credentialing of graduates of foreign medical schools takes a longer period oftime due to the poor communications and mail service in those countries. Direct regarding medical education and postgraduate training is essential and cannot be substituted. Temporary permits are given on occasion after the application has been completed and is waiting to be presented to the Board at the next meeting. That permit is good only until the close of the next meeting. There is one admonition that every recruiting physician and applicant should give special attention. NO API'LICANT IS GUARANTEED A LICENSE even if they have been given a temporary permit. A license can only be granted by a vote of the full Board. It is for this reason, when you are recruiting a physician, you are warned to encourage them not to put themselves in debt before a license has been granted. We have had several physicians who have moved their family and purchased a home only to be denied a license. No one wins in this situation, the Board, the applicant, and you, the recruiting physician and community. The Board does not wish to appear unsympathetic, but licensing an individual as a physician to practice medicine and treat the citizens of Arkansas is not taken 108 lightly. Unfortunately, the credentialing process, not by choice, will become even more restricted. When you are recruiting physicians to your area, keep this in mind. Plan ahead, ask the physician to contact the Board office in their initial interview with you and/or your hospital. Remember to consider the credentialing process before making your schedule for the new physician to begin seeing patients and making rounds. The process is not difhcuit; however, it is time consuming. KENTUCKY NEW CONTINUING MEDICAL EDUCATION REGULATION From the Kentucky Board of Medical Licensure Newsletter Winter 1995 Since the mailing of the 1995 Annual Renewal Forms, the Board's office has received many phone calls from physicians or their staff requesting information on the new CME regulation. To highlight the most frequently asked questions, the Board is providing the following information: When does the cycle begin? The first cycle began January 1,1994, and will end December 31,1996. The next cycle will begin January 1, 1997. Will CME credits acquired before January 1, 1994, be acceptable? No, credits must be earned during the three (3) year cycle, January 1, 1995-December 31, 1996. What are the new CME requirements? Sixty {60} hours of CME every three years, with thirty (30) hours being certified in AMA Category I by an organization accredited by the Accreditation Council on Continuing Medical Educarion and thirty (30) hours ofnon-supervised personal learning activities. These can include selfinstruction, audio-visual materials, television and radio broadcasts, programmed medical education materials, consultation, use of databases and other computerbased materials, patient care review, self-assessment, teaching, articles, publications, books, exhibits, and CME lectures and seminars. Two (2) hours of the total sixty {60} must be acquired in HIV/AIDS courses approved by the Cabinet for Human Resources pursuant to 902 KAR 2:I fi0. What documentation should I send to the Board? Do not send documentation to the Board unless requested, although it is important that you have documentation on hand to provide if you are audited. Do retired physicians have to comply in order to maintain an active license? Yes, all physicians holding FEDERATION BULLETIN a current Kentucky license are required to complete the sixty (60) hours of CME. Should I call the Board with questions concerning CME category approval? No, the KBML is not responsible for Category approval and does not maintain this information. For category approval, please contact the Kentucky Medical, Association's CME Department (502) 426-6200 or the American Medical Association (312) 464-4672. For a list of HIV/AIDS approved courses, contact the Cabinet for Human Resources,AIDS Program Education (502) 564-6539. Other inquiries may be submitted to the Board's headquarters office. LOUISIANA THE MEDICAL RECORD-CHANGING, ALTERING, AND DESTROYING HENRY K. THREEFOOT, MD Physician Consultant, Louisiana Medical Mutual Insurance Company (LAMMICO) From the Losaisiranca State Board ofMedical Examiners Newsletter Febrrsasy 1995 Although lawyers are frequently accused of being the primary cause of lawsuits, the medical record in many cases is the determining factor. Patients will ask an attorney to review the medical record when they have an adverse outcome or an unexpected complication. The lawyer searches the record for errors, omissions, or commissions. He or she is not necessarily looking for negligence but for items that may influence a judge or jury or make the physician's case easy to attack or difficult to defend. The defense attorney depends on these records to defend the physician. With good medical records, the lawyer can often have the case dismissed. The Louisiana State Board of Medical Examiners also has to rely on the medical record to make decisions. Changes and alterations in the record are important items that the plainriffattorney looks for in the pursuit of a malpractice claim. ■ What is the difference between maldng "changes" and making "alterations"? In medical malpractice risk management jargon, there is a great difference. Changes are corrections made prior to any filing of a lawsuit. They are acceptable and may be helpful. Alterations are any corrections or additions to the medical record after a malpractice claim has been filed. They are completely unacceptable. Vo182, No 2 1995 • What is the correct way to change a statement in the record? Simply draw a single line through the wording you wish to change. Enter the new wording, date it, and initial it. Do not obliterate the previous wording. Do not black out, white out, cut out, or erase anything previously recorded. An addendum