A Kinder, Gentler Place for Osler's Marines: How Litigation, - - PDF document

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A Kinder, Gentler Place for Osler's Marines: How Litigation, Legislation, and Regulation Are Changing the American Medical Residency System

• Lea Carol Owen

Presented at the TBA Health Law Symposium, 2003

A typical American medical education -- at least for those who aspire to Board- certification -- comprises four years of undergraduate study, four years of medical school, and three to eight years of "residency."1 The rigors of the residency period are legendary. Many residents work more than 100 hours per week, with some reporting routine workweeks of 110- 140 hours. A typical pattern includes three 36-hour shifts per week, with sporadic 60-hour shifts required. This system has been entrenched for decades, largely unchanged for the past half-century. Now, however, the confluence of several social, economic, and public safety factors appears to have launched a significant reform. Reformers have attempted to use various judicial, legislative, and regulatory mechanisms to change the residency system, and they have made an impact using all three. OSHA is presently considering a petition to regulate the residency system; a major class action lawsuit has been filed against America's teaching hospitals alleging antitrust violations and seeking injunctive relief that would alter the terms of all residency programs; and federal and state legislatures are considering legislation that would limit residents' work hours. In the face of these forces, the American medical education community has taken its first major step towards altering the system from within. The Accreditation Council for Graduate Medical Education ("ACGME") gave preliminary approval to new proposed limitations on residents work loads in September, 2002, and indicated it would approve final

1 Formerly, there was a distinction between the "internship" undertaken the first year following medical school

graduation and the "residency" undertaken thereafter. Now those terms have merged so that, in today's common most common usage, the "residency" includes the "internship." Both interns and residents are alternatively known as "housestaff."

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standards in February, 2003. If these standards are approved, and they appear certain to be, they will go into effect in July, 2003. All teaching hospitals will be required to meet them or lose accreditation and the Medicare funds that are only available to accredited hospitals. This paper outlines the development of the American residency system from its genesis a century ago through the present; critiques that arose in the early 1980s regarding dangers to residents and patients as a result of the demands placed on residents; and various mechanisms that are currently impacting the residency system. It concludes with an assessment of these mechanisms and highlights the near-certainty that teaching hospitals will be required to make significant changes to their residency systems in the coming year or face the loss of accreditation and, in effect, their financial viability. I.

• DR. OSLER'S INNOVATION:

THE DEVELOPMENT OF THE MEDICAL RESIDENCY SYSTEM A. Adoption of the Osler Model, ca. 1900 - 1945 Prior to the creation of the "medical residency," prospective doctors received their medical educations almost exclusively in the classroom and the laboratory; at the conclusion of their academic training, they set out to practice medicine, having had only nominal or haphazard experience with actual patients. The pioneering medical educator Dr. William Osler changed all that over 100 years ago. A professor at Johns Hopkins University, Osler implemented a system under which medical students nearing completion of their classroom studies became "clinical clerks" on hospital wards.2 Osler developed his system in the late nineteenth century. At that time, and into the 1930s, these "clinical clerks" resided in the hospital so they could be called to observe or attend

2 Ann Pomeroy, The Doctor is Still In, HR MAGAZINE, Feb. 1, 2002, at 36, 2002 WL 7664493.

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patients at a moment's notice. The students received no compensation for these "clerkships;"3 rather, the experience was viewed as an apprenticeship which medical students wanted and needed to serve in order to become good practitioners. Osler's system spread quickly, soon becoming standard in medical education. B. Entrenchment of the "Right Stuff" Culture, 1945 - 1985 By the 1940s, many medical students were veterans returning from World War II. By 1950 these veterans were residents -- older than residents of the preceding half century, many married and with families. Accordingly, medical residency expectations were liberalized with regard to the housing requirement, and residents no longer lived in the hospitals where they

• trained. Requirements were heightened, however, with regard to workload.

