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  • The Year That Arkansas Lost the Innovative Push for Patient Safety

    Most of us have blazed our way through college and medical school so that we could compete for a treasured spot in an excellent ophthalmology residency program. We then concentrated on studying the ophthalmic system and the relationship of the eye to the brain and remainder of the body. We absorbed medical knowledge and refined our surgical skills. We assisted our esteemed faculty as they operated on and around the eye, then learned how to handle the tiny instruments under the microscope as faculty held their breath beside us, calmly recommending (maybe not always calmly!) another step or reverse course. We always prioritized our patients’ eye health.

    Yet, as practicing or retired physicians, many of us have become silent even as patient safety is risked and our profession is minimized. Only 10% (or less) of ophthalmologists actively advocate for our patients by educating legislators, contributing to OPHTHPAC® or Surgical Scope Fund, or actively fighting dangerous scope issues in their states.

    This kind of advocacy is critical when our profession is under threat as it was in March 2020. That year Arkansas became the fifth state to succumb to optometrists’ strong political influence with a law that allows optometrists (ODs) to perform YAG capsulotomies, SLTs, ALTs and eyelid surgeries with anesthesia and scalpel. The usual playbook was run; bringing an OD from another state that insisted that none of the procedures were really invasive to the eye and that risks were minimal.

    They wheeled a YAG machine into the state capital and encouraged all the legislators to sit down and fire laser at a piece of paper, insisting that anyone with a 30-hour weekend course could do the eye procedure. Legislators, unduly influenced by those that contributed time and money to their campaigns, failed to protect patients.

    My patients were astounded that optometrists without medical or surgical training would be allowed to operate on the eye and eyelid. Patients were frightened about families’ and friends’ eye health and wanted to turn around a legislative mistake. Fortunately, we thought, Arkansas’ constitution allows citizens to pass a referendum to reverse unfortunate legislation.

    The Arkansas Ophthalmological Society discussed the possibility of gathering a record number of petition signatures in a short time frame to allow the referendum to be placed on the Arkansas official ballot in November 2020.

    In short order, the Safe Surgery Arkansas Ballot Question Committee was formed and a petition company hired. Arkansas ophthalmologists raised over $675,000, and petitioners obtained a record 84,000 signatures in 6 weeks making the deadline in time to put the dangerous OD scope law into abeyance, disallowing OD surgery until a public vote in November 2020.

    Then the legal battle began. The ODs and their lawyers, as well as high-ranking partisan office holders began to try to take the referendum down with a “death by a thousand lawsuits.”

    One after another, the lawsuits were won by Safe Surgery Arkansas. The upshot of an expensive legal fight was that the Arkansas Secretary of State was ordered to count the petitioned signatures. After another attempt to throw the referendum off in December 2019, a circuit judge told the Secretary of State to certify the votes. The referendum met the criteria to be on the ballot November 2020.

    Left to right - Laurie Gray Barber, MD, Ted Penick, MD, and Hal Capps, MD, pictured at the Arkansas State Capitol.

    Arkansas is the first and only state in the nation to place a public referendum reversing any medical scope expansion allowed by legislative decree rather than training or skill. The road to the referendum was long and convoluted. Ophthalmologists were the first medical doctors of any specialty to fight to protect patient surgical eye safety by putting it to a vote by citizens.  

    With $125,000 from the Arkansas Ophthalmological Society, help from Executive Director Laura Hawkins, our hard-working lawyers and team and a handful of Arkansas ophthalmologists, the Safe Surgery Arkansas campaign drive raised several hundred thousand dollars for the legal fight and future campaign advertisements.

    The Arkansas Medical Society gave $250,000 and support to send requests to all medical doctors in the state. The American Medical Association contributed $125,000. The AAO gave $100,000, with specific requirements for spending. The real heroes were the 90% of Arkansas ophthalmologists that gave at an average of $15,000 each.

    Physicians throughout the state and nation realized that this brave and innovative attempt to derail an unsafe surgical bill was critical. A resounding win would take the message to other states’ legislators that constituents want surgery limited to medical school trained physicians with surgical residencies.

    Sadly, 2020 brought another flurry of baseless lawsuits along with the physical constraints of the pandemic. One of Safe Surgery Arkansas’ lawyers was accused of a crime by the ODs, although the charge was later dismissed. The petitioners were accused of felonies. The ODs claimed that the procedures did not “cut the eye, but only nudged it.” The push was on to throw out several petitioners’ signatures based on them “acquiring” a background check, rather than “passing the background check” as per a recently passed law. Finally, signatures were ordered removed because we had not obtained petitioner federal background checks through the state police, which is not done by the Arkansas State Police.

    The Arkansas Supreme Court circled and scheduled a special hearing. After a week of tense days in court, the special hearing judge declared that 1) There is no possible way to obtain federal background checks for the petitioners through the Arkansas State Police, as we had been stating for months and unfortunately, 2) the Ballot Question Committee should have stated that the petitioners had “passed” their background checks (which they had) rather than just stating that they obtained background checks.

    So, the judges of the Arkansas Supreme Court opted to throw out the majority of Arkansans’ signatures on a one-word technicality. The upshot being that the referendum was on the ballot, but the votes would not count.

    Early this spring, 2021, an Arkansas Circuit Court judge found in favor of the referendum and the impossibility of “passing federal background checks through the Arkansas State Police.” The Supreme Court changed their minds and agreed. But by then, it was too late. The November 2020 vote was passed.

    What lessons can be learned from our experience in Arkansas? Most importantly, ophthalmologists need to be advocates for our patients legislatively as well as clinically and surgically. Residents should be actively educated by their residency programs, as optometrists are trained to be legislative advocates while in optometry school. We should be involved with campaigns for legislators that are patient safety advocates, both with our time and with our treasures.

    Those of us with lighter schedules as we approach our golden years can offer to write to, call and meet with candidates for office and with legislators after the election. Senior ophthalmologists could volunteer to be spokespersons at legislative and community events and stand up to those who desire surgical privileges without surgical training.

    Many young practicing ophthalmologists fear reprisal from referral sources, so those of us with no OD referrals or established patient populations have less to lose, yet everything to gain for quality patient care.

    To prevent further incursions by nonmedical school trained surgeons, continue to support your state ophthalmology societies. They are the warriors in the trenches for scope of practice battles. If you do not have the time or prefer not to spend the hours it takes to be an advocate, you can financially support the critical programs; state medical and ophthalmology societies, state political action committees, American Medical Association, OPHTHPAC and Surgical Scope Fund.

    Preventing bad laws from passing is much preferred and vastly cheaper than trying to throw out a law. Had more ophthalmologists nurtured better relations with our legislators, perhaps giving a few hours here and there, they may have been out some clinic hours rather than $15,000.

    As chair of Safe Surgery Arkansas, I have replayed the past fraught year and would do it again. Step up for your patients as an advocate, just as you have stepped up with excellence following extensive surgical and clinical training. Ophthalmologists and Optometrists also share a history of working well with each other, on many levels. There are many mutual benefits when the professions cooperate. Unfortunately, there is also a history of Scope of Practice battles, usually at the state level, that are detrimental to patient safety, so affect that process. Let us hope that patient safety remains the driving priority.