Protecting patients and colleagues: When caring and your duty to report coincide

Published on: July 14, 2013

From MIEC’s Board of Governors:

Protecting patients and colleagues: When caring and your duty to report coincide

By: Gene Cleaver, MD, Chair, MIEC Loss Prevention Committee

The AMA Code of Medical Ethics, Principles of Medical Ethics, Principle II states:

“A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.”

In addition, the AMA Council on Ethical and Judicial Affairs (CEJA) Opinion No. 9.031 states:

“Physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues in accordance with the legal requirements in each state and assisted by the …[CEJA] guidelines [listed in the Opinion]. ”

Although physicians have an ethical duty to report, some doctors say nothing to a colleague who may be incompetent, impaired, or who operates on the fringe of the acceptable, and we certainly are reluctant to report this behavior to the appropriate body. One third of physicians who don’t make such a report blame their decision on the fear of retribution. Maybe it is easier to be silent, or we don’t want to chance harming an old friendship or referral source. Maybe we are sympathetic, knowing that our colleague was just as bright, made the same sacrifices and is enduring the same stressors as ourselves. It may not occur to us that there are ways of approaching a doctor that will be less likely perceived as threatening or punitive.

We can sometimes do the most harm by being silent, by not taking the responsibility to speak up and take action. Whistleblowing is seen as accusatory and confrontational. Yet there are often those who don’t want to “blow a whistle” if reporting means to judge. These physicians are willing to do the hard work of helping a fellow physician see how his or her behavior endangers patient safety and threatens other healthcare providers. Not only can we prevent harm from being done by saying something, but by doing so, we do not abandon another doctor.

In this article I will outline for you: the process of reporting the incompetent, impaired, and unethical colleague; immunities accessible to you as the reporting party; and resources available to you should you be contemplating such action.

Step 1: Talk to your colleague

In the mid-1980’s the California Medical Association and the Board of Medical Quality Assurance (now the Medical Board of California) released a joint statement on a physician’s responsibility to report. Discussing the problem with the doctor was the first step advised by writers of the statement.1 Studies show that physicians who are addicted to work or substances are reluctant to seek help and frequently believe they can manage the issue on their own. Based upon my 47 years of experience as a treating physician largely in Northern California, I offer this advice when contemplating whether or not to confront a “problem physician.”

• Consider your relationship with the physician. Are you long-time colleagues?
• Consider how your friend might respond to this type of message, “I’m very concerned about you and the safety of your patients. It seems that you are experiencing some personal issues. How can I help? Assistance is available. You can talk to a member of the hospital’s Well-being or Peer Review Committee. I’ll accompany if you like.”
• As much as your intentions are good, limit what you discuss outside of a “protected communication” (e.g., Peer Review, Well-being and Medical Society Committee).
• When you first make contact with your colleague, consider taking someone with you, preferably a member of the Well-being, Peer Review or Ethics Committees. It is important to find a colleague to go with you who is kind and direct, without being angry, unless you know that you have the skill to do this alone.
• If your colleague appears to ignore your advice, go back a second time and advise him or her that you continue to be concerned. Put the physician on notice that you plan to report him or her to the Well-being Committee or Department Chair if you do not see evidence of change.

Understand to whom you should report physician behavior

Physicians should understand that they are not alone in this process of reporting an incompetent, unethical, or impaired colleague and that there is some flexibility on a case by case basis as to how to proceed. CMA Legal Counsel advises, “…problems should first be reported to the appropriate medical staff or medical society committee. Reporting to the Medical Board should be reserved for cases which are not resolved by those bodies or where an immediate risk to patient safety exists.”2

The AMA CEJA Opinion No. 9.031 requires the following when reporting incompetent and unethical doctors. When reporting incompetence:

• “Initial reports of incompetence should be made to the appropriate clinical authority who would be empowered to assess the potential impact on patient welfare and to facilitate remedial action. [For example: in the hospital setting, the department head, and chief of staff; outside of a hospital, to the county medical society or specialty society.]
• The hospital peer review body should be notified where appropriate.
• Incompetence that poses an immediate threat to the health and safety of patients should be reported directly to the state licensing board.
• Incompetence by physicians without a hospital affiliation should be reported to the local or state medical society and/or the state licensing or disciplinary board.”

When reporting unethical conduct, CEJA Opinion 9.031 advises:

• “Unethical conduct that threatens patient care or welfare should be reported to the appropriate authority for a particular clinical service.
• Unethical behavior which violates state licensing provisions should be reported to the state licensing board.
• It is appropriate to report unethical conduct that potentially violates criminal statutes to law enforcement authorities.
• All other unethical conduct should be reported to the local or state medical organizations.”

“When the inappropriate conduct of a physician continues despite the initial report(s), the reporting physician should report to a higher or additional authority. The person or body receiving the initial report should notify the reporting physician when appropriate action has been taken. Physicians who receive reports of inappropriate behavior, including reports submitted anonymously, have an ethical duty to critically, objectively, and confidentially evaluate the reported information and to assure that identified deficiencies are either remedied or further reported to a higher or additional authority. Information regarding reporting or investigations of impairment or of incompetent or unethical behavior should be held in confidence until the matter is resolved.”