to the record may be made by adding the desired information and referring to the previous data you v6sh to correct or expand upon. Date and sign the addendum. • When can a correction be made? A correction can be made at any time if it is beneficial to the care ofthe patient. However, corrections can never be made after a claim has been filed. It then becomes an alteration of the medical record. ■ Who alters medical records? Most physicians who alter medical records have no fraudulent intentions. They are well-meaning physicians who want to clariii, the content, making it more understandable to readers such as the judge, jury, or Board of Medical Examiners. Often, when the physician reviews the record, he or she realizes that others will be unable to decipher the meaning of the record. There are also physicians who may panic and alter their records based on feelings of anxiety. Either way, the alterations lead to dire consequences. • What are the consequences of altering the record? Regardless of any circumstance, altering the record is the most damaging action a physician can take against his defense. A case that was defensible may suddenly become indefensible, causing all to be lost for the physician. • How should medical records be handled after a suit is filed? Physicians should copy, sequester, and secure the originat record. They should not add, delete, or change anything. ■ How long must medical records be kept? Louisiana law requires office records to be kept for a minimum of six years from the date of the last treatment and graphic materials to be kept for at least three years. Hospitals retain records for at least ten years. ■ How should medical records be destroyed? Medical records must be destroyed by shredding or incinerating. Imagine yourself sitting in a court room. A ten-foot screen rolls down from the ceiling, and your medical record is projected onto that screen. Think about this scenario every time you or one ofyour office staffmakes a new chart and when you make entries into the record. If you do, you may never need to change your records or make amendments, and you will likely never be tempted to alter one. The medical record is your legal guardian. Take care of it so that it can take care of you. 109 NEVADA PHYSICIAN ASSISTANT PRESCRIBING From the Maryiand BPQA Newsletter ofthe Maryland $oard ofPlrysician Qua.lity Assrcrance March 1995 The authority for Physician Assistants to write medication orders in an institutional setting came under question in March 1992. Since that time, several attempts have been made to correct this through the legislative process, the last being House Bill 1527 introduced in the 1994 legislative session. This legislation was defeated, and the legality of PAs' being permitted to write medication orders remained in limbo. The BPQA has always maintained that it has the ability to delegate this function by regulation; however, to make certain that there was a legal basis for this, BPQA asked Nelson Sabatini, past Secretary ofHealth and Mental Hygiene, to request a formal opinion of the Attorney General. Opinion #95-004 dated February 1, 1995, in summary states: "The Board has authority to adopt a regulation specifying the circumstances under which the job description of physician assistants may incl.ude prescribing. A regulation may not authorize physician assistants to dispense prescription medicines, however." Accordingly, BPQA, through its advisory committee, has begun the process of promulgating regulations to permit physician assistants to be able to write medication orders in a hospital or state/local correctional facility. Initially, it is likely that prescribing authority will be granted for PAs working in hospital and institutional settings where there are multiple levels of oversight inherently in place. Unless the PA's job description specifically allows for prescribing authority, the physician supervisor may not delegate this aspect of medical care to a PA. As has always been the case, PAs may not legally use presigned prescriptions. Our goal is to have these regulations in place by July 1995 in order for BPQA to begin processing the expanded job description applications for those PAs who wish permission to write medication orders. In the interim, and until these regulations are in place, there is no express authority for PAs to be prescribing in any circumstance. In addition, PAs may not give out prescription medications to patients, including samples of medications. 110 CONTINUING MEDICAL EDUCATION REQUIREMENT The Nenada State Board of Medical F_xaminers NEWSI.ETTEA April 1995 Each physician licensed after the beginning of a period of biennial registration must, if he was licensed during the: (a) First six months of the biennial period of registration (July 1, 1993, through December 31, 1993), complete 40 full hours of continuing medical education; (b) Second six months of the biennial period of registration (January 1, 1994, through June 30,1994) complete 30 full hours of continuing medical education; (c) Third six months of the biennial period of registration (July 1, 1994, through December 31, 1994) complete 20 ful.i hours of continuing medical education; or (d) Fourth six months of the biennial period of registration (January 1, 1995, through June 30,1995) complete 10 full hours of continuing medical education. Any physician licensee who has completed a full 12 months of residenry or fellowship any time during the period for biennial registration immediately preceding the submission of the application for biennial registration is exempt from the requirements above- oxEGON THE BME AND PRBSCRFBIl;TG HARVEY KLEVIT, MD Medical Director, Oregon Board ofMedical Examiners From the BME REPORT ofthe Qregvn Board ofMedical Examiners Spring 1995 This rarticle will rrddress the Board's crsrrent position with regard to the use of controlled sacbsaances in: 1) cbronic "non-malignarat" paitr; 