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The Hunted Physician
By Sharon B. Kime and Robert J. Sullivan
Physician discipline is a lot like hunting gazelles in Africa. Recall the
wildlife movies you've watched. A herd of thousands of gazelles
graze peacefully across the vast African plain. Creeping undetected
in the grass to the right are several lionesses studying the herd,
waiting for the opportune moment to lunge full speed after their
chosen prey. Suddenly, the chase erupts. The drama is riveting. The
surprised victim, now at full alert, breaks into a run. With few
exceptions, the surrounding gazelles seem undisturbed. Most
continue grazing, unconcerned with the intense life- and-death
struggle going on about them.
Physician discipline is very similar. The strategy and power of the
hunter, the hapless innocence of the hunted, and the apathy of the
group all visually represent what occurs in most cases of physician
discipline. Unfortunately, the scenario is repeating with increasing
frequency in California.
Social pressures for change in health care drive increased
regulation. In the past, physicians were revered as a resource and
friend of the community. Now, due to the increases in health care
costs, they are viewed with suspicion. Current estimates of health
care costs are $939.9 billion per year. Although direct
physician
costs account for only 18.6 percent of this figure, it is estimated that
physicians spend 85 percent of the health care dollar with their pens
through prescriptions for drugs, devices and hospitalizations.
Because health care costs are seen as a threat to the economic
health of the nation, physicians have been cast in the role of the
enemy rather than cherished professional. Expect increased
regulation by federal and state agencies
These economic pressures and changes in the social status of the
physician have resulted in reforms not only to decrease costs in
health care but also to increase physician discipline. Responding to
public perception consumer protection in medical care was lax,
legislation passed in 1991 (SB 2375-Presley) revamped the physician
disciplinary system. The BMQA, renamed the Medical Board of
California, mandated tougher actions on bad doctors, a reduction in
case backlogs and slashed investigation time. Prior to this
legislation, approximately 175-200 Medical Board accusations were
filed per year against California physicians. Following this reform,
the number of
accusations rose to 1,000 the first year. At first, this was explained
as a correction due to the backlog. Now, however, the continued
increase has been attributed to an increased number of complaints
against physicians (6,000 - 8,000/year), and to increased force of
investigators and prosecuting deputy attorneys general. The 1991
legislation created a new Attorney General Health Quality
Enforcement section for the purpose of prosecuting Medical Board
cases. Between approximately 5060 full-time deputy attorneys
general are employee~ to prosecute the approximately 60,000
practicing physicians in the state. This ratio of attorney general
prosecutors to physicians exceeds the ratio of district attorneys per
county population to prosecute criminals in any county in the state.
Physicians who believe the Medical Board only prosecutes the
totally disreputable physician or none at all are operating with a
perception that is as outdated as the horse and buggy. Cases are
arising against legitimate physicians with increasing frequency. To
analogize the Medical Board to a medical test, it is sensitive but not
specific. While more accusations are being filed, many should never
have been charged. At the same time, some truly bad physicians
continue to escape discipline. Competent physicians may become
subjects of Medical Board actions.
Case in point: Physician A was a model physician.
He was competent, compassionate, hard-working and
devoted to his patients and family. He had practiced
almost 20 years in the same community. No one had
ever made a malpractice claim against him. He had
never been censored or disciplined. He held a record of
unblemished privileges at three local hospitals. He had been Chief of the Family Practice Department at the hospital and served as utilization Chairman of the
county's IPA. He was well-respected by his colleagues.
When we saw him in our offices, he was facing a Medical Board
action to revoke his medical license. He had seen a young mother
as a new patient, performed a physical exam and listened to the
patient's litany of problems, which focused on stress and insomnia.
He prescribed Xanax and referred her for psychiatric help.
One problem the patient briefly mentioned among the multitude of
problems was the 11-year- old neighbor boy: He had damaged her
6-year-old daughter's bike and, just the night before, the daughter
told her he had raped her some time in the past. Dr. A. told the
patient that, if she believed a rape had occurred, she could report it to Child Protective Services. Dr. A. did not see
the child as a patient, nor did he believe a rape had actually
occurred.
