Reporting a Colleague- It’s hard!

Reporting a Colleague- It’s hard!  Recently a client of Garanflo and Meyer called to ask what they needed to do about a colleague or friend or partner that they believed was impaired.  Well, I had no answer for them and referred them to the Texas Medical Association.  When I was with licensure at the Texas Medical Board we never got questions on how and when to report impaired colleagues – it was not something we dealt with.

But recently the Federation of State Medical Board’s daily email listed an article in their daily news clips that had been copied from the American Academy of Pediatrics. The article titled “Reporting an impaired colleague, difficult but necessary” details how an impaired peer may be acting out, etc.  I think every Texas physician or physician to be should copy this article and tuck it away.  I believe there comes a time in every physicians career that they will be faced with a “hard” decision – reporting a peer.

Reporting an impaired colleague difficult but necessary

by Karen A. SantucciM.D., FAAP
  • Pediatricians and the Law

Your office manager tells you that your partner has been late for office hours recently, has missed appointments and hasn’t been available when on call. A nurse confides that she’s noticed your partner making untypical charting errors in the past few months. A parent complains about him being impatient and irritable during an office visit.

This uncharacteristic behavior is deeply concerning. You fear some sort of impairment, possibly substance use. What is your responsibility, and what can you do?

The American Medical Association (AMA) Code of Medical Ethics lists the following responsibilities that physicians have toward impaired colleagues (http://bit.ly/2Dh4i2i):

  • to intervene in a timely manner to ensure that impaired colleagues cease practicing and receive appropriate assistance from a physician health program;
  • to report impaired colleagues in keeping with ethics guidance and applicable law; and
  • to assist recovered colleagues when they resume patient care.

Yet one-third of physicians with personal knowledge of an impaired or incompetent colleague do not report (DesRoches CM, et al. JAMA.2010;304:187-193).

The Federation of State Medical Boards (FSMB) defines physician impairment as the inability of a physician to practice medicine with reasonable skill and safety as a result of mental disorder, physical illnesses or conditions, or substance-related disorders including abuse and dependency of drugs and alcohol (http://bit.ly/2zkPknl).

Physicians with substance use disorders (SUDs) have been described as “impaired.” Approximately 8%-15% of physicians will be impaired by psychiatric illness or SUDs at some point in their careers (Boisaubin EV, LevineRE. Am J Med Sci. 2001;322:31-36).

Clinical features of physicians with SUDs may include changes in mood/affect, decreased productivity, apathy toward patient care, increasing mistakes, inconsistent hours, complaints from patients or other colleagues, deterioration in appearance or physical health, and changes in social interactions. Physicians with SUDs suffer emotionally and may exhibit signs of mood swings, irritability, depression and disillusionment.

Physicians face unique occupational risk factors for developing SUDs, including high stress levels, pressure to succeed, long practice hours and ease of access to controlled substances. While alcohol use is most common among physicians with SUDs, prescription drug use, particularly for opioids and benzodiazepines, is higher among doctors than the general population.

Most states have a legal requirement for licensed providers to report physicians exhibiting signs of SUDs. Nearly every state has established a physician health program (PHP) to rehabilitate and monitor physicians with SUDs and other conditions. These programs often are associated with the state medical board (SMB) and/or medical society. PHPs have unique expertise in the care of impaired physicians and are equipped to support them throughout the recovery process, from evaluation through treatment and long-term monitoring.

In some states, reports may be made to the PHP rather than the SMB. Typically, the physician experiencing substance use problems may self-refer for evaluation by contacting the clinical staff at a PHP. Additionally, family members, colleagues or other concerned individuals may contact the PHP about a physician in need of assistance. This may prompt assessment, evaluation and intervention.

If the PHP determines treatment is necessary and the physician complies voluntarily, the PHP can serve as a confidential buffer with the SMB. If the physician does not comply, he or she could be reported to the SMB and face serious consequences such as licensure suspension and revocation. Those risks are greater if the physician is reported to the SMB without the involvement of the PHP.

Colleagues also may intervene without the PHP. There is no easy or foolproof way to do so. Here are some considerations:

  • Note and document concerning behaviors and events as they occur. Maintain a record of specific aberrant behaviors, performance deficiencies and breaches of professionalism. Firsthand observations are useful.
  • Before intervening, obtain legal guidance. Your medical malpractice insurer may provide risk-management and legal resources.
  • Know and follow all relevant legal, professional and institutional requirements.
  • Set up a meeting to share concerns and show support. Participants should be kind and empathetic, express positive regard for the physician’s ability, and avoid accusations, blame, arguing or negotiating.
  • Present facts about the physician’s behavior in a way that lessens denial and encourages treatment. The meeting should not be conducted as an attack or confrontation.
  • Provide resources such as how to contact your state’s PHP and note that there may be advantages to self-reporting.
  • Be clear about expectations and consequences.
  • Take appropriate steps to preserve your colleague’s privacy and reputation.
  • Have policies and procedures for employees and shareholders delineating how physician impairment due to SUD will be addressed. These may cover issues such as leave of absence, time off for disability and disciplinary action, including termination or forced suspension. Work with an attorney to ensure the documents meet legal requirements.

