During my salad days, I — like a lot of physicians — thought I could take on the world. Despite working in a smaller, community hospital, our ER saw a lot of the same type of orthopedic trauma I saw during residency. And my young partners and I took virtually every case that came in except spinal trauma. We did this whether we were on unassigned ER call or not and irrespective of insurance coverage. If I was on call for a weekend, it was not uncommon for me to not make it home until late Monday. Looking back, I can’t believe I actually did what I did, but I was quite proud of the results — comparable to any level 1 trauma center. But time, wisdom and experience plus the sting of reality eventually catch up with you, and it usually comes with a moment of epiphany.

My moment came about three years into my practice when I took on the case of a bad pylon fracture — a bone smashed up at the ankle end of the shin bone. Even today, this a difficult injury to treat with unpredictable results and a lot of potential complications. That’s what happened here. Several months later, after several surgeries, hours of my time and relatively little reimbursement, this patient sued for malpractice, my first. I remember the deposition with a shudder. An eight-hour ordeal where I was constantly grilled as to why I made each decision that I did with little success on the part of the plaintiff’s attorney in determining whether I did anything wrong.

Then, my epiphany moment. I was asked that if I knew this was such a difficult case, why didn’t I transfer the patient to a bigger, teaching hospital? My answer was that I offered the patient that option several times and that the bigger hospital would have done little different than what I did. Still, I had to ask myself. Why was I taking on these difficult cases? We were a small hospital, let the big boys do them.

(As an aside, this case stayed on my record for 17 years and was finally dropped. However, because I had an “open case” on my record, it cost me thousands of additional malpractice premium dollars. But I digress.)

Anyway, it was from that point forward that I started to screen my cases, vetted them if you will. Enhanced border security. I informed the ER that I wished to be called on every potential orthopedic case whether they were going to admitted, or referred to our office. If the case was rare or difficult with a high rate of potential complications, I would request transfer to a level 1 trauma center.

Not surprisingly, there was a lot of resistance. I tried to negotiate. I would take on these cases if the hospital covered my malpractice or paid me extra. I offered to respond to calls ASAP, review the X-rays and discuss the case but I had the final say as to the disposition. I would not make decisions based on insurance coverage. No dice. The ER was just not happy that I would longer just take these cases off their hands.

It was then that the games began. It started when the hospital insisted that I come and make the transfer. I said that since the patient came to them, not me, it was their responsibility for the disposition, and there was no need for my involvement. I then got accused of violating the Emergency Medical Treatment and Labor Act (EMTALA) law. I informed them that the EMTALA law required me to assist in providing stabilizing care and that once the patient was stabilized, my obligation ended. In fact, if the patient was stable, there was no obligation on my part at all. The next move was to try and admit the patient either through the hospitalist or another service, then consult us later on.

This created a whole set of problems as the consult did not come in until almost a day later putting the patient at significant risk. I decided to just treat the consults as any other ER case, review and accept. If my recommendation was to transfer, all heck broke loose. Now, an attending, usually medical, was responsible. They first complained to me and my answer was to ask why they were accepting orthopedic patients? They then complained about me to administration, and I took the same position I had with the ER. All orthopedic problems need to be cleared with the orthopedist first prior to admission. The last attempt came when administration tried to change the bylaws requiring us to accept ER and consult patients. My position was that administration had that right, but since I had agreed to the bylaws as they existed when I started, I would request grandfather status. I heard through the grapevine that the hospital CEO went crazy when the hospital attorney told him I was well within my rights to do so.

Eventually, the hospital backed down because more and more physicians took the same stand that I did. I was just the pioneer, so I took the arrows. It is just sad that today there is even less incentive to take on risky patients, and we continue to go in the wrong direction. MACRA and other quality based schemes will be the last straw forcing more physicians to apply enhanced border security as a simple matter of self-preservation.

Thomas D. Guastavino is an orthopedic surgeon.

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