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Send to a FriendIn 1984, on a Sunday night in March, a 19-year old college freshman named Libby Zion was admitted to New York Hospital - Cornell Medical Center Emergency Department with fever and agitation. By the next morning, she was dead. Her father, Sidney Zion, a prominent former federal prosecutor and journalist, brought a lawsuit against the hospital, particularly targeting the medical intern and the PGY-2 physician who had cared for his daughter during the night. He also sued the attending physician, who, although he had not seen the patient before her death, had consulted by phone with the housestaff four times over the course of the night. A grand jury failed to bring an indictment on criminal charges. In 1995, a trial jury assigned joint responsibility for Libby's death to the hospital and to the patient (she was a heavy user of drugs, both prescription and illicit, and had not given a complete health history).* Long prior to this, the furor raised over the case, kept alive by Sidney Zion, was such that the New York State Health Commissioner impaneled a committee, under the direction of Dr. Bertrand Bell, a professor at the Albert Einstein College of Medicine, to investigate conditions in the state's teaching hospitals. In 1989, the recommendations of Bell Commission became law, as part of the New York State Health Code (Title 10, paragraph 405.4). Some sections deal with supervision of medical students and residents. Sections relating to work hours read as follows:
(ii) Effective July 1, 1989, schedules of postgraduate trainees with inpatient care responsibilities shall meet the following criteria:
(a) the scheduled work week shall not exceed an average of eighty hours per week over a four week period;
(b) such trainees shall not be scheduled to work for more than twenty-four consecutive hours;
(d) "on call"duty in the hospital during the night shift hours by trainees in surgery shall not be included in the twenty-four limit contained in clause (b) and the eighty-hour limit contained in clause (a) of this paragraph if:
(1) the hospital can document that during such night shifts trainees are generally resting and that interruptions for patient care are infrequent and limited to patients for whom that postgraduate trainee has continuing responsibility;
(2) such duty is scheduled for each trainee no more often than every third night;
(3) a continuous assignment that includes night shift "on call"duty is followed by a non-working period of no less than sixteen hours; and
(4) policies and procedures are developed and implemented to immediately relieve a postgraduate trainee from a continuing assignment when fatigue due to an unusually active "on call" period is observed
(iii) The medical staff shall develop and implement policies relating to postgraduate trainee schedules which prescribe limits on the assigned responsibilities of postgraduate trainees, including but not limited to, assignment to care of new patients, as the duration of daily on-duty assignments progress.
(iv) In determining limits on working hours of postgraduate trainees as set forth in subparagraphs (i) and (ii) of this paragraph, the medical staff shall require that scheduled on-duty assignments be separated by not less than eight nonworking hours. Postgraduate trainees shall have at least one 24 hour period of scheduled nonworking time per week.
These regulations have been in place for over 10 years, and New York State provided hospitals with funds to hire ancillary personnel to handle many of the routine functions previously performed by house officers. Most hospitals made a good-faith effort to follow the rules, and most non-surgical training programs have been in compliance for a number of years. Surgery programs were naturally slower to accommodate to these rules, and in many cases were still far from compliant. In December 1999, as part of the Health Care Reform Act, hospitals were made responsible for compliance with these regulations. Enforcement has since been intensely upgraded. The state has hired a private investigative firm which can do unannounced inspections of any training program. Residents are interviewed on the spot, and for each individual violation of the above working hour rules, the hospital is fined $6,000. The second inspection includes a fine of $25,000 for each violation, and the third visit entails a fine of $50,000 per violation. Needless to say, hospitals in New York State are taking an intense interest in making sure that all training programs, including surgical, comply with this regulation.
Two aspects of the regulations are identical to those contained in the Program Requirements for Residencies in Thoracic Surgery: that in-hospital on-call duty shall not occur more frequently than every third night, and that one 24-hour period of non-working time shall be scheduled each week. Program Directors must state how they comply with these requirements, and the RRC includes working hours and conditions in its discussion of each program. Most of us would agree that night-call in the hospital more than one in three nights is not appropriate, and one day off per week is certainly reasonable. More difficult is the average 80-hour work week, though even this can be managed with appropriate use of ancillary staff and creative scheduling. Our residents claim that they have time to read that they never had before, and this can only benefit them. The very difficult part of this regulation is in part (ii) (d) (3) above: that each work period be separated from the next by 16 hours. Assuming that the workday for a Thoracic Surgery resident begins at 6 AM, this means that if they were "generally resting" (which the health department refuses to define - but implies at least 4 hours of sleep) they must leave the hospital the next day at 2 PM in order to have 16 hours off before returning the following day at 6 AM. If they were NOT generally resting, they must leave at the end of 24 hours, though 3 additional hours may occasionally be used to complete transfer of patient care to the next shift (this does not include participating in surgery). Thus, if they were up most of the night as commonly occurs, they must leave the next morning at 6 AM or at the latest, 9 AM after signing out.
This system poses an extreme dilemma for thoracic surgical trainees in New York State. They have two, or in some cases, three years to learn complex, demanding surgical skills, which are well-known to improve with practice. Under Code 405, if they are on call every third night, they will miss all or part of one-third of their operative days. Many programs already struggle to achieve the index case numbers required by the Board and the RRC, and these numbers will be further limited by this regulation.
New York poses an additional problem for those of us struggling into compliance with Code 405 and trying to fill the holes with ancillary personnel. In many programs "clinical fellows" are hired to take some of the burden, and often they can help out greatly with coronary bypass procedures and on-call duties without having a negative impact on the case numbers of accredited residents. Many of these are fully-trained foreign physicians looking for a chance to get some experience in an American program. In New York State, no physicians can be hired outside an accredited residency program unless they have a license to practice in the state of New York. In order to get such a license, they must have completed an approved residency program in the United States. Catch-22!
If you do not work in New York State, please do not breathe a sigh of relief. The Resident Physician Section of the AMA has recently passed a resolution substantially similar to New York's Code 405, and other states are sure to follow.
In my opinion, the resident working hour rules of New York State have much to recommend them, and also may have a significant negative impact on the training of thoracic surgeons. Program Directors in all states should think creatively and work together to meet these challenges and use them to enhance the education of the thoracic surgeons of the future.
*Author's Note: A fascinating account of the Libby Zion case can be found in a book entitled, "The Girl Who Died Twice" by Natalie Robins (Dell, 1996). I know this volume is available in paperback from Barnes and Noble on line.