S.Y. Tan, MD, JD

Question: Which of the following is incorrect?

A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.

B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.

C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.

D. An employment contract should cover matters concerning confidentiality and privacy.

E. Staff should use office computers only for work-related activities.

Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.

While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.

Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.

In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.

There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.

Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.

In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.

The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?

Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).

In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.

Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).

It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).

Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.

One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).

Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."

Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.

The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Which of the following is incorrect?

A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.

B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.

C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.

D. An employment contract should cover matters concerning confidentiality and privacy.

E. Staff should use office computers only for work-related activities.

Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.

While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.

Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.

In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.

There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.

Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.

In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.

The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?

Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).

In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.

Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).

It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).

Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.

One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).

Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."

Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.

The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Which of the following is incorrect?

A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.

B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.

C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.

D. An employment contract should cover matters concerning confidentiality and privacy.

E. Staff should use office computers only for work-related activities.

Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.

While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.

Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.

In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.

There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.

Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.

In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.

The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?

Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).

In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.

Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).

It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).

Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.

One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).

Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."

Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.

The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.

The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.

Which of the following observations is correct?

A. Failure to diagnose is the most common basis for a medical malpractice claim.

B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.

C. The doctor may have been biased, because this was a patient with a psychiatric history.

D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.

E. All are correct.

Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.

It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.

Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.

Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.

In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.

Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.

In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.

Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.

Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.

The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.

One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.

Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).

Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.

One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.

The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.

Which of the following observations is correct?

A. Failure to diagnose is the most common basis for a medical malpractice claim.

B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.

C. The doctor may have been biased, because this was a patient with a psychiatric history.

D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.

E. All are correct.

Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.

It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.

Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.

Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.

In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.

Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.

In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.

Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.

Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.

The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.

One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.

Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).

Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.

One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.

The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.

Which of the following observations is correct?

A. Failure to diagnose is the most common basis for a medical malpractice claim.

B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.

C. The doctor may have been biased, because this was a patient with a psychiatric history.

D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.

E. All are correct.

Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.

It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.

Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.

Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.

In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.

Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.

In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.

Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.

Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.

The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.

One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.

Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).

Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.

One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Which is the single best statement?

A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).

B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.

C. The U.S. Supreme Court has held there is no constitutional right to PAS.

D. All are correct.

E. Only 1 and 2 are correct.

Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).¹

Since that time, Washington² and most recently Vermont,³ have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.⁴

What does the U.S. Supreme Court have to say about PAS?

In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.⁵ However, it was in the 1997 landmark case of Vacco v. Quill⁶ that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.

On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.

On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg⁷, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.

However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.⁸

The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.⁹

The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.

Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."¹⁰

Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.

Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.

The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.¹¹

References

1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.

2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.

3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).

4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).

5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

6. Vacco v. Quill, 117 S. Ct. 2293 (1997).

7. Washington v. Glucksberg, 521 U.S. 702 (1997).

8. See www.amednews.com/article/20120417/profession/304179996.

9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.

10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).

11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. 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 [email protected].

Question: Which is the single best statement?

A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).

B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.

C. The U.S. Supreme Court has held there is no constitutional right to PAS.

D. All are correct.

E. Only 1 and 2 are correct.

Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).¹

Since that time, Washington² and most recently Vermont,³ have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.⁴

What does the U.S. Supreme Court have to say about PAS?

In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.⁵ However, it was in the 1997 landmark case of Vacco v. Quill⁶ that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.

On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.

On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg⁷, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.

However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.⁸

The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.⁹

The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.

Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."¹⁰

Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.

Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.

The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.¹¹

References

1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.

2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.

3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).

4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).

5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

6. Vacco v. Quill, 117 S. Ct. 2293 (1997).

7. Washington v. Glucksberg, 521 U.S. 702 (1997).

8. See www.amednews.com/article/20120417/profession/304179996.

9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.

10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).

11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. 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 [email protected].

Question: Which is the single best statement?

A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).

B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.

C. The U.S. Supreme Court has held there is no constitutional right to PAS.

D. All are correct.

E. Only 1 and 2 are correct.

Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).¹

Since that time, Washington² and most recently Vermont,³ have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.⁴

What does the U.S. Supreme Court have to say about PAS?

In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.⁵ However, it was in the 1997 landmark case of Vacco v. Quill⁶ that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.

On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.

On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg⁷, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.

However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.⁸

The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.⁹

The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.

Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."¹⁰

Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.

Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.

The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.¹¹

References

1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.

2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.

3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).

4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).

5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

6. Vacco v. Quill, 117 S. Ct. 2293 (1997).

7. Washington v. Glucksberg, 521 U.S. 702 (1997).

8. See www.amednews.com/article/20120417/profession/304179996.

9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.

10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).

11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. 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 [email protected].

Question: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A doctor decides to leave her new job. She had joined the medical group as a junior associate with a 2-year employment contract, but decided to go out on her own after a year. In reviewing her contract, she noted that all she had to do was to give 30 days’ notice, but then discovered there was a non-compete clause (NCC) which forbade her from setting up her practice within a mile of the group’s clinic in the next 3 years. Which of the following statements is best?

A. Non-compete clauses (NCCs) in a physician employment contract are contrary to public policy and legally unenforceable.

B. The American Medical Association believes all NCCs are unethical.

C. The majority of jurisdictions will honor NCCs if the terms are reasonable.

D. Any territorial restriction of the new practice, being against the patient’s interest, is unenforceable.

E. It is inadvisable for a hiring group to include an NCC in its employment contract.

Answer: C. Most employment contracts limit for some duration where the departing doctor-employee may set up his or her new practice. Such restrictive covenants are also known as non-compete clauses (NCCs). In the majority of jurisdictions, an NCC is legally binding so long as the restrictive terms are reasonable. Prior to 1977 (Opinion 4.63), the American Medical Association’s (AMA) position was that there was "no ethical proscription" against a restrictive covenant with reasonable terms, but this has since been modified. As stated in Opinion 9.02¹, the AMA now believes: "Covenants-not-to-compete restrict competition, disrupt continuity of care, and potentially deprive the public of medical services. The Council on Ethical and Judicial Affairs discourages any agreement which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of an employment, partnership, or corporate agreement. Restrictive covenants are unethical if they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of patients’ choice of physician."

As regards physicians-in-training, the AMA categorically considers it "unethical for a teaching institution to seek a noncompetition guarantee in return for fulfilling its educational obligations" (Opinion 9.021).

The main reason for incorporating an NCC into a doctor’s employment contract is financial. The employer has invested time, effort, and money in recruiting the new physician with the expectation that he or she will serve out the entire employment period so that those costs can be recouped. Furthermore, patients may leave to follow the exiting doctor, who may become a competitor provider. The counterargument is that patients should be free to choose from whom and where they wish to seek care and that any restriction is against public policy, being against the patient’s best interest.

Some jurisdictions have ruled all NCCs unenforceable unless there are statutory provisions to the contrary. A litigated case is Murfreesboro Medical Clinic v. Udom². Dr. Udom, an internist, had signed a non-compete agreement with his employer, the Murfreesboro Medical Clinic, a multispecialty physician group in Tennessee. The contract restricted, for 18 months, his setting up a new practice within 25 miles of the city. Dr. Udom argued that the restrictions were unreasonably broad and inimical to public policy. The clinic pointed to its legitimate business interest, having invested in the doctor’s relocation and training, and having incurred overhead and other expenses. Notwithstanding rulings from the lower courts siding with the Murfreesboro Medical Clinic, the Tennessee Supreme Court, upon appeal, held that such restrictive covenants for doctors, unless permitted by statute, are contrary to public policy and therefore unenforceable. This court victory for Dr. Udom put Tennessee among the minority of jurisdictions (for example, California, Colorado, Massachusetts, and Texas) that significantly disfavor or disallow NCCs altogether.

However, subsequent to this landmark decision, the Tennessee legislature enacted a law permitting NCCs under limited circumstances, and since 2008, the terms of the statute (Tenn. Code Ann. 63-1-148) have been revised on several occasions. One should therefore always consult current state statutes on point.

The majority of jurisdictions continue to honor NCCs as long as the terms are reasonable. A recent Kansas case is illustrative. Wichita Clinic v. Louis³ involved an action against a family practitioner for alleged violation of a restrictive covenant not to compete. In ruling for the clinic, the Court of Appeals of Kansas reversed a lower court decision that initially found in favor of Dr. Louis. The Court of Appeals held that NCCs are enforceable so long as four conditions are satisfied: 1) the agreement protects a legitimate business interest of the employer;, 2) there is no undue burden on the departing employee; 3) the terms are not injurious to the public welfare; and 4) the time and territorial limitations are reasonable.

It behooves the newly recruited physician to study the employment contract, preferably with the aid of an experienced attorney. Likewise, the employer should continue to use reasonable NCCs to protect its legitimate business interest. In general, employment contracts tend to be standardized or "boiler-plate," and are typically generated by the employer. So the prospective physician-employee should carefully note the terms, and clarify or negotiate, if necessary, any that are unfavorable, unfair, or ambiguous. A buyout option is sometimes incorporated into an employment contract, which allows the employee to pay "liquidated damages" of a predetermined sum as a way out of the restrictions. These buyout options have withstood judicial scrutiny if the damages, such as a year’s salary plus reimbursed moving and other expenses, are rationally based and deemed neither excessive nor punitive. Another option is a "nonsolicitation" clause that prohibits the departing doctor from encouraging former patients to relocate.

Citations

1. Opinion 9.02. "Restrictive Covenants and the Practice of Medicine." Code of Medical Ethics of the American Medical Association, 2012-2013 edition, p 325.

2. Murfreesboro Medical Clinic v. Udom, 166 S.W.3d 674 (Tenn. 2005).

3. Wichita Clinic v. Louis, 185 P 3d 946 (Kan. 2008).

Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A doctor decides to leave her new job. She had joined the medical group as a junior associate with a 2-year employment contract, but decided to go out on her own after a year. In reviewing her contract, she noted that all she had to do was to give 30 days’ notice, but then discovered there was a non-compete clause (NCC) which forbade her from setting up her practice within a mile of the group’s clinic in the next 3 years. Which of the following statements is best?

A. Non-compete clauses (NCCs) in a physician employment contract are contrary to public policy and legally unenforceable.

B. The American Medical Association believes all NCCs are unethical.

C. The majority of jurisdictions will honor NCCs if the terms are reasonable.

D. Any territorial restriction of the new practice, being against the patient’s interest, is unenforceable.

E. It is inadvisable for a hiring group to include an NCC in its employment contract.

Answer: C. Most employment contracts limit for some duration where the departing doctor-employee may set up his or her new practice. Such restrictive covenants are also known as non-compete clauses (NCCs). In the majority of jurisdictions, an NCC is legally binding so long as the restrictive terms are reasonable. Prior to 1977 (Opinion 4.63), the American Medical Association’s (AMA) position was that there was "no ethical proscription" against a restrictive covenant with reasonable terms, but this has since been modified. As stated in Opinion 9.02¹, the AMA now believes: "Covenants-not-to-compete restrict competition, disrupt continuity of care, and potentially deprive the public of medical services. The Council on Ethical and Judicial Affairs discourages any agreement which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of an employment, partnership, or corporate agreement. Restrictive covenants are unethical if they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of patients’ choice of physician."

As regards physicians-in-training, the AMA categorically considers it "unethical for a teaching institution to seek a noncompetition guarantee in return for fulfilling its educational obligations" (Opinion 9.021).

