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Inside Medical Liability

Third Quarter 2021

 

Managing Physician Misconduct

All physicians take the Hippocratic oath prior to entering into practice, swearing to do no harm.

By Amy Buttell

 

Yet a surprising number of patients claim that they have been harmed by a healthcare provider. A 2018 Harris poll found that “nearly 1 in 5 Americans (18%) have experienced an interaction with a physician who they believed was acting unethically, unprofessionally, or providing substandard care.”1

At face value this seems like an alarmingly subjective metric for understanding incidents of misconduct. The inclusion of “providing substandard care” leaves it up to the patient to decide how well the doctor did his or her job; further, with a sample size of 2,018 respondents for the entire U.S. population age 18+, the survey leans heavily on chance to achieve a representative sample.

Despite an imperfect survey instrument, the poll does make the case that that physician misconduct is all too common. In order to reduce physician misconduct, it becomes necessary to define what it is, its physical and psychological context, and explore measures that have already been taken to combat it. While the Harris poll defines physician misconduct in one sentence, in practice this term is often more nebulous.2

The ABCs of misconduct

Given that physician licensure is controlled by state medical boards and each state has differing laws defining how medicine should and should not be practiced in specific circumstances, it is difficult to offer a precise, cohesive definition that will represent all instances of misconduct. Broadly speaking, physician misconduct includes negligence, fraud, incompetence, practicing while impaired, exerting undue influence, quid pro quo solicitation, falsifying documentation, and misrepresentation of services.

The Harris poll found that twice as many female respondents had experienced an instance of misconduct, implying that there is a gendered component to this issue. Purposeful misconduct involves an exploitation of the physician’s authority, often regarding the imbalance in the doctor-patient relationship.

While this exploitation can be for financial gain or to avoid the consequences of poor judgment or skill in a clinical sense, the most harmful type of misconduct that is commonly seen is sexual misconduct by physicians. The Federation of State Medical Boards (FSMB) Workgroup on Physician Sexual Misconduct in their 2020 report stated, “behavior that exploits the physician-patient relationship in a sexual way . . . may be verbal or physical, can occur in person or virtually.”

Types of misconduct

The definition of misconduct can be very broad. The first, and likely most common instances involve the physician exploiting the relationship between themselves and the patient. There are, unfortunately, many recent high-profile legal cases that shed some light on the issue. In 2017, former osteopathic physician Larry Nassar, medical coordinator for the U.S. gymnastics team, pled guilty to charges that resulted in him being sentenced to over a century in prison for his abuse of young girls. Some of the intial outrage sparked by this case stemmed from the age of his victims and the prolonged period during which he abused them.

The worst offenders grab the most headlines, but there are instances that go unreported or uninvestigated on a regular basis. As the FSMB’s definition states, sexual misconduct does not always involve physical touching and does not necessarily have to occur in person.

One important detail that the definition lacks is that physicians can exploit their authority in more manners than the physician-patient relationship. In academic and clinical medicine, physicians often have authority over co-workers, employees, physician trainees, and other physicians. These types of relationships where misconduct occurs are also largely contained to environments where the physician has authority, most notably the hospitals and offices where they regularly perform their duties.

Reporting requirements vary

Because licensing occurs at the state level, the same state medical boards that are in charge of licensing have created reporting requirements that differ significantly from state to state. In fact, many states do not have a mandatory reporting requirement for physicians who observe or suspect sexually exploitative behavior by another physician.

Compounding this issue, many physicians practice in relative isolation, whether that is due to their status as a solo practitioner, the only physician in a single location of a practice with multiple branches, or simply because oftentimes the physician is in an exam room with only the patient. Because the victim is often unable to process the trauma of being sexually exploited by their physician or unwilling to report for a variety of reasons, it is possible that the number of investigations that are launched in these cases pale in comparison to the number not reported.3

While investigations are rare, a qualitative review of sexual misconduct cases found that, “it was often difficult or impossible to obtain data on cases of sexual abuse in medicine.”4 Recommendations that these records be made public have largely fallen on deaf ears. Disciplinary action can also be problematic given that state medical boards are composed of other practicing physicians who might be inclined in certain circumstances to give other providers the benefit of the doubt.

In cases where sexual misconduct has been established to have occurred, it seems there is no consensus for how to rehabilitate a physician. A license may be suspended, but it could be returned to the practitioner without increased oversight in the long term. A physician may even be allowed to obtain a license to practice in another state, depending on the imposed sentence and regulations of the state where the violation occurred.

Managing misconduct risk

Unfortunately, training to prevent and call out this kind of behavior has been lacking; a situation only amplified as trainees and student doctors become indoctrinated into the profession’s “code of silence” around interpersonal violence and trauma. However, as organizations recognize the risk that physician misconduct poses, healthcare professionals, health systems, insurers, and other stakeholders are attempting to deal with this issue in a more proactive way.

There are a wide variety of potential physician misconduct situations that invite risk. Organizations must create and enforce policies and procedures designed to deal with the potential situations that may arise. These policies and procedures should:

  • Clearly define physician misconduct
  • Outline reporting responsibilities
  • Spell out applicable due process procedures
  • Specify potential discipline that may be imposed

Experienced medical risk management attorneys and MPL insurers can help physicians, practice groups, hospitals, and other healthcare entities create the correct policies and ensure that they are enforceable under specific state laws.5 It is important to ensure that organizational leaders, as well as human resources, encourage and facilitate reporting behaviors and actions that fall within established policies and procedures that have been clearly communicated throughout the organization. Once misconduct has been investigated and is established, punishments must be applied equally and without favoritism.

With appropriate policies and procedures in place, it is important to audit coverage to make sure there are adequate protections in place should physician misconduct manifest itself through investigations, charges, or lawsuits by patients, other clinicians, or other parties. Once insurance coverage is in place, organizations should review policies and procedures annually to make sure they remain adequate.

Physician misconduct is a difficult challenge that organizations must confront with transparent, updated policies and procedures. This proactive approach is important for MPL insurers and insureds and essential to risk management.

References
1. “State Medical Board Awareness Study,” The Harris Poll, 2018, https://www.fsmb.org/siteassets/advocacy/news-releases/2018/harris-pollexecutive- summary.pdf.
2. “Crisis Management: Preventing and Responding to Misconduct,” PhysicianLeaders.org, Dec. 9, 2020, https://www.physicianleaders.org/news/crisis-management-preventing-and-responding-to-misconduct.
3. “Nearly 1 in 5 Americans have experienced physician misconduct with most incidents going unreported, survey finds, FierceHealthcare.com, May 31, 2019, https://www.fiercehealthcare.com/practices/nearly-1-5-americans-have-experienced- physician-misconduct-majority-goes-unreported.
4. “Sexual Violation of Patients by Physicians: A Mixed-Methods, Exploratory Analysis of 101 Cases,” Sexual Abuse, 2019, Vol 31(5), 503-523, https://journals.sagepub.com/doi/pdf/10.1177/1079063217712217.
5. “Crisis Management: Preventing and Responding to Misconduct,” PhysicianLeaders.org, Dec. 9, 2020, https://www.physicianleaders.org/news/crisismanagement-preventing-and-responding-to-misconduct.