Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
This year, thousands of physicians will be disciplined for professional misconduct. The vast majority of these physicians will not lose their licenses, but their discipline and penalty will become a matter of public record . . . permanently. Having a disciplinary sanction on one’s record makes it difficult to maintain a successful career in medicine and the effect can be severe. Aside from the financial devastation, one’s health and personal relationships can be affected as well. Therefore, it is critical that physicians avoid serious mistakes in the first place in order to dramatically reduce the chances of becoming the subject of a disciplinary investigation.
Mistake 1 Engaging in Negligent Medical Practice
Physician negligence is the main source of disciplinary complaints and investigations against doctors. A physician will be found to have practiced the profession negligently if he or she fails to exercise the care that would be exercised by a reasonably prudent physician under the circumstances; in other words, when the physician fails to meet applicable medical standards. The standard of care will be tested based on the behavior of other physicians practicing the same specialty in the same type of setting. Unlike a medical malpractice action, a guilty finding of negligence in the context of a disciplinary matter does not require the element of damages to the patient as a result of the alleged negligence. The most frequent allegations of negligence include the following:
- Surgery–management of postoperative complications
- Failure to diagnose–cancer
- Improper treatment–insufficient therapy
- Improper treatment–birth related
- Surgery–inadvertent act
- Improper treatment–during examination
- Failure to diagnose–infection
- Improper treatment–drug side effect
- Failure to diagnose–fracture/dislocation
- Improper treatment–infection
Action Step The overwhelming majority of disciplinary complaints are filed by patients or relatives of patients. Therefore, maintaining a good physician-patient relationship is crucial and frequently has more influence over whether a complaint is made than the actual course of medical treatment or the outcome of that treatment. Studies have shown that patients are much less likely to file a complaint against a physician who has taken the time to establish a good rapport and engender the feelings of concern over the patient’s well-being.
Mistake 2 Improperly Altering the Medical Record of a Patient
Physicians should never even contemplate revising a note once it has been written in a patient’s medical record. Sometimes, it is possible to make minor clarifications along the way, but they must be made in an appropriate and above-board manner that leaves no doubt that the physician’s intentions were honest. Improper alteration of a medical record will adversely affect the credibility of the medical record and the physician and can amount to prima facie evidence of fraud. In some states, if a misleading alteration of the medical record is made intentionally or willfully, it is a felony. A physician who has improperly altered a medical record can expect an investigation by the state board of medicine.
Action Step Physicians should never alter a medical record to conceal its original content. If an addendum is necessary, it must be labeled as an addendum, must include the date and time it was written, and must be signed by the physician.
Mistake 3 Engaging in an Improper Relationship With a Patient
It is considered improper for a physician to undertake any self-gratifying behavior (including sexual intercourse, touching for a sexual purpose, sexual conversation, dating, or suggestions of sexual involvement or sexual romantic contact) during the course of the physician-patient relationship. Sexual interactions between physicians and their patients detract from the goals of the physician-patient relationship. Bringing sexual conduct into the physician-patient relationship may exploit the patient’s vulnerability, obscure the physician’s objective judgment, and be detrimental to the patient’s well-being. Almost every medical board’s position regarding sexual relationships with patients is clear and unequivocal: It will not tolerate a physician entering into a sexual relationship with a patient, consensual or otherwise. Such behavior and conduct are viewed as unprofessional and provides a basis for suspension or revocation of a physician’s license.
Action Step Physicians should always respect the physician-patient relationship and adhere to strict boundaries.
Mistake 4 Keeping Poor Records
“Medical records are often written in haste, repented at leisure”—the leisure, unfortunately, of the long and unpleasant litigation process or investigation by a state medical board or government agency. Records should convey an impression of consistently competent, attentive, thoughtful patient care. They should be legible and complete. Progress notes and other records that demonstrate a high quality of patient care do not happen by accident. The investment of time, effort, and practice of maintaining good documentation can pay for itself many times over.
Action Step Physicians must maintain complete, timely, and accurate documentation of the care rendered to a patient. Following the acronym SOAP (subjective findings, objective findings, assessment, and plan) is a good charting method.
