Imagine this: You need to get your deviated septum surgically corrected, so you have all your presurgery bloodwork done, arrange transportation for the day of the procedure, and make sure you have plenty of aftercare supplies. You might even have childcare or pet sitting squared away. Two nights before the surgery, your surgeon’s office calls, telling you the procedure has been cancelled and you’ll need to reschedule. The reason you’re given? There’s no anesthesiologist available. This isn’t a hypothetical — it’s occurring with increasing frequency, healthcare professionals say — and it’s frustrating them as much as their patients. “I got a call on Thursday that I had to cancel my cases that I was operating on Sunday,” says Steven Leibowitz, a UCLA professor with two private oculo-facial surgery practices in Las Vegas, “because, they say, ‘There’s no anesthesia.’”
It turns out “no anesthesia” is one symptom of a larger illness in Nevada’s healthcare industry. “Nevada, and by extension Las Vegas as its largest city, are really short in all physician specialties across the board,” says Marc Kahn, dean of UNLV’s Kirk Kerkorian School of Medicine. “If you look at the number of physicians per capita, in every specialty and subspecialty, we’re below the 50th percentile ... (including) anesthesia.”
For anesthesia in particular, experts offer varying opinions as to why the shortage is so pronounced. Some believe that a big part of the problem has to do with the increase of private equity firms opening anesthesia practices and imposing restrictive covenants (also known as noncompetes) on their physicians. “You’re hiring a new employee, and as part of the agreement, if they choose to leave, there’s a period where they can’t be practicing in the same geographic area,” explains David Orentlicher, the director of UNLV’s Health Law Program. In a competitive field, such as anesthesiology, restrictive covenants give firms that use them an advantage.
The largest anesthesia provider in Vegas, US Anesthesia Partners (USAP) is one such private equity group, listing Welsh, Carson, Anderson & Stowe; Berkshire Partners; and GIC on its website among its investors. Local anesthesiologist and USAP spokesperson Dean Polce says in a statement, “because USAP is physician-owned, physician-led and locally governed, USAP’s local practices establish their own noncompete agreements, based on applicable regulation or laws. In Nevada, USAP’s local physicians established a noncompete agreement that expires after two years.” He adds, “Noncompete agreements are commonplace in healthcare (and many other industries) and provide a benefit to patients and the local healthcare system by promoting stability and consistency of care.”
Leibowitz has his doubts about the benefits of noncompetes in the operating room. “A restrictive covenant for an anesthesiologist is absurd, because what intellectual property are they possibly taking?” he says. “And it’s not like you’ve built up their reputation or that they’re taking your patients. They’ve operated on the patients, and they’re done.”
Leibowitz says he’s witnessed anesthesiologists leaving the state altogether to practice elsewhere after realizing that the agreements they signed were not as lucrative as they expected — as many as two dozen quit one practice, he says, to avoid the legal headache of getting a less restrictive contract somewhere else local. USAP’s Polce disputes this: “There are many hospitals, surgery centers, and other sites of care in Nevada where USAP does not provide services, including many in the Las Vegas area,” he says. “This provides a former USAP physician with numerous opportunities to continue practicing in a variety of local Nevada settings.”
Yet elsewhere, the cost to continue practicing has proven to be prohibitive. The Washington Post’s Peter Whoriskey reported in June that USAP’s locations in other states have seen similar physician turnover, with former employees in Denver saying they were forced to pay damages of more than $200,000 for breaking noncompete contracts so they could remain in the area.
Savera Sandhu, an attorney specializing in business and healthcare law, and who’s now with UNLV Health, confirms a similar experience with her own Vegas clients. “It gets to the point where it feels like litigation is going to happen, and because the courts are so backed up, I’ve been seeing more physicians leaving the state.”
Restrictive covenants themselves are nothing new, but Sandhu notes their recent impact on Nevada’s healthcare industry could be related to its growing professionalization. “You’re seeing a lot more formality in contractual relationships or employee-employer or -independent contractor relationships,” Sandhu says. “And so maybe that makes it more prevalent. Coming here 15 years ago, it wasn’t as formal of a system — a lot of things were done on a handshake, so there were a lot of spoken agreements. But now the jurisdiction is becoming more viable.”
