A major battle ensued in Congress last week over proposed legislation to halt a statutory 10.6% cut in Medicare payments to physicians.* The democratic-sponsored bill (HR 6331) breezed through the House, but it fell a single vote short of the 60 needed to clear the Senate. HR 6331 also eliminates the 5.6% decrease in physician fees slated for January 2009 and institutes a 1.1% increase.

To cover the additional expense, HR 6331 would siphon billions over the next several years from the Medicare Advantage budget, and President Bush says that he will veto any legislation with such a provision. Medicare Advantage subsidizes private health insurance for Medicare-eligible recipients. Democrats set their sights on the program after the Congressional Budget Office reported that healthcare services provided through Medicare Advantage health plans cost the Centers for Medicare and Medicaid Services (CMS) 12% to 19% more in 2007 than equivalent services provided through traditional Medicare.

On one side of the battlefield are the private health insurers, the Bush administration, and Congressional republicans; physicians, backed by the 

 and Congressional democrats, stand resolutely on the other side. Senior citizens, individuals categorized as disabled, and many military veterans find themselves caught in the crossfire, with combatants on both sides insisting that should the other side win, healthcare options for Medicare enrollees will shrink.

AMA predicts that decreased reimbursements will force many physicians to lay off employees, refrain from implementing new technologies, or cease practicing medicine altogether. In a 2008 AMA poll, 60% of AMA physicians said they would "limit the number of new Medicare patients they treat" if physician fee reimbursements were cut. Closing any more doors to Medicare patients could prove especially problematic in rural areas, where physician shortages are endemic.

Private health insurers counter that forcing them to hold service fees in line with traditional Medicare prices&#8212;as HR 6331 mandates&#8212;would induce them to withdraw from Medicare Advantage, curtailing healthcare choices for Medicare enrollees. The insurers posit that this could greatly hamper care in those regions where few physicians treat Medicare patients. According to the Medical Group Management Association, 24% of physicians nationwide will no longer accept new Medicare patients.

Budget slashing may not be insurers' only problem with HR 6331. The legislation curtails their direct marketing activities, increases government oversight, limits the out-of-pocket burden they can impose on subscribers, prohibits certain penalties and premium increases for Part D coverage, expands the list of drugs they must cover, and requires them to pay interest on Part D drug charges reimbursed more than 30 days after submission. It also requires the plans to practice mental health parity, treating mental conditions the same as any other medical condition.

Many private health plans offered under Medicare Advantage provide lower levels of coverage than traditional fee-for-service Medicare. The insurance companies then sell their enrollees "supplemental" health insurance to cover the excluded services. HR 6331 would end this practice.

HR 6331 also funds the Medicare Part B assistance program for beneficiaries with the lowest incomes, which expired July 1. Absent new legislation, the $96.40 monthly premiums for Part B coverage will be deducted from subscribers' Social Security checks beginning in August. 

Although reductions in physician fee reimbursements took effect July 1, CMS says it will not process any new claims until July 15, giving Congress time to reach a compromise acceptable to the White House. CMS already holds claims for 2 weeks, as required by law, and physicians worry that the 10-day hold will delay reimbursements even further. CMS insists this is not the case and makes the following recommendations:

Physicians who submit Medicare claims for services on or after July 1 should use the physician fees in place prior to July 1.

Copayments and deductibles collected from Medicare beneficiaries must be based on the reduced Medicare rate, regardless of the rate the physician charges to Medicare.

To minimize confusion, consider holding Medicare claims until new legislation has been passed, if financially feasible.

Physicians who use the reduced rates on new claims submitted to CMS after July 1 will have to submit a revised claim if Congress rescinds the cuts, retroactive to July 1. 