If you are concerned about a colleague who you believe is psychologically impaired or has issues with substance abuse, CMA’s Legal Counsel advises, “In the medical staff setting, physicians and other personnel should contact the chair of the Well-being committee (or the appropriate physician health program). Alternatively, the reporting physician or other personnel may contact the chief of staff. To the extent that the matter may be handled safely through the Well-being committee, however, that route is recommended.”3

The AMA CEJA Opinion No. 9.031 requires the following when reporting impaired physicians:

• “Physicians’ responsibilities to colleagues who are impaired by a condition that interferes with their ability to engage safely in professional activities include timely intervention to ensure that these colleagues cease practicing and receive appropriate assistance from a physician health program…
• Ethically and legally, it may be necessary to report an impaired physician who continues to practice despite reasonable offers of assistance and referral to a hospital or state physician health program.
• The duty to report under such circumstances, which stems from physicians’ obligations to protect patients against harm, may entail reporting to the licensing authority.”

AMA CEJA Opinion E-9.035, “Physician Health and Wellness” also states, in part:

“The medical profession has an obligation to ensure that its members are able to provide safe and effective care. This obligation is discharged by. . . reporting impaired physicians who continue to practice, despite reasonable offers of assistance, to appropriate bodies as required by law and/or ethical obligations. This may entail reporting to the licensing authority.”

Be familiar with legal immunities

Phillip Goldberg, Esq., of Hassard Bonnington, et al., in San Francisco, CA, advises that Alaska, California, Hawaii, and Idaho all have state laws that afford individuals the opportunity to report misconduct or inappropriate care to a person or entity in a position to investigate and act on the information with some assurance that the disclosing individual will be protected against personal liability. California, Alaska and Idaho all have statutes that provide absolute or qualified protection for those reporting to the state agency licensing physicians. Hawaii has no such express protection to date. However, Hawaii (like the other states) does provide protection for those providing information to peer review bodies. Accordingly, in Hawaii individuals with information on physician misconduct or inappropriate care may enjoy greater protection by disclosing to a hospital medical staff when appropriate as opposed to the Board of Medical Examiners. Many – if not most – state law protections are only available if the disclosing party acts in good faith and without malice in making the disclosure, so those who disclose should ensure they have appropriate motives when making a report.

For state-specific laws, see Table. When in doubt as to reporting misconduct or inappropriate care, contact MIEC’s Claims Department at 800/227-4527 or contact your local medical society for assistance.

Resources

Alaska:

The Alaska State Medical Association (ASMA) has a Physician Health Committee that addresses substance abuse and other, more serious issues. ASMA also manages a grievance committee that investigates, adjudicates and mediates patient complaints regarding the practice of medicine by physicians. For more information, call 907/562-0304.

California:

The CMA operates a Physician’s Confidential Line, which may be called by any physician, family member, or any other person who may have concerns about a doctor possibly impaired due to substance or alcohol abuse, or who displays psychological, behavioral or other problems.4 Callers will be put in touch with various resources such as medical society physician well-being committees, rehabilitation centers, physicians who specialize in addiction medicine, psychiatrists, and more, depending upon the need expressed by the caller. Telephone discussions are confidential. In Northern California, call 650/756-7787 and in Southern California, call: 213/383-2691.5

The Alameda Contra Costa Medical Association (ACCMA) has a Physicians Advisory Committee dealing with physician impairment (drug and alcohol addiction, anger issues, etc.) and a Physicians Litigation Stress Committee.  The organization’s Ethics Committee addresses questions of ethical behavior and Mediation Committees handle payment disputes between physicians and patients.  All are confidential peer review committees. Call the ACCMA at 510/654-5383 for more information.

Hawaii:

The Hawaii Medical Association (HMA) has a grievance committee in the form of an Investigation Committee (operated by Honolulu County Medical Society) and Peer Review Committee. Additionally, while independent of the HMA, the association works closely with Pu`ulu Lapa`au, a wellness program for healthcare providers. For more information, call 808/ 536-7702.

Idaho:

The Idaho Medical Association (IMA) administers the Physicians Recover Network (PRN) under contract with the Idaho Board of Medicine. PRN offers evaluation and treatment for drug and alcohol addiction, plus severe mental health issues. For more information, contact Southworth Associates at 800/386-1695 or Ron Hodge, JD, at the IMA at 208/344-7888.

A final thought

If we are to keep to the Hippocratic Oath to practice medicine ethically and honestly, we are compelled to learn ways of finding out the facts and making recommendations for doctor and patient safety without the heat of anger and judgment. If we insist within ourselves on unrelenting kindness and compassion for the people on both sides of an issue, we make it so much easier on ourselves. We are not the ones who are hurt if they blow up. The key is preparation, by understanding the facts of the case, and just as important, being keenly aware that an angry physician is a scared physician. We ourselves, through groundwork, have the option of kindness.