The increased workload arose as large urban teaching hospitals realized they could significantly increase their revenues by doubling or tripling their patient populations and requiring the low-paid residents to perform care for the increased patient census.4 As a result of the increased demands combined with the notion that "the ability to 'handle it' is a core value [of the medical profession],"5 the residency experience of the 1950s became both clinical education and tribal initiation. In the words of a number of observers, residency became even more fully a 'Right Stuff' environment.6 Placing a premium on exceptionally hard work, toughness, intelligence, self-sufficiency, and a refusal to complain, the programs attracted smart,

3 Id. 4 Robert Worth, Exhaustion That Kills, HEALTH LETTER Vol. 15, No. 3, March 1, 1999, 1999 WL 13846853. 5 Sandra G. Boodman, Waking Up to the Problem of Fatigue Among Medical Interns, L.A. TIMES, Apr. 16, 2001,

2001 WL 2478812.

6 See, e.g., Deborah Mendenhall, Doctors' Long Hours Being Seen As Danger, PITTSBURGH POST-GAZETTE, June

23, 2002, 2002 WL 21880940.

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competitive people who could handle, and even thrive on, a high-stress environment and who were driven to develop the discipline and self-sacrifice required to succeed there.7 The Right Stuff ethos prevailed in residency programs, among physicians, and in medical schools from the 1950s into the 1980s. Even today, many physicians continue to believe this sort

• f training is the best way to instill in residents the discipline and stamina that are the traditional

hallmarks of the profession. These physicians observe that they and their colleagues must often subordinate their needs for rest and food to the demands of patient care,8 and they believe in principle that residency programs should continue to follow the traditions that were established in the 1950s. C. "Right Stuff" People in a Managed Care World, 1985 - 2002 The current culture of managed care means that doctors must see more patients per day than in any previous era. For example, today's residents typically see 50 - 60 patients in a 100- hour workweek, as compared to 20 in 1950.9 Exacerbating the stress for residents is the fact that today's patients have a higher acuity level that in the past because of lengthening lifespans and managed care protocols that result in the release of patients that, under the fee-for-service regime, would have remained in the hospital.10 Further, advances in medical science have led to a much higher standard of care than in the past. Physicians at all levels of experience are expected to accomplish results that were unheard of even 10 years ago, and certainly 50 years

• ago. A litigious patient population means that medical malpractice complaints are a constant

threat, imposing still greater pressures. Cost-cutting measures resulting from managed care have

7 See Boodman, Waking Up to the Problem of Fatigue Among Medical Interns. 8 See, e.g., id. 9 Pomeroy, The Doctor is Still In. 10 See, e.g., Sabrina Eaton, Medical Residents' Long Hours Trimmed, (CLEVELAND) PLAIN DEALER, June 13, 2002,

2002 WL 6370114.

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resulted in staff cutbacks among orderlies and medical technicians. These cutbacks, combined with a nationwide nursing shortage, have adversely impacted residents, who are now required to draw blood, track down X-rays, transport patients, make patient rooming arrangements, and perform similar tasks previously performed by support staff.11 The confluence of these factors has placed new demands on residents, while the already- rigorous requirements have remained unchanged. As a result, today's residents do more work on behalf of sicker patients, and they do so with fewer breaks, less sleep, and under greater pressure to achieve positive outcomes than residents in the past. Discontent among residents is rampant, as reflected in widely-publicized though generally anonymous comments such as these: "At three o'clock in the morning as I stood over [a comatose patient's] bedside starting an IV he was an enemy, part of the plot to deprive me of sleep. If he died, I could sleep for an hour. If he lived, I would be up all night."12 "[I found a medical resident] trying to intubate a lifetime asthmatic who is as blue as this ink. . . . I keep hoping he's going to be too blue to go anywhere. Probably a nice man with a loving wife and concerned children, but I don't want that SOB. . . to live if it means I don't sleep. . . . I just want to sleep."13 Despite residents' complaints, teaching hospitals and medical educators have been content with this situation. Hospital administrators, some of whom earn $1 million per year, and established physicians, many of whom earn at least half that, have more incentives to retain the status quo than to advocate for change on behalf of residents. External factors have appeared

11 See generally Boodman, Waking Up to the Problem of Fatigue Among Medical Interns. 12 Dori Page Antonetti, Comment, A Dose of Their Own Medicine: Why the Federal Government Must Ensure

Healthy Working Conditions for Medical Residents and How Reform Should Be Accomplished, 51 CATH. U. L. REV. 875, n.2 (2002) (citing Philip Reilly, TO DO NO HARM: A JOURNEY THROUGH MEDICAL SCHOOL 226 (1987)).

