Maine physicians are concerned about several critical dimensions of the recent Eastern Maine Healthcare controversy involving the removal of a physician from the EMMC Board of Trustees. We believe the needed participation of physicians in the patient care decisions of not only Eastern Maine Medical Center but of any hospital could be victimized if the EMHC action is not reversed.

Otherwise, the very real losers will be the community and all the citizens of the community who are or may become patients of the hospital. We agree generally with the BDN editorial of Nov. 22-23, but it is our belief that the conflict of interest issue has been constructed too narrowly, even in your editorial.

For as long as hospitals have existed, physicians have been asked to take responsibility for setting standards for the patient care provided. In more recent years, states have licensed hospitals in order to regulate them. Universally, these state regulations have vested hospital boards with the responsibility for the standards of patient care provided. The same regulations require that the boards, composed mostly of lay community members, receive guidance for setting these standards from the physicians utilizing the hospital through the mechanism of an organized medical staff. By requiring that the medical staff be organized, the regulations prevent inappropriate influence in these crucial responsibilities by individual physicians. The medical staff ordinarily communicates to the board through its officer(s), one or more of whom usually are board members, ex-officio, by virtue of their position.

In recent years, hos-pital boards have been encouraged to include physicians, in minority number, as community members. These physicians are not included to represent the perspective of their medical staff colleagues or a singularly professional viewpoint. Rather, they are community board members and serve to assist their board colleagues in several ways.

As medical experts, they can translate medical jargon; and they are able to explain medical issues in language lay persons can understand. They can question management and medical staff proposals, using their medical expertise in order to provide a critical evaluation of these proposals for soundness and appropriateness in that hospital, in that community, at that time. Their unique skill and knowledge enable them to dissect proposals in a fashion which may facilitate fuller comprehension by lay board members who can then accurately and reasonably apply their business expertise to the overall evaluation.

Even more importantly, the involvement of physicians ensures that the interests of patients are not sacrificed to a bottom line. The primary loyalty of these physicians is to the institution. As proposals for patient care are evenly and thoroughly debated, the benefit is better patient care.

The EMHC management and board chairman, it has been reported, feared that Dr. Theodore Silver, a cardiologist and member of a large specialty group serving the hospital, represented a large potential for conflict of interest when serving as a community member of the board. It was hypothesized that his dedication to the well-being of his practice group would taint his perspective and skew his service to the board. This hypothesis requires the conclusion that, consciously or unconsciously, Dr. Silver would mislead his board colleagues, and they would blindly follow his misdirection. There was offered, also, the contention that board members would fear to be fully candid with their comments if Dr. Silver were in the room.

Frankly, I view these propositions as demeaning to both Dr. Silver and his board colleagues. Most any other hospital would simply have excused Dr. Silver from the discussion if there was the appearance of a conflict.

The guidelines regarding conflict of interest for tax-exempt health care organizations which have been developed and disseminated by the Internal Revenue Service help to clarify this issue. The guidelines state that “… a person having a financial interest does not necessarily have a conflict of interest.” They state further that boards and institutions must have clear policies defining what interests and what actions of a person rise to the level of conflict of interest. Violation occurs if the board does not require disclosure and/or the person fails to disclose information about personal interests which would or could lead to the gaining of improper benefit as a result of board action.

Violation could occur as well, if the board had accurate information but failed to act to prevent improper activity by the individual. Enforcement of compliance with all rules and regulations is the keystone to managing conflict of interest. The fiduciary duties are to disclose (the member) and to inquire fully (the board). If both duties are met by Dr. Silver and the board, no conflict violation exists.

For most physicians, there is some potential conflict of interest if they serve on a hospital board. A potential as well as an actual conflict is required to be disclosed as a condition of board membership. For most physicians, the conflict is usually transparent. Board policies must be in place which enable and require each board to recognize and act upon these conflicts if they constitute a threat to the integrity of the board business or to the well-being of the hospital or community. If the board properly attends to its responsibility for compliance, it is unlikely that a serious problem will arise and equally unlikely that individuals with desired qualifications for board service will be determined to be unsuitable for that service.

There is a less evident potential for conflict and resultant harm from an opposite set of circumstances. Increasingly, many physicians are becoming highly dependent upon hospitals for significant capital expenditures to support increasingly technical, dependent diagnostics, procedures or care through the use of which the physicians benefit greatly. Other physicians can benefit by providing services which hospitals need and acquire though contracting.

Still other physicians become employees of hospitals. Due to their increasing preponderance in the hospital medical community, some of these physicians are bound to become members of hospital boards. Their conflict of interest may arise not by attempting to direct board action in a fashion which will benefit them. Rather, their benefit may arise by avoiding rigorous evaluation of management proposals, influencing board action by not exposing matters with a potential to cause a different decision. With their silence or inaction, they may curry favor with management.

Dr. Silver, it appears, managed his conflict of interest very well and served his board and his hospital to significant acclaim. The EMMC board appears to have understood the potential for conflict and dealt with it without being compromised. If the EMMC board has and maintains a compliance plan to recognize and monitor potential conflict, it should meet the rigorous standard applied today by the IRS and which can be anticipated with future regulations of conflicts. The EMMC board had no need to construct a very hypothetical problem and then devise an action to head it off.

If the EMHC board action is allowed to stand, it could constitute a precedent for other hospital boards to justify removing physician board members or selecting only those physicians who have a salaried position with the hospital.

Leaving crucial decisions regarding hospital patient care to a board of lay persons receiving their information from increasingly business- and profit-oriented management with no, or only carefully selected, independent physician board members to provide guidance, should give pause to any reasonable citizen as well as any potential patient.

Charles T. McHugh, M.D., of Baileyville, is chairman of the hospital medical staff section of the Maine Medical Association, and former president of hospital medical staff and a board of trustees member of a rural hospital.