2) pain resulting from pnalignancy and in terminally ill patients; and 3) appetite control in the treatment of obesity. FEDERATION BULLETIN The Use of Controlled Substances in Chronic Non-malignant Pain The Oregon Medical Practice Act defines inappropriate prescribing as follows: "Prescribing controlled substances without a legitimate medical purpose and without fnllowing accepted procedures for examination of patients and record keeping." In the'80s and early'9Us, inappropriate prescribing of controlled substances represented the Board's leading investigative and disciplinary problem. This is no longer the case and probably represents a combination of a change in physician prescribing behavior and an increase in the number of other types of public complaints, particularly quality of care and physician/ patient relationship issues. The BME Report has not dealt with the issue of prescribing controlled substances since 1992, following a conference held in Portland, "The Rational Use of Controlled Substances in the Management of Pain." Kathleen Foley, MD, a nationally recognized authority in pain management, stated that "patients can obtain comfort from prolonged opiate use; most patients will have unchanged or improved function, it is uncommon for patients to experience adverse efFects, and while patients may demonstrate physical dependence, it is very different from addiction." She reassured that physicians need not shy away from chronic use of opiates because of fears that cognitive function will be impaired. She suspects that physicians have been eschewing chronic use of opiates for fear of regulation and concern about effectiveness and adverse pharmacologic outcomes. The Board holds that in general it is inappropriate to treat pain of non-malignant origin with narcotics on a routine basis, but accepts the fact that there are certain patients who will benefit and not be harmed from judicious long-term opiate use. It is imperative with these rare patients to have a clear diagnosis utilizing appropriate specialist consultation when necessary. Close monitoring of the patient and meticulous attention to record-keeping goes without saying. It is important to bear in mind that most patients suffering chronic pain can be successfully weaned from their medication." . . . When the Board investigates complaints of inappropriate prescribing of controlled drugs for chronic non-malignant pain, they are interested in several important areas: • What is the diagnosis and how well was the patient studied? ■ Have other medical, surgical, and ancillary treatments failed prior to instituting opiate treatment? • Is there an attempt to maintain the patient on the lowest dose possible to achieve relief and improve function? Vol 82, No 2 1995 • Is there frequent and regular follow-up? ■ Is there good documentation of refills on the medical record? • Is there an attempt to ascertain if the patient is receiving prescriptions for controlled substances from other physicians? • Have medical reports been requested from previous physicians? • Has a referral to a specialist in pain management been considered? When the Board explores the above, it sometimes finds the physician to be "rusty" in other areas of medical practice. It is not unusual for the Board to order a competency examination when this is the case. Pain Management in Acute Conditions and in Terminal Illness In their zeal to avoid "over-prescribing" of opiates in patients with chronic non-malignant pain, some physicians have inappropriately limited narcotics in individuals with other medical and surgical conditions. Concern about iatrogenic addiction and scrutiny by the Board should not preciude adequate postoperative pain control. The Board encourages physicians to hone their skills in the latest techniques for control of acute self-limited episodes of pain. Moreover, the BME firmly believes that physicians have a duty to provide maximal comfort levels and alleviate suffering in their dying patients in a skillful and compassionate manner. This may require large doses of narcotics that should not be withheld on the basis of physiologic parameters such as falling blood pressure, altered consciousness, and diminished respiration. The BME is concerned that fear on the part of physicians may result in ineffective pain control and unnecessary suffering in terminal patients. The Use of Appetite Suppressing Drugs Recent changes have been made in the Administrative Rules governing the use of controlled anorexogenic agents. These drugs are Schedule IV and are sympathomimetic amines related to the amphetamines. Recent studies have indicated that they may be useful temporary adjuncts to the treatment of exogenous obesity. They include phentermine (Ionamin and Fastin) and diethylpropion-HCL (Tenuate). The salient features of the revised "Bariatrics Practices" are as follows: ■ Schedule II or III controlled substances may not be utilized for weight control. • A Schedule IV appetite suppressant may be used for purposes ofweight reduction for the treatment of exogenous obesity as part of a program including dietary restriction, behavior modification, and prescribed exercise, if weight exceeds by 20% the 111 upper limits of national weight/height standards and/or the excess weight represents a threat to the patient's health. • For continuation of treatment with a Scheule IV appetite suppressant beyond three months, there must be documentation of an average weight loss of two pounds per month during active treatment of maintenance of goal weight. The Board expects that clinicians employing these agents will perform a proper history and physical examination and appropriate studies to determine ifthere are any contraindications to the use of any of these agents. RHODE ISLAND NEW LAW AND REGULATIONS IMPACT "UTILIZATION REVIEW" BRUCE W. McINTYRE, JD Board Counsel, Rhode Island Board of Medical Licensure and Discipline From