Why it’s often difficult to follow your doctor

Patient needs sacrificed to ‘feed the beast’

THE INCREASING CORPORATIZATION of health care systems in Massachusetts—with mergers, acquisitions, and the like—raises a slew of issues regarding the market power implications of industry concentration. Many of those are dealt with by the Health Policy Commission and the attorney general in roles spelled out under state law.

But one aspect of corporate behavior remains virtually untouched by state regulators. It is insidious and contrary to good clinical practice, but it remains a key method by which health systems “feed the beast” – holding on to patient business to maintain revenues to support often bloated cost structures.

I am talking about the process that occurs when a doctor chooses to move his or her practice from one health system to another.

I’ve recently experienced this process when two of my personal doctors moved to new affiliations. Likewise, a number of family members and friends have come to me for advice in similar circumstances. They figure that I should be able to help them, given my experience with the health care system. But I’ve found that, more often than not, obstacles are built to create friction, to make it less likely that that doctor’s patients will follow along to the new locale.

Here’s how it works. A doctor—primary care, dermatologist, neurologist—with whom hundreds of people have had long-term clinical relationships, chooses to move to another hospital system. Their current host institution sets the terms of notifying the patients in a form letter. The departing doctor has no leverage in this situation, often being told that they are not even permitted to add text to the letter.

The letter is written to create doubts on the part of the patients as to the reason for the doctor’s departure. Did the doctor retire? Did the doctor do something wrong? The letter contains no information about the doctor’s new practice location, nor does it provide contact information. It advises patients to call the practice to be assigned to a new doctor at the old practice location.

The doctor, meanwhile, is not permitted to extract his or her patients’ contact information from the computer system to send notifications to them. The lawyers assert that this is solicitation, in violation of the doctor’s original employment agreement.

Patients who choose to call the old practice number for their doctor’s new contact information may or may not receive it, depending on what the doctor has been able to extract in negotiations. The accuracy and timeliness of providing the contact information are put in the hands of beleaguered front-desk staff who are already overworked.

It is left to the patient, too, to request that a copy of the medical record be provided so that it can be forwarded to the doctor’s new office.

Each state has its own variant on the legality of non-compete and non-solicitation activities by key employees. Massachusetts also has a law establishing a Patients’ Bill of Rights, containing many useful provisions about care delivered by hospitals and doctors.

But neither law addresses the situation I address. That lacuna creates, at best, inconvenience for patients while also contributing to the market power of dominant provider groups. It leaves unaddressed the proper balance between an employer’s legitimate business interest, the professional standards of doctors, and the rights of patients to receive continuity of care from doctors they trust.

When we consider relationships upon departure in other industries, the standard of behavior and law is often based on the legitimate business interests of the employer. In health care, though, there are no corporate trade secrets or intellectual property that are in danger of disclosure by a doctor to a new employer. The intellectual property is the compendium of experience, judgment, and training in the mind and heart of the doctor. Likewise the previous commercial relationship between the doctor and the hospital has been fully compensatory in both directions, so there is no claim to future earnings and certainly no rightful claim to impinge on the future earning capacity of the doctor.

Beyond these points, we must consider the rights of the patient to continue to receive care from a doctor who is familiar with their medical history, their personal situation, and the treatment plan they have mutually agreed upon. At best, it is merely inconvenient for a patient to transfer care to another doctor in such a situation. At worse, such a transfer can result in a poor hand-off and poorer clinical results.

It’s time for the governor to propose and for the Legislature to enact revisions to the Patients’ Bill of Rights to make clear that a patient should be affirmatively provided forwarding information when a doctor moves to a new practice; to require that the patient’s medical records are automatically provided to that doctor; and to offer a doctor access to patients’ contact information for the purpose of contacting those patients when they move to a new practice.

Meet the Author

Paul F. Levy

Former hospital executive and chairman, Massachusetts Department of Public Utilities
Short of legislation, it would also be appropriate for the attorney general to supervise the process currently used by health systems in these circumstances, to ensure that their processes and procedures do not run afoul of antitrust concerns.

Paul F. Levy was CEO of Beth Israel Deaconess Medical Center from 2002-2011.