The main reason for incorporating an NCC into a doctor’s employment contract is financial. The employer has invested time, effort, and money in recruiting the new physician with the expectation that he or she will serve out the entire employment period so that those costs can be recouped. Furthermore, patients may leave to follow the exiting doctor, who may become a competitor provider. The counterargument is that patients should be free to choose from whom and where they wish to seek care and that any restriction is against public policy, being against the patient’s best interest.

Some jurisdictions have ruled all NCCs unenforceable unless there are statutory provisions to the contrary. A litigated case is Murfreesboro Medical Clinic v. Udom². Dr. Udom, an internist, had signed a non-compete agreement with his employer, the Murfreesboro Medical Clinic, a multispecialty physician group in Tennessee. The contract restricted, for 18 months, his setting up a new practice within 25 miles of the city. Dr. Udom argued that the restrictions were unreasonably broad and inimical to public policy. The clinic pointed to its legitimate business interest, having invested in the doctor’s relocation and training, and having incurred overhead and other expenses. Notwithstanding rulings from the lower courts siding with the Murfreesboro Medical Clinic, the Tennessee Supreme Court, upon appeal, held that such restrictive covenants for doctors, unless permitted by statute, are contrary to public policy and therefore unenforceable. This court victory for Dr. Udom put Tennessee among the minority of jurisdictions (for example, California, Colorado, Massachusetts, and Texas) that significantly disfavor or disallow NCCs altogether.

However, subsequent to this landmark decision, the Tennessee legislature enacted a law permitting NCCs under limited circumstances, and since 2008, the terms of the statute (Tenn. Code Ann. 63-1-148) have been revised on several occasions. One should therefore always consult current state statutes on point.

The majority of jurisdictions continue to honor NCCs as long as the terms are reasonable. A recent Kansas case is illustrative. Wichita Clinic v. Louis³ involved an action against a family practitioner for alleged violation of a restrictive covenant not to compete. In ruling for the clinic, the Court of Appeals of Kansas reversed a lower court decision that initially found in favor of Dr. Louis. The Court of Appeals held that NCCs are enforceable so long as four conditions are satisfied: 1) the agreement protects a legitimate business interest of the employer;, 2) there is no undue burden on the departing employee; 3) the terms are not injurious to the public welfare; and 4) the time and territorial limitations are reasonable.

It behooves the newly recruited physician to study the employment contract, preferably with the aid of an experienced attorney. Likewise, the employer should continue to use reasonable NCCs to protect its legitimate business interest. In general, employment contracts tend to be standardized or "boiler-plate," and are typically generated by the employer. So the prospective physician-employee should carefully note the terms, and clarify or negotiate, if necessary, any that are unfavorable, unfair, or ambiguous. A buyout option is sometimes incorporated into an employment contract, which allows the employee to pay "liquidated damages" of a predetermined sum as a way out of the restrictions. These buyout options have withstood judicial scrutiny if the damages, such as a year’s salary plus reimbursed moving and other expenses, are rationally based and deemed neither excessive nor punitive. Another option is a "nonsolicitation" clause that prohibits the departing doctor from encouraging former patients to relocate.

Citations

1. Opinion 9.02. "Restrictive Covenants and the Practice of Medicine." Code of Medical Ethics of the American Medical Association, 2012-2013 edition, p 325.

2. Murfreesboro Medical Clinic v. Udom, 166 S.W.3d 674 (Tenn. 2005).

3. Wichita Clinic v. Louis, 185 P 3d 946 (Kan. 2008).

Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: A doctor decides to leave her new job. She had joined the medical group as a junior associate with a 2-year employment contract, but decided to go out on her own after a year. In reviewing her contract, she noted that all she had to do was to give 30 days’ notice, but then discovered there was a non-compete clause (NCC) which forbade her from setting up her practice within a mile of the group’s clinic in the next 3 years. Which of the following statements is best?

A. Non-compete clauses (NCCs) in a physician employment contract are contrary to public policy and legally unenforceable.

B. The American Medical Association believes all NCCs are unethical.

C. The majority of jurisdictions will honor NCCs if the terms are reasonable.

D. Any territorial restriction of the new practice, being against the patient’s interest, is unenforceable.

E. It is inadvisable for a hiring group to include an NCC in its employment contract.

Answer: C. Most employment contracts limit for some duration where the departing doctor-employee may set up his or her new practice. Such restrictive covenants are also known as non-compete clauses (NCCs). In the majority of jurisdictions, an NCC is legally binding so long as the restrictive terms are reasonable. Prior to 1977 (Opinion 4.63), the American Medical Association’s (AMA) position was that there was "no ethical proscription" against a restrictive covenant with reasonable terms, but this has since been modified. As stated in Opinion 9.02¹, the AMA now believes: "Covenants-not-to-compete restrict competition, disrupt continuity of care, and potentially deprive the public of medical services. The Council on Ethical and Judicial Affairs discourages any agreement which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of an employment, partnership, or corporate agreement. Restrictive covenants are unethical if they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of patients’ choice of physician."

As regards physicians-in-training, the AMA categorically considers it "unethical for a teaching institution to seek a noncompetition guarantee in return for fulfilling its educational obligations" (Opinion 9.021).

The main reason for incorporating an NCC into a doctor’s employment contract is financial. The employer has invested time, effort, and money in recruiting the new physician with the expectation that he or she will serve out the entire employment period so that those costs can be recouped. Furthermore, patients may leave to follow the exiting doctor, who may become a competitor provider. The counterargument is that patients should be free to choose from whom and where they wish to seek care and that any restriction is against public policy, being against the patient’s best interest.

Some jurisdictions have ruled all NCCs unenforceable unless there are statutory provisions to the contrary. A litigated case is Murfreesboro Medical Clinic v. Udom². Dr. Udom, an internist, had signed a non-compete agreement with his employer, the Murfreesboro Medical Clinic, a multispecialty physician group in Tennessee. The contract restricted, for 18 months, his setting up a new practice within 25 miles of the city. Dr. Udom argued that the restrictions were unreasonably broad and inimical to public policy. The clinic pointed to its legitimate business interest, having invested in the doctor’s relocation and training, and having incurred overhead and other expenses. Notwithstanding rulings from the lower courts siding with the Murfreesboro Medical Clinic, the Tennessee Supreme Court, upon appeal, held that such restrictive covenants for doctors, unless permitted by statute, are contrary to public policy and therefore unenforceable. This court victory for Dr. Udom put Tennessee among the minority of jurisdictions (for example, California, Colorado, Massachusetts, and Texas) that significantly disfavor or disallow NCCs altogether.

However, subsequent to this landmark decision, the Tennessee legislature enacted a law permitting NCCs under limited circumstances, and since 2008, the terms of the statute (Tenn. Code Ann. 63-1-148) have been revised on several occasions. One should therefore always consult current state statutes on point.

The majority of jurisdictions continue to honor NCCs as long as the terms are reasonable. A recent Kansas case is illustrative. Wichita Clinic v. Louis³ involved an action against a family practitioner for alleged violation of a restrictive covenant not to compete. In ruling for the clinic, the Court of Appeals of Kansas reversed a lower court decision that initially found in favor of Dr. Louis. The Court of Appeals held that NCCs are enforceable so long as four conditions are satisfied: 1) the agreement protects a legitimate business interest of the employer;, 2) there is no undue burden on the departing employee; 3) the terms are not injurious to the public welfare; and 4) the time and territorial limitations are reasonable.

It behooves the newly recruited physician to study the employment contract, preferably with the aid of an experienced attorney. Likewise, the employer should continue to use reasonable NCCs to protect its legitimate business interest. In general, employment contracts tend to be standardized or "boiler-plate," and are typically generated by the employer. So the prospective physician-employee should carefully note the terms, and clarify or negotiate, if necessary, any that are unfavorable, unfair, or ambiguous. A buyout option is sometimes incorporated into an employment contract, which allows the employee to pay "liquidated damages" of a predetermined sum as a way out of the restrictions. These buyout options have withstood judicial scrutiny if the damages, such as a year’s salary plus reimbursed moving and other expenses, are rationally based and deemed neither excessive nor punitive. Another option is a "nonsolicitation" clause that prohibits the departing doctor from encouraging former patients to relocate.

Citations

1. Opinion 9.02. "Restrictive Covenants and the Practice of Medicine." Code of Medical Ethics of the American Medical Association, 2012-2013 edition, p 325.

2. Murfreesboro Medical Clinic v. Udom, 166 S.W.3d 674 (Tenn. 2005).

3. Wichita Clinic v. Louis, 185 P 3d 946 (Kan. 2008).

Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Regarding false claims, which of the following is best?

A. The False Claims Act (FCA) is the only federal antifraud statute of importance.

B. FCA covers principally health-related transactions.

C. Violations require an intention to defraud and acting negligently or knowingly.

D. A coworker may file a false-claims suit on behalf of the government and share in the proceeds.

E. FCA targets institutions and corporations, not individuals.

Answer: D. The False Claims Act, first enacted in 1863, imposes liability for submitting a payment demand to the federal government where there is actual or constructive knowledge that the claim is false. Intent to defraud is not a required element, but knowing or reckless disregard of the truth is. However, an error that is negligently committed is insufficient to constitute a violation.

Many states now have their own versions of FCA. The law applies to claims made by individuals or organizations to any governmental entity, including but not limited to Medicare/Medicaid. Although FCA is the most prominent health care antifraud statute, there are many others such as the anti-kickback statute; the Stark law; HIPAA (Health Insurance Portability and Accountability Act); and general criminal statutes covering theft, embezzlement, obstruction of criminal investigations, false statements, mail/wire fraud, and so on.

Private individuals including whistle-blowers, civic associations, or public interest groups can file a so-called qui tam action. Called relators, such plaintiffs may act alone or in concert with the government, and they stand to collect a substantial bounty, up to 30% of the proceeds. They do not have to show legal standing, and need not sustain any personal injury. The government can decide, upon diligent investigation, whether to intervene by taking or declining action, or may request the court to dismiss the case altogether.

In fiscal 2012, relators lodged 647 qui tam suits, which are now easier to file following amendments to FCA in 1986, together with the enactment of the Fraud Enforcement and Recovery Act of 2009 and the Affordable Care Act of 2010.

Health care fraud and abuse are believed to waste some 10% of federal health expenditures. Under federal law, it is illegal to submit fraudulent claims to Medicare or Medicaid. Penalties include treble damages, costs and attorney fees, and fines of $11,000 per false claim, as well as possible imprisonment and criminal fines. In fiscal 2012, the U.S. Treasury took in a record $4.9 billion in fines and penalties under FCA, largely in health care ($3 billion) and in housing and mortgages ($1.4 billion), with qui tam suits accounting for $3.3 billion.

Physician billing is susceptible to all sorts of errors; most are innocent, but some may arguably be fraudulent. Pitfalls include billing for noncovered services such as experimental treatments, double billing, quality of care issues and unnecessary services, improperly billing the government as the primary payer, or regularly waiving deductibles and copayments.

Other activities that constitute wrongdoing in this context include knowingly using another patient’s name for purposes of federal drug coverage, billing for no-shows, and misrepresenting the diagnosis to justify services. The electronic medical record enables easy check-offs on a preprinted form as documentation of actual work done. Fraud is implicated if the information is deliberately misleading for purposes of up-coding. Medicare is known to be currently looking into this aspect of physician practice.

Importantly, physicians are liable for the actions of their office staff, e.g., systematic up-coding of Medicare or CHAMPUS (Civilian Health and Medical Program of the Uniformed Services) bills; so it is prudent to oversee and supervise all such activities. Naturally, one should document all claims that are sent, and know the rules for allowable and excluded services. Doing business with the government poses vulnerabilities that include qui tam actions, and a disgruntled employee or a nongovernmental payer can turn a case over to the government for prosecution.

