Introduction

The practice of medicine is fundamentally and historically based in service; whether service to patients, service to communities, service to society, or service to one’s partners and colleagues, the professional lives of physicians are linked to service. The professional lives of those doing orthopaedic fracture care are even more closely aligned to service, as the individuals treated have sustained painful injuries that cannot be scheduled or predicted. As such, the services of the orthopaedic fracture specialist also cannot always be scheduled or predicted, inculcating these individuals with an even higher service expectation than in many of their colleagues.

Whether written or unwritten, professional service is governed and shaped by contractual relationships. This chapter provides information on and explores three such relationships: that between an orthopaedic surgeon and his or her hospital and community related to providing orthopaedic care in the hospital emergency department; that between the medical profession and the federal government regarding obligations for the emergency medical treatment of patients; and that between an orthopaedic fracture surgeon and his or her group or hospital regarding the economic value of orthopaedic fracture care. While these three topics may seem unrelated, they are actually highly related, as all are matters of great importance to those in the practice of orthopaedic fracture care, all require knowledge that goes beyond the medical training received in residency and fellowship, and all involve relationships with colleagues, hospitals, and insurers. Understanding the issues, facts, perspectives, and considerations—from the perspectives of all involved in these matters—will better prepare orthopaedic fracture surgeons for a successful career and healthier relationships with their colleagues, hospitals, communities, and payers.

The “On-Call” Controversy

Patients visiting a hospital emergency department (ED) expect to have 24-hour access to prompt, appropriate, and effective emergency musculoskeletal care. When local musculoskeletal care is “not available,” patients are asked to go to (or are transferred to) another, often distant, location to receive care. When the care needed by the patient requires specialized expertise unavailable at the presenting hospital, the transfer of care is medically appropriate. Frequently, however, transfers occur for conditions that many would consider to be “routine” musculoskeletal conditions.

In a survey conducted by the American College of Emergency Physicians, three-quarters of ED medical directors reported that their hospitals have inadequate on-call specialist coverage. In another survey, 42% of ED administrators felt that the lack of specialty coverage in the ED posed a significant risk to patients. Providing care on an on-call basis in a hospital ED has become unattractive to many specialists in critical disciplines, including orthopaedics. Traditionally, ED call coverage was seen as an integral part of the profession of orthopaedic surgery. Orthopaedic surgeons were obligated, by hospital bylaws, to cover the ED for after-hours orthopaedic care; this coverage served the community and also provided a stream of patients for the orthopaedists’ practices.

Subspecialization, the increased use of freestanding outpatient surgery centers, and managed care are among the factors that interrupted this traditional relationship. Subspecialty orthopaedic surgeons (e.g., hand, foot and ankle) have increasingly focused (and perhaps limited) their practices to their subspecialty area. Additionally, they perform the majority of their procedures in outpatient facilities that are often freestanding. Many of these individuals do not feel they require hospital privileges, as their patients rarely require hospitalization. With no hospital privileges, there is no need to meet the on-call obligations required of medical staff members. Additionally, their practices, being almost entirely elective and/or referral, do not rely heavily on the ED for patient referrals. Finally, many of these orthopaedists would argue that their subspecialty focus has resulted in them being “uncomfortable” treating orthopaedic injuries and conditions outside of their area of specialty; the hand surgeon might feel uncomfortable treating an ankle fracture or the total joint surgeon treating a distal radial fracture. The lack of reliance on a hospital setting allows these subspecialty orthopaedic surgeons to opt out of call responsibilities.

Without routine practice in the ED setting, the necessary skills to treat musculoskeletal conditions presenting in this setting do become less familiar to the orthopaedic surgeon, and it is true that the variety of musculoskeletal injuries seen in the ED is large. While the definitive surgical treatment, for example, of an anterior cruciate ligament (ACL) injury may be beyond the scope of practice of a total joint surgeon or of a proximal humeral fracture may be beyond the scope of practice for a foot and ankle surgeon, most musculoskeletal injuries do not require surgical treatment at all and almost none require emergent surgical care. The assessment and management of the vast majority of musculoskeletal injuries are required areas of education and skill development for all orthopaedic residency programs. Thus, the evaluation and initial bracing of the ACL injury, and the evaluation and initial splinting of the proximal humeral fracture should be within the skill sets of all those who have completed orthopaedic training. Because all board certified orthopaedic surgeons must demonstrate competence in the management of most urgent musculoskeletal conditions, it seems more likely that the problem of local ED access to orthopaedic care for simple injuries and to temporizing care for more serious injuries is more related to a lack of interest, rather than a lack of competence, on the part of the orthopaedic surgeons.

