Exploring Restraint of Trade
Recently, there has been discussion amongst those in some areas of medicine to try and restrict the practice of other physicians. In this setting, a limited number of physicians who have traditionally done larger, open more invasive surgeries are trying to restrict the practice of specialties outside of their scope or area of board certification. This has come under the cover of “joint society recommendations” and similar poorly veiled statements and positions.
This relates to physicians in which those trying to restrain practice were not involved in their training or credentialing. This effort, while being attempted in the past, tries to set standards of practice for those in another specialty even though they have limited knowledge of past training, protocols, or mentoring.
Trying to set rules for new, innovative, and evolving specialties by those who previously had been dominant in an area of medicine, but that has been restricted in improving outcomes, cost containment, and public acceptance, is not new. While this may be turf and financially driven, we should look at the implications of this type of misguided behavior.
In terms of old network television, we would say this is a “rerun,” a term for a show that plays over and over again. In that context, interventional spine and nerve practice is more of a streaming service, delivering tailored programming, new ideas, and in many ways, getting more viewers or subscribers.
The fact is that most patients are choosing less invasive, new methods of treatment that are dependent on innovation and new paradigms of training and certification. This is the new world order, and we are just in the beginning.
Having said that, we understand the essential need for bigger, more involved surgical treatment, and we in no way would ever attempt to limit that practice or be involved in the treatment decision-making of the need for more invasive methods. The treatment decision-making for many conditions will change, and it will be essential that those in each step and each specialty determine proper patient selection, physician credentialing, and proper continued competence training.
Notably, this restraint of practice was attempted by Neurosurgery in Neurovascular Medicine. The desire of the Neurosurgeons to restrain the practice of interventional neuro-radiologists (IR) to perform neurovascular medicine was organized and aggressive.
Despite this effort of restriction, including the argument that they could not treat their own complications and did not have the structural understanding required for the techniques, the Interventional neuroradiology specialty was successful in continuing to widen the scope of practice.
The arguments centered around the inability of the IR doctors to “treat” their own complications, the lack of more extensive “surgical training,” the fact that the years of neurosurgery training made them unique in understanding and doing the methods, and finally, they were the “wrong” specialty.
Over time, it became apparent that the type of specialty was not the important part; rather, it was the training and innovation for new, less invasive methods. Interventional Radiology became a very important part of this treatment area, and the attempt to restrain this practice failed.
Now both specialties offer this therapy, and patients benefit for the less invasive methods that have evolved. Progressive surgeons now offer the newer methods, and IR has been committed to continuing to evolve the methods. In fact, they have built a collaborative field that could be a model for others.
Going back to historical parallels: Perhaps, most notable, was the battle of Cardiovascular Surgeons to limit the practice of Interventional Cardiology. This battle, which many younger physicians and APPs do not remember, was an epic case of trying to restrain the practice of Board-Certified Cardiologists in practicing stenting, angioplasty, and other advanced procedures both in the heart and in the peripheral vascular arena.
The argument used by the Cardiovascular societies was that the cardiologist “couldn’t treat their own complications,” were not appropriately trained, and would have bad outcomes. The big arguments were around Cardiologists performing angioplasty and stents, rather than open bypass surgery.
Meanwhile, the Cardiologists, avoiding the misinformation and attempted restraint of practice, continued with innovation, training, mentoring, certification, and local institutions continued with credentialing. This led to the ability to continue to build evidence, from feasibility, to prospective data, to randomized controlled trials, to big data sets.
Initially the complaint was the lack of evidence, but a few epic level-one studies led to the widespread adoption of Cardiology-based methods and the reduction but not elimination of open, larger bypass surgeries.
As the drumbeats for the impending battle are heard in the distance (the war is over; minimally invasive methods have won), we are seeing unnecessary and unforced errors by many misguided souls.
Recently, we saw evidence of this in two places. On LinkedIn, where a well-known Neurosurgeon, who should be using energy to collaborate and make productive recommendations, found the time to post inflammatory “surveys” in interventional pain. The inability to find reasonable evidence to debate is somewhat pathetic, but in the end, it seemed to be a grab to protect turf and was somewhat anemic in any well-thought argument.
The war is over, although scattered battles will continue. This is even more fascinating when you consider the history of Spinal Fusion.
When I first entered practice, I once asked the head of Neurosurgery why he always had an Ortho Spine surgeon join him in the operating room when he did Pedicle screw fusions. He told me that the Ortho Spine community nationally had blocked Neurosurgery from placing Pedicle screws since it involved bone. I am sure the politics and drama surrounding the resolution of that quagmire would be fascinating.
Eventually, as we all know, Neurosurgeons were allowed to practice this procedure independently. This resolution did not occur because Ortho spine gave in to the Neurosurgeons. It resolved because of multiple class action lawsuits against pedicle screws resulted in a need to come together to fight the litigation. Due to these legal actions, the two main societies for each field dropped the turf war and patients benefited.
Furthermore, considering the “treating your own complications” argument for any restraint of practice discussion, we must remember the number of patients undergoing spinal surgery who have infections, nerve injury, perioperative heart or pulmonary issues, blood clots, and other issues.
In addition, the presence of pain after spine surgery is a very well-known and established risk of the procedure. We know some wonderful spine surgeons, but they certainly need the help of infectious disease, pulmonary, cardiology, intensivist, and yes … Interventional pain to manage these surgically related complications.
We live in a world where collaboration is needed, expected, and most importantly the right thing to do in practice.
So as my young and energetic colleague asked me recently, “Are the actions by a group of physicians to limit the practice of others considered RESTRAINT OF TRADE?”
Not being a lawyer, but having two children that are (proud dad), I looked at the issue in an objective light:
- Is there an agreement between parties (societies) to set unfair limits on competition and restrict the others from operating normally? (Yes)
- Would this set an artificial limitation on freedom to do business? This would be considering that a group would be trying to set limits outside of their specialty in an area that has real or perceived financial impact on the party setting limits. (Yes)
- Are there unfair competition limits that would interfere with the pain community’s ability to practice freely? (Yes)
- Would there be an attempt to create a monopolistic behavior or conspiracies that manipulate market conditions, thus keeping the prices and reimbursement higher for complex large surgeries? (Yes)
- While one could argue restraints would protect legitimate spine interests, it is a more convincing argument that innovation will change the treatment decision of the current attempts to control the actions of the other specialties
Would the actions of a group of societies to limit the actions, practice, credentialing, and training of those in other specialties violate the Sherman Act?
Go read that law and judge for yourself, but perhaps some anxiety is warranted for those engaging in those behaviors.