August 30, 1995
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Gary Setnik, M.D.
Chief, Division of Ambulatory Services
Mount Auburn Hospital
Cambridge, Mass 02238
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Dear Gary,
.PP
Following our conference last week,
I thought it would be useful for me to summarize
the points of agreement and disagreement 
concerning the applicability of 42 U.S Code 1395dd
to services rendered by members of the Division
of Ophthalmology to patients in the Division
of Ambulatory Services.
.PP
First of all, you and I agreed that Mount Auburn Hospital
has the right to maintain an on-call schedule for ophthalmologists.
Whether it also has a duty under the provisions of U.S. Code 1395cc
or any other law to maintain such a schedule
is an issue we need not reach.
.PP
We also agreed that if a hospital maintains an on-call schedule
the duties of both the physicians and of the hospital
derived from the on-call schedule
are then controlled by 42 U.S. Code 1395dd.
.PP
We further agreed that 42 U.S. Code 1395dd requires an on-call
physician to appear at the emergency room within a "reasonable
time" to "stabilize" the "emergency medical condition" of the
patient whom he has been summoned to attend.
.PP
Our disagreement is rooted in my claim
to the effect that under 42 U.S. Code 1395dd,
which we agree governs our obligations,
the on-call physician has no duty other than
to stabilize the emergency medical condition.
I rely on the text of the statute which defines
the on-call physician's duty:
"to provide such medical treatment of the condition as may be
necessary to assure, within reasonable medical probability, that
no material deterioration of the condition is likely to result
from or occur during the transfer of the individual from a facility..."
.PP
It is my contention that virtually everything
that the hospital demands of the on-call physician
falls outside the statutory specification, and that
the hospital, under color of
compliance with 42 U.S. Code 1395dd, wrongfully extorts
from the "on-call" physician services
which have no justification whatsoever
either in the wording or in the legislative intent of that statute.
.PP
With respect to the mandated duty "to stabilize"
an emergency medical condition, I claim that so far as ophthalmology
is concerned:
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a) Except for the immediate irrigation of a chemically
contaminated ocular surface,
and the securing a lacerated globe with a protective shield,
tasks which requires no ophthalmological expertise,
and are routinely delegated to ancillary personnel,
the need to "stabilize" an "emergency medical condition",
as these terms are defined in 42 US Code 1933dd,
is extremely rare.
It has in fact never arisen in the twenty-eight years
of my experience at Mount Auburn Hospital.
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b) It has been, and to the best of my knowledge, still is,
the practice at Mount Auburn Hospital promptly to transfer
all patients with acute, sight-threatening injury or disease
to the Massachusetts Eye and Ear Infirmary or some other 
tertiary care hospital. The "emergency medical condition"
of such patients is invariably such that
"within reasonable medical probability, 
no material deterioration of the condition is likely to result
from or occur during the transfer,"
which would require at most 20 minutes.
For reasons made explicit in (c) below,
nothing whatsoever of benefit could be
accomplished by detaining such patients
for another twenty minutes at Mount Auburn Hospital.
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c) In my experience, Mount Auburn Hospital lacks the facilities
and the personnel to treat most patients
with acute sight threatening illness or injury.
If I had a ruptured globe, a perforated corneal ulcer,
a detached retina, or acute angle closure glaucoma,
I myself should wish to be transferred
from Mount Auburn Hospital to another institution;
and I treat all my patients
the way I would like myself to be treated.
To the best of my knowledge,
Mount Auburn Hospital does not
even have the YAG laser
needed to perform peripheral iridotomy
in the case of acute angle closure glaucoma,
one of the more common ophthalmological emergencies.
So far as I know, no member of the Division of Ophthalmology
is prepared to perform at Mount Auburn Hospital
the surgical procedures commonly used to
treat ophthalmologic emergencies, viz.,
posterior vitrectomy, retinal detachment surgery,
penetrating or lamellar keratoplasty;
so that even if, however improbably,
such procedures were
required "to stabilize" a patient's medical condition,
the ophthalmologist "on call" may not be expected,
and ought not be permitted,
to attempt them at Mount Auburn Hospital.
Under the existing limitations of ophthalmological
practice at Mount Auburn Hospital,
and given the proximity of tertiary ophthalmological care,
the requirement of an ophthalmologist
to "stabilize" an "emergency medical condition"
is meaningless.
.PP
Finally I respectfully draw your attention
to the following excerpts from 42 U.S. Code 1395dd:
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"(B) Subject to subparagraph (C), any physician who is
responsible for the examination, treatment, or transfer of an
individual in a participating hospital, ...  who negligently
violates a requirement of this section, including a physician
who ....
  (ii) misrepresents an individual's condition or other
information, including a hospital's obligations under this
section, is subject to a civil money penalty of not more
than $50,000 for each such violation ...."

  "Any individual who suffers personal harm as a direct result
of a participating hospital's violation of a requirement of
this section may, in a civil action against the participating
hospital, obtain those damages available for personal injury
under the law of the State in which the hospital is located,
and such equitable relief as is appropriate."
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.PP
Is it conceivable to you that the Federal courts might interpret
these provisions to protect also an on-call physician
who was harrassed by explicit or implicit demands,
under color of 42 US Code 1395dd, that he appear promptly
in the emergency department to stabilize
the "emergency medical condition" of a patient 
where the patient had only trivial eye disease or none at all,
and even the most inventive fantasy could find nothing to stabilize,
- is not that a misrepresentation of an individual's condition? -
and the "on-call physician" who had appeared as directed,
was then threatened with prosecution under 42 US Code 1395dd,
for failing to wait while such a patient was enjoying his lunch?
.PP
Is it conceivable to you that the Federal courts might interpret
these provisions to penalize a hospital that maintained a
"walk-in" clinic where non-ophthalmologist physicians were
enabled to purport to diagnose and treat eye disease, 
because the hospital's employees were instructed
to construe every failure of diagnosis or treatment
as an "emergency medical condition"
for which they might then immediately
obtain compulsory consultation under 42 US Code 1395dd,
- is not that "a misrepresentation of the hospital's 
obligations under this Section"? -
where the only emergency was, in fact,
the employed physician's failure of nerve?
.PP
I hope we can agree that these questions are very important,
and that they should be discussed by all the physicians
of the Divisions of Ophthalmology and Ambulatory Care
responsible for compliance with 42 U.S. Code 1395dd.