13 Id. (citing Leonard C. Groopman, Medical Internship as Moral Education: An Essay on the System of Training

Physicians, 11 CULTURE, MED., & PSYCHIATRY 207, 217 (1987)).

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• ver the past 20 years, however, that are about to result in substantial change, despite the inertia
• f the current residency system.

II. AGENTS OF CHANGE A. The Death of Libby Zion The first notable critique of the modern residency system arose in 1984 as a result of the death of Libby Zion. Ms. Zion was an 18-year-old college freshman who died in the emergency room of Cornell University's New York Hospital from the fatal interaction of drugs administered to her by a medical resident.14 Ms. Zion's father was Sidney Zion, then a New York City journalist and formerly a federal prosecutor.15 Mr. Zion became convinced that the medication error that led to his daughter's death was the result of the sleep-deprived state of the resident who had treated her.16 He filed suit, and he convinced a New York district attorney to bring charges to a grand jury for possible criminal indictment.17 The grand jury determined that neither the hospital nor the physicians were at fault, but it criticized the residency system for failing to supervise residents and for imposing the conditions that led to the sleep-deprived residents' being in a position that jeopardized patients' lives and health.18 The grand jury asked New York state to take steps to remedy this situation.19

14 See, e.g., Lindsay Evans, Regulatory and Legislative Attempts at Limiting Medical Resident Work Hours, 23 J.

LEGAL MED. 251, 253 (June 2002) (citing David A. Asch and Ruth M. Parker, The Libby Zion Case: One Step Forward or Two Steps Backward?, 318 NEW ENG. J. MED. 771, 774 (1988), and Zion v. New York Hosp., 590 N.Y.S.2d 188 (N.Y. App. Div. 1992)).

15 Worth, Exhaustion That Kills; Pomeroy; The Doctor is Still In. 16 Claire Hughes, Doctors' Long Hours Exceeding State Law, (ALBANY) TIMES UNION, June 26, 2002, 2002 WL

8912007; Pomeroy; The Doctor is Still In.

17 Worth, Exhaustion That Kills. 18 Pomeroy; The Doctor is Still In. 19 Worth, Exhaustion That Kills.

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The publicity surrounding Libby Zion's death led to a groundswell of support for limits to residents' work hours.20 The State of New York responded to the public outcry and the grand jury's directive by establishing a commission, led by Dr. Bertrand Bell of Brooklyn's Einstein Medical Center, to examine the residency system and propose reforms.21 The Bell Commission proposed rules requiring strict supervision of residents by senior physicians; setting an 80-hour weekly limit on resident work hours (averaged over four weeks); limiting on-call shifts to 24 hours; and providing mandatory time off.22 In 1989, New York passed legislation implementing these proposals, becoming the first (and thus far the only) state to impose limits on residency programs.23 More than a decade later, however, the law appears to have had little effect.24 Senior physicians remain hostile to the notion of government restraint on this traditional part of medical education, and New York hospitals routinely fail to follow the law. For example, in 1999, the state Department of Health raided 12 hospitals to assess compliance with this law.25 Thirty- seven percent of residents were working more than 85 hours per week, 20% were working more than 95 hours per week, and one had worked more than 136 hours in a week.26 Warnings issued by the health department had little effect. Four months later, a physician told a group of

20 Evans, Regulatory and Legislative Attempts at Limiting Medical Resident Work Hours, 23 J. LEGAL MED. at 258

(citing Jay Greene, Residents Say Long Hours Hurt Patient Care, AM. MED. NEWS, March 1, 1999); Eaton, Medical Residents' Long Hours Trimmed.

21 Worth, Exhaustion That Kills. 22 Id. 23 See generally Antonetti, A Dose of Their Own Medicin, 51 CATH. U. L.REV. at 888-89; Worth, Exhaustion That

Kills; Pomeroy; The Doctor is Still In.

24 See e.g., Worth, Exhaustion That Kills; Hughes, Doctors' Long Hours Exceeding State Law. 25 Worth, Exhaustion That Kills. 26 Id.

