By Dr. JD, a plaintiff’s attorney, practicing in the Northeast
We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
The first question you must answer before you consider making a report is what do you actually know? That you not act without provable good cause is both a moral obligation and your defense if you are later accused of defamation.
A good standard to apply comes from the reporting statute in Texas. There, physicians must report a colleague who “poses a continuing threat to the public welfare through the practice of medicine”. This means that the deficiency must be intrinsic or habitual and cannot simply be a different style of practice from what you endorse or the doctor being a sloppy drunk at one medical society meeting. In other words, even a state with the very strict mandatory reporting laws that Texas has still requires the reporter to vet their own suspicions seriously before taking official action.
If you do know with reasonable certainty that another physician is impaired to this degree, either by substance abuse, personality issues, or a medical condition, or is so deficient in his or her skills as to be incompetent to this degree, then the next step is to determine what your responsibilities are, not just for the common good of the profession and patients but because you do not want to incur any personal liability.
1. Your first step is to determine whether, under the laws of your state, you are a mandated reporter.
If so, your next step is to determine what options you have in terms of reporting.
For example, even in very strict Texas the alternative of reporting to a practice committee that can evaluate the matter further, rather than reporting directly to the state board, is an option. Many physicians are more comfortable with this route because it interposes an expert panel between their suspicions and their colleague’s career.
However, no matter how discomforting it may be to report a colleague, doing nothing is simply not a permissible option once your significant suspicions are raised, and your own license will be in jeopardy if it is later determined that you failed to act under a duty imposed on you through your licensure.
There is only one potential exception to this – the point at which mandated reporting comes into conflict with mandated confidentiality.
There is a generally-accepted exception to the duty to report if the deficient physician is your own patient, and there can also be an exception if a patient discloses information about a deficient physician to you in the course of medical contact that is itself confidential.
However, this is where common law, state statute and HIPAA collide in ways that you should not try to parse out on your own, especially with your own license potentially being on the line.
These scenarios should therefore be vetted with your state board (in writing!). If you are later charged with breaching confidence, the fact that you followed lawful instructions from the governing medical body of your state will be your defense.
Finally, make all reports in writing and send them with proof of dispatch (either certified mail or an electronic time stamp) and keep the report. Should you later be claimed to be liable for not reporting, this will be your necessary proof of compliance.
2. Whether or not you are a mandated reporter, you still have an ethical obligation to report. It is not enforceable but it is the right thing to do both for the physician with the problem and for the public health.
The limiting issue, as above, is whether you are constrained by confidentiality.
3. However, even if you are not a mandated reporter, there may be other reporting requirements that carry potential liability that still pertain to you:
(i) You may have an obligation that arises from a fiduciary relationship.
If you are a member of a partnership practice, or are an officer (administrative or clinical) of a hospital, you are obligated to protect the interests of the group or facility. This imposes an absolute obligation to reveal any known deficiencies in a physician (a member of the group/staff or even a non-member, such as someone who is often referred to) that may adversely affect the practice or institution. If you conceal the information, you can be liable to the group or facility for damages that that deficient physician eventually causes to either.
If you are constrained by confidentiality, you may still be able to make a very general statement (“We should no longer be referring to X”, “There appear to be issues about X that warrant a partnership/privileges review”) in this case, since, unlike reporting to the state, you are not required to be specific. Again, this should be checked with your state board.
(ii) You also have to guard against incurring personal malpractice liability.
If a patient is seeing both you and the deficient physician and you become aware that that patient is at actual risk or is being harmed (i.e.; it is not a mere difference of opinion with the other physician as to appropriate treatment) your duty to your patient requires you to act, and that duty pertains irrespective of whether you are making a separate report to an authority because your patient would otherwise remain at risk during the time that your allegation was under investigation.
You should first try to discuss the patient’s care with the other physician. If you are successful in getting them to alter their conduct, document in your own records that you intervened to stop the substandard care.
If, on the other hand, that contact is impossible or unsuccessful, and you remain convinced that your patient is still at risk, you must speak with your patient. However, that duty does not require you to tell them that the other physician is deficient and in fact you should avoid doing so if at all possible. You should instead offer the patient an alternative or suggest that they seek a second opinion and then document that you did so. Revealing the other physician’s deficiency should be a last resort.
(iii) You are also under an obligation to inform subsequent employers of a physician’s deficiency.
If you are contacted for an evaluation and you do not reveal what you know, or, worse, cover for your ex-colleague/employee with a good recommendation, you can be liable for fraudulently failing to disclose that information.
In fact, as in an actual case, you can end up on the hook for a malpractice judgment.
In that case, a doctor was impaired by drug addiction and was fired from his hospital and group. Two of his former partners wrote complimentary letters for him and the hospital revealed only basic credentialing information but not his misconduct. He found a job in another state and there he committed extremely serious malpractice as a result of his addiction. The case settled for several million dollars. The second hospital then became aware that misleading information had been provided to it about the doctor and sued the first hospital and group for having committed that misrepresentation. The jury found that the misrepresentation was itself the proximate cause of the patient’s injuries because the impaired doctor would never have been at the second hospital to harm the patient if the truth about him had been revealed from the start, and found that the first hospital and group were therefore responsible for half of the very large malpractice settlement.
You do, however, need to protect yourself in a setting in which you are releasing information to a third party. Therefore, if you receive a request for information from a prospective employer, you should ask them to obtain a signed release from your ex-colleague/employee. If the release is refused, that will probably end the matter because the prospective employer will know that there must be a problem. However, if the prospective employer still contacts you for information without a release, then your response (in writing, in case you are later sued for defamation or a complaint is made for breach of confidentiality) should be “I cannot recommend this candidate” and nothing more.
So, under this really very wide reporting duty, is there still a place for helping your impaired colleague get better or your incompetent colleague become a better doctor?
Yes, but only in a limited fashion.
To begin with, he or she has to be willing to work at improving.
For example, even in very, very tough Texas, reporting can be deferred if an impaired physician complies with treatment guidelines, such as through a Physician Health Committee.
The parallel for professional incompetence would be restricting privileges and requiring retraining and observation until proficiency is demonstrated.
In other words, you do have the option to be a friend, but only a tough one and only if the person you are extending the help to lives up to it.
– help your colleague to get in touch with a Physician’s Health Committee if they are impaired by drugs or alcohol or psychological issues, or to get the medical care they need if their problem is solely physical, or to get a training/monitoring program set up if the issue is a lack of skill.
– offer to do what you can to support them, and if they get angry and resentful remember that you are really trying to help them salvage their career and hang in there.
However, if they will not help themselves then your legal and ethical duties take precedence and you must report.