Viability is a concern for noncompetes, which are legal in the state of Nevada, provided they align with the fundamental requirements laid out in NRS 613.195. This statute requires that noncompetes not overburden employees. If they do, Sandhu says, “courts are generally going to say, ‘No,’ and they’re going to carve out this noncompete to make it less limited or less restrictive.”
The shortage of active anesthesiologists also likely stems from the lack of advanced education programs in the Silver State. Nevada has no schools or programs for certified registered nurse anesthetists (CRNA), which UMC CEO Mason Van Houweling believes are critical to mitigating the shortage of anesthesiologists. The state’s sole anesthesiology residency training program is at Las Vegas’ MountainView Hospital, which accepts only eight applicants per year. “For medical students trying to get into residencies,” Van Houweling says, “46 percent of the applicants didn’t match. So, they wanted to go into anesthesia, but they could not find a matching slot throughout the country.”
For some, numbers like this are evidence that restrictive covenants aren’t the problem and scrapping them isn’t the solution to the anesthesiologist shortage. “(Eliminating noncompetes) doesn’t solve your shortage problem — they just change the distribution,” UNLV’s Kahn says. “They determine who gets a slice of the pie. But we need to make the whole pie bigger.”
One way to do this is by increasing residencies beyond eight positions. Kahn says that he and Dean Paul Hauptman at UNR’s School of Medicine petitioned the Nevada Legislature to pass SB350, which Governor Joe Lombardo signed into law on June 12 granting more state funding for residency programs. “There’s going to be about $8.5 million in that bill for residency expansion,” Kahn says.
UNLV has also been working with UMC to increase residency positions at the hospital, which has started UMC Anesthesia, a collection of UMC-employed anesthesiologists and CRNAs, in the hope of reducing the hospital’s need for outside anesthesia providers from firms such as USAP. “We were very, very dependent on them,” Van Houweling says, “so we’ve broken away from that dependency on the contractor providers and really built our own in-house services.”
Starting in October, UMC Anesthesia took three months to fully ramp up. With 45 anesthesiologists and CRNAs currently employed under the program, Van Houweling says, the hospital does not encourage its providers to sign restrictive covenants. “We don’t want to limit anybody’s ability to practice but also care for their families,” he says.
Whatever the cause of the state’s anesthesiologist shortage, the effects are tangible. “There’s no surgeon in Nevada who hasn’t had cases canceled or postponed because of the anesthesia crisis,” Leibowitz says. Testifying in favor of AB270, which authorizes licensure of certified anesthesiologist assistants (CAAs) to provide care in Nevada, during this year’s legislative session, CAA Stephanie Zunini told how her own mother, a labor and delivery nurse of 35 years, lost her Reno-based job in November “because the entire unit shut down — largely due to an anesthesia provider shortage.” The anesthesiology crisis has also impacted other members of Zunini’s family: “My brother-in-law, a Nevada anesthesiologist, often works 70- to 80-hour weeks, not by choice. My nieces and nephews call me and say, ‘Guess what, Aunty Stephie? Our dad’s actually going to be home tomorrow, can you believe it!’ Because being at work, serving the community all hours of the day and night has become the norm for him.” AB270 was signed into law by the Governor three days before SB350.
Yet progress is incremental, and physicians worry that, in the meantime, patients (especially those from already marginalized groups) will suffer. “Since there’s such a shortage of (anesthesia providers), they don’t want to do low-paying cases,” Leibowitz says. “Unfortunately, all government-sponsored cases like Medicare, Medicaid, the VA — all those pay anesthesiologists a lot less than they make from private insurance. They make about three times more doing a private case than doing a Medicare case. And in ophthalmology, a lot of our cases are Medicare.”
Kahn is similarly concerned. “I think that our disparities in care are going to get worse,” he says. “Time to get appointments is going to be extended, and we’re not going to be able to provide the level of care that this community needs and deserves.”