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applicants for a New York surgical residency: "You've probably heard that New York forbids you to work more than 80 hours a week. Forget it. You'll be working 120 to 140."27 Three years later, the situation had not changed. Despite the requirements that residents be carefully supervised, Mt. Sinai Hospital left 34 transplant patients in the care of an inexperienced first-year resident.28 One of the patients -- a donor, not a recipient of an organ -- died while recovering from surgery.29 Following this incident, the state Department of Health hired an independent review agency to conduct 71 surprise inspections. Forty-seven New York hospitals were cited for work-hour violations as a result.30 In sum, the culture of medical residencies in New York remains similar to those elsewhere in the country, and even Dr. Bell now considers New York's efforts at reform to have failed.31 B. Residents' Right to Organize Until three years ago, residents at private sector hospitals were precluded from organizing for collective bargaining purposes. Although the protections of the National Labor Relations Act ("NLRA") were extended to nonprofit hospitals in 1974, decisions of the National Labor Relations Board ("NLRB") held that housestaff at private, nonprofit hospitals were "students" rather than "employees," and thus were not entitled to the NLRA's protections.32 In reaching this result, the NLRB noted that housestaff programs are governed by national medical organizations rather than individual hospitals; that performing patient-care

27 Id. 28 Hughes, Doctors' Long Hours Exceeding State Law. 29 Id. Times Union reporter Mike Hurewitz died after donating part of his liver to his ailing brother. 30 Id. 31 Antonetti, A Dose of Their Own Medicine, 51 CATH. U. L.REV. at 889, n.72. 32 St. Claire's Hosp. and Health Ctr., 229 N.L.R.B. 1000 (1977); Cedars-Sinai Med. Ctr., 223 N.L.R.B. 251 (1976).

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duties is an integral part of medical education; that these duties are performed in the interest of education rather than to serve hospital staffing needs; and that compensation was unrelated to hours spent performing patient care.33 The Board emphasized that housestaff are properly viewed as "students" rather than "employees," in light of the fact that their goal in serving as housestaff is more educational than financial.34 The Board also opined that the collective bargaining regime was ill-suited to the structure and personalized nature of residency programs.35 Finally, the Board stated that bringing residents within the coverage of the NLRA might threaten traditional academic freedoms and involve the Board in matters "of strictly academic concern."36 This situation changed in 1999 when the Board issued its decision in Boston Medical Center Corporation.37 In Boston Medical, the Board overruled Cedars-Sinai and its progeny, reasoning that the term "employee" should be broadly construed to include students, under the appropriate facts and circumstances. These facts and circumstances are shown in the residency system where compensation is exchanged for services; the program participants are more analogous to apprentices than to traditional students; and residents do not pay tuition, take examinations, or receive grades.38 The NLRB also rejected the academic freedom argument it

33 John P. Furfaro and Maury B. Josephson, Residents and Students Organizing at Increasing Rate, N.Y.L.J., Vol.

225, No. 66 (Apr. 6, 2001) (citing Cedars-Sinai, 223 N.L.R.B. 251).

34 Id. (citing St. Claire's Hosp., 229 N.L.R.B. 1000). 35 Id. (citing St. Claire's Hosp., 229 N.L.R.B. 1000). 36 Id. (citing St. Claire's Hosp., 229 N.L.R.B. at 1003). 37 330 N.L.R.B. No. 30 (N.L.R.B. Nov. 26, 2999). 38 Furfaro, Residents and Students Organizing at Increasing Rate (citing Boston Univ. Med. Ctr., 330 N.L.R.B. No.

30).

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had previously embraced, reasoning that teaching hospitals could decline to bargain over issues implicating academic freedom.39 The Board's decision in Boston University Medical Center brought new vitality to the housestaff organization movement. With collective bargaining rights now extending to private- sector nonprofit hospitals, housestaff had increased power to effect change in the residency

• system. This possibility had been brought about in large part by the Committee of Interns and

Residents ("CIR"), an organization that represented 10,000 interns and residents at 60 public hospitals in five states and the District of Columbia when it brought the Boston University Medical Center case before the NLRB in 1997.40 CIR's goals, following the ruling, included the unionization of 90,000 additional residents eligible under the ruling.41 While CIR has not met all

• f its goals, it has continued to gain members and generate interest in the medical student
• community. Its continuing presence remains a force for change on behalf of housestaff and the

goal many of them share of limiting their average work week and obtaining greater physician

• versight as needed.