Most state laws provide some immunity to those who appropriately report impaired physicians in good faith. Workplace policies and documentation of the problem are invaluable should a lawsuit arise. The risk of reporting is minimal compared to the patient safety and liability risks of allowing an impaired colleague to continue to practice.

While reporting friends or colleagues with suspected SUDs to a PHP or SMB can be difficult, physicians have a duty to their patients and profession to report and assist them. The good news is that over 70% of PHP graduates return to work with no signs of relapse or malpractice five to seven years post-treatment (DuPont, RL et al. J Subst Abuse Treat. 2009;36:159-171).

Dr. Santucci is a member of the AAP Committee on Medical Liability and Risk Management

Copyright © 2018 American Academy of Pediatrics

Happy Birthday Tort Reform!!!

Tort Reform is 15 years old!

I cannot believe it! 15 years ago the Texas Medical Association provided the power to push the Texas legislature to much needed reform when it came to medical malpractice.  The result was a huge. And I mean huge there was a huge increase in physician licensure applications at the board.  In the year that I retired from the Texas Medical Board, 2010, we had over 3,000+ applications and then in 2017 over 4,700+ physician applications and from the looks of things 2018 is going to be even bigger.

Tort Reform did have a backlash. There were many that complained that the state would be flooded with physicians who were fleeing other states, but that has not been true.  The requirements for licensure have remained some of the toughest in the United States and that has not deterred applicants. I believe that the vast majority of physicians strive hard to practice good medicine.  So visit the link at the end of this article for more information.  And as Jaime and love to say WELCOME TO TEXAS!

Hallelujah the doctors keep on coming!

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https://www.texmed.org/Template.aspx?id=48427

 

 

The Corporate Practice of Medicine – UGH!

The Corporate Practice of Medicine has been around Texas for many decades.  It is one of the most confusing areas of law when it comes to hospitals, physician groups, doctors and just about anyone related to the practice of law.  Many have attempted to explain the corporate practice of medicine but still those of us that have been around docs and their practices still don’t understand how it all works.

Today the Texas Medical Association produced a Facebook post that details trouble between a hospital system and a Hospitalist group.  It seems like someone is being accused of making money by trying to influence the way in which physicians were making decisions.  Ugh!

Below you will find a link to the article.  I hope that those of you that understand it much better than me can make a diagram, powerpoint, whatever to help us all understand.

https://www.texmed.org/TexasMedicineDetail.aspx?id=47988

Well they did – but only for two years – Texas Legislative Update!!

So, the Texas Legislature during their only special session this summer decided to approve the TMB, Texas Medical Board, continuing operation for two years.  Yes, only two years!  That means that in two years the TMB staff will once again be before the legislature proving their worth – and in the meantime they will be once again spending ridiculous amounts of time gathering more data and explaining to legislators and their staffs why there needs to be a TMB!  I of course am not privy to all the whys but this action once again proves to me that the Texas legislature has not clear direction on what it’s priorities need to be.  The TMB is probably one of few agencies that not only funds itself but plenty more – the agency via license and registration fees generates millions of dollars and keeps maybe one third.  If I was a physician in this state I think I would pull a California and demand that my associations – Texas Medical Association and the Texas Osteopathic Association get deeply behind some legislation to pour more money into the TMB so that additional staff resources could be obtained.  And maybe, just maybe before any more small agencies are added to the already overloaded TMB staff TMA and TOMA might, just might oppose such an action and get the TMB back to what they are supposed to be about – the licensing and regulation of physicians!

Will they or won’t they???

So during the 2017 regular legislative the Texas Legislature seemed to forget that they needed to vote on the Texas Medical Board staying in existence!  So, Gov Abbott called them all back to Austin for a special session – and he told them – approve the med board – but alas here we are with only 7 days left of the special session and still not legislation to keep the medical board going.  So, what happens if the legislature allows the TMB to fade away??  Well, many years ago Gov Ann Richards had had it with the Dental Board and away they went – some part to the Attorney General and some part to the Dept of Health – it was a mess and a lesson should have been learned but apparently not.  A couple of great articles on the subject matter are the Texas Medical Association’s Doomsday article https://www.texmed.org/Doomsday/ and The Dallas Morning News’ article on Gov Ann Richards and the Texas Dental Board https://www.dallasnews.com/news/texas-legislature/2017/06/03/ann-richards-help-gov-greg-abbott-special-session-pickle.  I doubt that the special session will end with the medical board hanging – lots of lessons can be learned from Gov Richards example!