the Rhode Island Department of Health Bulletin Board of Medical Licensure and Discipline Fall 1994 Managed health care plans are required by Rhode Island law to employ a medical director to make final decisions regarding the prospective or concurrent "utilization review" ofa health care provider's services. By law and regulation, the Department of Health has established jurisdiction over both the entities conducting utilization review and the professional licensees conducting the review. A dramatic expansion of utilization review agents nationally and in Rhode Island led providers and patients to seek regulations which standardize certain requirements for "gatekeepers" (medical directors who approve or deny payment for provider services) and their managed care employers. The primary purpose is to protect patients and providers by ensuring that review agents are qualified to perform utilization review activities and to make informed decisions on the appropriateness of medical care. Another goal is to ensure that a mechanism is in place for enrollees to appeal adverse decisions. Bitter disputes have erupted between two major groups. On one side are managed care staff reviewers (who approve or deny payment in the first instance) and medical directors (who review the decisions, usually denials, of staff reviewers). The other group are health care providers and their patients. Providers and 112 patients have complained that the reviewers lack the expertise and training to conduct the utilization reviews properly. They also state that decisions are made capriciously, especially in the area of psychiatric services. Some highlights of the utilization reveiew statute, R.I.G.L. 23-17.12-1 et. seq., and rules and regulations (R23-17.12-1-UR), are noted below. The law mandates that all persons conducting utilization review must obtain a certificate to do so from the Department of Health. Those review agents who have been conducting such activities before the filing of the Department of Health's rules and regulations may continue to review utilization of services pending the procesing of an application (filed prior to January 1, 1994) and approval of the review agent. Notification of prospective or concurrent adverse determinations for coverage must be communicated to the patient and to the provider of record within one business day of the receipt of all the information necessary to complete the review. The notice shall include: a) the principal reasons for adverse determination; b) the procedures to initiate an appeal of the determination; c) the name and telephone number of the person to contact with regard to an apeal; d) information in avr itira8 to the patient and provider on the right to an appeal within a reasonable period of time after otherwise communicating to them their right to an appeal. The statute and the regulations specify two levels of "internal" (ic, conducted within the utilization review agency itself) appeals process for the patient and provider. In both cases, the physician reviewer is responsible for determining the outcome, documenting and signing the determination. Expedited reviews must be provided at the initial and second level appeal by the review agency if the case is deemed an "emergency" as defined by regulation. "Emergency" means the unexpected onset of symptoms of an injury, condition or illness which, if not treated immediately, could result in a serious impairment or loss of life. Such new and significant regulatory requirements pose problems of understanding and implementation. An important contribution to clarification has been provided by the American Medical Association's Council on Ethical and Judicial Affairs, which issued a report in July of 1994 concerning "Ethical Issues in Managed Care." The paper discusses many important considerations such as the patient-physician relationship, ethical concerns in conflicts among patients, preserving the physician's role in managed care, and patient autonomy and responsibility. An important ethical concern is the patient's physician's responsibility to recommend treatment and advocate for the patient's right to treatment where material benefit to the particular patient would FEDERATION BULLETIN result. This means that physicians ought to challenge the denial of care and argue for the provision of treatment in a specific case. Similarly, if the managed care guideline is unfair in its general operation, the Council says that it is the physician's duty to advocate for a guideline change at the health plan's policy-making level. The statute requires that such guidelines be developed with the input of practicing physiaans. Obviously, it is difficult to act as doctor, appeal advocate, and health care policy maker with every patient. Some managed health care entities have made practicing advocacy more difficult by "deselecting" providers who have complained "too much" about the managed care entity's decisions. The Board of Medical Licensure and Discipline has determined that the activities of the medical director or a licensed medical review agent constitutes the practice of medicine as defined by R.I.G.L. 5-37-1.1. The Board retains jurisdiction over the professional activities of licensed physicians conducting utilization review. A physician's fai.lure to conform to the requirements of the utilization review statute or the rules and regulations of the Department of Health regarding utilization review may be considered "unprofessional conduct" and may be grounds for discipline. Anyone conducting utilization review is urged to become familiar with the rules and regulation and statute regarding this process. Licensees are expected to be familiar with the standards in the area in which they practice, including utilization review. GOVERNOR SIGNS LANDMARK SEXUAL MISCONDUCT LAW FOR MENTAL HEALTH PROFESSIONALS BRUCE W. McINTYRE, JD Board Counsel, Rhode Island Board of Medical Licensure