Sick and Tired of Being Sick and Tired: The Legal and Ethical Considerations of Physician Fatigue

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Medicolegal head photo
Photo: Surgeon Distress as Calibrated by Hours Worked and Nights on Call, Charles M. Balch, MD, FACS, Tait D. Shanafelt, MD, Lotte Dyrbye, MD, Jeffrey A. Sloan, PhD, Thomas R. Russell, MD, FACS, Gerald J. Bechamps, MD, FACS, Julie A. Freischlag, MD, FACS, Journal of the American College of Surgeons Volume 211, Issue 5, Pages 609-619 (November 2010) DOI: 10.1016/j.jamcollsurg.2010.06.393.

At the beginning of each class, the late Martin H. Fischer, MD, (1) would address his medical students with the following disclaimer: “[a] physician must work 18 hours a day and seven days a week. If you cannot console yourself to this, get out of the profession (2).” The physician “job description” includes more than treating patients; physicians are also expected to provide weekly on-call coverage, attend to daily administrative duties, including completing patient records, overseeing the coding and billing of services and handling the arduous task of interfacing with insurance companies. Attending physicians at teaching hospitals have the added responsibility of providing a sound medical education for the next generation of physicians. Yet, in the face of an insurmountable workload, patients and, arguably, people in general, expect perfection (3). Accordingly, neurosurgeons and other medical professionals lead acutely strenuous lives, working substantially more than the average 47 hours per week (4). The first “luxury” physicians typically learn to sacrifice is sleep. With studies showing that it takes three days to fully recover from one lost night of sleep, it comes as no surprise that there has been an increase in physician fatigue (5).

Ethical Considerations of Physician Fatigue
Fatigue impacts various facets of a neurosurgeon’s practice, including bedside manner, job satisfaction and communication (6). Perhaps more pressing is the notion that physicians experiencing fatigue face a higher risk of making medical mistakes (7). Years of training and education provide neurosurgeons with the experience and skills necessary to perform life-altering procedures; however, studies have proven that fatigue may result in decreased cognitive and physical function, thereby undermining the neurosurgeon’s education and experience (8).

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Operating under anything less than optimal conditions gives rise to myriad ethical considerations. While medical errors can occur whether a surgeon is experiencing sleep deprivation or not, a Johns Hopkins University study evidenced a significant detrimental correlation between the number of hours worked and nights on-call and surgeons’ self-described performance (9). Of the 7,905 surgeons participating in the 2008 study who reported working 80 or more hours a week, 10 percent stated that they had made a major medical error in the last three months (10).

Contributing Factors to Physician Fatigue
The following commentary examines the current landscape of physician fatigue first through a discussion of some of the factors contributing to neurosurgeon fatigue and then by highlighting ways in which some neurosurgeons are addressing the issue in their practices.

Today, neurosurgeons are more overworked than ever. They are expected not only to meet expectations of high performance levels but also to keep up with other professional demands. As a result, work-life balance suffers. Constant early mornings and consistently late nights add up, triggering fatigue. There are various identifiable factors contributing to neurosurgeons being overworked. The two more taxing factors that consume most of physicians’ “after hours” time are administrative tasks and emergency department on-call coverage.

After spending hours in an operating room or seeing patients in the office, neurosurgeons find themselves laboring over administrative tasks (11). Physician office staff in the U.S. spend an average of seven hours a day handling paperwork, and physicians themselves bear part of that burden (12). Paperwork takes time; filling out charts takes time. Comparatively, 30 percent of orthopaedic surgeons spend between 10-15 hours per week on paperwork and administrative tasks (13). Every hour spent filling out paperwork is an hour a surgeon could use to rest and recharge. Compounded by the other pressures and demands on a surgeon, administrative work only adds fuel to the fatigue fire. Caring for a patient does not stop when the last stitch is sewn. Surgeons are responsible for writing post-op orders and prescriptions. As the only licensed professionals certified to complete many of the administrative tasks related to their practices, surgeons are stretched thin.