Political strategists predict that because it is a major election year, legislators will not allow these drastic cuts to remain in place. Indeed, physicians' groups have already started putting the squeeze on those political candidates up for re-election this year who voted against HR 6331, withdrawing endorsements and canceling donations. A blitz of advertising has hit the airwaves and television, and news show audiences are being bombarded by pundits from both sides. To find out how this will play out, stay tuned for Medicare Wars, Round II, expected to resume July 7, when congress reconvenes after the July 4 holiday.

*For a summary of how CMS calculates reimbursements for physician fees, see "

Congress Temporarily Turns the Tide on Scheduled 10.1% Cut to Medicare Physician Fees

Articles

Surgical Rounds

War Over Medicare's Physician Fees

, PGY 5, Chief Surgical Resident, Department of Surgery, Medical Center of Central Georgia, Macon; 

, PGY 2, Surgical Resident, Department of Surgery, Medical Center of Central Georgia, Macon; and 

, General Surgery Private Practice, Macon, GA

	A 58-year-old man presented to the hospital because of a 6-hour history of sharp, nonradiating abdominal pain that worsened upon movement. He had never experienced such pain before and had no significant medical history. The patient reported no fever, chills, nausea, vomiting, or diarrhea. His vital signs were normal, but his abdomen was tender to palpation. Laboratory examinations were normal. Abdominal and pelvic computed tomography scans using intravenous and oral contrast were obtained (Figures below). The patient developed peritonitis and a surgical consultation was obtained.

		DIAGNOSIS: Perforated jejunal diverticulitis

		Abnormal peristalsis and elevated intraluminal pressures are thought to cause multiple false diverticula on the mesenteric side of the bowel; this condition is known as jejunal diverticulosis.

 Autopsy series indicate an incidence of approximately 0.5%.

 Perforation and diverticulitis are the most common complications of jejunal diverticula.

 Other complications include obstruction, hemorrhage, and bacterial overgrowth.

-Axial CT scans at 5-mm sections showing mesenteric inflammation (white arrows; A and B), intermesenteric air (arrowhead; A), and an outpocketing (blue arrow; A).

		Perforated jejunal diverticulitis is difficult to diagnose because perforations are contained between the leaves of the mesentery. Patients often present with a history of sudden and focal abdominal pain that occasionally progresses to diffuse constant pain associated with nausea, vomiting, and fever or chills. Physical examination is significant for localized abdominal tenderness to palpation and decreased bowel sounds on auscultation. Diffuse abdominal rigidity is a late manifestation of a contained perforation and mandates immediate surgical exploration. The patient's white blood cell count is sometimes elevated and demonstrates a left shift. Abdominal radiographs rarely show free air. Abdominal and pelvic computed tomography (CT) scanning is the best diagnostic modality, demonstrating focal areas of thickening, mesenteric inflammation, and outpocketings.

 Our patient's CT scans at 5-mm sections in the axial plane demonstrated mesenteric inflammation, intermesenteric air, and an outpocketing (Figures). No free fluid or air was visible in the peritoneal cavity, excluding other sites of a perforated viscus. A diagnosis of perforated jejunal diverticulitis was made, which was confirmed during exploratory laparotomy. Segmental small bowel resection with primary anastomosis was performed; this is the preferred surgical treatment for small bowel perforation, except for colonic diseases that require an ostomy. A laparoscopic approach is an alternative for experienced surgeons.

		In contrast to jejunal diverticulitis, symptoms of small bowel neoplasms develop gradually and are usually obstructive, but perforation is possible. Physical examination and CT scan findings, especially of lymphomas and focal Crohn's disease, are difficult to differentiate, but are usually segmental and not diffuse like small bowel diverticulitis.

		Meckel's diverticulum results from incomplete obliteration of the vitelline duct during fetal development. Its presentation is similar to that of jejunal diverticula, but the diverticulum arises from the antimesenteric side of the small bowel. Like perforated colonic diverticulitis, a perforated Meckel's diverticulum perforates into the intraperitoneal space. Diverticulosis of the small bowel is usually diffuse and easily seen on CT scanning. In most cases, only one diverticulum is perforated. Surgical resection and anastomosis is the treatment of choice for the inflamed and perforated segment of small bowel, and any normal appearing diverticula should be left alone. The proximal location of small bowel diverticula precludes use of an ostomy, which could prove detrimental and result in malnutrition, especially in the elderly.

