United States (KaiserHealth) – When Don Cue developed a bladder infection last fall, he called his longtime urologist’s office for a urine culture and antibiotics. It was a familiar routine for the two-time prostate cancer survivor; infections were not uncommon since he began using a catheter that connects to his bladder through an incision in his abdomen.
When Cue called this time, a receptionist told him that his physician, Dr. Mark Kellerman, no longer worked at the Iowa Clinic in Des Moines, a large multi-specialty group. She refused to divulge where he’d gone.
“As a patient, ‘scared’ is too strong a word, but my feeling is, ‘What do I do now?’” said Cue, 58.
Flummoxed, he solved his immediate problem by taking leftover antibiotics he had in his medicine cabinet.
It was only later that he learned his doctor had been fired by the Iowa Clinic and planned to start a urology practice with clinic colleagues. And, under the terms of their contract with their former employer, the doctors were banned for a year from practicing within 35 miles of the clinic and from recruiting former patients to follow them.
Contracts with so-called restrictive covenants are now common in medicine, although some states limit their use. Noncompete clauses – common in many commercial sectors – aim to stop physicians or other health care professionals from taking patients with them if they move to a competing practice nearby or start their own. But what may be good for business is bad for patient care – and certainly disquieting for those whose doctors simply disappear.
One survey of nearly 2,000 primary care physicians in five states found that roughly 45 percent were bound by such clauses.
Continuity of care is important, doctors say, especially for patients with ongoing medical issues. Cutting off access to a doctor is different from disrupting someone’s relationship with a favorite hairstylist or money manager, they say.
“When doctors want to move from one practice to another, if they’ve got good therapeutic relationships with their patients, you’d think that public policy would want them to continue to treat these patients that trust them,” said Judy Conti, government affairs director at the National Employment Law Project.
Charlie Wittmack, a lawyer at Hartung Schroeder in Des Moines, is representing Kellerman and the two other urologists who were also fired in a lawsuit against the Iowa Clinic. The wrongful termination suit asks the court to declare the physicians’ restrictive covenant provisions unenforceable. Wittmack said the controversy there was “tragic” for patients. “These are people who have prostate cancer or are in extreme pain because of kidney stones or have blood in their urine.”
Ed Brown, the clinic’s CEO, said the noncompete agreements are not just about business but also help ensure that the Iowa Clinic can provide reliable services.
“Noncompetes are good for the patients because they help to provide stability within a practice and ensure continuity of care,” Brown said recently in an email. Further, he added, noncompetes protect physicians by ensuring that other physicians in the practice are committed to the same agreement and can’t abandon it without proper notice.
The urologists “believe they can make more money elsewhere, and they don’t want to be held to any contractual responsibilities,” he said.
Even when longtime patients go sleuthing to find their doctors’ new offices, they may not be accepted into those practices. Hospitals and clinics say they have little choice but to respect the terms of business agreements that others have negotiated.
UW Health, the health care system for the University of Wisconsin-Madison, recently hired three primary care doctors who had worked across town, said Dr. Sandra Kamnetz, vice chairwoman of clinical care for the Department of Family Medicine and Community Health at the University of Wisconsin’s School of Medicine and Public Health. They are taking great pains not to treat any of the new doctors’ former patients because the terms of the doctors’ contracts with their old employer prohibit them from taking care of former patients for two years.
Staff at the UW clinics ask prospective patients if they’ve ever been seen by one of the doctors. They then check the patient’s electronic health record to confirm there are no messages, prescription refills or other recent contact with the new UW Health doctors and that patient at the previous job, said Kamnetz.
The notion that one EHR should talk to another was a key part of the original vision for the HITECH Act, with the government calling for systems to be eventually interoperable.
What the framers of that vision didn’t count on were the business incentives working against it. A free exchange of information means that patients can be treated anywhere. And though they may not admit it, many health providers are loath to lose their patients to a competing doctor’s office or hospital. There’s a term for that lost revenue: “leakage.” And keeping a tight hold on patients’ medical records is one way to prevent it.
There’s a ton of proprietary value in that data, said Blumenthal, who now heads the Commonwealth Fund, a philanthropy that does health research. Asking hospitals to give it up is “like asking Amazon to share their data with Walmart,” he said.