When neurosurgeons are not treating patients or handling administrative tasks, most are required to provide on-call coverage at the emergency rooms of the hospitals at which they serve on the medical staff. Neurosurgeons have historically been among the most difficult to secure for on-call coverage due to the simple shortage of available qualified professionals (14). The American Association of Neurological Surgeons (AANS) reports that there are 3,689 practicing board certified neurosurgeons for over 5,700 hospitals in the U.S. and that only 83 percent of all neurosurgeons provide emergency coverage (15). This shortfall leads to longer on-call shifts for the limited number of neurosurgeons available. Longer shifts contribute to fatigue.

Exploring News Ways to Manage Workload
Although the foregoing represent only a fraction of the daily responsibilities contributing to neurosurgeon fatigue, perhaps the most telling sign of the impact of fatigue is the increasing pessimism expressed by neurosurgeons about their careers (16). In a blog post chronicling a day in the life of a neurosurgeon, a physician relays how “sick and tired” she is of her excessive workload — of not seeing her family, “using weekends to catch up on charts…of being dumped on by partners and pushed around by insurance companies (17).” With ever-increasing professional demands, finding ways to achieve work-life balance is becoming more and more crucial for neurosurgeons.

At a minimum, if physicians are not able to tackle the underlying factors of fatigue through other means, then a self-evaluation prior to performing a procedure is critical (18). Asking questions — should I operate if I have been awake for 48 hours straight, or should I postpone the surgery — may help prevent medical errors resulting from fatigue (19).

However, in an attempt to alleviate some of the factors contributing to fatigue, some physicians are exploring new ways to achieve a more manageable workload. For example, Drs. Edgar N. Weaver, Jr., MD, FAANS, and James Vascik, MD, FAANS, of Virginia, narrowed their practice to include only spinal surgery. In doing so, these surgeons hoped to decrease the number of hours in their workweek while simultaneously increasing the level of care provided to their patients (20). This dramatic change came in response to particularly grueling on-call coverage requirements at Roanoke Memorial Hospital, which lost seven of its 10 neurosurgeons in 2003 (21).

How Can We Curb the Growing Trend Without Compromising Patient Care?
Drs. Weaver and Vascik recount occasions in which they would spend the entire night in the emergency room immediately prior to a 6:00 a.m. surgery (22), and both neurosurgeons reported working for 72 hours straight on occasion (23). Roanoke Memorial Hospital initially refused to allow the physicians to limit their on-call coverage only to spinal cases, citing a dire need for emergency-room coverage. In the end, the hospital committed to a compromise by locating two additional neurosurgeons to aid in covering on-call duties for both spinal and cranial cases.

While some physicians may be in a position to limit their practice in this regard, it may not be feasible for others to establish arrangements similar to that of Dr. Weaver, Dr. Vascik and Roanoke Memorial Hospital due to the worsening physician shortage (24). As the demand for their services grows (25), neurosurgeons will continually be expected to work even longer hours than before, resulting in sleep deprivation, the leading cause of fatigue. The medical profession specifically, and the U.S. in general, must find ways to curb this growing trend without compromising patient care or increasing the risk of mistakes (26). State and federal law play a role in what types of arrangements are acceptable or permitted.

The foregoing is not intended to be legal advice; therefore, physicians seeking to make substantial changes to the nature and scope of their practices should consult local legal counsel to conform their business objectives with the legal constraints of their communities.

[aans_authors] References

1. Teresa Chin, New Doctors Have Shorter Hours, Better Work-Life Balance, PLAIN DEALER PUBLISHING CO. (Aug. 6, 2011, 6:05 PM), https://www.cleveland.com/healthfit/index.ssf/2011/08/new_doctors_have_shorter_hours.html

2. ACCREDITATION COUNCIL FOR GRADUATE MEDICAL EDUCATION, ACGME Common Program Requirements (effective July 1, 2011), available at https://www.acgme.org/acgmeweb/Portals/0/PDFs/Common_Program_
Requirements_07012011[2].pdf.

3. THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, Committee on Patient Safety and Quality Improvement, Committee Opinion, Fatigue and Patient Safety (Mar. 2012), available at https://www.acog.org/
Resources-And-Publications/Committee-Opinions/Committee-on-Patient-Safety-and-Quality-Improvement/Fatigue-and-Patient-Safety.