C. Public Awareness In recent years, the media have publicized the rigors of the residency system and the risks it poses to both residents and patients.42 Recounting various blood-curdling anecdotes about patient-care in the modern hospital, print journalists have written articles emphasizing the link

39 Id. (citing Boston Univ. Med. Ctr., 330 N.L.R.B. No. 30). 40 See generally Medical Interns Can Strike, HOUS. CHRON. Dec. 1, 1999 at 2, 1999 WL 24267955. 41 Id. 42 See, e.g., Antonetti, A Dose of Their Own Medicine, A Dose of Their Own Medicine, 51 CATH. U. L.REV. at 878

(citing, among other items, Medical Residents Lobby for Government Regulation of Work Hours (ABC television broadcast, Apr. 20, 2001), 2001 WL 21731606; Hopkins 24/7 (ABC television broadcast, Sept. 28, 2000); Jim Ritter, Docs' Hours Hazardous to Your Health? Some Want Government to Limit the Tough Work Schedule of Residents, CHI. SUN TIMES, July 31, 2001, at 6; Boodman, Waking Up to the Problem of Fatigue Among Medical Interns; The Point with Greta van Susteren (CNN television broadcast, June 25, 2001)); Worth, Exhaustion That Kills.

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between residents' exhaustion and patients' poor outcomes; television has explored this theme on evening news broadcasts, in news magazines, on talk shows, and in dramas such as ER. Dr. Bertrand Bell has spoken out about the failure of the Bell Commission to achieve real reform, stating, "Thousands of people are killed every day by young doctors who are exhausted and unsupervised."43 The American public is now familiar with this message and is exhibiting an increasing activism directed at the residency system. The success of this movement is evidenced both by federal and state legislators' interest in legislative reform and by a preemptive move by the American Council on Graduate Medical Education ("ACGME") to limit residents' work weeks and guarantee supervision of residents by experienced doctors without waiting for legislation to pass. III. Mechanisms for Change As discussed above, the residency system has faced widely-publicized criticism since the death of Libby Zion and increasingly effective pressure from residents since the Boston University Medical Center decision. These forces have led to four distinct mechanisms for reform: a petition filed with the Occupational Safety and Health Administration ("OSHA"), proposed federal legislation, a class action anti-trust suit, and a proposal by the Accreditation Council for Graduate Medical Education ("ACGME"). By July 2003, at least one of these reforms is almost certain to be in place. A. Public Citizen's Petition to OSHA In April 2001, the advocacy group Public Citizen, the American Medical Students Association ("AMSA"), the Committee of Interns and Residents ("CIR"), Bertrand Bell, and, and

43 Worth, Exhaustion That Kills (quoting Bell).

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• Dr. Kingman Strohl filed a joint petition with the Occupational Safety and Health Administration

("OSHA"), asking it to adopt federal regulations limiting residents' work hours.44 The petition sought to have OSHA regulate resident work hours by imposing limits as follows: a limit of 80 hours of work per week, a limit of 24 consecutive hours worked in one shift, a limit of on-call shifts to every 3rd night, a minimum of 10 hours off-duty time between shifts. at least one 24-hour period of off-duty time per week, and a limit of 12 consecutive hours on-duty per day for emergency medicine residents working in hospitals receiving more than 15,000 unscheduled patient visits per year.45 The petitioners sought strict enforcement, proposing fines sufficient to deter violations, whistle- blower protections, and a record-keeping system that would allow OSHA inspectors to determine whether violations were occurring. Many observers suggested that the NLRB's decision in Boston University Medical Center would encourage OSHA to find that regulating residents' work hours was within its jurisdiction. OSHA is currently considering this issue, but early indications suggest that OSHA is hesitant to assume such jurisdiction.46 At present, OSHA continues to research the novel issues raised by the petition. Presumably a decision on the petition will be issued in the next year or so.47

44 Evans, Regulatory and Legislative Attempts at Limiting Medical Resident Work Hours, 23 J. LEGAL MED. at 260;

Pomeroy; The Doctor is Still In.