A jarring example of fraud in action involved a doctor in Los Angeles who was recruited to sign off on medical charts without seeing any patients. The records were then used to fraudulently bill Medicare for durable medical equipment. Another case concerned a New York cardiologist who was arrested for intentionally misdiagnosing up to 80% of his patients in order to justify billing for enhanced external counterpulsation procedures. The scheme allegedly took in $19 million.

Even medical schools can become entangled. In 2008, two cardiologists pleaded guilty to federal fraud charges for referring patients to a medical school’s cardiac surgery program in exchange for do-nothing faculty positions. The federal Department of Justice is also currently suing a large Florida hospice outfit for alleged fraudulent referrals of patients for emergency services.

However, some doctors are exonerated. A Nevada doctor submitting disallowed bills for pulmonary function tests as part of pulmonary rehabilitation was held to have acted in good faith, and a Utah neurologist actually sued the state’s Medicaid fraud control unit for libel and malicious prosecution for years of harassment and threats.

According to a Wall Street Journal report, managed care fraudsters have recently been targeted by the government for acts such as withholding or reducing payments to doctors, impermissibly cutting costs after receiving preset fees, or refusing to enroll certain patients.

The managed care industry services nearly 40 million state and federal beneficiaries out of some 90 million Americans covered under Medicare and Medicaid. Nationwide, prosecution of managed care entities has targeted misleading claims, denial of patient care, and tardiness in physician payments in Pennsylvania; multimillion-dollar duplicative premiums in New York; and the siphoning of funds meant to pay physicians in California.

The government also took action against a plan in Florida for allegedly inflating spending of mental health premiums to circumvent a state law requiring a refund whenever expenditures dipped below 80% of premiums. And a jury reached a verdict of $330 million against a company in Virginia on 18,000 counts of fraud for expenses well below those of competitors – purportedly because of denial of care, as some patients were excluded and only healthier and nonpregnant patients were enrolled ("Medicare, Medicaid Managed Care Gets Scrutiny for Fraud," Wall Street Journal, March 19, 2008, p. B1).

The government’s most lucrative source of recovery in health care fraud is the pharmaceutical industry. In 2012, for example, one large pharmaceutical company paid $1.5 billion, part of a global $3 billion settlement, to settle FCA allegations by the U.S. Department of Justice regarding the off-label marketing of several drugs, including Paxil, Wellbutrin, and Zofran, as well as physician kickbacks for Imitrex, Flovent, and other drugs. Another company paid $441 million for promoting Vioxx for an off-label use in rheumatoid arthritis and for making misleading statements regarding the drug’s cardiovascular safety.

Marketing FDA-approved drugs for off-label use, illegal under the False Claims Act, has long been a scourge of pharmaceutical and device manufacturers. But in a recent rare victory for Big Pharma, the U.S. Court of Appeals for the Second Circuit held that it was against theFirst Amendment right of free speech to prohibit manufacturers from discussing such off-label use when physicians themselves can legally prescribe their products for off-label indications (United States v. Caronia [703 F.3d 149 (2d Cir. 2012)]). Interestingly, the FDA has decided not to appeal the case to the Supreme Court.

Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Regarding false claims, which of the following is best?

A. The False Claims Act (FCA) is the only federal antifraud statute of importance.

B. FCA covers principally health-related transactions.

C. Violations require an intention to defraud and acting negligently or knowingly.

D. A coworker may file a false-claims suit on behalf of the government and share in the proceeds.

E. FCA targets institutions and corporations, not individuals.

Answer: D. The False Claims Act, first enacted in 1863, imposes liability for submitting a payment demand to the federal government where there is actual or constructive knowledge that the claim is false. Intent to defraud is not a required element, but knowing or reckless disregard of the truth is. However, an error that is negligently committed is insufficient to constitute a violation.

Many states now have their own versions of FCA. The law applies to claims made by individuals or organizations to any governmental entity, including but not limited to Medicare/Medicaid. Although FCA is the most prominent health care antifraud statute, there are many others such as the anti-kickback statute; the Stark law; HIPAA (Health Insurance Portability and Accountability Act); and general criminal statutes covering theft, embezzlement, obstruction of criminal investigations, false statements, mail/wire fraud, and so on.

Private individuals including whistle-blowers, civic associations, or public interest groups can file a so-called qui tam action. Called relators, such plaintiffs may act alone or in concert with the government, and they stand to collect a substantial bounty, up to 30% of the proceeds. They do not have to show legal standing, and need not sustain any personal injury. The government can decide, upon diligent investigation, whether to intervene by taking or declining action, or may request the court to dismiss the case altogether.

In fiscal 2012, relators lodged 647 qui tam suits, which are now easier to file following amendments to FCA in 1986, together with the enactment of the Fraud Enforcement and Recovery Act of 2009 and the Affordable Care Act of 2010.

Health care fraud and abuse are believed to waste some 10% of federal health expenditures. Under federal law, it is illegal to submit fraudulent claims to Medicare or Medicaid. Penalties include treble damages, costs and attorney fees, and fines of $11,000 per false claim, as well as possible imprisonment and criminal fines. In fiscal 2012, the U.S. Treasury took in a record $4.9 billion in fines and penalties under FCA, largely in health care ($3 billion) and in housing and mortgages ($1.4 billion), with qui tam suits accounting for $3.3 billion.

Physician billing is susceptible to all sorts of errors; most are innocent, but some may arguably be fraudulent. Pitfalls include billing for noncovered services such as experimental treatments, double billing, quality of care issues and unnecessary services, improperly billing the government as the primary payer, or regularly waiving deductibles and copayments.

Other activities that constitute wrongdoing in this context include knowingly using another patient’s name for purposes of federal drug coverage, billing for no-shows, and misrepresenting the diagnosis to justify services. The electronic medical record enables easy check-offs on a preprinted form as documentation of actual work done. Fraud is implicated if the information is deliberately misleading for purposes of up-coding. Medicare is known to be currently looking into this aspect of physician practice.

Importantly, physicians are liable for the actions of their office staff, e.g., systematic up-coding of Medicare or CHAMPUS (Civilian Health and Medical Program of the Uniformed Services) bills; so it is prudent to oversee and supervise all such activities. Naturally, one should document all claims that are sent, and know the rules for allowable and excluded services. Doing business with the government poses vulnerabilities that include qui tam actions, and a disgruntled employee or a nongovernmental payer can turn a case over to the government for prosecution.

A jarring example of fraud in action involved a doctor in Los Angeles who was recruited to sign off on medical charts without seeing any patients. The records were then used to fraudulently bill Medicare for durable medical equipment. Another case concerned a New York cardiologist who was arrested for intentionally misdiagnosing up to 80% of his patients in order to justify billing for enhanced external counterpulsation procedures. The scheme allegedly took in $19 million.

Even medical schools can become entangled. In 2008, two cardiologists pleaded guilty to federal fraud charges for referring patients to a medical school’s cardiac surgery program in exchange for do-nothing faculty positions. The federal Department of Justice is also currently suing a large Florida hospice outfit for alleged fraudulent referrals of patients for emergency services.

However, some doctors are exonerated. A Nevada doctor submitting disallowed bills for pulmonary function tests as part of pulmonary rehabilitation was held to have acted in good faith, and a Utah neurologist actually sued the state’s Medicaid fraud control unit for libel and malicious prosecution for years of harassment and threats.

According to a Wall Street Journal report, managed care fraudsters have recently been targeted by the government for acts such as withholding or reducing payments to doctors, impermissibly cutting costs after receiving preset fees, or refusing to enroll certain patients.

The managed care industry services nearly 40 million state and federal beneficiaries out of some 90 million Americans covered under Medicare and Medicaid. Nationwide, prosecution of managed care entities has targeted misleading claims, denial of patient care, and tardiness in physician payments in Pennsylvania; multimillion-dollar duplicative premiums in New York; and the siphoning of funds meant to pay physicians in California.

The government also took action against a plan in Florida for allegedly inflating spending of mental health premiums to circumvent a state law requiring a refund whenever expenditures dipped below 80% of premiums. And a jury reached a verdict of $330 million against a company in Virginia on 18,000 counts of fraud for expenses well below those of competitors – purportedly because of denial of care, as some patients were excluded and only healthier and nonpregnant patients were enrolled ("Medicare, Medicaid Managed Care Gets Scrutiny for Fraud," Wall Street Journal, March 19, 2008, p. B1).

The government’s most lucrative source of recovery in health care fraud is the pharmaceutical industry. In 2012, for example, one large pharmaceutical company paid $1.5 billion, part of a global $3 billion settlement, to settle FCA allegations by the U.S. Department of Justice regarding the off-label marketing of several drugs, including Paxil, Wellbutrin, and Zofran, as well as physician kickbacks for Imitrex, Flovent, and other drugs. Another company paid $441 million for promoting Vioxx for an off-label use in rheumatoid arthritis and for making misleading statements regarding the drug’s cardiovascular safety.

Marketing FDA-approved drugs for off-label use, illegal under the False Claims Act, has long been a scourge of pharmaceutical and device manufacturers. But in a recent rare victory for Big Pharma, the U.S. Court of Appeals for the Second Circuit held that it was against theFirst Amendment right of free speech to prohibit manufacturers from discussing such off-label use when physicians themselves can legally prescribe their products for off-label indications (United States v. Caronia [703 F.3d 149 (2d Cir. 2012)]). Interestingly, the FDA has decided not to appeal the case to the Supreme Court.

Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Regarding false claims, which of the following is best?

A. The False Claims Act (FCA) is the only federal antifraud statute of importance.

B. FCA covers principally health-related transactions.

C. Violations require an intention to defraud and acting negligently or knowingly.

D. A coworker may file a false-claims suit on behalf of the government and share in the proceeds.

E. FCA targets institutions and corporations, not individuals.

Answer: D. The False Claims Act, first enacted in 1863, imposes liability for submitting a payment demand to the federal government where there is actual or constructive knowledge that the claim is false. Intent to defraud is not a required element, but knowing or reckless disregard of the truth is. However, an error that is negligently committed is insufficient to constitute a violation.

Many states now have their own versions of FCA. The law applies to claims made by individuals or organizations to any governmental entity, including but not limited to Medicare/Medicaid. Although FCA is the most prominent health care antifraud statute, there are many others such as the anti-kickback statute; the Stark law; HIPAA (Health Insurance Portability and Accountability Act); and general criminal statutes covering theft, embezzlement, obstruction of criminal investigations, false statements, mail/wire fraud, and so on.

Private individuals including whistle-blowers, civic associations, or public interest groups can file a so-called qui tam action. Called relators, such plaintiffs may act alone or in concert with the government, and they stand to collect a substantial bounty, up to 30% of the proceeds. They do not have to show legal standing, and need not sustain any personal injury. The government can decide, upon diligent investigation, whether to intervene by taking or declining action, or may request the court to dismiss the case altogether.

In fiscal 2012, relators lodged 647 qui tam suits, which are now easier to file following amendments to FCA in 1986, together with the enactment of the Fraud Enforcement and Recovery Act of 2009 and the Affordable Care Act of 2010.