The patient not only reported the incident to Child Protective
Services, she complained to the Medical Board that Dr. A. failed to
report child abuse. Several months later, the Medical Board sent the
mother and child with a hidden tape recorder to visit Dr. A. Although
Dr. A. reiterated his advice to the mother, he still did not report the
rape; he still did not believe a rape had occurred. Nonetheless, the
district attorney brought criminal charges against the physician for
failing to report child abuse. Dr. A. did not obtain legal
representation. He could have easily defended the failure to report
based on his reasonable belief that no abuse had occurred. Instead,
he took the advice of the district attorney to plead nolo contendere,
pay the~ fine, take probation for a short period, and eventually have
the entire incident expunged. Although the DA was aware this plea
would be grounds for revocation of his medical license, the DA did
not inform Dr. A. of that fact.
Subsequently, the Medical Board brought an action to revoke Dr.A.'s
medical license on the basis of a conviction of a crime substantially
related to the practice of medicine. The sole issue in such a case is
whether or not the conviction occurred and its relation to the
practice of medicine. Despite intense negotiations with the attorney
general, Dr. A.'s license was revoked, stayed and he was put on
probation for one year.
There are things you can do to avoid disciplinary action or minimize
its impact:
A. To prevent disciplinary action, take constructive steps:
- Denude your mind of the concept it could never happen to
you,
it could. At the current rate of enforcement, in 10 years a significant
percentage of the physicians in California Will have been
disciplined. Considering the effort and resources expended to obtain
a medical education, a little effort spent to preserve it is only
rational.
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Purchase insurance for administrative actions.
Legal representation for a Medical Board action can easily run
$50,000 -$100,000. Administrative Insurance will cover disciplinary
proceedings initiated by the Medical Board, a hospital medical staff,
HMO, PPO, Medicare Professional Review Organization (PRO), as
well as Medicare /Medicaid reimbursement disputes. This form of
insurance is not usually covered by your malpractice insurance;
however, with the increasing demand, a few malpractice carriers
have added Administrative coverage. You should check your policy
or call your agent for information. If it is available to you, it is well
worth the small additional premium.
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Maintain constructive relationships with your professional
colleagues.
Poor interpersonal skills subject the physician to an
increased
likelihood of receiving discipline. Abusive behavior to colleagues or
nurses creates enemies who will be unforgiving for any infraction in
quality of care, however minor. Many disciplinary actions are the
result of poor relationships with either coworkers or colleagues, not
poor medical care.
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Don't isolate yourself from the medical community.
Stay involved in your physician organizations and participate in the
hospital committees. Isolation breeds suspicion. Gone are the days
of the brilliant loner physician who gains recognition on the sheer
strength of his own ideas. Staying in the community with your
colleagues reduces the risk of unnecessary criticism, gives evidence that your practice is
compatible with others and offers an opportunity to exchange
information and stay informed.
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Practice within the community standard. This may sound obvious, but there are those who think they are
above the standard. Unless other physicians are persuaded this
practice is superior, physicians who practice differently, no matter
how pure their motivation, risk discipline.
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Keep good medical records. The burden is on the physician to demonstrate medical indications
for treatment and prescriptions. Adequate documentation is
essential evidence to demonstrate medical indication. Without it, the
physician's care may be misinterpreted by medical experts who
review his records or distorted by poor memories or hostile motives
of former patients.
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Bill carefully and conservatively.
Insurance fraud is the kiss of death. Simple errors in billing by
improperly supervised subordinates can balloon into enormous
legal battles. Supervise well-trained staff and randomly check
billing-procedures to make sure they are in compliance with your
requirements.
B. To survive discipline, get competent legal
representation. Generally, the sooner a cancer patient obtains competent medical
care, the better the outcome. The same can be said, as a general
rule, for the physician's career once disciplinary action has been
initiated. Disciplinary actions should be handled by an attorney
experienced in Administrative law. The forum and procedures in
administrative hearings are different from those in civil court. It is
not wise to turn over an administrative case to a business or estate
attorney no matter how trusted. An attorney with inadequate
experience in administrative matters can min a Physician's career.
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