The authors have no relationship with any commercial entity that might represent a conflict of interest with the content of this article and attest that the data meet the requirements for informed consent and for the Institutional Review Boards.

			Rankin FW, Martin WJ Jr. Diverticula of the small bowel. 

			Vantrappen G, Janssens J, Hellemans J, et al. The interdigestive motor complex of normal subjects and patients with bacterial overgrowth of the small intestine. 

			Sibille A, Willcox R. Jejunal diverticulitis. 

			Donald JW. Major complications of small bowel diverticula. 

			Gotian A, Katz S. Jejunal diverticulitis with localized perforation and intramesenteric abscess. 

			Macari M, Faust M, Liang H, et al. CT of jejunal diverticulitis: imaging findings, differential diagnosis, and clinical management. 

Surgical Quiz: Can you diagnose the cause of this patient's abdominal pain?

Upon graduating from medical school, we all believe that we are equipped with the skills necessary to succeed in residency. We are wide-eyed, optimistic, and excited to finally be "doctors." Once we become residents and fellows and start treating patients, we realize that a significant proportion are uninsured. Imagine how surprising it would be for you to discover after arriving at your new residency or fellow program that you are also one of those patients, at least for the next 30 to 90 days.

It is ironic to be in a teaching hospital with hundreds of doctors, nurses, and testing facilities, yet not be able to take advantage of these resources without incurring significant financial hardship. This is the scenario that many residents and fellows have faced for the past several years in programs across the country.

In 2005, a psychiatry resident at Washington University in Saint Louis, Missouri, realized that many of her peers in other programs had this problem, and she decided to do something about it. In 2006, the Resident and Fellow Section of the Missouri State Medical Association wrote a resolution regarding the need to address this issue, entitled "Eliminating Benefits Waiting Periods for Residents and Fellows." The resolution described discrepancies in the provision of health, dental, and vision benefits, as well as life and disability insurance, between various Graduate Medical Education (GME) training institutions.

Although the majority of GME training institutions provide benefits to physician trainees starting on the first day of employment, some impose a 30- to 90-day waiting period before activating benefits. The Accreditation Council on Graduate Medical Education (ACGME) requires GME programs to inform prospective residents and fellows about these benefit delays, but many do not learn about their lack of coverage until orientation, which does not provide enough time to fill this coverage gap.

Recognizing that this issue was not specific to Missouri but instead affected residents and fellows throughout the United States, the Missouri resolution was submitted to the Resident and Fellow Section of the American Medical Association (AMA-RFS) and forwarded immediately to the AMA House of Delegates. Overwhelmingly, physicians and medical students attending the 2006 annual meeting realized the importance of this issue. While waiting periods make sense in the business world, where the highest rates of attrition are during the early months of employment, residents and fellows are not average employees. Quitting a postgraduate training program is not an option for most physicians; thus, the attrition rate for residents and fellows is extremely low.

Coverage for such benefits should begin upon the first recognized day of their respective programs, unless statute or regulation requires a later date to begin coverage. 

The resolution became an AMA initiative, the issue was studied, and the AMA presented its findings to the ACGME. The AMA worked with the ACGME to update guidelines recommending that all programs provide coverage commencing on the first day of GME training. The amended institutional requirements for health and disability insurance are as follows (new language is italicized): "The Sponsoring Institution must provide hospital and health insurance benefits for the residents and their families. 

The Sponsoring Institution must also provide access to insurance to all residents for disabilities resulting from activities that are part of the educational program." All residency programs seeking to maintain ACGME accreditation are expected to comply with this provision.