Health care fraud and abuse are believed to waste some 10% of federal health expenditures. Under federal law, it is illegal to submit fraudulent claims to Medicare or Medicaid. Penalties include treble damages, costs and attorney fees, and fines of $11,000 per false claim, as well as possible imprisonment and criminal fines. In fiscal 2012, the U.S. Treasury took in a record $4.9 billion in fines and penalties under FCA, largely in health care ($3 billion) and in housing and mortgages ($1.4 billion), with qui tam suits accounting for $3.3 billion.

Physician billing is susceptible to all sorts of errors; most are innocent, but some may arguably be fraudulent. Pitfalls include billing for noncovered services such as experimental treatments, double billing, quality of care issues and unnecessary services, improperly billing the government as the primary payer, or regularly waiving deductibles and copayments.

Other activities that constitute wrongdoing in this context include knowingly using another patient’s name for purposes of federal drug coverage, billing for no-shows, and misrepresenting the diagnosis to justify services. The electronic medical record enables easy check-offs on a preprinted form as documentation of actual work done. Fraud is implicated if the information is deliberately misleading for purposes of up-coding. Medicare is known to be currently looking into this aspect of physician practice.

Importantly, physicians are liable for the actions of their office staff, e.g., systematic up-coding of Medicare or CHAMPUS (Civilian Health and Medical Program of the Uniformed Services) bills; so it is prudent to oversee and supervise all such activities. Naturally, one should document all claims that are sent, and know the rules for allowable and excluded services. Doing business with the government poses vulnerabilities that include qui tam actions, and a disgruntled employee or a nongovernmental payer can turn a case over to the government for prosecution.

A jarring example of fraud in action involved a doctor in Los Angeles who was recruited to sign off on medical charts without seeing any patients. The records were then used to fraudulently bill Medicare for durable medical equipment. Another case concerned a New York cardiologist who was arrested for intentionally misdiagnosing up to 80% of his patients in order to justify billing for enhanced external counterpulsation procedures. The scheme allegedly took in $19 million.

Even medical schools can become entangled. In 2008, two cardiologists pleaded guilty to federal fraud charges for referring patients to a medical school’s cardiac surgery program in exchange for do-nothing faculty positions. The federal Department of Justice is also currently suing a large Florida hospice outfit for alleged fraudulent referrals of patients for emergency services.

However, some doctors are exonerated. A Nevada doctor submitting disallowed bills for pulmonary function tests as part of pulmonary rehabilitation was held to have acted in good faith, and a Utah neurologist actually sued the state’s Medicaid fraud control unit for libel and malicious prosecution for years of harassment and threats.

According to a Wall Street Journal report, managed care fraudsters have recently been targeted by the government for acts such as withholding or reducing payments to doctors, impermissibly cutting costs after receiving preset fees, or refusing to enroll certain patients.

The managed care industry services nearly 40 million state and federal beneficiaries out of some 90 million Americans covered under Medicare and Medicaid. Nationwide, prosecution of managed care entities has targeted misleading claims, denial of patient care, and tardiness in physician payments in Pennsylvania; multimillion-dollar duplicative premiums in New York; and the siphoning of funds meant to pay physicians in California.

The government also took action against a plan in Florida for allegedly inflating spending of mental health premiums to circumvent a state law requiring a refund whenever expenditures dipped below 80% of premiums. And a jury reached a verdict of $330 million against a company in Virginia on 18,000 counts of fraud for expenses well below those of competitors – purportedly because of denial of care, as some patients were excluded and only healthier and nonpregnant patients were enrolled ("Medicare, Medicaid Managed Care Gets Scrutiny for Fraud," Wall Street Journal, March 19, 2008, p. B1).

The government’s most lucrative source of recovery in health care fraud is the pharmaceutical industry. In 2012, for example, one large pharmaceutical company paid $1.5 billion, part of a global $3 billion settlement, to settle FCA allegations by the U.S. Department of Justice regarding the off-label marketing of several drugs, including Paxil, Wellbutrin, and Zofran, as well as physician kickbacks for Imitrex, Flovent, and other drugs. Another company paid $441 million for promoting Vioxx for an off-label use in rheumatoid arthritis and for making misleading statements regarding the drug’s cardiovascular safety.

Marketing FDA-approved drugs for off-label use, illegal under the False Claims Act, has long been a scourge of pharmaceutical and device manufacturers. But in a recent rare victory for Big Pharma, the U.S. Court of Appeals for the Second Circuit held that it was against theFirst Amendment right of free speech to prohibit manufacturers from discussing such off-label use when physicians themselves can legally prescribe their products for off-label indications (United States v. Caronia [703 F.3d 149 (2d Cir. 2012)]). Interestingly, the FDA has decided not to appeal the case to the Supreme Court.

Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: You are about to retire, and it was one of those hectic and unbelievable final days. Your clinic assistant broke a hypodermic needle, which lodged in the patient’s deltoid. Another patient tripped and fell in your waiting room and sustained a fracture. And, in a heated and angry meeting, you voted with others on the peer-review committee of your hospital to suspend a "rotten apple" doctor. All three victims file suit against you 6 months into your retirement. Which of the following best describes the likely outcome?

A. Your professional malpractice insurance will indemnify you against all liabilities.

B. Only the first incident will be covered, because it’s the only one that involves malpractice.

C. Even the first incident is excluded, because your policy protects you but not your employees.

D. You face financial ruin, because you are now retired and no longer insured.

E. It all depends on your insurance policy.

Answer: E. Most professional liability policies should cover negligence on the part of the doctor and employees, as well as peer-review risks, although the hospital may also provide this latter coverage.

However, some policies are less expansive, so it behooves the doctor to carefully review the scope of coverage to include the above eventualities and others, such as premise liability (for example, tripping on the carpet or falling off a chair in the waiting-room) or educational liability (as when supervising a resident). Note that coverage is usually excluded for intentional torts, for example, assault and battery; or criminal activities, for example, Medicare fraud. Punitive damages are also typically excluded from coverage.

Virtually all policies nowadays are "claims made," which means coverage ends once you are no longer insured with the company, irrespective of when the alleged negligent act occurred. In order to maintain indemnification, you will have to buy "tail coverage" to protect you from a lawsuit arising from a past event but filed after your policy has lapsed, for example, in retirement or following relocation. The lag period between the expiration of the insurance policy and the bringing of suit is termed the "tail."

The term "nose coverage" is used instead to describe prior-acts coverage when a doctor applies to another insurer for a new policy. By definition, claims-made policies cover claims that are filed for incidents that both occur and are reported while the insurance policy is in force. In contrast, an "occurrence" policy is one in which the doctor is covered for all malpractice allegations, irrespective of when the lawsuit is brought. In a group practice, contractual terms regarding professional liability should specifically mention tail coverage.

Malpractice premiums vary greatly from state to state, and even among locales within a given state. Premiums are specialty-dependant, with the highest in risky specialties such as obstetrics and neurosurgery.

Primary care physicians are considered a relatively low-risk group. For example, the Medical Insurance Exchange of California, commonly known as MIEC, classifies family practitioners and general internists as class 4 physicians (out of 14 classes – the highest number signifying the riskiest). Discounts are generally available to the doctor who is new in practice, as well as for part-timers who practice less than 20 hours a week. On the average, internists in metropolitan areas pay an annual premium of $12,000 for a $1 million/$3 million claims-made policy – although an average figure is largely meaningless, because premiums are heavily influenced by the practice locality.

Insurance rates vary widely, and figures tend to be skewed to the high side whenever metropolitan data are used to define the state average. In addition, the numbers do not always represent annual premiums for a $1 million/$3 million claims-made policy. In some states, the limits may be lower, for example, $200,000/$600,000, and doctors pay a surcharge for excess coverage. Indiana, Kansas, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, and Wisconsin are examples of such states.

In 2012, the highest annual premiums for internists were in Florida ($47,000), Illinois ($40,000), Michigan ($35,000), Connecticut ($35,000), and New York ($34,000). The lowest rates were seen in Nebraska, Minnesota, South Dakota, Wisconsin, and California (all less than $4,000 per year). States with effective tort reforms, such as California, generally have lower rates.

Happily, premiums have been falling in the last 5 years, according to Medical Liability Monitor, a trade periodical. The Doctors Company and other carriers have reported that claims have halved over the past decade. The severity of claims, however, has continued to climb, with the occasional multimillion-dollar loss.

Overall, some 42% of surveyed physicians in 2007-2008 have had a malpractice claim filed against them, although most claims are dropped or decided in the doctor’s favor. Claims were reported by about 35% of family practitioners and general internists, while surgeons and obstetricians-gynecologists have higher rates, at 70%. Pediatricians and psychiatrist score the lowest, at around 20%.

Doctors typically purchase their insurance from a commercial carrier that specializes in malpractice liability, or subscribe to a physician mutual, also called "bedpan" mutual, which is a "risk-retention" group authorized under federal law in 1986 to underwrite malpractice liability. Not all risk-retention groups are successful. For example, the Tennessee-based Doctor’s Insurance Reciprocal went into bankruptcy in 2003, leaving some 3,000 doctors scrambling for coverage.

Malpractice insurance policies typically pay for all legal fees, including attorney and expert fees, as well as discovery and court costs. They pay damages up to the limit of the policy; a $1 million/$3 million claims-made policy means the limit for each claim is $1 million, and the limit for all claims in a given policy year is $3 million. If the judgment exceeds the policy limits, the doctor is personally liable for the remainder.

This has caused fear among some doctors, because their personal assets may then be at risk. A reassuring article in "Medical Economics" put it this way: "In theory, yes. But in reality, doctors rarely lose their personal assets."

Reasons why both sides usually settle for the policy limit or less, notwithstanding a higher amount decided by the jury, include:

• Until and unless there is a post-trial agreement between the parties, the plaintiff may experience undue payment delay, receiving nothing for any and all expenses in the meantime.

• The plaintiff lawyer’s contingency fee is likewise held up.

• The defense may appeal the decision to a higher court, especially where damages are large – and this can delay payment by years, or even wipe out the judgment entirely if there is a reversal of the verdict.

• Fear of backlash against the trial lawyers in the community for publicity surrounding any attack on a doctor’s personal assets.

• Usually, there are other deep pockets, for example, the hospital, to go after in the same case to jointly reach or approach the award amount.

Although most policies allow the doctor to make the final decision regarding whether to settle and for how much, it is the insurer that recommends and hires the defense counsel, who then directs any settlement negotiations and/or trial strategy.

However, the defense lawyer’s primary duty is to the doctor, not to the insurer who pays his/her fees, and this can raise a conflict of interest. Doctors have been known to sue an insurer and its retained attorney for bad faith and negligent representation, as evidenced in a recent Florida stroke case over a $217 million jury award.

Thus, it’s important to look for the language in the "consent to settle" clause of the policy. In a recent case, the Rhode Island Supreme Court ruled that the insurer was within its right to settle – against the doctor’s wishes – in the middle of a trial. The policy contract had stipulated that the company could settle any claim or suit "as it deems expedient," a phrase the court interpreted as giving the insurer full authority and discretion.

Occasionally, a doctor refuses to settle for an amount within the insurance limits, preferring instead to proceed to trial. Should the doctor lose at trial, and the judgment is in excess of the earlier settlement amount, he or she may be personally liable for the difference, even if the amount is still within the policy limit. Some policies protect the insurer against this situation by containing such a provision, popularly termed "the hammer," as a way of persuading the physician to settle.

On the other hand, courts have held insurers financially responsible for trial awards that exceed policy limits if they had rejected an earlier settlement amount that was within those limits.

References

• AMA Policy Research Perspectives, "Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians," August 2010.

• Rice, B. "Could a malpractice mega-verdict wipe you out?" (Med. Econ. 2003;80:89-91).

