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Medical Justice

Making healthcare safe for doctors


Healthcare Reform

What Can Happen When Patient Consent Is Fuzzy? A Bizarre Odyssey…

01/15/16 3:19 PM

Dr. Philip Taylor was employed by Spectrum Health Primary Care Partners. He practiced as an ob-gyn. His employment agreement with Spectrum defined how they could terminate the relationship.

Summary Termination. If your employment … is terminated by its Board of Directors [the “Board”] for a serious, intentional violation of the standards of patient care (i.e., serious quality and/or safety breaches), or unethical behavior, you will automatically be deemed to have voluntarily resigned or otherwise terminated your clinical privileges or medical staff membership at any Spectrum-owned hospital facility. Termination under these circumstances will be taken only after thorough investigation and review of facts by [the Board] which includes the President of [defendant] and CEO of Spectrum. Any termination described immediately above will be referred to in this Agreement as a “Summary Termination,” and will trigger automatic resignation of Medical Staff privileges. . . .

Any termination of this Agreement and your employment by [defendant], whether Without Cause, For Cause, or Summary Termination, will be made by [the Board] following a thorough review and determination by the Professional Standards committee [PSC] in consultation with your Department Chief.

 

Dr. Taylor’s patient suffered a miscarriage at her home. The doctor instructed her to bring the 10 week old fetus to the office. They discussed whether she wanted to take the fetus with her or whether the doctor should dispose of it. The woman supposedly told Dr. Taylor to “deal with it.” More on that in just a bit.

 

Dr. Taylor thought the fetus would be “good for educational purposes” and put the fetus in a jar with formalin.

 

He showed the specimen to his two college-age daughters, described as pre-med students. The Board of Osteopathic Medicine and Surgery investigated and noted in its complaint that the doctor otherwise kept the specimen in his office or locked in a safe at home. This, of course, begs the question as to how any entity even learned of the specimen and who initiated the Board complaint. The Board ultimately reprimanded Dr. Taylor and fined him $5,000 after he pleaded no contest.

 

The story does not end there.

 

The employer, Spectrum, fired the doctor after they investigated and determined his handling of the fetus constituted unethical behavior. And, the employer, in its sole discretion, retained the right to determine what constituted unethical behavior – a rationale for termination – assuming it followed the protocol outlined in the contract.

 

Taylor sued his employer for breach of his employment contract.

 

He lost.

 

The Michigan Court of Appeals noted that the agreement was a more restrictive version of the typical at-will employment relationship. In an at-will relationship, either party is free to end the relationship at any time for any reason – assuming the reason is not illegal (such as discrimination based on race or religion). Here, the agreement specified that the employer could fire the employee if he behaved unethically. The employer just needed to follow its process, which it did. The court had no say so as to whether the employer came to the proper conclusion vis a vis a formal ethical analysis.

 

On a separate note, how is keeping the fetal specimen different than keeping a vertebrae on the mantle for educational purposes?

 

The likely answer here relates to consent.

 

When the patient asked the doctor to “deal with it”, a reasonable interpretation would be to dispose of it. When the woman was interviewed, she said that was what she understood would happen. She did not believe that her fetus would be Exhibit A on the mantle. In other words, her few words did not give implied consent for anything other than disposing of the fetus. And, that served as the foundation for his employer arguing and concluding an ethical breach occurred.

 

In the face of ambiguity, nail down specifics. If you are going to use a specimen for educational purposes, spell it out and obtain consent. There may be other laws that need to be followed. But, as a foundational principle, get it in writing.

Posted by Medical Justice | in Healthcare Reform | 4 Comments »
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Lee
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Lee

Unfortunately, if you want to work for this employer or any employer having this kind of contract language, you have to sign away all of your rights in these cases.
Of course the termination will be reported to the National Practitioner Data Bank, and other quality reporting agencies, other state boards of medicine etc. One stupid mistake, spells the end of a career.

steven teitelbaum
Guest
steven teitelbaum

Too bad for Dr. Taylor that Ted Cruz was on the Board of Directors of Spectrum.

Just kidding.

But it is a reminder that if you are going to sign a contract that lets you get fired for “unethical behavior” you sure the heck better know the sorts of people making that decision…But in any case once this salacious story went public the hospital had to fire him to protect their reputation.

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

A 10 week (unintentionally) aborted fetus has enormous emotional impact to a mother who desired to go to a full-term pregnancy. It is reasonable to suggest that her request to “deal with it” did not include using it for educational purposes or “display.” In addition, our society is going through profound liberal political correctness changes, and these affect physicians in ways that were not evident in the past. There were things that could happen in the past, but never now, and this includes transporting and managing human anatomical specimens. This brings up the issue of “donated anatomical materials” and the… Read more »

Ziga Tretjak
Guest
Ziga Tretjak

OMG! Where does this MD live? I would not dream of such acquisition even with 5 consents just as one does not “snap pix of interest” in our line of work. No matter how the contract is worded one’s future is doomed with such acts.