CANS NEWSLETTER—MARCH 2005

1.  CANS on the brink
2.  Surgical fees legislation
3.  Medical malpractice offence
4.  Work Comp impairment guide

1.  Dues, CANS lobbyist and Survival
The Ides of March came and went and appeared to bode about as well for the future of CANS as they did for Julius Caesar.  As of this writing, fewer than 100 of our 230 active members have paid their $500 dues for 2005.  Unless things pick up briskly and soon, the Board will be faced with some very difficult decisions. 

With only 100 or so active members and thus approximately a $50,000 budget, we can continue to exist and function and employ a good 50K lobbyist only if we commit all our reserves (30K) and reduce our operating budget by 40%.  The latter would require closure of our administrative offices in Sacramento and release of our Executive Secretary with the organization being run out of some member’s office using office staff whose time is provided gratis to CANS.  It is a bit difficult to imagine someone accepting that role.

Alternatively, we could deep six the lobbyist (great idea but not supported by membership) and continue to do business as usual for a committed but smaller membership and hope our good name and some of our reserves can help fund the efforts of others to protect and promote our interests.

The Board could look at the present level of support as an indication that not enough California neurosurgeons really want a proactive organization, that business as usual will not be effective particularly when the support base is only 100 members and make the difficult decision to refund the dues, dissolve CANS and retire from the battlefield.

These are not happy prospects.  It would seem that the future of CANS is in the hands of about 150 neurosurgeons who apparently are thinking this situation over or ignoring it.  Are you among them?  

2.  Push to protect work comp surgical fees
In an attempt to forestall the imposition of a major reduction in the Worker’s Compensation (WC) Official Medical Fee Schedule (OMFS), a bill has been introduced in the California Assembly to maintain the OMFS as it is now until 2011.  Present law, passed in 2003 and which reduced our fees by 5%, authorizes a new OMFS to be adopted as of 1/1/06 .  Rumor has it that something akin to an RBRVS scale at 110% of Medicare is being considered (the current OMFS is somewhat north of 200% of Medicare).  With the anticipated Medicare fee reductions scheduled to occur next year plus whatever discount you gave to get into a Medical Provider Network, it is not hard to imagine your WC fee schedule for 2006 could be less than present Medicare rates.

The legislation, AB681, was introduced by Assemblyman Juan Vargas (D-San Diego) and is co-sponsored by the neurologists, the orthopods, the rehab docs and the California Society of Industrial Medicine and Surgery (CSIMS) with the anesthesiologists expected on board.  The CANS Board has voted to co-sponsor as well.

I am informed that the Family Practice and Occ-Med docs are opposed and have requested that CMA oppose as well.  This we-they situation (doers vs. thinkers) is common when the RBRVS boogieman is afoot and the best we can probably hope for is that the CMA will stay on the sidelines, not wishing to offend either group.  Thus comes the issue of getting this bill passed and you can bank on the co-sponsoring groups to pump in some money and/or their lobbyists with the notable exception of CANS who presently has neither (see previous story).

Lending our good name to the fray is nice but nice probably doesn’t go for much in Sacramento and a CANS lobbyist should be much more effective than just relying on our good looks.  Have you cast your CANS vote yet, i.e., paid your active member dues of $500 to fund a CANS lobbyist?

The final down-side kicker here is the governor who I guess might veto any such bill that reaches him, considering his pro-business proclivity and the perceived reduced WC costs that an RBRVS maneuver would be expected to engender.  

3.  Getting some backbone into Medical Malpractice defense.
In the hopes of being more proactive in defending a medmal claim, a North Carolina company has come up with a plan that offers a bit of aggression when you are sued.  Called Medical Justice Services and founded by a former San Diego neurosurgeon, the company’s approach hinges on a prepaid contract with a physician to take action designed to possibly thwart or retaliate when a questionable suit is brought against you.

For an annual premium of $1800, the company designs a sign-in contract for your patients which includes wording that the patient agrees to not bring a frivolous suit against you.  Once you are sued, they send a message to the patient’s attorney indicating you have this agreement and will pursue all remedies should the suit go forward and fail.  The company hopes this message will result in marginal suits being dropped. 

If the suit goes forward and you win, then a panel of their physicians decides whether it qualifies as the frivolous type using internal criteria.  If they so rule, then they go after any egregious testimony by the plaintiff’s expert and approach the patient to sign over their right to sue their attorney who violated the frivolous suit prohibition, thus releasing the patient from any retaliation, and then pursue a suit against the attorney for breech of contract at their expense (up to $100,000) and, if you win, you get any money the court awards.

The company apparently has about 100 clients but has yet to bring their first countersuit against an attorney to successful conclusion though one is pending.

If you wait to join the company until after you are sued, your premium is about triple the $1800, you don’t have the frivolous suit prohibition contract with the patient upon which to capitalize, and you have to bear some of the litigation costs against the plaintiff’s attorney who now has to be sued for some reason other than breech of contract.

A company spokesman made a presentation to the CANS Board of Directors at their meeting in San Jose in January requesting an endorsement by CANS, much as they have been endorsed by the medical societies of Illinois and New Jersey and the New York State Neurosurgical Society, among others.  The CANS Board did not feel it should endorse the company because of some concern that such an endorsement would require due diligence investigation of which the Board is not really capable plus the lack of a case against an attorney having been brought to a successful conclusion.  The Board did feel that informing the membership about the company was worthwhile and thus this article.

Medical Justice Services can be reached at 1-877-633-5878.  Their Web site can be accessed at www.medicaljustice.com.

4.  AMA Guides for impairment evaluation in Workers’
     Compensation
In February’s newsletter, it was noted that the 5^th edition of the AMA Guides will be used for almost all WC impairment determinations in California as of 1/1/05 .  Purchase and close study of the Guides, particularly Chapters 1, 2, 15 (Spine) and 13 (Nervous System) does bring one into some state of knowledge but a special training course can be helpful.  This writer took such a course recently and it was helpful but the course (and many like it I suspect) included a lot of info about extremities and diverse organ systems probably not of much interest or use to a neurosurgeon.  The CMA promised courses will probably suffer from the same over-inclusion.  CANS can and should put together a neurosurgical focused course including the California idiosyncrasies for presentation at the next annual meeting—if there is a next annual meeting (see 1. above).

Randy Smith, M.D.
Editor  

The newsletter is a mix of fact, rumor and opinion.  The facts are hopefully clearly stated.  The rest is open to interpretation.  The opinion is mine.  R.S.