Thank you for your recent post about thinking like an attorney. As an attorney and physician, I feel like I must point out one critical fact: you are quoting the ABA model rules. The ABA has no real authority over attorneys -- very similar to ACEP. Now, the ABA lobbies state legislatures to adopt these rules. The model rule becomes state law (or some version of it) if passed by the legislature and signed by the Governor. State law governs behavior regardless of profession.
The ABA does not write law, but it does have the ability to enforce ethical standards including having tools such as censure available to them. Investigations into ethics, etc.
The FTC took action against the AMA in the 1970's, prohibiting them from enforcing specific ethical standards over physicians, including prohibiting them from entering into contracts with lay-entities (as the AMA did, at the time, have quite a bit of influence over physicians). This substantially weakened the CPoM Doctrine which was not just state law. I don't think the FTC would have taken these actions - which went to the supreme court, if they didn't think that the AMA had influence or authority over physicians.
Finally, as Leon mentions, the state laws have not governed physician behaviors, given that there are prohibitions on CPoM (ranging from AG opinions, to legislation, to precedent set by state courts).
I agree with Leon - both professional self-enforcement and legal enforcement at the state level (and increasingly, a federal role) are needed.
I'm not an attorney, but we did host the five of the country's leading legal experts on CPoM at our last summit, and our work has been cited by them in legal reviews in the past year.
In 38 states, there are already Corporate Practice of Medicine laws. What's missing is enforcement, either internally within the House of Medicine or externally at the state level.
We have more influence internally. It would be good to win protections for physician ownership at the ACEP level at least. Something is better than nothing.
Skeptical? The ABA has no authority. It’s a political body. It can write model laws and ethics opinions. It can lobby legal and judicial bodies. But actual authority? No. State law and ethics rules promulgated by the state supreme courts govern attorneys. And the mandatory state bar also plays a role. I’m skeptical that anything short of law will curtail the direction medicine has taken (or perhaps has always been depending on your perspective).
I’m not sure what you mean by ABA enforcing ethical standards. It can’t enforce anything against me. I’m not a member. The problem with the state laws — and this is purely my opinion — is that they are vague and do not provide any recourse. In essence, they have no teeth. I agree with your position overall. But I hope you’ll agree that a state or federal (or both) law with practical enforcement mechanisms would improve the situation.
This newsletter continues to be an outstanding resource focused on the most important issues in the current practice of emergency medicine. Thank you Dr. Adelman.
Published in 2004, I am not sure how many of the current generation of emergency physicians “in the pit” have read “The Rape of Emergency Medicine,” but it’s critical we all understand that the rise of the speciality of emergency medicine grew in parallel with the exploitative practice of contract management groups. To be clear, this was led by our fellow emergency physicians who obtained contracts to provide staffing for emergency departments and took a cut of the practicing physicians’ wages. While EPs worked clinically, these “Kitchen table schedulers” went to business schools and learned ways to maximize profit. The emergency medicine professional society that helped organize this structure is referred to in the book as the “American Academy of Emergency Physicians,” but it is understood that this is a pseudonym for ACEP. It’s no secret that many of ACEP’s board members and recent presidents hold leadership positions in private equity backed contract management groups, which, IMHO, is a conflict of interest. Full disclosure I was a Cal ACEP board member and earned my FACEP in few years back.
Dr. Adelman,
Thank you for your recent post about thinking like an attorney. As an attorney and physician, I feel like I must point out one critical fact: you are quoting the ABA model rules. The ABA has no real authority over attorneys -- very similar to ACEP. Now, the ABA lobbies state legislatures to adopt these rules. The model rule becomes state law (or some version of it) if passed by the legislature and signed by the Governor. State law governs behavior regardless of profession.
The ABA does not write law, but it does have the ability to enforce ethical standards including having tools such as censure available to them. Investigations into ethics, etc.
The FTC took action against the AMA in the 1970's, prohibiting them from enforcing specific ethical standards over physicians, including prohibiting them from entering into contracts with lay-entities (as the AMA did, at the time, have quite a bit of influence over physicians). This substantially weakened the CPoM Doctrine which was not just state law. I don't think the FTC would have taken these actions - which went to the supreme court, if they didn't think that the AMA had influence or authority over physicians.
Finally, as Leon mentions, the state laws have not governed physician behaviors, given that there are prohibitions on CPoM (ranging from AG opinions, to legislation, to precedent set by state courts).
I agree with Leon - both professional self-enforcement and legal enforcement at the state level (and increasingly, a federal role) are needed.
I'm not an attorney, but we did host the five of the country's leading legal experts on CPoM at our last summit, and our work has been cited by them in legal reviews in the past year.
Hi Robert,
Great point!
In 38 states, there are already Corporate Practice of Medicine laws. What's missing is enforcement, either internally within the House of Medicine or externally at the state level.
We have more influence internally. It would be good to win protections for physician ownership at the ACEP level at least. Something is better than nothing.
-- Leon
Skeptical? The ABA has no authority. It’s a political body. It can write model laws and ethics opinions. It can lobby legal and judicial bodies. But actual authority? No. State law and ethics rules promulgated by the state supreme courts govern attorneys. And the mandatory state bar also plays a role. I’m skeptical that anything short of law will curtail the direction medicine has taken (or perhaps has always been depending on your perspective).
CPOM laws are on the books in 38 states. What’s missing is the will, including at the levels of ACEP & the AMA, to enforce them.
Completely agree.
I’m not sure what you mean by ABA enforcing ethical standards. It can’t enforce anything against me. I’m not a member. The problem with the state laws — and this is purely my opinion — is that they are vague and do not provide any recourse. In essence, they have no teeth. I agree with your position overall. But I hope you’ll agree that a state or federal (or both) law with practical enforcement mechanisms would improve the situation.
Hi Robert -
You seem skeptical of the ABA’s authority. What do you think prevents lawyers from selling their practice to non-lawyers?
This newsletter continues to be an outstanding resource focused on the most important issues in the current practice of emergency medicine. Thank you Dr. Adelman.
Published in 2004, I am not sure how many of the current generation of emergency physicians “in the pit” have read “The Rape of Emergency Medicine,” but it’s critical we all understand that the rise of the speciality of emergency medicine grew in parallel with the exploitative practice of contract management groups. To be clear, this was led by our fellow emergency physicians who obtained contracts to provide staffing for emergency departments and took a cut of the practicing physicians’ wages. While EPs worked clinically, these “Kitchen table schedulers” went to business schools and learned ways to maximize profit. The emergency medicine professional society that helped organize this structure is referred to in the book as the “American Academy of Emergency Physicians,” but it is understood that this is a pseudonym for ACEP. It’s no secret that many of ACEP’s board members and recent presidents hold leadership positions in private equity backed contract management groups, which, IMHO, is a conflict of interest. Full disclosure I was a Cal ACEP board member and earned my FACEP in few years back.
I would encourage every emergency physician to read “The Rape of Emergency Medicine,” to gain an understanding of how these groups harm us and our patients. The PDF is available free via the AAEM website here: https://apps.aaem.org/UserFiles/file/The_Rape_of_Emergency_Medicine.pdf