This achievement illustrates how one resident can make a difference and improve the quality of life for thousands of current and future physicians-in-training. Every year, residents and fellows have the opportunity to share educational, training-related, and policy-specific experiences that warrant greater discussion and national attention. The policy-making process of the AMA-RFS is one of the most powerful benefits of membership. It provides physicians-in-training with the opportunity to improve their work environment, influence GME training, and strengthen the practice of medicine in general.

Alternate Delegate, American Medical Association House of Delegates

Governing Council, American Medical Association Resident and Fellow Section

Chair, Missouri State Medical Association Resident and Fellow Section

ACGME policy changes for resident and fellow benefits

 reported that a surgeon in Pennsylvania may be prosecuted for involuntary manslaughter in the death of a young child shortly after operation. Although I do not know the surgeon involved or the details of the case itself, I still consider this situation extraordinarily disturbing. Although there have been several instances of criminal prosecution of morally corrupt, impaired, and dishonest physicians, rarely before have ethical, sober, and drug-free surgeons been indicted for the results of their clinical activities. If this case is pursued in Pennsylvania, it would pose a threat to our practices far more disastrous than malpractice litigation: the possibility of going to jail for a bad surgical result. When I read about this situation, I frankly found it virtually unthinkable. After examining some of the laws, I was even more bothered. Since it is clear that the laws provide significant flexibility and judgment in what constitutes involuntary manslaughter, I thought it might be worthwhile (if also painful) to alert our readers as to the implications of this new potential threat.

In the broadest terms, punishable homicides are divided into 

, in which there is no evil motive. Manslaughter is, in turn, categorized as 

, such as killing in the heat of passion, and 

, in which the defendant certainly had no intention of causing death. Finally, involuntary manslaughter is further subdivided into 

, in which death results from an illegal act not serious enough to be a felony, and 

, the designation of direct concern to surgeons. There are three components to the determination of whether an act resulting in death constitutes involuntary manslaughter.

 negligence must be involved. The actions by the physician must deviate so widely from the accepted standard of care that they represent gross negligence.

 of death. This implies that a causal relationship between the act and the result must be unequivocally established and that based on the actions taken by the physician, the bad result must have been predictable.

(3) The conduct of the physician must provoke a very high and unreasonable risk of causing death or at least very serious bodily harm to a patient, and the risks incurred in the actions must be indefensible.

All three of these conditions must be met for an action to represent involuntary manslaughter. However, each provides incredible leeway for a district attorney or lay jury. Unfortunately, none of these criteria can ever be absolutely clear-cut. They are all based on clinical judgments made by a medical professional and, thus, are subject to individual interpretation. While these vagaries are accepted (although not happily) in malpractice tort negligence adjudication, the stakes are so much higher in criminal matters that the absence of rigid and nonjudgmental standards is frightening. Surgeons have widely discrepant views on indications for operation. For example, there are some who believe there are no indications for surgery for weight reduction. Can a death following a gastric bypass procedure conceivably provoke criminal charges? Everything surgeons do can cause death. Are we to be even remotely at risk of prosecution every time we enter the operating room? Can nonphysicians really determine what constitutes gross negligence, or is a surgeon's freedom from imprisonment to be based on the courtroom battle between hired "experts" taking opposite stands in testimony?

Of even greater concern than the difficulty in interpreting the three universally agreed to criteria is that there are two fundamental issues about which there is no general agreement.

&#8226; In addition to acts of commission, it's possible that acts of 

 can also represent involuntary manslaughter. If a physician fails to perform a lifesaving procedure on a patient for whom he/she is responsible, he/she might run the risk of being charged with involuntary manslaughter. While the vital question regarding acts of omission has not yet been specifically resolved, there are ample precedents to the imposition of criminal charges for such lack of action. For example, the recent conviction of two parents whose religious beliefs precluded their taking a mortally ill child to a physician for care. If this interpretation is also applied to medicine, a clinician could be accused of involuntary manslaughter for not taking a lifesaving action, such as resuscitation.