and Discipline Psychiatrists and other mental health professionals are now required to report to the proper state licensing board a suspicion that another mental health professional may have had sexual contact with a patient or former patient. The reporting requirement for psychiatrists or other mental health professionals is activated when reasonable cause to suspect it is present. This new law, which went into effect on July 12, 1994, codifies for psychiatry a standard used by the Board of Medical Licensure and Discipline. The Board has always held that sexual contact between physician and patient during the existence of the doctor/patient relationship is "unprofessional conduct." The Board, to date, does not have a mandatory reporting requirement for physicians other than psychiatrists. Vol 82, No 2 1995 The duty to report is contingent on the patient's desire to have the sexual contact reported. The law also places a duty on those who "holds himself or herself out to be a mental health professional" if the patient wishes to report it. Failure to report is cause for discipline by the state licensing board or the department of attorney general with a$5UQ fine as a penalty. Immunity from liability for reports made in good faith is provided in the statute. It also provides for confidentiality of reports. Definitions of "patient, former patient" and "sexual contact" are broad and should be reviewed carefully by psychiatrists and other mental health care providers. As an example, patient is defined as "a person who obtained a professional consultation or diagnostic or therapeutic service from a mental health professional-" "Former patient" is defined as anyone who obtained these services within two (2) years of the sexual contact with the mental health professional. "Sexual contact" is also given sweeping definition and provides that consensual sexual contact is not a defense. It includes all types of intercourse as well as sustained kissing on the mouth and intentional touching of specified body areas, whether clothed or unclothed. Also proscribed by the act is using the influence in the provider/patient relationship to induce the patient or former patient to engage in a sexual contact with a third Party The Board of Medical Licensure and Discipline wishes to reaffirm the position of this Board and every board nationwide that sexual contacts between doctor and patient during the existence of the doctor/patient relationship is "unprofes'sional conduct" and may be grounds for serious disciplinary action. WYOMING INSURANCE UTILIZATION REVIEWIS A LICENSE TO PRACTICE MEDICINE AEQUICRED? From the Wyoming Board of Medicine NEWSLETTER Fiall 1994 Insurance utilization review ofinedical claims generates daily controversy and concern for patients and physicians across Wyoming. The process through which insurance carriers review, analyze, and decide if a procedure is covered under a medical liability policy often results in patients being told their policy will not cover a specific medical process. Patients worry that they may not be able to afford a procedure their physician indicates is necessary, and physicians become 113 angry and frustrated because their professional judgment is second-guessed or overridden. The problem grows particularly acute when the individual refusing coverage for the procedure is not a physician. knowledge, and diagnosis, the carrier may be managing the care of a patient or treating them, and those actions may constitute the practice of medicine for which a medical license is required under the statute. To finally determine if these actions constitute the practice of medicine, the Board seeks an appropriate case to take to District Court on a declaratory judgment action. Are these reviewers practicing medicine? Should they be licensed in Wyoming? Does the Board's mandate to help assure Wyoming citizens receive good quality medical care enter into such situations? The Board of Medicine thinks the answers to these questions are "yes" and is looking for an appropriate case to illustrate this position. The Wyoming Medical Practice Act deems that an individual is practicing medicine ifhe or she "prescribes or provides medical diagnosis or medical treatment for human disease, injury, deformity, ailment, pregnancy or delivery of infants;" W.S. 33-26-102 ( a)(x)(B). "Diagnosis is defined as the art of distinguishing one disease from another," white "treatment means the management and care of a patient for the purpose of combating disease or disorder." [Such an action allows "any person ... whose right, status or legal relations are afected by . . . a statute ... [to] have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status of other legal relations." W.S. 1-37-103.] An appropriate case for declaratory judgment requires a medical diagnosis and treatment plan by a Wyoming physician that is then reviewed and refused by an insurance carrier. The case requires a patient's death as a result of the denial and documented refusal or denial from the carrier. The documentation can be tape-recorded or written. The Board believes that when a representative of an insurance carrier denies coverage ofa specific procedure after that procedure has been recommended by a physician whose judgment is based on patient history, Ifyou have such a case, the Board would like to review and discuss it with you. Please contact the Board at 307-777-6462 or at 208 Barrett Building, Cheyenne, WY 82002. 