Should Medical Offices Be Run Like Law Firms?

By Shailin Thomas

Earlier this summer, the Supreme Court of Pennsylvania ruled that a physician cannot delegate obtaining informed consent from a patient to a member of her staff.  In Shinal v. Toms, a neurosurgeon perforated a patient’s cranial artery while resecting a tumor, which led to hemorrhaging, brain damage, and partial blindness.  The patient alleged that had she known the full risk of the surgery, she would have opted for a less dangerous course of treatment.  While the risks were communicated to the patient, they were communicated by the physician’s assistant, not the neurosurgeon himself.  After the lower courts both ruled for the physician, the Supreme Court of Pennsylvania reversed, holding that the courts below erred in allowing the jury to consider statements made by the physician’s assistant to the patient — because responsibility to obtain informed consent is the physician’s alone and cannot be delegated.  According to the court, “[i]nformed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange.”

While requiring physicians to give risk information in person sounds appealing, it runs counter to efforts to utilize physician time more efficiently.  Physician time is expensive — and rightly so.  After college, medical school, internship, residency, and any number of fellowships, physicians have undergone a staggering amount of training.  In light of this investment in human capital, it’s no surprise that the hourly rate for anything a physician does is astronomical. This makes sense when those hours are spent performing neurosurgery, reading radiographs, or engaging in other activities that require the full extent of a physician’s medical training.  But it can lead to sizable inefficiencies when those hours are spent on tasks which can be readily done by qualified staff members, such as nurse practitioners, registered nurses, and medical assistants, at a fraction of the hourly rate.

Not only is physician time too expensive to be used liberally, there simply isn’t enough of it.  The Association of American Medical Colleges predicts that by 2030 the shortage of physicians in the United States could reach 105,000.  The shortage will be particularly acute in some critical specialties. By 2030, the shortage of primary care physicians, for example, could exceed 35,000.  Assuming an average patient panel of about 2,300, this means that there could be as many as 80 million patients without adequate access to a primary care provider.  The added strain the shortage will put on these specialties could lead to a detrimental feedback loop.  As  doctors work harder to cover the patient population, those specialties will become less attractive to prospective physicians.  Graduating medical students will opt for fields that offer more reasonable expectations, and the shortage will only get worse.

Some medical specialties have responded to the expense and scarcity of physician time by moving towards patient care teams in which technicians, nurses, and nurse practitioners handle aspects of care that do not require a doctor’s full expertise.  Surgical subspecialties have led the way, with surgeons spending relatively little time with patients outside of the operating room.  While this is the precise model of care with which the court in Shinal v. Toms took issue, other specialties like primary care may need to move further in this direction to sustainably support the U.S. patient population.  Indeed, it may require a reconceptualization of the doctor’s office in which physicians rely on their staff for almost all direct patient contact while taking a more strategic, decision-making role behind the scenes.  In other words, doctor’s offices may need to be run like law firms.

Legal clients regularly scrutinize law firm bills and put pressure on firms to operate in a cost-conscious manner.  Law firms have responded by creating a regimented system of delegation in which the least expensive attorneys — junior associates — do much of the time-intensive legwork, senior associates synthesize and supplement junior associates’ work, and the most expensive attorneys — partners — review the work at a high level and make strategic decisions for the deal or case.  Like a general overseeing an army, the partner makes overarching, global decisions and leaves the execution to attorneys whose time is less expensive.  It would be inefficient for a partner to proofread a brief when it could be done by a first-year associate or a legal assistant at a fraction of the partner’s billing rate. Similarly, it would be wasteful to have a physician spend time performing the kinds of information gathering that could be done by a staff member.  While patients likely do not mind, as they rarely bear the direct cost of the physician’s time, from a systemic perspective, it would be far better to have the physician bill as little time as possible per matter to slow the growth of overall health care spending.

Not only does the law firm structure keep client bills smaller, it also allows partners to manage more matters.  While a first-year associate may only work on a few cases or deals at a time, a partner might manage 10 or 15 matters at once.  This allows the firm to take on more business, and is only possible because of the highly structured delegation system in which partners are judicious with the time they devote to any given issue, reserving themselves for the high-level matters that require their expertise.  Were partners expected to perform more of the research and document drafting, the number of cases each partner could run at a given time would be substantially lower.  Just as this structured, team-based delegation model allows law firm partners to oversee a larger case load, it would allow physicians to greatly increase the sizes of their patient panels.  Instead of spending a day seeing 20 patients, a physician could oversee three or four nurse practitioners each seeing 20 patients a day, reviewing charts pre- and post-appointment and only personally examining red flags identified by the staff.  With this system, a group of patients that would traditionally have required three or four physicians for adequate coverage could be managed by a care team with only one physician and a number of very qualified, but less expensive support staff.

While having physicians delegate to care teams is not a new idea, the decision in Shinal v. Toms suggests that the legal system may be a barrier to movement in this direction.  Informed consent is of the utmost importance, but qualified support staff are capable of informing patients about the risks associated with various treatments.  Forcing physicians to relay information to patients personally that could be delivered by members of their staff is exactly the kind of outdated inefficiency the U.S. health care system should be leaving behind.

Shifting physicians to behind-the-scenes oversight of nurses and nurse practitioners, while undesirable for any number of reasons,[1] may be a necessity given the realities of the U.S. health care system.  Just as law firms have had to adapt to use partner time more efficiently, hospitals and health care organization will have to learn to better utilize physician time as doctors are pushed to cover a growing patient population while reducing costs. Having physicians perform every minute task on the front lines of patient care is conceptually appealing, but it may be a luxury the U.S. health care system can no longer afford.  Physicians need to be delegating more, not less, to teams of qualified support staff, so that they can focus on the aspects of diagnosis and treatment only they can perform.  Only then will they be able to see more patients more efficiently — and provide the care the U.S. patient population needs at a sustainable cost.

[1] There is plenty to hate about this idea.  Medicine is both an art and a science.  Diagnosing and treating patients can be as much about intuition as it is about lab results, and there may be costs to taking physicians off the front lines of patient care.  From the patient perspective, law-firm-like care teams would make cultivating relationships with physicians more difficult.  For many, interactions with the health care system are deeply personal experiences, and they want to feel as though they know the physician in charge of their care.  Physicians may also take issue with stepping away from direct patient contact.  Few doctors went to medical school to spend their days reviewing charts outside of the exam room. Physicians would still play an essential role in patient care, but they would not be directly involved in most care delivery, which many physicians find to be a rewarding part of the medical profession.

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About Shailin Thomas

Shailin Thomas is a second year law student in a joint MD/JD program between Harvard Law School and the New York University School of Medicine. He received a B.S. from Yale University, where he studied cognitive neuroscience — exploring the anatomy and physiology behind social phenomena. His interests lie at the intersection of clinical medicine and the legal forces that shape it. Prior to law school, Shailin worked on both the administrative and clinical sides of health care, and as a research associate at the Berkman Center for Internet & Society. He is currently an affiliate of the Berkman Center and Outreach Editor for the Harvard Journal of Law & Technology. A fervent proponent of privacy and freedom of expression, Shailin has also served on the Board of Directors of the American Civil Liberties Union of Connecticut.

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