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." - 1 -
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. D R . O SLER ' S I NNOVATION : T HE D EVELOPMENT OF THE M EDICAL R ESIDENCY S YSTEM 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 M AGAZINE , Feb. 1, 2002, at 36, 2002 WL 7664493. - 2 -
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 , H EALTH L ETTER 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. T IMES , Apr. 16, 2001, 2001 WL 2478812. 6 See, e.g. , Deborah Mendenhall, Doctors' Long Hours Being Seen As Danger , P ITTSBURGH P OST -G AZETTE , June 23, 2002, 2002 WL 21880940. - 3 -
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 of 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 , (C LEVELAND ) P LAIN D EALER , June 13, 2002, 2002 WL 6370114. - 4 -
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