114 FEDERATION BuLLETnv MEDICOLEGAL DECISIONS Recent medicolegal decisions involving or of interest to medical boards. Reprinted from THE CI7'A7T0N: SECTION 1: MEDICAL BOARDS Licensure Proceeding Not Defectioe .... A claim brought by a physician whose license had been suspended against an administrator for the Colorado Board of Medical Examiners and a state assistant attorney general was dismissed by a federal trial court for Colorado. In their ufj"aLBaL capacities, . . . the program administrator and the prosecrsting attorney were imtnssne frovn liability. Since 1984, the physician, a reviewer ofinedical charts for the Social Security Administration, was licensed to practice medicine in the state of Colorado. In May 1992, he was informed in writing [that] the Board of Medical Examiners had initiated a complaint against him. He was requested to respond to the complaint and to undergo an evaluation by the Colorado Physician Health Program within 20 days. He responded in a letter to the Board that his medical practice did not involve patient care and that he objected to the charges against him. In June, he followed up by sending the Board a letter in which he declared his belief that his constitutional rights were being abridged. His license was suspended one week later. He requested a hearing, which took place six weeks later and resulted in upholding the suspension. The physician sued, alleging his due process rights had been violated by the Board's program administrator and by the prosecuting attorney, a state assistant attorney general. The trial court dismissed his claim. In their official capacities, it held, the program administrator and the prosecuting attorney were immune from liability. The physician's contention [ that] the assistant attorney general had not acted in a prosecutorial capacity in this Vo182, No 2 1995 case had no merit in the court's view. Duties in disciplinary proceedings, the court ruled, must be considered "functionally comparable" to duties carried out in a court of law. - Coraraolly vs Beckett, 863 F.Supp.1379 (D.C., Co., March 23, 1994) SECTION 2: OTHER HEALTH PROFESSION BOARDS Dentist Disciplined for Providing False Infortnation ... A finding by the State Board of Dental Examiners (Board) that a dentist had engaged in dishonorable conduct was affirmed by an Iowa appellate court. A couple practiced dentistry together in a small town. The Board brought disciplinary proceedings against the wife and found she had incompetently caused 15 filling overhangs, including seven gross overhangs; misdiagnosed decay on several patients; left behind large amounts ofcalculus after cleaning patients' teeth; left a large distal defect under a porcelaia-fused-tornetal crown; and ordered a partial denture to be placed over diseased abutment of teeth. She was put on probation for two years and ordered to complete a comprehensive continuing education program. Before the Board had made its decision, the husband sent out a letter to the couple's patients informing them [that] the wife was to be reprimanded for "a minor thing called an overhang on a filling" even though he knew that to correct overhangs it is sometimes necessary to completely replace the filling under anesthesia. The Board learned oftbe letter and detmaesinrd that it constituted Ild%sbonorable tonduct' on the part oftbe basband. Additionally, he failed to mention in the letter the other matters for which the wife was being disciplined and misrepresented both the findings of the Board and the opinion of the expert witness who testified on the wife's behalf at her disciplinary hearing. The Board 115 learned of the letter and determined that it constituted "dishonorable conduct" on the part of the husband. After conducting a hearing, the Board took no further disciplinary actions despite the fact such conduct was in violation of state law. The husband appealed, maintaining the statute which the Board found he had violated was unconstitutionally vague and overbroad. The court held the language of the statute was sufficiently clear and the potential ofthe statute for the chilling of free speech was very small in relation to its legitimate sweep in regulating the professional conduct of licensed dentists. The court affirmed. - Wettach vs. Iowa Board of Dental Exarnitaers, 524 N.W.2d 168 (Iowa Sup. Ct., November 23, 1994} SECTION 3: OTHER ISSUES OF INTEREST Physician Guilty of Filing False Claims ... The conviction of a physician on 18 counts of submitting false claims to the government was upheld by a federal appellate court for Colorado. The physician was a licensed obstetriciangynecologist who worked at an army hospital as a civilian partner of the Civilian Health and Medical Program for the Uniformed Services (CHAMPUS). According to the agreement between the partners, CHAMPUS was to provide the physician with facilities, supplies, equipment, and nursing staff. In exchange, the physician agreed to bill CHAMPUS at 60% of its prevailing rate for his treatment of service people insured under the program. At some point it was revealed he was billing the government for procedures performed by other physicians or even for procedures which were never performed. Eventually,. he was charged with and convicted on 18 counts ofsubmitting false claims to the government. ... he was billing ti6e®overnmeaatfnr procedures by other pFiysicians or even for procedures mbich were neyer performed. On appeal, the physician maintained an instruction to the jury on "deliberate ignorance" was erroneous. The instruction stated the jury could infer the physician's knowledge of his wrongdoing "if (he) deliberately blinded himself to the existence of a fact." The physician claimed he had been given the impression by his immediate superior that his billing practices were appropriate, and in any case he had never tried to evade discovering whether his billing practices were improper. The court found the evidence did not support his assertions. Other physicians and patients, it pointed out, had brought objections to him on the matter of billing for services which he did not perform. 