Practice of Medicine

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Attorney Viewpoint: Traps for the Unwary Physician

By Susan J. Levy, Esq., Levy Pruett Cullen

June 5, 2020

In my law practice, most of our physician clients are surprised to learn that their well-intentioned actions may have violated their state medical board rules.

My father was an internist. When I was growing up in Pittsburgh in the 1970s, my father had a beat-up leather medical bag that he used for occasional house calls. He visited the homes of his patients who needed care at night or over the weekend, but he also responded to worried calls from friends or neighbors. He may have just spoken to a friend on the phone and, after getting a good grasp of pertinent symptoms, called in a script to the local pharmacy without an examination. These qualities helped make my dad, and many physicians like him, kind, trusted and very busy doctors. These were also some of the reasons I dreamed of becoming a physician. 

Unfortunately, for reasons rooted in the mysterious complexities of organic chemistry and my passion for debate, I became a lawyer instead. Now, rather than treat patients, I help unwary and mostly well-meaning physicians navigate their way through daunting investigations by state medical licensing boards. In doing so, I have learned that practicing medicine today is very different from the world inhabited by my father. 

Much has changed in the world and in medicine over the past 50 years. The opioid epidemic and corresponding development of prescription drug monitoring programs to track controlled substance prescriptions are defining examples of how the standards governing what constitutes the acceptable practice of medicine have tightened over the last few years. Today, physicians are acutely aware of the negative consequences of inappropriately prescribing opiates. While that knowledge may not always be a deterrent, knowledge is power. 

What constitutes “unprofessional conduct” in the opinion of state medical boards is less ubiquitous, but the consequences of violating these rules can be every bit as damaging to physicians. Some of my father’s actions described above could now subject a physician to discipline by their state’s medical board. States require doctors to maintain patient records documenting the course of their patient’s medical evaluation, treatment, and response. Physicians are required to maintain complete medical records, including history and physicals, progress notes, lab reports, etc. Today, a physician who prescribes medication for a friend or neighbor in need, with good intentions but without properly examining the patient, creating a chart, and formally documenting the evaluation and treatment of the patient, may end up in my law office having to defend his/her decision to the medical board. 

If, for example, you are a neurologist prescribing Ambien for your buddy at the gym who has struggled with insomnia, a psychiatrist who prescribes Adderall to your neighbor’s son who is having trouble concentrating in college, or an internist who prescribes codeine phosphate for your wife’s persistent knee pain, you risk receiving a visit from a state investigator and possible discipline by the licensing board, which could include probation, suspension or revocation depending on the seriousness of the alleged violation. Even if your state board ultimately decides not to issue sanctions, the process of getting there – retaining an attorney, submitting a sworn statement, traveling to the board’s office for an interview, then waiting months for a decision, is stressful, to say the least.

You may be wondering how the medical board would ever know about such conduct. Any disgruntled patient, ex-boyfriend, or former employee with an axe to grind can file a complaint on the state medical board’s website. That’s all it takes to trigger an investigation.  

Another potential trap for the unwary physician lies in maintaining proper boundaries with patients. Although a “boundary violation” may conjure up headline-grabbing sexual abuse, as in the case of Dr. Larry Nassar and his notorious abuse of young female athletes on the USA Gymnastic National Team, most boundary violations are much more subtle: Consider favoring a VIP patient, forming a business with a patient, or dating a former patient you run into at a restaurant a year after you last saw her in your office. According to the AMA Journal of Ethics, “[a]ny motive not related to the patient’s care radically disrupts professional objectivity and trust in the profession. [The above examples] are all boundary crossings that often rise to the level of violations” and put you at risk for discipline by your state board.[1]

Physician conduct constituting a boundary violation may more generally be categorized as “unprofessional” or “unethical” conduct in your state’s medical board rules, and whether such conduct ultimately threatens your license to practice medicine depends on the particular details of the violation as well as the state in which you practice. According to a University of Michigan Medical School study, the percentage of doctors who receive discipline is four times greater in some states than others.[2]

Each state’s rules define unprofessional and unethical conduct for physicians practicing medicine in that state. Although laws vary from state to state, examples of unprofessional conduct can include alcohol/substance use and abuse, sexual misconduct, romantic intimacy with a patient or former patient regardless of consent, neglect of a patient, failing to meet the accepted standard of care, prescribing drugs in excess or without legitimate reason, dishonesty during the license application or renewal process, felony conviction, fraud, inadequate record keeping, and failing to meet continuing medical education requirements.[3]

Very few of my physician clients set out to violate their board rules. Most often, they did not know the rule, did not think their conduct was “a big deal,” or simply made a mistake. Knowledge is, in fact, power. Read your state’s board rules – they are almost all available and easy to find on the board’s website. If not, Google them. Another adage to keep in mind is “when in doubt, don’t,” at least not before reading the rules or consulting a lawyer who has. 

[1] D’Oronzio, Joseph C., PhD, MPH, “Professional Codes, Public Regulations, and the Rebuilding of Judgment Following Physicians’ Boundary Violations.” American Medical Association Journal of Ethics. Volume 17, Number 5: p. 448.  May, 2015. 

[2] Gavin, Kara. “Disciplining Doctors, Study Shows Lack of Standardization Across U.S.” Medicine at Michigan. April, 2016. https://medicineatmichigan.org/tag/physician-discipline

[3] U.S. Medical Regulatory Trends and Actions 2018, Federation of State Medical Boards. https://www.fsmb.org/siteassets/advocacy/publications/us-medical-regulatory-trends-actions.pdf

 

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