&#8226; Second, the most vexing of all the questions is whether the surgeon has to know the consequences of his actions in order to be guilty of involuntary manslaughter. Again, there is no unanimous answer to this question, and the laws vary among the states. The issue raises the fundamental concept in law, the 

, or state of mind. If a physician was unaware of the consequences of an action he/she took and that action resulted in a patient's death, the action is interpreted as 

. In contrast, if the surgeon did recognize the potential results of an action, persisted nonetheless, and death resulted, the action is deemed to be 

. While it seems shocking that recklessness is not a prerequisite for involuntary manslaughter, this is the case in most states. It's also paradoxical that a surgeon who knows the possible consequences of his actions should be at greater risk for criminal prosecution than his less well-informed colleague who did not. As a profession, we would certainly not advocate exonerating the uninformed and punishing the highly educated. Finally, complicity or consent by the patient, which might be construed as 

, does not in any way relieve the surgeon of his/her responsibility nor does it mitigate against criminal charges.

Because of these potential ambiguities, I am afraid that an ambitious district attorney might attempt to launch a career by prosecuting a surgeon for the death of a patient. A number of my attorney friends have told me that it is relatively easy for a prosecutor to obtain an indictment with the understanding that the jury will make the final decisions as to its correctness. But for the physician, a clinically related indictment would summarily end a career, even if he or she were ultimately cleared of all charges. I also wish I felt more comfortable with the grand jury. Look what this panel did in Manhattan in response to the death of Libby Zion (in which, for the record, they absolved all physicians from criminal charges); despite the absence of medical backgrounds, these individuals felt it was well within their right to demand fundamental and far-reaching changes in the traditional scheme for training residents.

Can anything be done about this potential threat? Whereas I'm not certain about the response to this question, there are some relatively obvious solutions. Significant protection should be afforded if medical involuntary manslaughter were designated as a distinct category, such as has been done for vehicular manslaughter. Under these circumstances, the questions of omission/commission and negligence/recklessness could be resolved and standardized across the states. Finally, since the crime has both medical and legal elements, the best of 

 professions should be involved in a decision to prosecute a physician for a patient's death. Only if a panel of several distinguished surgeons agree that an action causing death was unjustifiably dangerous, that the indications were medically indefensible, and that the practice deviated widely enough from the nationally accepted standard of care to constitute gross negligence, should the legal community be involved to determine whether or not 

In the 16&#189; years since the publication of "It's criminal,"* physicians have become progressively more vulnerable, and a number of physicians have been prosecuted. I even know one serving time in a penitentiary. This is quite disturbing, but not surprising. In the current world of the blame game, someone always has to pay, deserved or not.

One of the most disturbing of all the charges of criminal activity is the accusation that a head and neck surgeon and two nurse colleagues committed murder in a flooded hospital in New Orleans just after Katrina. The Attorney General of Louisiana, Charles Foti, claims to be convinced that several deaths in the aftermath of Katrina were homicides in the form of euthanasia.

The response to the arrests was extremely gratifying. Medical professionals and lay people alike unanimously condemned the accusation and strongly supported the surgeon and nurses. Shortly after it was reported in the press, the case began to fall apart. A discrepancy in the sedative administered became apparent and impugned the process. Thereafter the coroner classified these deaths as indeterminate rather than homicides, leaving an even greater uncertainty in the viability of the case.

Although the doctor and two nurse colleagues no longer face the possibility of life in prison, they are still battling civil lawsuits brought by the families of those who died. The current feeling in New Orleans is that all three were heroes, not assassins, and it's not criminal.

Editor's Note: To read more about the Louisiana case, see Dr. Jaffe's editorial "

Web Exclusives

War Over Medicare's Physician Fees

Surgical Quiz: Can you diagnose the cause of this patient's abdominal pain?

ACGME policy changes for resident and fellow benefits

Editor's Perspective: It's Criminal, Revisited