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Professional Misconduct.

Question: Regarding professional misconduct, which of the following choices is best?

A. The term covers a broad range of behaviors, e.g., substance abuse, fraud, and sexual misconduct, but excludes felonies that do not directly involve patients.

B. Regulating physician conduct by a state medical board is society's only means of deterring substandard care.

C. The term is not specifically used in the American Medical Association code of ethics.

D. Professional misconduct does not include medical negligence.

E. Disciplinary board actions can include fines, loss of license, and even prison terms.

Answer: C. What constitutes professional misconduct is elusive, and the Council on Ethical and Judicial Affairs of the AMA does not use or define it. However, the term is used extensively in statutes and cases and has come to represent virtually all forms of misconduct including medical negligence and all forms of felonies, even those that have nothing to do with patient care such as income-tax evasion. In other words, one who is guilty of a crime or egregious substandard care can incur additional penalties from a state's medical board for professional misconduct. Disciplinary actions run the gamut from censure or a warning to suspension or the loss of license. However, a state medical board cannot levy a jail term, which is the exclusive authority of a criminal court of law. Medical boards, via their disciplinary actions, regulate physician conduct, but they are not alone in this task. The tort system, through malpractice lawsuits, plays an equally important deterrent role.

Professional misconduct speaks to unprofessional behavior; it embraces medical incompetence and ethical breach. The original term, taken from an old English case, is "infamous conduct in a professional respect." The modern expression, "professional misconduct," has replaced "infamous conduct," but the definition is unchanged: "Serious misconduct judged according to the rules, written and unwritten, which govern the medical profession." The common sense definition requires that "a practitioner has done something in pursuit of his profession which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence."

Examples of professional misconduct are gross incompetence, sexual misconduct, overreaching or fraudulent advertising, financial conflicts of interest such as fee splitting or self-referral, academic and/or research malfeasance, felonies, and other unethical behaviors. Each state has its own statute stipulating the entire range of misconduct, which includes the category "unfit to practice." In this latter category, there is often evidence of abuse of substances like alcohol, tranquilizers, narcotics, or illicit drugs.

The AMA has laid down the most comprehensive set of norms and boundaries that govern the ethical conduct of doctors. It lists nine guidelines that cover all aspects of medical practice. Other specialty organizations have also published ethical guidelines or codes of ethics, the best known being that of the American College of Physicians. The most common disciplinary issues are sexual misconduct, substance abuse, gross medical negligence, and Medicare/Medicaid fraud. All states have special disciplinary boards to investigate and adjudicate written complaints, and they are guided by statutes that define the scope of their authority. The board's actions can be appealed to a court of law for both procedural and substantive review.

A single act of malpractice is unlikely to end up with a guilty charge of professional misconduct, although multiple or egregious negligent acts will. Medical wrongdoing can even amount to a crime where there is proven mens rea [guilty mind], which means the presence of criminal intent. Generally, this means acting purposefully, knowingly, or with reckless disregard or gross negligence. Medicare/Medicaid fraud, which carries prison terms and monetary fines, is an example. Malpractice insurance policies will neither defend nor indemnify against criminal offenses.

Prosecution of doctors for patient injuries or death is rare--and rarely successful. For example, California failed in its attempt to prosecute two doctors for withdrawing intravenous fluids in an irreversibly comatose patient that resulted in his death. The charge was homicide, but the Court decided that under the circumstances, there was no legal duty to treat. However, there is the occasional case where a physician was convicted. In People v. Einaugler, a New York doctor was prosecuted for willful neglect and reckless endangerment because he failed to transfer a nursing home patient to a hospital in a timely fashion after he had learned of the patient's abdominal condition that turned out to be peritonitis. He was sentenced to serve 52 weekends in a New York prison. The New York Supreme Court held that the misdemeanor of willful violation of heath laws required showing willful failure to provide treatment or care, not mere simple negligence. However, the evidence was sufficient to establish the defendant's guilt of reckless endangerment in the second degree in connection with his failure to transfer the patient in a timely fashion.

And in an English case, an anesthesiologist was convicted of manslaughter for the death of a patient undergoing surgery for a detached retina. During surgery, the patient's ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes. This led to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

Medical boards are generally thought to be insufficiently vigilant over matters of professional misconduct. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. In 2007-2009, for example, Minnesota had the lowest rate of disciplinary actions per 1,000 physicians (1.07), whereas Alaska had the highest rate (7.89), some seven times higher. State rankings also change drastically from year to year without apparent good reason. For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline. All of this has led critics such as Public Citizen to bemoan that "Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner."

DR. TAN is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author's book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at slang@hawaii.edu.
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Title Annotation:LAW & MEDICINE
Author:Tan, S.Y.
Publication:Family Practice News
Geographic Code:1USA
Date:Jun 1, 2011
Words:1064
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