Frederick Jakobiec, M.D.
Massachusetts Eye and Ear Infirmary
243 Charles Street
Boston, Mass. 02114
.sp
Dear Dr. Jakobiec,
.PP
.fi
.na
Thank you for your letter of May 14.
.PP
As requested by the Board of Surgeons in Ophthalmology,
I hereby specify in writing that I wish to retain all
privileges pertaining to the medical and surgical 
practice of ophthalmology at the Infirmary which I have held since 1966.
I submit as evidence of my qualifications and competence
the recurring unrestricted reappointments
to the Infirmary's staff which I received in the past 24 years
during which I have practiced ophthalmology without any
public or private censure.
I am unaware of any facts tending to show that
I am today less competent or less qualified to
practice ophthalmology that I was two or four years ago,
and in the absence of such evidence I believe my
prior appointments estop the Infirmary from now
challenging my competence or my qualifications.
.PP
With respect to the additional information which you
request, I have no further lists of operations recently
performed other than those maintained by the Infirmary.
The surgical proportion of my practice is relatively small,
because the large majority my patients seem to do well
and to be happy without operations.
In order to maintain my surgical skills
I routinely assist, as a matter of policy,
at all operations for which I refer patients
to other ophthalmologists,
most notably retinal or vitreoretinal procedures,
and the physicians to whom I have referred such surgical patients
have consistently offered to assist me at the operations in question.
For several years past I have regularly attended
the Monday morning clinical conferences of the retina service.
Furthermore, a substantial part of my practice 
consists in the care of patients who have had unsuccessful retinal
surgery by other physicians on the Infirmary staff,
so that I am conversant not only with the theories
but also the realities of this branch of ophthalmology.
Your records will show that I have been consistently
conservative and conscientious in the conduct of
my surgical practice at the Infirmary and 
in the light of that conduct I respectfully suggest
that the demand for evidence of my competence
and qualifications is uncalled-for and inappropriate.
.PP
In addition, I respectfully submit the following arguments
against the proposed restrictions of my clinical privileges:
.PP
1) I respectfully take exception to a statement in your letter
of April 27, to the effect "given (my) pattern of clinical
activity at the Infirmary, there was insufficient information
available to allow for an adequate evaluation in regard
to the other privileges requested."
I infer that your computerized records
show certain surgical procedures performed by me
to be insufficient in number to enable you to evaluate my
performance of them. 
.PP
It is arguably permissible for the Infirmary to establish
performance quotas which it requires a physician to fulfill
if he is to retain delineated privileges for a given procedure.
The fact is, however, that no such quotas have been published.
In the absence of published quotas, it is clearly inequitable 
for the Infirmary to improvise undefined implicit quotas
to be applied to individual staff physicians on an ad hoc basis. 
I believe it to be a fact
which could readily be proved with data in your possession
that the Infirmary is consistently granting delineated surgical privileges 
to staff physicians for procedures which so far as the Infirmary 
knows have rarely if ever been performed by the particular physician.
.PP
2) I believe it to be a fact that the Infirmary commonly
grants delineated staff privileges to physicians who have no
clinical experience in ophthalmology other than the residency
training at the Infirmary which they have just completed.
To the best of my knowledge, however, the Infirmary consistently
makes representations to the Health Care Financing Administration
and to other insurors that all surgical operations at the Infirmary
are performed by staff physicians as opposed to residents-in-training.
I believe that the Infirmary's identification of the surgeon
for purposes of staff qualification may not differ from its
identification of the surgeon for the purpose of obtaining third-party payments.
In other words, if the Infirmary certifies to Medicare under the severest
of penalties, that a staff physician has, and that the resident has
.ul
not
performed a series of surgical operations,
and the Infirmary subsequently grants
delineated privileges to the sometime resident,
allowing him to do operations which he has never
previously performed,
then it seems to me impermissibly inequitable
that the Infirmary should deny those same delineated privileges
to another staff physician because he has not
recently performed the operations in question.
.PP
3) The stated reason for the proposed denial of delineated
privileges is the insufficiency of "information available
to allow for an adequate evaluation."
I respectfully submit, however, that it is more than incongruous
that the Infirmary should endeavor to rescind delineated privileges
for physicians who for one reason or another have not had opportunity
to perform the procedures in question at the Infirmary,
while it could, if it wished, so readily evaluate
all aspects of the quality of the surgery
which in fact is performed at the Infirmary,
and so far as I am aware almost entirely fails to do so.