Many orthopaedists today are unwilling to provide ED coverage, citing conflicts with personal time and concerns about a reimbursement system that provides little or no compensation. Managed care—particularly health maintenance organization (HMO) products and other so-called narrow networks—has altered the on-call relationship by insisting that patients receive specialty care from a narrow network of providers credentialed with that managed care plan. While these patients can generally obtain emergency care anywhere, they are required to see an in-network provider for any elective or semielective care; failure to do so results in increased out-of-pocket costs to the patient. An orthopaedic surgeon on call could be faced with a scenario where the patient for whom he or she is consulted for an ankle fracture requiring surgery is permitted to have a reduction and splinting performed in the ED by the on-call orthopaedist, yet might need to visit another orthopaedist for the surgery. These sorts of managed care relationships effectively reduced the stream of patients coming to one’s practice from being on call for the ED. In many communities, orthopaedic surgeons became more reluctant to take call on this basis, arguing that the hassles and effort involved in call were not worth it if the definitive patient care was directed elsewhere by the managed care company.

Even among those orthopaedic surgeons interested in participating in ED call, the financial ramifications of doing so can create barriers. Appropriately capturing charges for care provided in the ED is not as easy as that delivered in one’s office or in the operating room. In the office or the operating room (OR), most surgeons have an infrastructure that assists them in appropriate charge capture and coding, but surgeons typically lack such infrastructure for work they do in providing consultations and procedural care in the ED; it requires more organizational skill and attention to detail for surgeons to appropriately capture these billings than those from the office or the OR. Collecting payment for services provided in the ED may also be difficult, as emergency and trauma patients are more often uninsured than those seen in the office. Additionally, the capture of accurate and appropriate insurance information from patients seen in the ED may or may not occur well; if these patients do not follow up in the surgeon’s office, there may be no additional opportunity to obtain this information for appropriate billing. The argument can also be made that, in many cases, the orthopaedist is not only inadequately compensated for providing services in the ED, but also suffers financially by the ED patients—who are more likely to be uninsured—taking up follow-up appointment slots in the office, when these slots would have otherwise been filled by other patients from whom reimbursement might be received.

Perceptions and expectations for work–life balance have also changed the environment surrounding orthopaedic surgeons being on call. This is particularly true in smaller communities, which may have only a few orthopaedic surgeons on the hospital’s medical staff. In past generations, being on call every third or fourth night was not unusual in these communities and was an expected part of being in the profession. This has changed, however, with physicians in all specialties (including orthopaedics) placing greater value on protecting personal and family time and being unwilling to be on call so frequently. This has left many smaller community hospitals in a conundrum: They do not have enough orthopaedic surgeons to provide full on-call coverage with a sustainable schedule, yet they do not have enough orthopaedic business in the community to attract enough orthopaedic surgeons to create a sustainable call schedule. Although some hospitals in such situations have found ways to maintain full coverage (payments for coverage, contracting with other groups, etc.), some have simply resigned themselves to the fact that they may not have 24/7 orthopaedic coverage for their ED.

Contributing to the problems associated with on-call trauma coverage by orthopaedic surgeons is what some have termed “the ongoing medical liability crisis.” The current liability system neither effectively compensates persons injured from medical negligence nor addresses system errors that, if corrected, could greatly improve patient safety and decrease medical errors. The current medical liability environment has had an adverse effect on those physicians willing to engage in high-risk situations, such as providing emergency care, and has served as a barrier for some who would provide emergency care in a different medicolegal environment. In addition, liability risks are increased during the on-call hours because of the seriousness of the patient’s emergency condition, in combination with streamlined after-hours staffing in most hospitals, decreased availability of specialized equipment and personnel, and fatigue associated with long working hours.