Mistake 5 Being Impaired by Drugs or Alcohol
Physicians are not immune to the diseases of alcoholism and chemical dependency. In fact, there may be an even greater risk of such problems among physicians due to the availability and accessibility of drugs in the workplace and the work-related stresses to which most physicians are exposed. Substance abuse exposes the physician to an alarming risk of malpractice claims and, in turn, misconduct proceedings. In their efforts to protect the public, state medical boards will make certain that physicians suffering from alcoholism or substance abuse are removed from practice until they are proven to be rehabilitated.
Action Step It is imperative that physicians in a position of responsibility, whether for patient care or in other areas, should not have their performance impaired by drugs, alcohol, or other circumstances. This is true even when the physician is not on call.
Mistake 6 Having a Criminal Conviction
Once a physician is convicted of a misdemeanor or felony, the state medical board can and will commence an action against that physician based on the criminal conviction itself, regardless of whether the conviction was related to the practice of medicine or the ability to practice medicine. In such cases, the physician does not have the opportunity to dispute the underlying facts that led to the criminal conviction, but will be allowed only to put forth arguments related to mitigation and sanction. These disciplinary actions are becoming ever more popular as the state medical boards gain increasing cooperation from federal and state law enforcement authorities.
Action Step Physicians must consider the consequences of their actions, whether or not they are related to the practice of medicine, and the potential detrimental effect on their medical license.
Mistake 7 Failing to Disclose Information on Credentialing Applications
Recently, many physicians have been caught off guard by the requirement to answer questions regarding legal actions, including any past criminal convictions, on a state-mandated “physician profile” or hospital credentialing application. Failing to disclose this information can lead to a misconduct charge of fraud with the intent to deceive. Many physicians are finding themselves the subject of investigations not realizing that questions about 20-year-old DUI convictions and misdemeanor convictions for student pranks during college require a “yes” answer, if applicable.
Action Step Physicians must answer all questions on any professional application honestly and diligently. They are advised to seek the assistance of experienced health care counsel if they are confronted with a question that they are unsure about how to answer.
Mistake 8 Writing Prescriptions for Friends and Relatives
Physicians are often cautioned not to prescribe medications for themselves, family members, colleagues, or friends with whom they do not have a physician-patient relationship. However, many physicians do so despite the risks involved. A physician who prescribes for people without knowing their medical histories opens up the possibility that they could experience negative drug interactions from medications that they never mentioned to the physician or prolong the diagnoses and treatment of a serious condition. While writing prescriptions may have no negative effect, the state medical boards will not be concerned with the outcomes if they are investigating a physician’s prescribing practices. Every prescription issued by a physician creates a physician-patient relationship and requires the same protocols and procedures that a physician would provide for any of his or her patients.
Action Step While it may present personal challenges for physicians to refuse a social request for a prescription, it is essential to be able to say no. If a physician feels he or she must prescribe for a friend, relative, or colleague, the physician should remember that the law imposes very specific requirements before doing so. These include taking a thorough medical history, conducting any and all necessary physical examinations, and always creating a proper and complete patient record.
Mistake 9 Engaging in False Advertising
Physician advertising is yet another way physicians are being scrutinized by state medical boards. Although physicians are permitted to advertise, they must do so in conformity with the state laws or face potential charges of professional misconduct. In sum, physicians may engage in advertising or solicitation so long as the communication is not materially false or deceptive. Specifically, making claims of special skills or training without proper credentials constitutes fraudulent conduct and can be grounds for revocation of a professional license. Physicians in most states are also prohibited from using testimonials or guarantees of any service and must keep copies of any advertisements on file for one to two years.
Action Step Whenever an advertisement is used, the physician must possess information that substantiates the truthfulness of any representation made in the advertisement.
Mistake 10 Failing to Consult With Experienced Health Care Counsel
Perhaps the most important self-protective strategy to avoid a disciplinary sanction is retaining the services of an attorney who “practices before the board”—someone who is experienced in handling professional misconduct cases, knows the law, and understands the consequences for the physician. Experienced legal representation levels the playing field and involves not only the skills to defend the physician, but also skilled communication and collaboration.
Action Step Physicians should consult with experienced health care counsel before they have any contact with the state licensing board.
It is impossible to anticipate every situation that can lead to a professional discipline investigation. However, avoiding these mistakes can dramatically reduce a physician’s chances of facing such an investigation.
Lawrence Tabak, Esq.
Peer reviewed by:
Wendy A. Stimpfl, Esq.
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them