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This Just In
Medical Terrorism Book Controversy
OSD Staff
Publish Date: May 13, 2008   |  Tags:   News

Mixed Reviews for Jihad and American Medicine
Anesthesiologist-Author Catching Heat for Book on Medical Terrorism
Publishing your first book should be reason to celebrate. For San Diego anesthesiologist Adam F. Dorin, MD, MBA, the backlash over Jihad and American Medicine, his 187-page examination of medical terrorism, has been just the opposite.

He recently lost a five-year medical directorship at his surgery center. He was removed from one of his anesthesia group's committees. And he fears he may lose his seat on his county's medical society board. He says he's also received several anonymous threats, including a face-to-face encounter with a man who said, "Watch your back, someone will kill you," and then made a reference to his book, which implores readers to think like terrorists to anticipate healthcare-focused attacks.

"It seems that people would rather create problems for a doctor who goes against the political tide and raises issues of healthcare security and safety, than accept his concept as both necessary and timely," says Dr. Dorin, a member of Outpatient Surgery's editorial board. "This is sad, because the book is all about reducing medical errors and saving patients' lives."

Dr. Dorin says several academic physicians, Department of Homeland Security and FBI officials and an international terrorism expert have endorsed his book, which he describes as a counterterrorism manual. But, he says, his employers at Grossmont Plaza Surgery Center, located on the campus of Sharp Grossmont Hospital in La Mesa, Calif., have not been supportive, stripping him of his medical director's position. His anesthesia group asked him to remove its name from his Web site, www.adamdorin.com. Sharp HealthCare declined to comment.

"I never expected that speaking out against medical errors and promoting safety and security issues would lead to such attempts to silence an honest critic," says Dr. Dorin.

Jihad and American Medicine begins with the premise that there are many potential opportunities for those who want to hurt people in healthcare settings. Dr. Dorin discusses the primary security risks in hospitals that could be potential targets for terrorists: poor tracking of drugs from factory to bedside, and poor control of multi-dose medicine vials and intravenous fluid bags (which could be spiked without detection).

One of the book's reviewers, Brian Liang, MD, PhD, JD, executive director of the Institute of Health Law Studies at California Western School of Law and co-director of the San Diego Center for Patient Safety at UCSD School of Medicine, says he agrees with Dr. Dorin's fundamental point. "The bottom line is that our healthcare system is vulnerable to intentional acts of harm, and we need to worry about that," he says. But Dr. Liang says the book doesn't give a thorough analysis into the nature of mistakes in healthcare. "If we're talking about threats from people who exploit the holes in the system, that's different than someone who makes an error without intent," he says.

Despite the backlash he's endured, Dr. Dorin is working on another book that aims to bridge the gaps between law enforcement, the military and health care during national security crises.

— Nathan Hall

In the Know

  • Mandatory Accreditation for Nevada ASCs? Surgery centers in Nevada may have to get accredited or inspected by the Joint Commission, AAAHC or AAAASF in the future. According to the Las Vegas Review-Journal, two state assemblymen and a state senator are working on legislation that will make this a requirement to alleviate the burden on the Bureau of Licensure and Investigation and prevent incidents such as the recent hepatitis C outbreak in Las Vegas. But Mike Willden, director of the Nevada Department of Health and Human Services, says some of the centers that were found to have the most egregious problems were also accredited and urges the state to look at its relationship with national accrediting organizations.
  • Anti-markup Rule Delayed. Physicians can continue to retail the professional or technical component of anatomic pathology services they order but don't perform for a little while longer thanks to a court ruling that's delayed enforcement of a CMS anti-markup rule. Once the anti-markup rule is implemented, physicians won't be able to mark up the cost of the technical or professional components of a Medicare-reimbursed anatomic pathology service if it is purchased from an outside supplier or performed at a site other than the "same building" of the billing practice or supplier.

Credit Crunch
Could It Slow Surgical Construction?
It started with the housing market. Then it slammed Wall Street and the banks. Could new surgical ventures be next on the credit crunch's hit list? In just six short months, one group of doctors in northern California learned the hard way how quickly the tables have turned in the financial market.

The South Sonoma County Medical Group last month suspended its plans to open a new freestanding ambulatory surgery center in Petaluma, Calif., after encountering problems securing financing for the project. When the deal was first announced last summer, officials predicted that the center could be up and running in less than a year. But the group "ran into a credit crunch," SSCMG President Bob Ostroff, MD, told the Petaluma Argus Courier.

In an interview with Outpatient Surgery Magazine, Dr. Ostroff says that the group's original deal with Texas-based Cirrus Health, which was to provide funding and management for the center, hit a snag when prospective lenders were requiring the doctors to co-sign on the equipment loans — a condition the doctors were unwilling to meet.

"We historically had been able to find lenders willing to lend to ASCs without personal guarantees from physicians," says John Thomas, Cirrus Health's president and chief development officer. But all that changed starting last fall, when willing lenders became fewer in number and more demanding, particularly by requiring personal obligations from physicians.