4. Chris Isidore and Tami Luhby, Turns Out Americans Work Really Hard…But Some Want to Work Harder, CNN (July 9, 2015), https://money.cnn.com/2015/07/09/news/economy/americans-work-bush/; Laura Dyrda, 6 Spine Surgeons on Hours Worked Per Week, BECKER’S SPINE REVIEW (July 12, 2012), https://www.beckersspine.com/
spine/item/12579-5-spine-surgeons-on-hours-worked-per-week.html.

5. Deborah Kotz, Sleep Deprived? Here’s How to Recover, U.S. NEWS (Aug. 4, 2010), https://health.usnews.com/
health-news/managing-your-healthcare/sleep/articles/2010/08/04/sleep-deprived-heres-how-to-recover.

6. Kevin B. O’Reilly, Long Shifts, Nights on Call Lead to Depression and Burnout in Surgeons, AMEDNEWS.COM (Nov. 19, 2010), https://www.amednews.com/article/20101119/profession/311199997/8/.

7.ACCREDITATION COUNCIL FOR GRADUATE MEDICAL EDUCATION, Duty Hours in the Learning and Working Environment (2012), available at https://www.acgme.org/acgmeweb/tabid/271/GraduateMedicalEducation/
DutyHours.aspx.

8. Id.

9. O’Reilly, supra note 6.

10. Surgeon Distress as Calibrated by Hours Worked and Nights on Call, J. AM. COLL. SURG. (2010), available at https://www.ncbi.nlm.nih.gov/pubmed/20851643/.

11. Id.

12. Sandeep Jauhar, Why Doctors Are Sick of Their Profession, WALL ST. JOURNAL (Aug. 29, 2014 11:16 AM), https://www.wsj.com/articles/the-u-s-s-ailing-medical-system-a-doctors-perspective-1409325361.

13. Dyrda, supra note 4.

14. Ann S. O’Malley, Debra A. Draper and Laurie E. Felland, Hospital Emergency On-Call Coverage: Is There a Doctor in the House?, CENTER FOR STUDYING HEALTH SYSTEM CHANGE (Nov. 2007), https://www.hschange.com/
CONTENT/956/; STATEMENT OF THE AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS, AMERICAN BOARD OF NEUROLOGICAL SURGERY, CONGRESS OF NEUROLOGICAL SURGEONS, SOCIETY OF NEUROLOGICAL SURGEONS BEFORE THE INSTITUTE OF MEDICINE, Ensuring an Adequate Neurosurgical Workforce for the 21st Century (Dec. 19, 2012), available at https://www.cns.org/sites/default/files/legislative/NeurosurgeryIOMGMEPaper121912.pdf.

15. Id.

16. A Day in the Life of a Neurosurgeon – SERIOUSLY?, MOTHERS IN MEDICINE (Dec. 10, 2009),
https://www.mothersinmedicine.com/2009/12/day-in-life-of-neurosurgeon-seriously.html.

17. Id.

18. THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, Committee on Patient Safety and Quality Improvement, Committee Opinion, Fatigue and Patient Safety (Mar. 2012), available at https://www.acog.org/
Resources-and-Publications/Committee-Opinions/Committee-on-Patient-Safety-and-Quality-Improvement/Fatigue-and-Patient-Safety.

19. Id.

20. Id.

21. Berkeley Rice, Overworked Doctors Sue for a Breather, MEDICAL ECONOMICS UROLOGY LOG (April 25, 2003), https://medicaleconomics.modernmedicine.com/medical-economics/news/clinical/urology/overworked-doctors-sue-breather.

22. Id.

23. Id.

24. The Complexities of Physician Supply and Demand: Projections from 2013 to 2025, HIS INC. (Mar. 2015), available at https://www.aamc.org/download/426242/data/ihsreportdownload.pdf.

25. Carol Cassella, The High Price of Burnout Among Doctors, THE EXPERTS (Jun. 9, 2014), https://blogs.wsj.com/
experts/2014/06/09/the-high-price-of-burnout-among-doctors/.

26. ACCREDITATION COUNCIL FOR GRADUATE MEDICAL EDUCATION, Duty Hours in the Learning and Working Environment (2012), available at https://www.acgme.org/acgmeweb/tabid/271/GraduateMedicalEducation/
DutyHours.aspx.

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