The lack of available and affordable medical liability insurance has led many physicians to change their practice patterns in ways that they believe decreases their liability exposure; this includes, for some, opting out of providing on-call services to an ED. All physicians have been affected by the medical liability crisis, but “high-risk” specialties (e.g., obstetrics, neurosurgery, and orthopaedic surgery) have been disproportionately affected. This has, in many communities, forced patients to travel greater distances and wait longer to obtain care from these specialty services. Between 2003 and 2004, double- and triple-digit increases in medical liability premiums were seen across the country. While liability rates stabilized to some extent between 2006 and 2008, the premiums remain exorbitant. Thus, declining payments from all sources, an increasing burden of uncompensated ED care, considerable medical liability costs, and the availability of new practice patterns are draining the pool of orthopaedic specialists willing and able to take ED call.

Adding to the complexity of the issues affecting surgeons willing to participate in ED call are a variety of “rumors” or misinformation. There are numerous commonly held misconceptions regarding the risk one assumes when caring for orthopaedic injuries in an ED setting. Unfortunately, these misconceptions are widely held and are used to fuel the arguments for orthopaedic surgeons opting out of ED coverage, call, and caring for injured patients in the ED.

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    The uninsured are more likely to sue: This is perhaps the largest myth, which is substantiated by the fact that some commercial malpractice insurance carriers advise physicians that their insurance premiums will decrease if the physicians will cease taking ED call. A 1995 survey of physicians in California revealed that the majority did not treat Medicaid or uninsured patients because of the perceived risk of a lawsuit. Burstin and colleagues, however, demonstrated on a review of claims in New York that the poor, young, and elderly are least likely to sue orthopaedic surgeons. Medicare and Medicaid patients have also been shown to be less likely to sue than the general population, and settlements when suits have been filed have been demonstrated to be 5 to 10 times greater for non-Medicaid insured patients. A report by McClellan and colleagues also supports the finding that the uninsured are less likely to sue than are insured patients, possibly because they do not have easy access to legal representation.

    
    
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    Trauma patients are more likely to sue their surgeon for their injuries: The genesis of this misconception lay in the fact that many injured patients may be involved in litigation related to their injury and the treating surgeon may be called on to describe the patient’s injuries, treatment, and prognosis, or even to serve as an independent medical expert. It is true that 5 of the 10 most prevalent orthopaedic conditions resulting in litigation are fractures. However, most of these are claims for gross technical errors or failure to diagnose, and the rate of closed claims in these cases is lower than that in obstetrics-gynecology, family practice, and general surgery. In a review of 1452 closed malpractice claims, Studdert and colleagues found that 63% involved clear medical errors, and that 72% of patients with iatrogenic injury but no errors in judgment did not receive any monetary settlement.

    
    
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    Unless they are experts in the patient’s condition, surgeons will likely not meet the standard of care : Although the term is mentioned frequently, most physicians poorly understand the term “standard of care.” The legal definition of this term is “the level of care, skill, and treatment that, under the circumstances, is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers.” The term is not intended to specify a single appropriate treatment in any given situation, but a range of treatments that are considered acceptable in the community and the setting in which the patient seeks care. The definition allows for variation by location and degree of training and experience; the level of care expected of an orthopaedic resident is different than that expected of an experienced surgeon, and that of a rural community orthopaedist is different than that of an urban trauma specialist.

  
  

The obstacles to achieving a successful plan for ED coverage by orthopaedists and orthopaedic subspecialties are daunting. Solutions must be tailor-made to meet the needs and optimize the resources of individual communities. The American Orthopaedic Association (AOA) recognized the significant crisis that exists in the provision of emergency musculoskeletal care. To uphold its commitment to patient access to high quality care and serve in a leadership capacity for the profession, the AOA established a Task Force on Emergency Department Call Coverage in 2008 under the aegis of its Orthopaedic Institute of Medicine (OIOM) to review the scope of this crisis, identify barriers impacting orthopaedic coverage in EDs across the United States, and propose solutions that can be adopted at the community level.