Such evaluation if rigorously and conscientiously performed
would be much more effective in protecting the public from
incompetent or unqualified surgeons than the random
and unprincipled confiscation of privileges
in which the Infirmary is presently engaged.
And the harm to the public which would occasionally ensue
because an incompetent physician's right to operate was restricted
after, rather than before, he had performed one single
inadequate surgical procedure is surely incomparably less
than the harm caused by a large proportion of the Infirmary's
physicians pressured to perform surgery that is only
marginally necessary or not at all, solely in order to protect
their rights to perform such operations in the future.
.PP
For it is obvious that the unavoidable consequence
of the Infirmary policies under which my privileges
are to be restricted is
that physicians whose delineated privileges are
contingent on their fulfilling implicit or explicit quotas
of given surgical procedures or high-risk procedures or
treatments, will be forced to perform unnecessary
or avoidable procedures entailing substantial risks of injury
to their patients merely to preserve their future rights
to perform such procedures.
I respectfully suggest that protocols
which generate such pressures are against public policy,
and it is precisely because I feel myself under such
pressures already, that my objections are so adamant.
.PP
4) The proposed limitation of delineated privileges
is replete with ambiguities and contradictions
such that it fails to provide me and other members of
the Infirmary's staff with ascertainable standards of conduct.
I cite only a few examples.  If I understand correctly,
you propose to permit me to perform emergency surgery
of the eye, adnexa and orbit, but you prohibit me from
repair and plastic procedures on the lacrimal apparatus.
Where does that leave me when in the process of repairing
a lacerated lower lid, I discover the inferior canaliculus
to have been severed? I am startled also that you should
permit me to perform scleral buckling procedures while
prohibiting me from performing vitrectomy.
Given the circumstance, to cite only one example,
that on occasion the occurrence
of vitreous hemorrhage during scleral buckling surgery
makes vitrectomy a technique indispensable to the successful
completion of the operation, I should think you would
require of your retinal surgeons facility with the
vitrectomy instrumentation rather than selectively
prohibiting its use.
Furthermore, I respectfully point out that it is capricious
and unreasonable that
having permitted lensectomy and vitrectomy on page 2
you should prohibit these procedures on
on page 3 of the delineation of privileges.
.PP
Further, if we can agree that
the lids and the lacrimal apparatus
are commonly referred to as ocular adnexa, 
that the ocular adnexa are ocular structures,
that ocular surgery is surgery on ocular structures,
and that a tumor is properly defined as
any abnormal swelling of tissue,
then I cannot avoid the conclusion that
in prohibiting me from performing ocular tumor surgery
you have deprived me not only
of the right to enucleate for intraocular tumors
such as melanoma, a procedure
which I consider an essential part of my practice,
even though, fortunately, it is rarely necessary.
If I give to your letter of April 27,
the strict construction
which a document delivered by certified mail deserves,
I can only conclude that my privilege to excise basal cell carcinomata
of the lids is also in jeopardy, as well as my right
to excise the benign retention cysts and papillomata
which patients so often demand to have removed for
cosmetic reasons. Finally I respectfully submit
that chalazia also are ophthalmic tumors,
and that in its zeal to protect the public
against possible incompetence and lack of qualifications
on my part, the Board of Surgeons,
if one takes it at its word, has even deprived
me of the privilege of the usually innocuous
incision and drainage of these common lesions.
.PP
5) The opportunity to expand my technical proficiency
is for me just as important as the opportunity to expand my
knowledge of facts or my analytic faculties.
I find the prohibition from exercising my technical skills
in performing less common operative techniques as stultifying
as being prohibited from making difficult or obscure diagnoses,
from implementing new pharmacologic therapies,
or quite generally from espousing ideas simply because they are new.
There are numerous instances when my efforts in unfamiliar territory
have been extraordinarily rewarding for my patients.
.PP
Perhaps the most loyal and grateful patient I have ever had
is a woman now seventy-eight years old from whose
corneal limbus I excised by lamellar keratectomy
a malignant melanoma. Her gratitude stems from the
circumstance that one of my colleagues had
proposed to her that the affected orbit be exenterated.
She has now been free of recurrence
for twenty-three years, and her corrected vision
in the affected eye remains 20/40.