• Mohan Papudesu v. Medical Malpractice Joint Underwriting Assn. of Rhode Island, 18 A.3d 495 (R.I. 2011).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: You are about to retire, and it was one of those hectic and unbelievable final days. Your clinic assistant broke a hypodermic needle, which lodged in the patient’s deltoid. Another patient tripped and fell in your waiting room and sustained a fracture. And, in a heated and angry meeting, you voted with others on the peer-review committee of your hospital to suspend a "rotten apple" doctor. All three victims file suit against you 6 months into your retirement. Which of the following best describes the likely outcome?

A. Your professional malpractice insurance will indemnify you against all liabilities.

B. Only the first incident will be covered, because it’s the only one that involves malpractice.

C. Even the first incident is excluded, because your policy protects you but not your employees.

D. You face financial ruin, because you are now retired and no longer insured.

E. It all depends on your insurance policy.

Answer: E. Most professional liability policies should cover negligence on the part of the doctor and employees, as well as peer-review risks, although the hospital may also provide this latter coverage.

However, some policies are less expansive, so it behooves the doctor to carefully review the scope of coverage to include the above eventualities and others, such as premise liability (for example, tripping on the carpet or falling off a chair in the waiting-room) or educational liability (as when supervising a resident). Note that coverage is usually excluded for intentional torts, for example, assault and battery; or criminal activities, for example, Medicare fraud. Punitive damages are also typically excluded from coverage.

Virtually all policies nowadays are "claims made," which means coverage ends once you are no longer insured with the company, irrespective of when the alleged negligent act occurred. In order to maintain indemnification, you will have to buy "tail coverage" to protect you from a lawsuit arising from a past event but filed after your policy has lapsed, for example, in retirement or following relocation. The lag period between the expiration of the insurance policy and the bringing of suit is termed the "tail."

The term "nose coverage" is used instead to describe prior-acts coverage when a doctor applies to another insurer for a new policy. By definition, claims-made policies cover claims that are filed for incidents that both occur and are reported while the insurance policy is in force. In contrast, an "occurrence" policy is one in which the doctor is covered for all malpractice allegations, irrespective of when the lawsuit is brought. In a group practice, contractual terms regarding professional liability should specifically mention tail coverage.

Malpractice premiums vary greatly from state to state, and even among locales within a given state. Premiums are specialty-dependant, with the highest in risky specialties such as obstetrics and neurosurgery.

Primary care physicians are considered a relatively low-risk group. For example, the Medical Insurance Exchange of California, commonly known as MIEC, classifies family practitioners and general internists as class 4 physicians (out of 14 classes – the highest number signifying the riskiest). Discounts are generally available to the doctor who is new in practice, as well as for part-timers who practice less than 20 hours a week. On the average, internists in metropolitan areas pay an annual premium of $12,000 for a $1 million/$3 million claims-made policy – although an average figure is largely meaningless, because premiums are heavily influenced by the practice locality.

Insurance rates vary widely, and figures tend to be skewed to the high side whenever metropolitan data are used to define the state average. In addition, the numbers do not always represent annual premiums for a $1 million/$3 million claims-made policy. In some states, the limits may be lower, for example, $200,000/$600,000, and doctors pay a surcharge for excess coverage. Indiana, Kansas, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, and Wisconsin are examples of such states.

In 2012, the highest annual premiums for internists were in Florida ($47,000), Illinois ($40,000), Michigan ($35,000), Connecticut ($35,000), and New York ($34,000). The lowest rates were seen in Nebraska, Minnesota, South Dakota, Wisconsin, and California (all less than $4,000 per year). States with effective tort reforms, such as California, generally have lower rates.

Happily, premiums have been falling in the last 5 years, according to Medical Liability Monitor, a trade periodical. The Doctors Company and other carriers have reported that claims have halved over the past decade. The severity of claims, however, has continued to climb, with the occasional multimillion-dollar loss.

Overall, some 42% of surveyed physicians in 2007-2008 have had a malpractice claim filed against them, although most claims are dropped or decided in the doctor’s favor. Claims were reported by about 35% of family practitioners and general internists, while surgeons and obstetricians-gynecologists have higher rates, at 70%. Pediatricians and psychiatrist score the lowest, at around 20%.

Doctors typically purchase their insurance from a commercial carrier that specializes in malpractice liability, or subscribe to a physician mutual, also called "bedpan" mutual, which is a "risk-retention" group authorized under federal law in 1986 to underwrite malpractice liability. Not all risk-retention groups are successful. For example, the Tennessee-based Doctor’s Insurance Reciprocal went into bankruptcy in 2003, leaving some 3,000 doctors scrambling for coverage.

Malpractice insurance policies typically pay for all legal fees, including attorney and expert fees, as well as discovery and court costs. They pay damages up to the limit of the policy; a $1 million/$3 million claims-made policy means the limit for each claim is $1 million, and the limit for all claims in a given policy year is $3 million. If the judgment exceeds the policy limits, the doctor is personally liable for the remainder.

This has caused fear among some doctors, because their personal assets may then be at risk. A reassuring article in "Medical Economics" put it this way: "In theory, yes. But in reality, doctors rarely lose their personal assets."

Reasons why both sides usually settle for the policy limit or less, notwithstanding a higher amount decided by the jury, include:

• Until and unless there is a post-trial agreement between the parties, the plaintiff may experience undue payment delay, receiving nothing for any and all expenses in the meantime.

• The plaintiff lawyer’s contingency fee is likewise held up.

• The defense may appeal the decision to a higher court, especially where damages are large – and this can delay payment by years, or even wipe out the judgment entirely if there is a reversal of the verdict.

• Fear of backlash against the trial lawyers in the community for publicity surrounding any attack on a doctor’s personal assets.

• Usually, there are other deep pockets, for example, the hospital, to go after in the same case to jointly reach or approach the award amount.

Although most policies allow the doctor to make the final decision regarding whether to settle and for how much, it is the insurer that recommends and hires the defense counsel, who then directs any settlement negotiations and/or trial strategy.

However, the defense lawyer’s primary duty is to the doctor, not to the insurer who pays his/her fees, and this can raise a conflict of interest. Doctors have been known to sue an insurer and its retained attorney for bad faith and negligent representation, as evidenced in a recent Florida stroke case over a $217 million jury award.

Thus, it’s important to look for the language in the "consent to settle" clause of the policy. In a recent case, the Rhode Island Supreme Court ruled that the insurer was within its right to settle – against the doctor’s wishes – in the middle of a trial. The policy contract had stipulated that the company could settle any claim or suit "as it deems expedient," a phrase the court interpreted as giving the insurer full authority and discretion.

Occasionally, a doctor refuses to settle for an amount within the insurance limits, preferring instead to proceed to trial. Should the doctor lose at trial, and the judgment is in excess of the earlier settlement amount, he or she may be personally liable for the difference, even if the amount is still within the policy limit. Some policies protect the insurer against this situation by containing such a provision, popularly termed "the hammer," as a way of persuading the physician to settle.

On the other hand, courts have held insurers financially responsible for trial awards that exceed policy limits if they had rejected an earlier settlement amount that was within those limits.

References

• AMA Policy Research Perspectives, "Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians," August 2010.

• Rice, B. "Could a malpractice mega-verdict wipe you out?" (Med. Econ. 2003;80:89-91).

• Mohan Papudesu v. Medical Malpractice Joint Underwriting Assn. of Rhode Island, 18 A.3d 495 (R.I. 2011).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: You are about to retire, and it was one of those hectic and unbelievable final days. Your clinic assistant broke a hypodermic needle, which lodged in the patient’s deltoid. Another patient tripped and fell in your waiting room and sustained a fracture. And, in a heated and angry meeting, you voted with others on the peer-review committee of your hospital to suspend a "rotten apple" doctor. All three victims file suit against you 6 months into your retirement. Which of the following best describes the likely outcome?

A. Your professional malpractice insurance will indemnify you against all liabilities.

B. Only the first incident will be covered, because it’s the only one that involves malpractice.

C. Even the first incident is excluded, because your policy protects you but not your employees.

D. You face financial ruin, because you are now retired and no longer insured.

E. It all depends on your insurance policy.

Answer: E. Most professional liability policies should cover negligence on the part of the doctor and employees, as well as peer-review risks, although the hospital may also provide this latter coverage.

However, some policies are less expansive, so it behooves the doctor to carefully review the scope of coverage to include the above eventualities and others, such as premise liability (for example, tripping on the carpet or falling off a chair in the waiting-room) or educational liability (as when supervising a resident). Note that coverage is usually excluded for intentional torts, for example, assault and battery; or criminal activities, for example, Medicare fraud. Punitive damages are also typically excluded from coverage.

Virtually all policies nowadays are "claims made," which means coverage ends once you are no longer insured with the company, irrespective of when the alleged negligent act occurred. In order to maintain indemnification, you will have to buy "tail coverage" to protect you from a lawsuit arising from a past event but filed after your policy has lapsed, for example, in retirement or following relocation. The lag period between the expiration of the insurance policy and the bringing of suit is termed the "tail."

The term "nose coverage" is used instead to describe prior-acts coverage when a doctor applies to another insurer for a new policy. By definition, claims-made policies cover claims that are filed for incidents that both occur and are reported while the insurance policy is in force. In contrast, an "occurrence" policy is one in which the doctor is covered for all malpractice allegations, irrespective of when the lawsuit is brought. In a group practice, contractual terms regarding professional liability should specifically mention tail coverage.

Malpractice premiums vary greatly from state to state, and even among locales within a given state. Premiums are specialty-dependant, with the highest in risky specialties such as obstetrics and neurosurgery.

Primary care physicians are considered a relatively low-risk group. For example, the Medical Insurance Exchange of California, commonly known as MIEC, classifies family practitioners and general internists as class 4 physicians (out of 14 classes – the highest number signifying the riskiest). Discounts are generally available to the doctor who is new in practice, as well as for part-timers who practice less than 20 hours a week. On the average, internists in metropolitan areas pay an annual premium of $12,000 for a $1 million/$3 million claims-made policy – although an average figure is largely meaningless, because premiums are heavily influenced by the practice locality.

Insurance rates vary widely, and figures tend to be skewed to the high side whenever metropolitan data are used to define the state average. In addition, the numbers do not always represent annual premiums for a $1 million/$3 million claims-made policy. In some states, the limits may be lower, for example, $200,000/$600,000, and doctors pay a surcharge for excess coverage. Indiana, Kansas, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, and Wisconsin are examples of such states.

In 2012, the highest annual premiums for internists were in Florida ($47,000), Illinois ($40,000), Michigan ($35,000), Connecticut ($35,000), and New York ($34,000). The lowest rates were seen in Nebraska, Minnesota, South Dakota, Wisconsin, and California (all less than $4,000 per year). States with effective tort reforms, such as California, generally have lower rates.

Happily, premiums have been falling in the last 5 years, according to Medical Liability Monitor, a trade periodical. The Doctors Company and other carriers have reported that claims have halved over the past decade. The severity of claims, however, has continued to climb, with the occasional multimillion-dollar loss.

Overall, some 42% of surveyed physicians in 2007-2008 have had a malpractice claim filed against them, although most claims are dropped or decided in the doctor’s favor. Claims were reported by about 35% of family practitioners and general internists, while surgeons and obstetricians-gynecologists have higher rates, at 70%. Pediatricians and psychiatrist score the lowest, at around 20%.