45 Public Citizen et al., Petition to the Occupational Health and Safety Administration Requesting That Limits Be

Placed on Hours Worked by Medical Residents, www.citizen.org/publications (Apr. 30, 2001).

46 Evans, Regulatory and Legislative Attempts at Limiting Medical Resident Work Hours, 23 J. LEGAL MED. at

262-63.

47 See id.

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B. Federal Legislation The Patient and Physician Safety and Protection Act, co-authored by AMSA and its coalition partners, was introduced in the US House of Representatives on November 6, 2001 with the support of 12 members of Congress. Senator Jon Corzine (D-NJ) introduced the Senate companion bill to HR 3236 – The Patient and Physician Safety and Protection Act of 2002 – on June 12, 2002. The bill, expressly intended "to reduce the work hours and increase the supervision of resident-physicians to ensure the safety of patients and resident-physicians themselves," was based on the following Congressional findings: (1) The Federal government, through its Medicare program, pays approximately $8 billion per year solely to train resident-physicians in the United States, and as a result, has an interest in assuring the safety of patients treated by resident-physicians and the safety of resident- physicians themselves. (2) Resident-physicians spend a significant amount of their time performing activities not related to the educational mission of training competent physicians. (3) The excessive numbers of hours worked by resident-physicians is inherently dangerous for patient care and for the lives of resident- physicians. (4) The scientific literature has consistently demonstrated that the sleep deprivation of the magnitude seen in residency training programs leads to cognitive impairment. (5) A substantial body of research indicates that excessive hours worked by resident-physicians lead to higher rates of medical error, motor vehicle accidents, depression and pregnancy complications. (6) The medical community has not adequately addressed the issue of excessive resident-physician work hours. (7) Different medical specialty training programs have different patient care considerations but the effects of sleep deprivation on resident-physicians does not change between specialties. (8) The Federal government has regulated the work hours of other industries when the safety of employees or the public is at risk.

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It proposes amending Section 1866 of the Social Security Act by adding the following new subsection: (j)(1)(A) In order that the working conditions and working hours of physicians and postgraduate trainees promote the provision of quality medical care in hospitals, as a condition of participation under this title each hospital shall establish the following limits on working hours for certain members of the medical staff and postgraduate trainees: (i) Subject to subparagraph (C), postgraduate trainees may work no more than a total of 80 hours per week and 24 hours per shift. (ii) Subject to subparagraph (C), postgraduate trainees— (I) shall have at least 10 hours between scheduled shifts; (II) shall have at least 1 full day out of every 7 days off and one full weekend off per month; (III) who are assigned to patient care responsibilities in an emergency department shall work no more than 12 continuous hours in that department; and (IV) shall not be scheduled to be on call in the hospital more often than every third night. The bill provides that the Secretary shall promulgate regulations to ensure appropriate continuity

• f patient care and specifies that the regulations do not apply during a state of emergency in the
• hospital. Additionally, the Secretary is to promulgate regulations to ensure the monitoring and

supervision of residents. Under the bill, hospitals must inform residents of their rights under it, including the right to file a complaint with the Secretary of Health and Human Services concerning a violation of such requirements. Any hospital that violates the bills' requirements is subject to a civil money penalty of up to $100,000 for each resident training program in any 6- month period. The Secretary is to provide for annual anonymous surveys of postgraduate trainees to determine compliance with such requirements and for the disclosure of the results of such surveys to the public on a residency-program specific basis; based on such surveys, conduct

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appropriate on-site investigations; provide for disclosure to the public of violations and compliance, on a hospital and residence-program specific basis, of such requirements; and make an annual report to Congress on the compliance of hospitals with such requirements, including providing a list of hospitals found to be in violation of such requirements. Whistle-blower protections are included. The bill now has the support of 66 members of the House48 and three Senators49. While these numbers are far from a majority, they represent growing public awareness that the residency system is ripe for reform and a Congressional interest in performing one. With approximately $8 billion of taxpayer money supporting the Medicare system, this subject is likely to have enduring appeal.