116 Additionally, he had never discussed his billing practices with the colonel actually in charge of the administration of CHAMPUS at the army hospital, though they did discuss on three occasions complaints brought to the colonel alleging the physician was overly concerned about money. Under the circumstances, the court found the jury instruction adequate, and affirmed. - United States vs. Custodio, 39 F.3d 1121 (C.A. 10, Co[o., November 8, 1994) Chiropractor Guilty of Medicaid Frau.d . . . A chiropractor was guilty of Medicaid fraud but not insurance fraud, an Ohio appellate court ruled. In 1984, the chiropractor entered into a provider agreement with a state welfare agency under which he agreed to treat welfare recipients covered by Medicaid. Shortly afterwards, he entered into another provider agreement with an insurance company. In 1990, the insurance company began investigating the chiropractor's billing practices. A police investigation ensued, leading to the chiropractor's arrest in January 1991 on charges of Medicaid fraud, insurance fraud, and theft. At trial his motion for acquittal was denied. He was convicted in March 1992 of insurance fraud of more than $300 but less than $5000. He was found not guilty on the theft charge. His motion for a new trial was denied. He was ordered to pay the attorney general's office $21,242 and the insurer $6141, and was sentenced to concurrent sentences of one year and one and a half years for the insurance fraud and the Medicaid fraud. The bulk of the clriropractor's actions took place before the eaaractment of the insYCrance frarsd statute under w,bich he was convicted. On appeal, the court upheld the conviction on Medicaid fraud, but reversed the insurance fraud conviction. The bulk of the chiropractor's actions took place before the enactment of the insurance fraud statute under which he was convicted. The constitutionality of finding him guilty of insurance fraud in excess of $300 was in question. Though there was evidence to suggest he submitted nine false claims in the amount of $358 after the enactment of the statute, there was never any finding at trial that all these claims were false. The court struck down the insurance fraud conviction. - State vs. Dolce, 637 N.E.2d 51 (Ohio Ct. of App., December 30, 1993) The Citation is a medicolegal digest published by Citation Publishing Corporation, Long Grove, Illinois. To subscribe, call 800-626-5210. FEDERATION BULLETIIV REVIEW Alternative Medicine: Expanding Medical Horizons EBEN ALEXANDER, rA, MD Professor Emeritus Bowman Gray School of Medicine This book is a gold mine of information about alternative medicine. In 1991, the Senate Appropriations Committee appropriated $2 million for an office "to more adequately explore unconventional medical practices." As such, the Office ofAlternative Medicine was established, and its first goal was to develop a baseline of information on the state of alternative medicine in the United States. A series ofworkshops was held in 1992, and eventually more than 200 participants were assembled at several meetings and editorial committees were appointed to follow certain guidelines in publishing this comprehensive volume. Alternative Medicine: Expanding Medical Horizons, NIH I'ublicatim No. 94-066. 372 pages. Decem6er I994. Although this volume is surprisingly uncritical of the medical profession of the United States, there are elements of criticism, such as the change of advice to pregnant women from recommending no supplementary vitamin therapy during pregnancy to stipulating the use of vitamins, particularly folic acid. A similar reference notes the fact that x-ray treatment was once considered. a form of quackery, whereas it is now well accepted. These are scarcely strong criticisms, since, in fact, the changes were the result of much improved systems of treatment or the development of pieces of equipment. The main reference to traditional medicine's failure is the fact that although medicine has developed some remarkably effective forms of treatment for many illnesses, injuries, and disabilities, more than 30 million Vol 82, No 2 1995 Americans are ftinctionally limited in their daily activities by chronic debilitating conditions such as arthritis, allergies, pain, hypertension, cancer, depressison, cardiovascular disease, and digestive problems. These chronic diseases are scarcely the most easily treated, and are very commonly treated by various forms of alternative therapy. In other parts of the world, the excellent forms of traditional medical therapy which are available in the United States are scarcely available in many nations, thus, folk remedies, herbal remedies, and various other forms of treatment are widespread. The organizational report broadly covers four main subjects of alternative therapy. The first is the psychological and spiritual category (often referred to as mind-body) that includes practitioners who use psychological techniques, such as mental imaging, hypnosis, and art therapy. The second major section is diet and nutrition, including those who recommend dietary supplementation with vitamins or minerals and prescribe specific diets for certain conditions. The third, the drug and biological category, comprises specialists at the use of assorted chemicals, drugs, serums, and vaccines. The fourth category involves treatment by physical force and devices, including chiropractic, massage and touch therapy, acupuncture, and practitioners of various elecrrotherapies. The unbiased attitude of almost all the contributing authors who try to present the material as factually as possible, with proper references, is impressive. However, there is one protest in Appendix B: "Comments of the Panel on Mind-Body Interventions on the National Research Council's Reports on Alternative Medicine" that objects to the statements made in the text regarding these areas. The entire volume is a well-written, easily read, and attractive book without illustrations. There are copious references, as many as 200 to 400 after each section, arranged alphabetically. However, this does enhance 117 the "gold mining" potential in this volume; enough references are made to various forms of treatment