Doctors typically purchase their insurance from a commercial carrier that specializes in malpractice liability, or subscribe to a physician mutual, also called "bedpan" mutual, which is a "risk-retention" group authorized under federal law in 1986 to underwrite malpractice liability. Not all risk-retention groups are successful. For example, the Tennessee-based Doctor’s Insurance Reciprocal went into bankruptcy in 2003, leaving some 3,000 doctors scrambling for coverage.

Malpractice insurance policies typically pay for all legal fees, including attorney and expert fees, as well as discovery and court costs. They pay damages up to the limit of the policy; a $1 million/$3 million claims-made policy means the limit for each claim is $1 million, and the limit for all claims in a given policy year is $3 million. If the judgment exceeds the policy limits, the doctor is personally liable for the remainder.

This has caused fear among some doctors, because their personal assets may then be at risk. A reassuring article in "Medical Economics" put it this way: "In theory, yes. But in reality, doctors rarely lose their personal assets."

Reasons why both sides usually settle for the policy limit or less, notwithstanding a higher amount decided by the jury, include:

• Until and unless there is a post-trial agreement between the parties, the plaintiff may experience undue payment delay, receiving nothing for any and all expenses in the meantime.

• The plaintiff lawyer’s contingency fee is likewise held up.

• The defense may appeal the decision to a higher court, especially where damages are large – and this can delay payment by years, or even wipe out the judgment entirely if there is a reversal of the verdict.

• Fear of backlash against the trial lawyers in the community for publicity surrounding any attack on a doctor’s personal assets.

• Usually, there are other deep pockets, for example, the hospital, to go after in the same case to jointly reach or approach the award amount.

Although most policies allow the doctor to make the final decision regarding whether to settle and for how much, it is the insurer that recommends and hires the defense counsel, who then directs any settlement negotiations and/or trial strategy.

However, the defense lawyer’s primary duty is to the doctor, not to the insurer who pays his/her fees, and this can raise a conflict of interest. Doctors have been known to sue an insurer and its retained attorney for bad faith and negligent representation, as evidenced in a recent Florida stroke case over a $217 million jury award.

Thus, it’s important to look for the language in the "consent to settle" clause of the policy. In a recent case, the Rhode Island Supreme Court ruled that the insurer was within its right to settle – against the doctor’s wishes – in the middle of a trial. The policy contract had stipulated that the company could settle any claim or suit "as it deems expedient," a phrase the court interpreted as giving the insurer full authority and discretion.

Occasionally, a doctor refuses to settle for an amount within the insurance limits, preferring instead to proceed to trial. Should the doctor lose at trial, and the judgment is in excess of the earlier settlement amount, he or she may be personally liable for the difference, even if the amount is still within the policy limit. Some policies protect the insurer against this situation by containing such a provision, popularly termed "the hammer," as a way of persuading the physician to settle.

On the other hand, courts have held insurers financially responsible for trial awards that exceed policy limits if they had rejected an earlier settlement amount that was within those limits.

References

• AMA Policy Research Perspectives, "Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians," August 2010.

• Rice, B. "Could a malpractice mega-verdict wipe you out?" (Med. Econ. 2003;80:89-91).

• Mohan Papudesu v. Medical Malpractice Joint Underwriting Assn. of Rhode Island, 18 A.3d 495 (R.I. 2011).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected].

Question: Which one of the following is false?

A. A physician countersuit is frequently successful when a lawyer has filed – and lost – a frivolous malpractice lawsuit.

B. Countersuits are usually premised on two legal theories: malicious prosecution or abuse of process.

C. The key elements of malicious prosecution include lack of probable cause and presence of malice.

D. Abuse of process speaks to using the legal system with an ulterior motive and for an illegitimate purpose.

E. Rule 11 is a federal rule that imposes sanctions in which the attorney has failed to conduct a "reasonable inquiry" before filing a lawsuit.

Answer: A. Many doctors believe that eager attorneys readily file malpractice lawsuits in the hope of intimidating the defendant doctor into settling. Some in the medical profession have therefore considered countersuits against the attorney, and sometimes the patient as well, when they perceive the original lawsuit to be frivolous.

However, the countersuit process is tedious, expensive, and usually unsuccessful. Courts are generally hostile to such lawsuits, because public policy encourages a litigant’s unfettered resort to the law.

The usual legal theory that a countersuit is premised upon is malicious prosecution, which has to satisfy the following elements: 1) original lawsuit terminated in favor of the doctor, that is, no malpractice liability found; 2) lack of probable cause; 3) malice; and 4) special injuries.

The issue of probable cause is the major stumbling block to a successful countersuit. In Williams v. Coombs (224 Cal. Rptr. 865 [Cal. App. 1986]), a doctor was sued for wrongful death after his patient hanged herself following hospital admission for suicidal gestures. She was admitted to a private room instead of a special locked room. At trial, the jury found in favor of the physician. Thereafter, the physician sued the plaintiff attorney for malicious prosecution and intentional infliction of emotional distress.

The court agreed that the plaintiff attorney lacked probable cause in filing the malpractice claim in the first place. It advanced a two-point test: First, the attorney must entertain a subjective belief that the claim merits litigation; and second, that belief must satisfy an objective standard, because the attorney must not prosecute a claim that a reasonable lawyer would not consider tenable.

Finding that the attorney failed to meet the second prong of the test, the court stated that, although probable cause is not the same as making a legal case (winning), an attorney must nonetheless refrain from an unsound and untenable claim. The attorney had relied exclusively on the allegations of his client, and he had not done much in the way of background research, found no cases on point, and sought advice from only one physician during a social encounter.

The court reasoned that a "litigant cannot be permitted to file suit based merely on a wing and a prayer, and then be retroactively justified by some serendipitous discovery so as not to be liable for malicious prosecution." The claim for intentional infliction of emotional distress was dismissed, because otherwise defamatory statements made in a judicial proceeding constituted a privileged publication.

In Gentzler v. Atlee (443 Pa. Super. 128 [1995]), a cardiologist recommended that the patient go to a certain hospital for tests, and in a subsequent CABG procedure, the patient received contaminated blood products. Although the cardiologist did not recommend or participate in the surgery, he was a named codefendant in the subsequent lawsuit. After the trial court dismissed the action, he filed a countersuit against the attorney under Pennsylvania’s statutory section for the wrongful use of civil proceedings.

The court noted that the standard for probable cause is whether an attorney reasonably believes that a claim may be valid under existing or developing law, and that this determination is a matter of law, that is, up to the judge rather than a jury to decide.

In ruling for the doctor, the court reasoned that under the facts of this case, there was no probable cause, as there was no informed consent issue, and the cardiologist did not himself order the administration of the blood products.

However, most malicious prosecution actions fail.

In Wong v. Tabor (422 N.E. 2d 1279 [Ind. 1981]), the Indiana Court of Appeals held that the probable cause standard is an objective one, but the relevant question was "whether the claim merits litigation ... on the basis of the facts known to the attorney when the suit was commenced." The standard apparently did not require the attorney to investigate, but simply to accept the facts as told by the client.

In Dutt v. Kremp (111 Nev. 567 [1995]), the plaintiff attorney promptly withdrew his lawsuit after receiving an unfavorable report from his own expert witness. A countersuit followed. The court held that as regards the malicious prosecution action, the attorney had probable cause to file the malpractice action. The court concluded that, under the facts, a reasonable attorney would have believed that the malpractice action was tenable. The patient’s condition had initially deteriorated under the care of the physician, and improved only after other doctors became involved in the case. The medical records corroborated the patient’s story. The court stated that there was no absolute requirement to obtain an expert opinion before filing the lawsuit.

It is even harder to meet the malice requirement. Definitions are elusive, and allegations of willful and wanton misconduct are not always synonymous with malice, particularly where no improper motive is suggested.

In the view of one court, the action of an attorney who signed and amended a complaint without first reading the complaint did not constitute malice sufficient to support a malicious prosecution action. A contingent-fee arrangement, even of large magnitude, cannot be used as evidence of improper motive or malice.

Neither is attorney negligence or incompetence, which one court gratuitously editorialized: "If that constitutes malice, the courtrooms are full of malicious attorneys." In that case, a surgeon was alleged to have damaged a child’s testicle – although at trial, all expert witnesses, including two of the plaintiff’s own experts, testified that there was no evidence of damage. Apparently, the attorney had not spoken to his own witnesses.

Note that for a malicious prosecution lawsuit to prevail, the plaintiff doctor may have to satisfy the "special injury" requirement in some jurisdictions. It is not always clear what this entails, but the injury has to be beyond "anxiety, loss of time, attorney’s fees and the necessity to defend one’s reputation" (Stopka v. Lesser, 82 Ill. App.3d 323 [1st Dist. 1980]). In one case, the court ruled that a plaintiff in a malicious prosecution action may recover for "humiliation, mortification and loss of reputation" (Raine v. Drasin, 621 S.W.2d 895 [Ky. 1981]). Jurisdictions such as Illinois do not require the special injury element.

Another legal theory for a malpractice countersuit is abuse of process. Here, too, the doctor’s victory is rare. However, in Bull v. McCuskey (96 Nev. 706 [1980]), a physician successfully used this approach. He asserted that the attorney had filed a malpractice suit with the motive of coercing a nuisance settlement (attorney offered to settle for $750). The case involved an elderly woman who sustained fractures following an auto accident, then went on to develop bedsores after refusing to follow staff instructions. The attorney did not examine the medical records, conferred with no physician, retained no expert, and took no depositions.

At trial, which was won by the physician, the attorney called the physician incompetent, a liar, and a scoundrel. In the abuse of process action that followed, the physician won a jury verdict of $35,000 in compensatory damages and $50,000 in punitive damages, which was upheld on appeal.

Other legal theories, mostly unsuccessfully pleaded, include infliction of emotional distress, negligence, defamation, invasion of privacy, and the tort of outrage.

However, courts have erected various rules to prevent the filing of frivolous suits. The best known, Federal Rule 11 (and its state counterparts), requires the lawsuit to be filed only after reasonable inquiry, be well grounded in fact, and not be interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

An example of a Rule 11 sanction involved a lawsuit filed by two chiropractors in Colorado that alleged antitrust violation by a medical facility that denied them hospital admitting privileges. The facts revealed that the chiropractors had in fact never applied for those privileges. The judge imposed sanctions of $38,500 (Colorado Chiropractic Council v. Porter Memorial Hospital, 650 F. Supp. 231 [Co. 1986]).

In summary, one cannot readily recommend filing a physician countersuit, unless it is to make a point. Even if the doctor wins, which is rare, the proceedings will be stressful, the costs are not borne by the malpractice carrier, and any recovered damages are likely to be small.

Dr. Tan is emeritus professor of medicine and a former 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 [email protected].

Question: Which one of the following is false?

A. A physician countersuit is frequently successful when a lawyer has filed – and lost – a frivolous malpractice lawsuit.

B. Countersuits are usually premised on two legal theories: malicious prosecution or abuse of process.

C. The key elements of malicious prosecution include lack of probable cause and presence of malice.

D. Abuse of process speaks to using the legal system with an ulterior motive and for an illegitimate purpose.

E. Rule 11 is a federal rule that imposes sanctions in which the attorney has failed to conduct a "reasonable inquiry" before filing a lawsuit.

Answer: A. Many doctors believe that eager attorneys readily file malpractice lawsuits in the hope of intimidating the defendant doctor into settling. Some in the medical profession have therefore considered countersuits against the attorney, and sometimes the patient as well, when they perceive the original lawsuit to be frivolous.