Cirrus approached a variety of lenders about the Petaluma project, as well as national and local banks. But none offered equipment loans that were favorable to the SSCMG doctors. Mr. Thomas says Cirrus has been encountering this phenomenon with increasing frequency over the past six months, in both its dealings with hospitals and with ASCs, although the Petaluma project was the first to be suspended entirely because of the credit crunch.

For now, the Petaluma group has put its plans on hold and reimbursed the doctors who invested in the project with interest. Dr. Ostroff told the North Bay Business Journal they "hope to resurrect this project when venture money becomes available again."

Meanwhile, some financial analysts see hope on the horizon. GlobeSt.com's Erika Morphy suggests in a recent article that "there are signs that this sector ??? is well-positioned to come out of the credit crunch with more efficient and streamlined sources of debt and equity," such as regional banks and flexible credit facilities.

— Irene Tsikitas

Briefly Noted

  • DENIED Joint Commission accreditation to a single-specialty eye center because the facility had only flash sterilization. Joint Commission standards, based on CDC guidelines, call for flash sterilization to be used in emergencies and not as a primary means of sterilization. The denial, which is under appeal, affects the many eye facilities that reportedly use only flash sterilization.
  • SIGNED A bill that lets Georgia physicians and hospitals build ASCs without first meeting the state's certificate of need requirements. The legislation also recognizes Georgia's general surgeons' single-specialty status, a designation that their counterparts enjoy in every other state.
  • ADDED Four HCPCS codes for new drugs to the ASC payment system: C9241 (Injection, doripenem, 10mg), Q4096 (Injection, Von Willebrand Factor Complex, human, Ristocetin Cofactor [Not otherwise specified], per I.U. VWF:RCO), Q4097 (Injection, immune globulin [Privigen], intravenous, non-lyophilized [e.g., liquid], 500mg) and Q4098 (Injection, iron dextran, 50mg).
  • URGED Action against surgical smoke, by AORN, in a position statement that may be the strongest official warning to date on exposure to surgical smoke and bioaerosols.

Conflicts Over Non-competes
Could Clause Become Headache Down the Line?

Most ASC contracts include non-compete clauses for physician-owners, but as two recent cases highlight, these legal arrangements designed to protect partnerships can sometimes become a bone of contention.

  • Nashville-based ASC development firm AmSurg has filed suit against a group of Florida physicians with whom it had partnered to own and operate Endoscopy Center Naples. According to the complaint, AmSurg accuses the doctors, who opened a nearby facility last year, of violating the non-compete clause of their ASC contract, which had prohibited them from having financial interests in competing facilities located within 25 miles of ECN until one year after selling their stake in the center. AmSurg alleges that the doctors used a complex series of transactions to "avoid the one-year non-compete period without giving up their revenue from" ECN.
  • The owners of Springfield Surgery Center in Springfield, Ohio, are suing a group of physician-investors and developer Prexus Health Partners over their plans to open a new surgical hospital nearby. According to news reports, SSC argues the new facility would constitute a breach of the non-compete clause the surgeons signed in 2001, which barred them from investing in competing businesses within 15 miles of the center. Fifteen surgeons sought last year to end their contract with SSC on the grounds that the new facility would not be a direct competitor because of its classification as a surgical hospital.

Three Cardinal Rules Of Non-competes

  • Trust your partners. It may be a bit clich??, but always be sure to trust the people you're going into business with.
  • Expect enforcement. If you're going to sign something, go in with the expectation that all of the terms will be enforced.
  • Understand the scope. Make sure you know what defines a competing center and who is bound by the non-compete — those terms should be clearly drafted into the language. For example, does the clause simply prevent you from simultaneously investing in a competing facility, or does it have a "tail" extending for a year or two after you've divested from the partnership?

    — Brian A. Lapps Jr., JD

In both of these cases, the non-compete language at issue pertains to the physicians' ownership rights. "In the ownership setting, you're binding yourself together with your partners to protect your investment," explains Brian A. Lapps Jr., JD, a partner at Waller Lansden Dortch & Davis, in Nashville. The non-compete clause "is really a protection for everyone involved. It's there for the common good."

Still, Beth Guest, JD, also of Waller Lansden, says contract disputes are bound to crop up from time to time. To avoid future litigation, Ms. Guest recommends that you "read carefully and understand that a covenant against ownership in a competing facility is a long-term commitment and that violating the covenant can have financial consequences and ?business implications." For example, Mr. Lapps notes that if you acquire an interest in a competing center in violation of the contract, your partners may have the right to buy your shares at a price unfavorable to you. Both Ms. Guest and Mr. Lapps stress that the laws governing non-compete agreements vary widely from state to state.

If you or one of your partners is found to be in violation of your non-compete clause, expect the dispute to end up in court rather than at the negotiating table. "Arbitration can be a good way to resolve a monetary dispute," says Mr. Lapps. "But arbitration is too slow when you want to prevent someone from doing something," such as investing in a rival facility.

— Irene Tsikitas