April 2, 2020
Dear Texas Patients, Physicians, and Governor Abbott,
“The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”- President Ronald Reagan August 12, 1986, News Conference.
Never before in U.S. history have patients and physicians faced greater danger from bad policy generated from good intentions of governments trying to help. The United States of America is a Constitutional Republic, so we must deal with multiple layers of government “help” ranging from local communities- city, district, and county councils and boards- to state and federal governments replete with their branches and respective agencies and boards. Amidst the COVID-19 pandemic and associated economic crisis, the consequences of too much governing and too much “help” are proving to be threatening for individual patients, physicians, and the future of Hippocratic medicine in the United States. One size fits all general federal recommendations are being seized upon by various entities to issue drastic orders at odds with common sense and available evidence. Federal recommendations are being construed by states as a charge to take sweeping action with no regard for differences in each of the individual states and total disregard for the concept of federalism. Idaho is very different than Illinois, and New York City is very different than San Antonio. In Texas, Loving County (population density 0 people per square mile) is very different than Harris County (population 2702 people/ square mile, 2018).
On March 19, 2020 I received an email from the hospital system that runs the ambulatory surgery center where I operate on my patients, informing me:
“Methodist Healthcare is committed to implementing a thoughtful approach to elective surgical cases. On 3/18/20, CMS released new adult elective surgery and procedure recommendations. In their guidance document, CMS recommends that in order to preserve PPE and other healthcare resources, as well as limit exposure to the COVID-19 virus, that hospitals and health systems limit non-essential surgeries and procedures.
CMS is recommending that physicians make the determination on a case by case basis if the surgery or procedure is needed urgently.”
Centers for Medicare and Medicaid Services (CMS) is a federal agency within the United States Department of Health and Human Services. CMS released recommendations, not edicts, mandates, orders, or rules.
In response to a federal agency’s recommendations, Texas Governor Abbott issued an Executive Order GA-09 lasting through April 21,2020. The Texas Medical Board then created and adopted emergency rules on the provision of non-urgent surgeries and procedures in all licensed inpatient and outpatient facilities and medical settings. The Texas Medical Board (TMB) published a press release on March 24, 2020, TMB Passes Emergency Rules to Enforce Gov. Abbott’s Executive Order GA-09. The Texas Medical Board’s Executive Committee amended Texas law to amend the definition of “Continuing Threat to the Pubic Welfare,” to include surgeries and procedures that are “not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” Read the TMB rules for yourself as well as the Texas Medical Association’s (TMA) White Paper and FAQs pertaining to the TMB rules.
The TMB amended Texas law to facilitate temporary suspension and restriction of physicians’ licenses and require reporting to the National Practitioners Data Bank. Per the TMA’s interpretation, “The Board also amended the rule relating to peer review and hospital reporting in order to require immediate reporting rather than after the peer review process… and allow the Board to more immediately utilize the disciplinary authority granted by Texas Occupations Code, 164.059.” In response to criticism of its actions, the TMB says it cannot put physicians in jail; yet, they have created a rule of law that mandates reporting of physicians, eliminates peer review and due process, takes away physicians’ medical licenses, reports physicians to a national data bank, and can accuse and convict physicians of crimes punishable by 180 days in jail and/ or $1000 fine. Subsequently another entity, like the Attorney General, could then sentence physicians to jail. This is career and in many ways life ending for physicians who simply want to take care of their patients.
Don’t think this couldn’t happen? Here is today’s reality. A highly respected, established orthopedic surgeon, colleague and friend, informed me last night that he had just officially received a letter from the TMB investigating him for operating while the governor’s order is in effect on cases he deemed necessary. (So, this investigation has to be based on something that happened in the week spanning 3/24 and 3/31). He wanted to share with me and our surgical colleagues that the TMB “has been weaponized by this order.” He has never been sued in 16 years of practice and has never had any complaints filed with the TMB or judgments made against him. He has been head of orthopedic sports medicine at a prestigious Texas institution and with a major hospital corporation. He has been the surgeon for professional athletes and their team and has a glowing, untarnished resume. He is calling for Texas physicians to ban together to help our patients. He wrote me, “I feel like I’m in a communist country.” One patient he operated on had a dislocated fracture and the other was a medically necessary operation in a patient who had been medically maximized for a month in order to be strong enough to undergo the medically-necessary operation, so he felt ethically obligated to proceed. He continued, “The TMB orders and FAQs say it’s ultimately the doctor’s decision, or if it doesn’t deplete Personal Protective Equipment (PPE) it’s OK. CMS recommendations say most of what we do as orthopedic surgeons is OK and even total joint replacements are listed as category 2a, Consider Rescheduling, not you have to reschedule. This is truly crazy and dangerous.” He emphasized, “My hospitals here have had zero COVID patients and therefore no PPE issue, and as you know, we don’t use the same PPE in the OR as would be needed in the ICU for COVID patients. This rule likely requires me to violate my Hippocratic oath.”
I asked him how the TMB found out about these two cases. Did someone report him, or is the TMB collecting data on surgeons and their activities? For example, is TMB looking at CPT codes submitted by billers or received by insurance companies? He replied, “I have no idea where it started. The TMB won’t say. They don’t list any patients, just general accusations. I bet no patients understand that surgeons are being threatened and now investigated for helping them.” He has had all his patients sign special consents in this precarious time, and he has been compulsive with documentation and rule-following. He dictates and writes in the History and Physical portion of operative notes justification for proceeding with the operation including quoting from the Governor’s Executive Order. He concludes, “Our colleagues should know what TMB is doing to us.” We need to unite and rectify this situation.
Fortunately, this esteemed surgical colleague is not only allegiant to the Hippocratic oath, but he is a man of God. He left me with these words: “I’m not worried. God is in control and Jesus is on the throne. Not sure if these are the last days, but evil is called Good, and Good evil. I do think our colleagues need to know that surgeons have a target on them. Could there be some agenda to destroy doctors’ practices using this COVID crisis as justification? We need to unite and support our colleagues, targeted, as we are just trying to help our patients.”
We will get to the bottom of this, but to do so will take starting at the top. Federal bureaucratic recommendations intended to help us resulted in draconian Texas Medical Board rules that will harm physicians and patients alike. We call on Governor Abbott to call out the TMB for over-reaching on his well-intended executive order and stop these totalitarian actions being taken against Texas surgeons.
Among entities that stand to benefit from such reporting and punishment of physicians for providing care are insurance companies, who during this period of time are continuing to collect premiums and subsidies from employers, government, and individuals alike. While patients shelter in place going without care, insurers’ expenses for surgical care drastically decrease.
It will be very helpful to see where the TMB got its information to pursue investigation of this Texas physician. In the meantime, dear colleagues, stand up for your patients and yourselves. Contact your state legislators and the governor’s office to fight for your rights to practice Hippocratic medicine, and pray.
P.S. Since I started writing this piece, my colleague operated to reattach a patient’s severed limb. He left the O.R. only to find a second letter from TMB, this time more accusatory and aggressive. I bet many other surgeons have too. Time to rise up.