48 Sixty-six Congressmen support the House version of the bill -- 64 Democrats, 1 Republican, and one independent.

Of Tennessee's Congressional contingent, Republican Congressman Duncan has indicated his support; the remaining Congressmen (Jenkins, Duncan, Wamp, Hilleary, Clement, Gordon, Bryant, Tanner, and Ford) have indicated their opposition. American Medical Students Association, House Congressional Scorecard, www.amsa.org (visited Oct. 20, 2002).

49 Senators Dayton (D-Minnesota), Wellstone (D-Minnesota), and Corzine (D-New Jersey) support the Senate

• version. American Medical Students Association, Senate Congressional Scorecard, www.amsa.org (visited Oct. 20,

2002).

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C. The Residents' Federal Class Action On May 7, 2002, three resident physicians filed a federal class action anti-trust lawsuit in Washington, D.C., on behalf of themselves and all other residents who were employed during the preceding four years in residency programs accredited by the Accreditation Council for Graduate Medical Education ("ACGME"). Fourteen anti-trust law firms brought the suit, which names as defendants all of the country's teaching hospitals as well as the ACGME, the National Residency Matching Program ("NRMP"), the Association of American Medical Colleges ("AAMC"), the American Hospital Association ("AHA"), the American Medical Association ("AMA"), the American Board of Medical Specialties ("ABMS"), and the Council of Teaching Hospitals ("COTH"). The plaintiffs allege that the defendants have conspired to suppress competition for the services of resident physicians, thereby forcing residents to work long hours for low salaries. In particular, the plaintiffs allege that the defendants 1) created the Match to limit the choices of residency programs for medical school graduates by forcing them to accept whichever program they "matched into; " 2) have shared detailed information on salaries and benefits for the purpose of standardizing and depressing compensation and other terms of employment; and 3) restrain competition by requiring students to go through the Match, and by limiting the number of residency positions, as well as residents’ ability to transfer from one program to another. The lawsuit seeks an end to the Match and the sharing of salary and benefit information among teaching hospitals, and any other conduct the court finds that restrains competition, in addition to unspecified financial damages and attorney’s fees.

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At this writing, it is too early to determine what effect the suit will have. It is clear, however, that the plaintiffs are well-organized, well-represented, and determined to effect change through the judicial channel in light of the medical education community's failure to respond to

• ther forces.

D. The Accreditation Council for Graduate Medical Education's Proposal Change from within is being discussed, however; in a response to the possibility of federal legislation, the ACGME formed a working group on resident work hours in September,

• 2001. The group presented an initial proposal regarding work-hour limits a the ACGME's Board
• f Directors meeting held February 11-12, 2002. The Board delayed acceptance of the report,

with some critics saying the proposed changes failed to respond adequately to public and political concerns about overworked residents nor make appropriate use of the scientific evidence on sleep, fatigue, and performance. Other critics noted that the excessive flexibility of the proposals would make scheduling residents more difficult than would a fixed hours limit and that the proposed monitoring procedures were inadequate and the enforcement mechanisms too slow. After considerable discussion, the Strategic Initiatives Committee of the ACGME voted to recommend to the Board that: * a maximum of 12 hours for a normal resident work day be adopted; * a proposal that includes a weekly hour limit be developed; * acceptance of the report be delayed for further consideration; and * a July 2003 target date for implementation of new requirements be maintained.

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The Board accepted the committee's report, asking the work group leadership to meet with the member organizations and bring a revised report to the June meeting. At its June meeting, the Board approved the revised proposal for restricting resident duty hours,50 and at its September 2002 meeting, the Board accepted the report of the Committee on Program Requirements regarding the proposed standard.51 Consistent with ACGME policy, the final standard will be approved at the February 11, 2003 meeting. Following approval, the common duty hour standard will be inserted by editorial revision into all specialty and subspecialty program requirements, effective July 1, 2003. IV. CONCLUSION

• Dr. Osler's clinical training system has served the American public well for over a

hundred years. In the past two decades, however, our healthcare system has evolved in important ways. First, there is simply more medicine to know now than at any other time in human history; residents must master the use of a far greater number of procedures and medications than their counterparts of past decades. Second, the public's expectations as to treatment outcomes have risen dramatically in recent years; hospitalized patients are monitored more closely than ever before, and, when a patient's condition suddenly worsens, the residents are expected to save the patient. In past years, residents often slept through these changes because the changes were not even monitored. Third, the advent of managed care with its emphasis on cost-saving strategies has impacted residents' workloads: tasks formerly performed

50 The new program requirements will be inserted into the common program requirements; the language addressing

institutional oversight will be inserted into the institutional requirements. The ACGME continues to invites comments on the new proposed standards.