Blumenthal acknowledged that he failed to grasp these perverse business dynamics and foresee what a challenge getting the systems to talk to one another would be. He added that forcing interoperability goals early on, when 90 percent of the nation’s providers still didn’t have systems or data to exchange, seemed unrealistic. “We had an expression: They had to operate before they could interoperate,” he said.
In the absence of true incentives for systems to communicate, the industry limped along; some providers wired up directly to other select providers or through regional exchanges, but the efforts were spotty. A Cerner-backed interoperability network called CommonWell formed in 2013, but some companies, including dominant Epic, didn’t join. (“Initially, Epic was neither invited nor allowed to join,” said Sumit Rana, senior vice president of R&D at Epic. Jitin Asnaani, executive director of CommonWell countered, “We made repeated invitations to every major EHR … and numerous public and private invitations to Epic.”)
Epic then supported a separate effort to do much the same.
Last spring, Verma attempted to kick-start the sharing effort and later pledged a war on “information blocking,” threatening penalties for bad actors. She has promised to reduce the documentation burden on physicians and end the gag clauses that protect the EHR industry. Regarding the first effort at least, “there was consensus that this needed to happen and that it would take the government to push this forward,” she said. In one sign of progress last summer, the dueling sharing initiatives of Epic and Cerner, the two largest players in the industry, began to share with each other – though the effort is fledgling.
When it comes to patients, though, the real sharing too often stops. Despite federal requirements that providers give patients their medical records in a timely fashion, in their chosen format and at low cost (the government recommends a flat fee of $6.50 or less), patients struggle mightily to get them. A 2017 study by researchers at Yale found that of America’s 83 top-rated hospitals, only 53 percent offer forms that provide patients with the option to receive their entire medical record. Fewer than half would share records via email. One hospital charged more than $500 to release them.
Sometimes the mere effort to access records leads to court. Jennifer De Angelis, a Tulsa attorney, has frequently sparred with hospitals over releasing her clients’ records. She said they either attempt to charge huge sums for them or force her to obtain a court order before releasing them. De Angelis added that she sometimes suspects the records have been overwritten to cover up medical mistakes.
Consider the case of 5-year-old Uriah R. Roach, who fractured and cut his finger on Oct. 2, 2014, when it was accidentally slammed in a door at school. Five days later, an operation to repair the damage went awry, and he suffered permanent brain damage, apparently owing to an anesthesia problem. The Epic electronic medical file had been accessed more than 76,000 times during the 22 days the boy was in the hospital, and a lawsuit brought by his parents contended that numerous entries had been “corrected, altered, modified and possibly deleted after an unexpected outcome during the induction of anesthesia.” The hospital denied wrongdoing. The case settled in November 2016, and the terms are confidential.
More than a dozen other attorneys interviewed cited similar problems, especially with gaining access to computerized “audit trails.” In several cases, court records show, government lawyers resisted turning over electronic files from federally run hospitals. That happened to Russell Uselton, an Oklahoma lawyer who represented a pregnant teen admitted to the Choctaw Nation Health Care Center in Talihina, Okla. Shelby Carshall, 18, was more than 40 weeks pregnant at the time. Doctors failed to perform a cesarean section, and her baby was born brain-damaged as a result, she alleged in a lawsuit filed in 2017 against the U.S. government. The baby began having seizures at 10 hours old and will “likely never walk, talk, eat, or otherwise live normally,” according to pleadings in the suit. Though the federal government requires hospitals to produce electronic health records to patients and their families, Uselton had to obtain a court order to get the baby’s complete medical files. Government lawyers denied any negligence in the case, which is pending.
“They try to hide anything from you that they can hide from you,” said Uselton. “They make it extremely difficult to get records, so expensive and hard that most lawyers can’t take it on,” he said.
Nor, it seems, can high-ranking federal officials. When Seema Verma’s husband was discharged from the hospital after his summer health scare, he was handed a few papers and a CD-ROM containing some medical images – but missing key tests and monitoring data. Said Verma, “We left that hospital and we still don’t have his information today.” That was nearly two years ago.
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