But if a similar patient walked into my office
subsequent to my reappointment to the staff,
I would probably no longer be permitted to operate on her,
at least not at the Infirmary, and the therapeutic decision
of the surgeon to whom I was forced to refer her would unavoidably
be affected by the knowledge that his privilege to perform
exenterations in the future would be curtailed if he did
not exercise it sufficiently often.
.PP
Another apposite case is that of a Mount Holyoke College
student in her twenties in an automobile accident
on Storrow Drive who sustained multiple injuries including
a complete avulsion of the upper tarsal plate from the levator
aponeurosis, which I repaired in the middle of the night
when no other surgeon was available even though I had never
had opportunity to perform a similar operation before.
The result was such that her father, a lawyer in Minnesota,
sent me letters thanking me for the satisfactory cosmetic
result which my patient had obtained. In the context of
these and other similar experiences, I find your determination
to curtail my delineated privileges as irrational as if
the Motor Vehicle Bureau restricted my license from driving
to Pittsfield because in recent years my travels had taken me
no farther than Worcester.
.PP
The most impressive of my teachers at the Infirmary
was Dr. Morton Grant, who taught us filtering surgery for glaucoma
although to the best of my knowledge he seldom performed
such operations himself. What I think I learned from him is
that thoughtful and deliberate anticipation of the
contingencies of surgery produces results comparable to
or better than frequent but indiscriminate execution
of a technique learned and applied by rote.
Just as surely as there are some surgeons who never
learn from their mistakes, there are others who learn
from mistakes they only imagine making, and for these latter,
I respectfully suggest, the Board of Surgeons should
leave some room at the Infirmary.
.PP
6) The rules by which the delineated privileges are
restricted have never been published.
I have no reason to believe that they have ever been
explicitly formulated.
I know from my own experience
that restrictions of delineated privileges
have not been rationally and equitably implemented in the past
and I know of the existence of no procedural mechanisms 
to apply them rationally and equitably in the future.
.PP
Two years ago I received a telephone call
about proposed restrictions of my privileges
from an officer of the Infirmary whom I hold in high esteem
and whom I very much wish not to embarrass.
When our brief discussion failed to produce agreement
I politely requested that the proposed restrictions
be outlined in writing, whereupon I was told
that in preference to a formal notification of their denial
I would be granted the privileges then under discussion.
I have no alternative but to conclude from
this experience that the apportionment of delineated
privileges was then very much a subjective and intuitive
and arbitrary decision on the part of the responsible Infirmary
officials, and I believe this still to be the case.
It was at that time that I unwittingly lost my corneal
transplantation and orbital surgery privileges.
I was never advised of my rights to reconsideration or to a hearing.
I take this occasion to make the respectful
request that the aforementioned corneal transplantation
and orbital surgery privileges which were denied
in 1988, be restored to me. My request is based on the
fact that not having been notified in writing of the
action of the Board, I was deprived of my rights
to reconsideration and to a hearing.
.PP
8) The delineated privileges are defined so loosely,
that the classifications which have been established
will unavoidably be implemented only in an 
unpredictable and arbitrary manner.
For example, on page 2 of the delineation of privileges
a distinction is made between simple and complex
operative procedures on the eye lids.
Nobody knows what that means.
To the best of my knowledge that distinction has
no canonical significance whatever, 
and I believe there is a large class of procedures
of intermediate seriousness of which no one can
predict whether they might be adjudged simple or complex
and where these terms have no predictive, normative meaning.
.PP
9) No regulation of the Board of Registration in Medicine
requires the reduction of delineated privileges.
Your earlier memorandum alluded to
"the increasing stringent standards which are being applied
by the JCAHO ... and the Board of Registration in Medicine."
However, 243 CMR 3.05(d)1 requires of the Infirmary 
to document and analyze a licencee's professional performance
judgment and clinical "where available",
clearly implying that the Infirmary has no such duty
where data are unavailable.
I can find nothing in the Board's Regulations
that could plausibly be interpreted as a requirement
on the Infirmary to restrict delineated privileges
for lack of performance data.
.PP
10) The JCAHO does not require that 
the delineated privileges be reduced, but merely that
they not be immutable. Thus the Infirmary can satisfy
the JCAHO inspectors in my case not only by curtailing
my privileges but also by expanding them, and in view
of the procedural irregularities with which those privileges
were limited two years ago, I am confident that the
JCAHO will give the Infirmary at least as much credit
for correcting a manifest procedural impropriety
by restoring my staff privileges to what they were
from 1966 until 1988,
as for the sacrifice of my staff privileges
on the altar of quality assurance.