that one can look to these references and read the material in a subject which interests him. If one is interested in a specific subject, it is easily found through the index, and although there is a good deal of repetition, as must be in the form that the book is written, it is not aggravating and can be accommodated easily in the reading. One example of the usefulness is the reference to chelation therapy for heart disease and arteriosclerosis. Many state licensing boards have been concerned about this treatment; it seems to have a poor scientific basis, and it is difficult to get additional information from the American Heart Association or from the National Library of Medicine. However, the reference to chelation therapy in this volume (p. 163) gives an excellent discussion of the subject, including mention of a randomized study that was terminated because of Desert Storm; it could still be carried out. No conclusion is made, but it is impressive that this particular information is available and that so many patients have been 118 treated in the United States with apparently some satisfaction. Almost no form of treatment-including ortho-molecular medicine as advised by Linus Pauling, acupuncture, Avurvedic medicine, homeopathic medicine, neuropathic medicine, environmental medicine, or native-American-Indian forms of treatment-is left out. This book has been written by educated people who are conscientiously seeking to give information and show rather little bias to distort the issue. From the point ofview of an allopathic physician, it is an excellent authoritative source for almost all alternative medicine methods, and from the point of view of this reviewer, it is of considerable value as a reference text. To order, send a check or money order for S25 per copy, or send a VISA or MasterCard number and card expiration date to: Superintendent ofDocuments, P.O. Box 371954, Pittsburgh, PA 15250-7954. Order must specifv stock number S/N 017-040-00537-7. (Price includes shipping and handling.) FEDERATION BULLETIN LETTER TO THE EDITOR Response to Dr. Weed's Questions and Answers on Reengineering Medicine priman, care physicians who need help to know when to refer, something that usually To the Editor-There is no argument with Dr. Weed's contention that current medical education and delivery are flawed and could be improved. However, I fear Dr. Weed's solution would not be good enough to overcome the complex challenges faced by students and practitioners to understand and use the ever-increasing knowledge base. Understanding "knowledge nuggets" or "facts" depends upon language. How many understand the professional lingo of genetics, immunology, and computer software. An array of facts in a computer file does not mean they can be understood and used even if coupled, if the words used are not understood. Guidelines for management of clinical situations are dependent upon correct observation of such items as cardiac murmurs, abnormal lymph nodes, the presence of depression when it is not a complaint, macular degeneration, and rashes, before questions can be asked of a knowledge base. Patient variability is hard to cover in a guideline. If guidelines try to cover all exigencies, they often become meaningless. There is not much information on the co-morbid conditions in the aged. For patient outliers who do not fit guidelines, subjective impressions from skilled specialists from different fields of knowledge can, through an interactive concurrent consultation, suggest helpful management options especially when objective information is limited. Such subjective impressions may be most important when the end points are vague. It would be better to seek to focus on computer guidance for specific problem areas such as Is there randomized trial evidence that problemoriented and organized record systems and computerbased knowledge bases have reduced morbidity or mortality, with or without coupling? If not, can the managers of professional health services (big health insurance companies) be "sold" on the need to support the development of services such as Dr. Weed is promoting? Apparently there is current software for coupling. Is it available to try? is not even taught. 1, screening for patients with variable risks for heart attacks, stroke, or cancer 2. medical oncologists who often face different issues because the basic diagnosis usually is made by the time of referral and therapeutic options become a problem Vol 82, No 2 1995 Robert W. Frelick, MD Consultant for Chronic Diseases, Delaware Division of Public Health Wilmington, DE Dr. Weed Responds to Dr. Frelick To the Editor-We appreciate Dr. Frelick's concerns. Because the scope of the articles in the Federation Bulletin did not allow for extensisve elaboration, we suggest that, for more in-depth explanation, Dr. Frelick refer to the book Knowledge Coupling: New Premises and New Tools for Medical Care and Education (New York, NY: Springer-Verlag; 1991) by Lawrence Weed and to the publication "ProblemKnowledge Couplers: Philosophy, Use, and Interpretation" (Burlington, Vt: PKC Corporation; 1982) by Christopher Weed. In answer to the closing question: Yes, the software is available. Please contact the PKC Corporation, Burlington, Vt, at 802-658-5351. Lawrence L. Weed, MD PKC Corporation Burlington, VT 119 Federation Pubiications Any of the Federation publications listed below may be ordered by following address: Federation Pu bl ica ti on s to the Federation of State Mrdical Boards of the US 400 Fuller Wiser Road, Suite 300 Euless, Texas 76039-3855 All orders must be prepaid by cashier's check or money order payable to the Federation. Personal checks cannot be accepted. Foreign orders must be accompanied by an international money order or the equivalent payable in US dollars throul;h a US bank notice. [Texas or a U'S affiliate of a foreign bank. 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