Practice of Medicine

article

Attorney Viewpoint: Traps for the Unwary Physician

By: Susan J. Levy, Esq., Levy Pruett Cullen
Executive Summary 

The practice of medicine continues to change, and many well-intentioned acts by physicians may violate state medical board rules. It is vital for healthcare providers to follow state board guidance on patient-physician relationships to avoid investigations and potential sanctions.  

Recommended Actions  
  • Maintain complete medical records, including history and physicals, progress notes and lab reports. 
  • Impart and maintain proper boundaries with patients. 
  • Read your state’s board rules to properly follow treatment protocol and limit the scope of patient relationships.  

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, he 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 prescription 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.  

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 and lab reports. 

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 that decision to the medical board.  

Say, for example, you’re a neurologist prescribing Ambien for your buddy at the gym who has struggled with insomnia or a psychiatrist who prescribes Adderall to your neighbor’s son who is having trouble concentrating in college. By doing so, you risk 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. 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 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.  

Lessons Learned 
  • Research what is classified as unprofessional or unethical conduct in your state’s medical board rules. 
  • Identify areas of your healthcare organization or your practice that may be perceived as crossing a boundary with a patient, regardless of consent. 
  • Ensure that your healthcare organization follows the most up-to-date state and local laws regarding practice conduct and standards of care. 
Potential Damages 

Physicians who don’t follow state board rules when offering treatment risk an investigation and possible discipline by the licensing board that can lead to probation, suspension or revocation depending on the violation. Even without a sanction, defending yourself in an investigation is both stressful and costly.  

Quiz 

Answers are provided below 

True or false?  

Question 1: A state medical board may investigate physician behavior deemed as unprofessional or unethical conduct and subsequently issue sanctions. 

Question 2: Rules for practicing medicine today are very different from the rules 50 years ago. 

Question 3: Only physicians who set out to violate board rules can engage in unprofessional or unlawful conduct. 

Answers 

Question 1: True. Each state defines unprofessional and unethical conduct for physicians. Whether conduct ultimately threatens your license to practice medicine depends on the details of the conduct and the state in which you practice. 

Question 2: True. Much has changed in the world and in medicine, and standards governing what constitutes the acceptable practice of medicine have tightened over the last few years. 

Question 3: False. Very few physicians set out to violate board rules, but lack of knowledge of unethical or unprofessional conduct makes a physician susceptible to board investigation and potential sanctions for misconduct. 

12/22

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.