51 The proposed duty hours standard may be found at: www.acgme.org on the home page of the website. Any

further comments, including letters of support and questions of clarification, should be submitted by December 31, 2002 to: commonreq@acgme.org.

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by orderlies, technicians, and nurses are now performed by residents; residents today see two to three times the number of patients that residents saw forty to fifty years ago, and those patients are generally sicker and older. All of these factors have changed the face of the practice of

• medicine. Despite these changes, however, America's residency system has not evolved to meet
• them. The "Right Stuff" atmosphere continues to pervade the residency system despite

extensive anecdotal evidence and research results that show that the system is less than optimal -

• despite the efforts of such critics as Sidney Zion, Dr. Bertrand Bell, and Public Citizen.

Recent events, however, seem destined to change the residency system, and soon. The ACGME is preparing to implement its new requirements in July 2003. Federal legislation is pending, and OSHA must ultimately make a decision as to the petition seeking the agency's

• versight. Residents have now taken legal action against the medical education establishment,

and they continue to organize for collective bargaining purposes. With the recent evolution of our healthcare system and the deficiencies of the residency system as it currently exists, the time seems right for some modifications to Dr. Osler's model. While physicians may see these as flouting tradition, such change swept the residency system immediately after World War II, and medical education was surely the better for it. One hopes the same will prove true in the coming year, as Congress, OSHA, and the ACGME grapple with these issues.

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H.R. 3236/S. 26141 OSHA Petition2 ACGME3 AMA4 AAMC5 Entire Specialties Can be Exempted No No Yes6 No No Maximum Hours per Week 80 hours, no averaging 80 hours, no averaging 88 hours averaged over 4 weeks7 84 hours averaged over 2 weeks8 80 hours, no averaging Maximum Shift Length 24 hours 24 hours 30 hours9 30 hours9 24 hours Minimum Time Off Between Shifts 10 hours 10 hours 10 hours 10 hours 8 hours Maximum On-Call Frequency Every third night, no averaging Every third night, no averaging Every third night, averaged over 4 weeks Every third night, averaged over 2 weeks Every third night, averaged over 4 weeks Mandatory Off-Duty Time 24 hours off per week, 1 weekend off per month, no averaging 24 hours off per week, no averaging 24 hours off per week, averaged over 4 weeks 24 hours off per week, averaged over 2 weeks 24 hours off per week, no averaging Whistleblower Protections Yes Yes No No No Enforcement Civil Penalties Civil Penalties Voluntary approach10 Defers to ACGME None mentioned Public Disclosure of Violating Hospitals Yes Yes No No No Provides for Additional Funding Yes Not applicable No No no

The bills and/or proposals may be viewed in their entirety at the following web sites:

1 http://thomas.loc.gov/ ; type in the appropriate bill number. 2 http://www.citizen.org/publications/release.cfm?ID=6771 3 http://www.acgme.org/new/wkgreport602.pdf 4 http://www.ama-assn.org/ama1/upload/mm/annual02/RefcomC.Annot.doc 5 http://www.aamc.org/hlthcare/gmepolicy/gmepolicy.pdf 6 If a specialty believes it cannot conduct its educational activities within any of the proposed constraints, the

specialty can apply to the ACGME for an exemption.

7 Individual programs may apply to their sponsoring institution’s Graduate Medical Education Committee for an

increase in the 80 hour limit up to 10 percent, if they can provide a “sound educational rationale.”

8If both the AMA and GME accrediting bodies deem it appropriate, a 5 percent increase in the 80 hour limit may be

granted for training programs.

9A 24-hour limit on in-house call duty, with an added period of up to 6 hours for transfer of patient care, educational

debriefing and didactic activities.

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10 The ACGME proposes voluntary enforcement of their guidelines by intensifying information collection,

shortening residency review cycles, increasing their response time to alleged violations, and enhancing programs’ and institutions’ accountability for compliance.

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