Based on survey results, peer-reviewed literature, expert opinion, and Task Force consensus, the following barriers to ED call coverage emerged: lifestyle and time away from family; poor reimbursement; increased liability risk; medical practice issues (e.g., disruption of elective practice, lack of inpatient practice); lack of comfort with skills needed for ED cases; and inadequacies of hospital emergency care resources. The Task Force felt that these barriers impact social, professional, and financial aspects of our current system and would require change at many levels to solve the problem and improve patient access to these services. Recommendations from the Task Force address these barriers with potential solutions, emphasize that most solutions must be individualized at the local level, and provide examples of a variety of solutions that have been successful in some communities.

The Task Force generated the following summary consensus statement:

Orthopaedic surgeons are ultimately the most qualified, capable, and cost-effective providers of musculoskeletal care. To help resolve the looming crisis in orthopaedic ED call coverage, the Orthopaedic Institute of Medicine Council recommends that in each community in the [United States], orthopaedic surgeons partner with hospitals and other stakeholders to discuss the issues, identify specific problems and local resources, and implement a solution that will ensure access for all patients to appropriate high quality emergency care for most musculoskeletal conditions. The solution in each community will be unique and determined by the identified issues that must be overcome in that community’s medical environment. Modifications are also needed at the state, regional, and national levels to assist in removing barriers that are presently challenging access to emergency musculoskeletal care in many communities.

The Task Force went on to recommend that solutions and alterations be enacted in eight key areas :

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    Delivery of Emergency Care: Communities should ensure all patients have access to readily available orthopaedic surgical consultation in the ED by creating community-wide teams to assess needs for local services, and recommend and champion the solutions.

    
    
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    Physician Leadership: All orthopaedic surgeons should acknowledge a professional obligation to ensure that there is a system in their community to enable all patients to have access to timely and appropriate emergency musculoskeletal care. Orthopaedic professional organizations can support this goal by establishing professional guidelines specific to patient access to emergency musculoskeletal care.

    
    
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    Education and Core Competency: The orthopaedic profession should define core competences for the initial management of urgent and emergent musculoskeletal conditions and propose methods for maintaining these core competencies. The profession should continue to define minimal criteria for musculoskeletal emergency care and community care of transfers.

    
    
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    Hospital Resources for Orthopaedic Emergency Care: Hospitals should provide dedicated daily OR time for the management of musculoskeletal emergency cases (including the necessary equipment, devices, and qualified staff) and collaborate with local orthopaedic surgeons to develop an effective on-call system and meaningful transfer agreements to provide the best care for the patient and eliminate inappropriate referrals.

    
    
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    Collaboration with Other Organizations: Orthopaedic professional associations should work with other medical, hospital, and healthcare organizations, at congressional and state levels, in an attempt to increase awareness and produce results that will provide further support for community-based solutions to this crisis.

    
    
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    Reimbursement for Services: Orthopaedists and Hospitals: Hospitals and the leadership of orthopaedic professional organizations should jointly advocate for appropriate reimbursement for emergency musculo­skeletal care for both orthopaedic surgeons and hospitals. Communities of hospitals and orthopaedic surgeons should develop an appropriate method to provide compensation (either monetary or in-kind) for orthopaedic surgeons covering ED on-call responsibilities.

    
    
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    Tort Reform: The orthopaedic community should partner with other affected specialties and state orthopaedic and medical associations to achieve state-level tort reform. Insurers, legislators, hospital organizations, and physician organizations can assist by increasing efforts to propose, discuss, and enact meaningful tort reform at the federal level.

    
    
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    Third-Party Payers as Community Participants in Generating Solutions: Local hospitals should assess their need for quality emergency coverage by specialty area. If there is lack of such care secondary to financial problems, hospitals and other physician groups should approach third-party payers to negotiate a cooperative solution to remedy this problem to the benefit of all parties. Involving local physicians in this process provides unbiased opinions and support for new reimbursement schemes.