However, the countersuit process is tedious, expensive, and usually unsuccessful. Courts are generally hostile to such lawsuits, because public policy encourages a litigant’s unfettered resort to the law.

The usual legal theory that a countersuit is premised upon is malicious prosecution, which has to satisfy the following elements: 1) original lawsuit terminated in favor of the doctor, that is, no malpractice liability found; 2) lack of probable cause; 3) malice; and 4) special injuries.

The issue of probable cause is the major stumbling block to a successful countersuit. In Williams v. Coombs (224 Cal. Rptr. 865 [Cal. App. 1986]), a doctor was sued for wrongful death after his patient hanged herself following hospital admission for suicidal gestures. She was admitted to a private room instead of a special locked room. At trial, the jury found in favor of the physician. Thereafter, the physician sued the plaintiff attorney for malicious prosecution and intentional infliction of emotional distress.

The court agreed that the plaintiff attorney lacked probable cause in filing the malpractice claim in the first place. It advanced a two-point test: First, the attorney must entertain a subjective belief that the claim merits litigation; and second, that belief must satisfy an objective standard, because the attorney must not prosecute a claim that a reasonable lawyer would not consider tenable.

Finding that the attorney failed to meet the second prong of the test, the court stated that, although probable cause is not the same as making a legal case (winning), an attorney must nonetheless refrain from an unsound and untenable claim. The attorney had relied exclusively on the allegations of his client, and he had not done much in the way of background research, found no cases on point, and sought advice from only one physician during a social encounter.

The court reasoned that a "litigant cannot be permitted to file suit based merely on a wing and a prayer, and then be retroactively justified by some serendipitous discovery so as not to be liable for malicious prosecution." The claim for intentional infliction of emotional distress was dismissed, because otherwise defamatory statements made in a judicial proceeding constituted a privileged publication.

In Gentzler v. Atlee (443 Pa. Super. 128 [1995]), a cardiologist recommended that the patient go to a certain hospital for tests, and in a subsequent CABG procedure, the patient received contaminated blood products. Although the cardiologist did not recommend or participate in the surgery, he was a named codefendant in the subsequent lawsuit. After the trial court dismissed the action, he filed a countersuit against the attorney under Pennsylvania’s statutory section for the wrongful use of civil proceedings.

The court noted that the standard for probable cause is whether an attorney reasonably believes that a claim may be valid under existing or developing law, and that this determination is a matter of law, that is, up to the judge rather than a jury to decide.

In ruling for the doctor, the court reasoned that under the facts of this case, there was no probable cause, as there was no informed consent issue, and the cardiologist did not himself order the administration of the blood products.

However, most malicious prosecution actions fail.

In Wong v. Tabor (422 N.E. 2d 1279 [Ind. 1981]), the Indiana Court of Appeals held that the probable cause standard is an objective one, but the relevant question was "whether the claim merits litigation ... on the basis of the facts known to the attorney when the suit was commenced." The standard apparently did not require the attorney to investigate, but simply to accept the facts as told by the client.

In Dutt v. Kremp (111 Nev. 567 [1995]), the plaintiff attorney promptly withdrew his lawsuit after receiving an unfavorable report from his own expert witness. A countersuit followed. The court held that as regards the malicious prosecution action, the attorney had probable cause to file the malpractice action. The court concluded that, under the facts, a reasonable attorney would have believed that the malpractice action was tenable. The patient’s condition had initially deteriorated under the care of the physician, and improved only after other doctors became involved in the case. The medical records corroborated the patient’s story. The court stated that there was no absolute requirement to obtain an expert opinion before filing the lawsuit.

It is even harder to meet the malice requirement. Definitions are elusive, and allegations of willful and wanton misconduct are not always synonymous with malice, particularly where no improper motive is suggested.

In the view of one court, the action of an attorney who signed and amended a complaint without first reading the complaint did not constitute malice sufficient to support a malicious prosecution action. A contingent-fee arrangement, even of large magnitude, cannot be used as evidence of improper motive or malice.

Neither is attorney negligence or incompetence, which one court gratuitously editorialized: "If that constitutes malice, the courtrooms are full of malicious attorneys." In that case, a surgeon was alleged to have damaged a child’s testicle – although at trial, all expert witnesses, including two of the plaintiff’s own experts, testified that there was no evidence of damage. Apparently, the attorney had not spoken to his own witnesses.

Note that for a malicious prosecution lawsuit to prevail, the plaintiff doctor may have to satisfy the "special injury" requirement in some jurisdictions. It is not always clear what this entails, but the injury has to be beyond "anxiety, loss of time, attorney’s fees and the necessity to defend one’s reputation" (Stopka v. Lesser, 82 Ill. App.3d 323 [1st Dist. 1980]). In one case, the court ruled that a plaintiff in a malicious prosecution action may recover for "humiliation, mortification and loss of reputation" (Raine v. Drasin, 621 S.W.2d 895 [Ky. 1981]). Jurisdictions such as Illinois do not require the special injury element.

Another legal theory for a malpractice countersuit is abuse of process. Here, too, the doctor’s victory is rare. However, in Bull v. McCuskey (96 Nev. 706 [1980]), a physician successfully used this approach. He asserted that the attorney had filed a malpractice suit with the motive of coercing a nuisance settlement (attorney offered to settle for $750). The case involved an elderly woman who sustained fractures following an auto accident, then went on to develop bedsores after refusing to follow staff instructions. The attorney did not examine the medical records, conferred with no physician, retained no expert, and took no depositions.

At trial, which was won by the physician, the attorney called the physician incompetent, a liar, and a scoundrel. In the abuse of process action that followed, the physician won a jury verdict of $35,000 in compensatory damages and $50,000 in punitive damages, which was upheld on appeal.

Other legal theories, mostly unsuccessfully pleaded, include infliction of emotional distress, negligence, defamation, invasion of privacy, and the tort of outrage.

However, courts have erected various rules to prevent the filing of frivolous suits. The best known, Federal Rule 11 (and its state counterparts), requires the lawsuit to be filed only after reasonable inquiry, be well grounded in fact, and not be interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

An example of a Rule 11 sanction involved a lawsuit filed by two chiropractors in Colorado that alleged antitrust violation by a medical facility that denied them hospital admitting privileges. The facts revealed that the chiropractors had in fact never applied for those privileges. The judge imposed sanctions of $38,500 (Colorado Chiropractic Council v. Porter Memorial Hospital, 650 F. Supp. 231 [Co. 1986]).

In summary, one cannot readily recommend filing a physician countersuit, unless it is to make a point. Even if the doctor wins, which is rare, the proceedings will be stressful, the costs are not borne by the malpractice carrier, and any recovered damages are likely to be small.

Dr. Tan is emeritus professor of medicine and a former 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 [email protected].

Question: Which one of the following is false?

A. A physician countersuit is frequently successful when a lawyer has filed – and lost – a frivolous malpractice lawsuit.

B. Countersuits are usually premised on two legal theories: malicious prosecution or abuse of process.

C. The key elements of malicious prosecution include lack of probable cause and presence of malice.

D. Abuse of process speaks to using the legal system with an ulterior motive and for an illegitimate purpose.

E. Rule 11 is a federal rule that imposes sanctions in which the attorney has failed to conduct a "reasonable inquiry" before filing a lawsuit.

Answer: A. Many doctors believe that eager attorneys readily file malpractice lawsuits in the hope of intimidating the defendant doctor into settling. Some in the medical profession have therefore considered countersuits against the attorney, and sometimes the patient as well, when they perceive the original lawsuit to be frivolous.

However, the countersuit process is tedious, expensive, and usually unsuccessful. Courts are generally hostile to such lawsuits, because public policy encourages a litigant’s unfettered resort to the law.

The usual legal theory that a countersuit is premised upon is malicious prosecution, which has to satisfy the following elements: 1) original lawsuit terminated in favor of the doctor, that is, no malpractice liability found; 2) lack of probable cause; 3) malice; and 4) special injuries.

The issue of probable cause is the major stumbling block to a successful countersuit. In Williams v. Coombs (224 Cal. Rptr. 865 [Cal. App. 1986]), a doctor was sued for wrongful death after his patient hanged herself following hospital admission for suicidal gestures. She was admitted to a private room instead of a special locked room. At trial, the jury found in favor of the physician. Thereafter, the physician sued the plaintiff attorney for malicious prosecution and intentional infliction of emotional distress.

The court agreed that the plaintiff attorney lacked probable cause in filing the malpractice claim in the first place. It advanced a two-point test: First, the attorney must entertain a subjective belief that the claim merits litigation; and second, that belief must satisfy an objective standard, because the attorney must not prosecute a claim that a reasonable lawyer would not consider tenable.

Finding that the attorney failed to meet the second prong of the test, the court stated that, although probable cause is not the same as making a legal case (winning), an attorney must nonetheless refrain from an unsound and untenable claim. The attorney had relied exclusively on the allegations of his client, and he had not done much in the way of background research, found no cases on point, and sought advice from only one physician during a social encounter.

The court reasoned that a "litigant cannot be permitted to file suit based merely on a wing and a prayer, and then be retroactively justified by some serendipitous discovery so as not to be liable for malicious prosecution." The claim for intentional infliction of emotional distress was dismissed, because otherwise defamatory statements made in a judicial proceeding constituted a privileged publication.

In Gentzler v. Atlee (443 Pa. Super. 128 [1995]), a cardiologist recommended that the patient go to a certain hospital for tests, and in a subsequent CABG procedure, the patient received contaminated blood products. Although the cardiologist did not recommend or participate in the surgery, he was a named codefendant in the subsequent lawsuit. After the trial court dismissed the action, he filed a countersuit against the attorney under Pennsylvania’s statutory section for the wrongful use of civil proceedings.

The court noted that the standard for probable cause is whether an attorney reasonably believes that a claim may be valid under existing or developing law, and that this determination is a matter of law, that is, up to the judge rather than a jury to decide.

In ruling for the doctor, the court reasoned that under the facts of this case, there was no probable cause, as there was no informed consent issue, and the cardiologist did not himself order the administration of the blood products.

However, most malicious prosecution actions fail.

In Wong v. Tabor (422 N.E. 2d 1279 [Ind. 1981]), the Indiana Court of Appeals held that the probable cause standard is an objective one, but the relevant question was "whether the claim merits litigation ... on the basis of the facts known to the attorney when the suit was commenced." The standard apparently did not require the attorney to investigate, but simply to accept the facts as told by the client.

In Dutt v. Kremp (111 Nev. 567 [1995]), the plaintiff attorney promptly withdrew his lawsuit after receiving an unfavorable report from his own expert witness. A countersuit followed. The court held that as regards the malicious prosecution action, the attorney had probable cause to file the malpractice action. The court concluded that, under the facts, a reasonable attorney would have believed that the malpractice action was tenable. The patient’s condition had initially deteriorated under the care of the physician, and improved only after other doctors became involved in the case. The medical records corroborated the patient’s story. The court stated that there was no absolute requirement to obtain an expert opinion before filing the lawsuit.

It is even harder to meet the malice requirement. Definitions are elusive, and allegations of willful and wanton misconduct are not always synonymous with malice, particularly where no improper motive is suggested.

In the view of one court, the action of an attorney who signed and amended a complaint without first reading the complaint did not constitute malice sufficient to support a malicious prosecution action. A contingent-fee arrangement, even of large magnitude, cannot be used as evidence of improper motive or malice.

Neither is attorney negligence or incompetence, which one court gratuitously editorialized: "If that constitutes malice, the courtrooms are full of malicious attorneys." In that case, a surgeon was alleged to have damaged a child’s testicle – although at trial, all expert witnesses, including two of the plaintiff’s own experts, testified that there was no evidence of damage. Apparently, the attorney had not spoken to his own witnesses.

Note that for a malicious prosecution lawsuit to prevail, the plaintiff doctor may have to satisfy the "special injury" requirement in some jurisdictions. It is not always clear what this entails, but the injury has to be beyond "anxiety, loss of time, attorney’s fees and the necessity to defend one’s reputation" (Stopka v. Lesser, 82 Ill. App.3d 323 [1st Dist. 1980]). In one case, the court ruled that a plaintiff in a malicious prosecution action may recover for "humiliation, mortification and loss of reputation" (Raine v. Drasin, 621 S.W.2d 895 [Ky. 1981]). Jurisdictions such as Illinois do not require the special injury element.

Another legal theory for a malpractice countersuit is abuse of process. Here, too, the doctor’s victory is rare. However, in Bull v. McCuskey (96 Nev. 706 [1980]), a physician successfully used this approach. He asserted that the attorney had filed a malpractice suit with the motive of coercing a nuisance settlement (attorney offered to settle for $750). The case involved an elderly woman who sustained fractures following an auto accident, then went on to develop bedsores after refusing to follow staff instructions. The attorney did not examine the medical records, conferred with no physician, retained no expert, and took no depositions.

At trial, which was won by the physician, the attorney called the physician incompetent, a liar, and a scoundrel. In the abuse of process action that followed, the physician won a jury verdict of $35,000 in compensatory damages and $50,000 in punitive damages, which was upheld on appeal.

Other legal theories, mostly unsuccessfully pleaded, include infliction of emotional distress, negligence, defamation, invasion of privacy, and the tort of outrage.

However, courts have erected various rules to prevent the filing of frivolous suits. The best known, Federal Rule 11 (and its state counterparts), requires the lawsuit to be filed only after reasonable inquiry, be well grounded in fact, and not be interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

An example of a Rule 11 sanction involved a lawsuit filed by two chiropractors in Colorado that alleged antitrust violation by a medical facility that denied them hospital admitting privileges. The facts revealed that the chiropractors had in fact never applied for those privileges. The judge imposed sanctions of $38,500 (Colorado Chiropractic Council v. Porter Memorial Hospital, 650 F. Supp. 231 [Co. 1986]).

In summary, one cannot readily recommend filing a physician countersuit, unless it is to make a point. Even if the doctor wins, which is rare, the proceedings will be stressful, the costs are not borne by the malpractice carrier, and any recovered damages are likely to be small.

Dr. Tan is emeritus professor of medicine and a former 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 [email protected].

Question: Diabetes-related litigation may involve:

A. Patient injuries.

B. Work injuries.

C. Third-party injuries.

D. A and B.

E. A, B, and C.

Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.

Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).

Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.

Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.

It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA_1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.

Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.

For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.

The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.

Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.

Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.

However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.

Litigation can be expected where diabetes is acquired following injuries to the pancreas, e.g., pancreatitis, surgery, or trauma. Medication side effects are another common source of lawsuits when they cause or aggravate diabetes. The best example is glucocorticoids, but many other drugs have been implicated, such as thiazides and beta blockers.

More recently, a flurry of lawsuits, not always successful, has alleged the development or aggravation of diabetes in patients taking antipsychotic drugs. These cases are usually directed at the manufacturer for allegedly withholding data from the FDA.

Finally, antidiabetic drugs themselves can cause serious side effects, and the injured patient may prevail if it can be shown that the drugs’ use was unwarranted, or that the side effects were not disclosed.

Examples are hypoglycemia and weight gain from insulin and sulfonylureas, as well as other less common but important side effects such as liver failure from troglitazone (Rezulin, withdrawn from the market in 2000), coronary artery disease from rosiglitazone, bladder cancer from pioglitazone, pancreatitis from incretin mimetics or DPP-4 inhibitors, and lactic acidosis from metformin.

The list is not exhaustive, and doctors should consult the PDR or other drug sources for information and updates.

Medication-induced hypoglycemia can lead to driving accidents. The patient who is not warned of such a risk can sue the doctor for lack of informed consent. Furthermore, notwithstanding absence of the traditional doctor-patient relationship, an injured nonpatient third party may allege that a "special relationship" exists if the injury is foreseeable (Internal Medicine News, January 2013, p. 53).

A questionnaire survey of patients in U.S. and European diabetes clinics revealed that half of type 1 diabetes patients who drove and three-quarters of type 2 diabetes patients who drove purportedly never had a discussion with their physicians regarding hypoglycemia and driving. In that study, type 1 patients but not type 2 patients – including those on oral agents or insulin – had more driving mishaps than their nondiabetic spouses (Diabetes Care 2003;26:2329-34).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected]. This column, "Law & Medicine," appears regularly in Internal Medicine News.

Question: Diabetes-related litigation may involve:

A. Patient injuries.

B. Work injuries.

C. Third-party injuries.

D. A and B.

E. A, B, and C.

Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.

Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).

Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.

Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.

It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA_1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.

Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.

For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.

The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.

Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.

Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.

However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.

Litigation can be expected where diabetes is acquired following injuries to the pancreas, e.g., pancreatitis, surgery, or trauma. Medication side effects are another common source of lawsuits when they cause or aggravate diabetes. The best example is glucocorticoids, but many other drugs have been implicated, such as thiazides and beta blockers.

More recently, a flurry of lawsuits, not always successful, has alleged the development or aggravation of diabetes in patients taking antipsychotic drugs. These cases are usually directed at the manufacturer for allegedly withholding data from the FDA.

Finally, antidiabetic drugs themselves can cause serious side effects, and the injured patient may prevail if it can be shown that the drugs’ use was unwarranted, or that the side effects were not disclosed.

Examples are hypoglycemia and weight gain from insulin and sulfonylureas, as well as other less common but important side effects such as liver failure from troglitazone (Rezulin, withdrawn from the market in 2000), coronary artery disease from rosiglitazone, bladder cancer from pioglitazone, pancreatitis from incretin mimetics or DPP-4 inhibitors, and lactic acidosis from metformin.

The list is not exhaustive, and doctors should consult the PDR or other drug sources for information and updates.

Medication-induced hypoglycemia can lead to driving accidents. The patient who is not warned of such a risk can sue the doctor for lack of informed consent. Furthermore, notwithstanding absence of the traditional doctor-patient relationship, an injured nonpatient third party may allege that a "special relationship" exists if the injury is foreseeable (Internal Medicine News, January 2013, p. 53).

A questionnaire survey of patients in U.S. and European diabetes clinics revealed that half of type 1 diabetes patients who drove and three-quarters of type 2 diabetes patients who drove purportedly never had a discussion with their physicians regarding hypoglycemia and driving. In that study, type 1 patients but not type 2 patients – including those on oral agents or insulin – had more driving mishaps than their nondiabetic spouses (Diabetes Care 2003;26:2329-34).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected]. This column, "Law & Medicine," appears regularly in Internal Medicine News.

Question: Diabetes-related litigation may involve:

A. Patient injuries.

B. Work injuries.

C. Third-party injuries.

D. A and B.

E. A, B, and C.

Answer: E. Many millions of Americans have diabetes, the condition being associated with serious complications and an annual economic burden exceeding $100 billion. The diabetic patient may file personal injury claims, including malpractice allegations, against a doctor for negligent care such as the failure to diagnose and/or treat. Where there is aggravation of a worker’s injury by underlying preexisting diabetes, e.g., a work-acquired wound that ends in an amputation, the employer may face a workers’ compensation claim. And both the patient and nonpatient third parties injured, say in a car accident, may have a cause of action against a doctor for failing to warn that certain medications, such as insulin, can impair driving ability.

Data from the Physician Insurers Association of America (PIAA), a trade organization of malpractice carriers collectively insuring some 60% of U.S. doctors and dentists in private practice, document a total of 906 diabetes-related claims during the 10-year period from 1985 to 1996. Total indemnity paid was close to $27 million. Ophthalmology, internal medicine, and general and family practice physicians were the most commonly affected, frequently for mishaps occurring in the office (Diabetes Care 1998;21:1096-1100).

Liability can attach where there is failure to diagnose or treat diabetes. For example, in Hill v. Stewart (209 So.2d 809 (Miss. 1968)), a physician was found liable for misdiagnosing his patient’s weight loss, polyuria, and polydipsia as multiple sclerosis, and for failing to attend to him for 29 hours after he was hospitalized with diabetic ketoacidosis.

Lawsuits are not uncommon against ophthalmologists and obstetricians for eye and obstetric complications associated with the care of diabetic patients. But all specialists are at risk. In one instance, a radiologist was found liable for failing to take proper precautions in a diabetic patient with postural hypotension who fell off the radiology examining table and sustained injuries.

It is well known that many diabetic patients do not achieve target glycemic control, e.g., ADA’s HbA_1c of 7%. In an audit carried out in 2004-2005, 42% of patients had a value of 7.5% or higher. Many factors account for this widespread treatment "failure" despite clear evidence that good control can prevent many of the complications of diabetes.

Where poor control can be blamed on the doctor, a lawsuit may prove successful if there is evidence that the complication, e.g., diabetic retinopathy, would otherwise have been prevented. On the other hand, many if not most patients bear the fault for poor or noncompliance, although this may not necessarily be a successful defense.

For example, in Gray v. Brock (750 S.W.2d 696 (Mo. 1988)), the Missouri state appeals court reversed a lower court’s decision that the patient was 82% contributorily negligent because he delayed treatment for several days and ended up in the hospital with a blood glucose of 1,265 mg/dL. The appeals court held that there was no substantial evidence the patient knew that "his diabetes was out of control," and that the nausea, vomiting, and excessive intake of fluids for several days could be explained by the belief that he (and his wife) had come down with the flu.

The defendant is held to the standard ordinarily expected of his or her specialty, and not to a higher standard. Experts testifying for either side need not be of the same specialty as the defendant, but must be able to testify to that standard expected under the facts of the case.

Thus, in Benison v. Silverman (233 Ill. App.3d 689 (1992)), a general practitioner was found not liable for not promptly hospitalizing a patient with a foot injury that subsequently became gangrenous. The plaintiff’s internist-expert had referenced the wrong standard of care.

Likewise, an internist is to be judged by the standard ordinarily expected of a fellow internist, not of an endocrinologist. In Seitz v. Akron Clinic (557 N.E.2d 1216 (Ohio 1990)), an internist-pulmonologist failed to refer a mild diabetic to a diabetologist. When the patient subsequently developed neuropathy, a lawsuit ensued; but the internist defendant prevailed, because it was not the customary standard for an internist to refer an uncomplicated case to a diabetes specialist.

However, a chiropractor who held himself out as being capable of diagnosing and treating diabetes was held liable for injuries according to the standard of an M.D. physician in Dowell v. Mossberg (355 P.2d 624 (Ore 1960)). In another case, a chiropractor who was treating a diabetic patient for her back problems applied prolonged ultrasound treatments to her sprained ankle, resulting in a burn. The defendant was held liable for failing to exercise the requisite medical care in treating a diabetic foot.

Litigation can be expected where diabetes is acquired following injuries to the pancreas, e.g., pancreatitis, surgery, or trauma. Medication side effects are another common source of lawsuits when they cause or aggravate diabetes. The best example is glucocorticoids, but many other drugs have been implicated, such as thiazides and beta blockers.

More recently, a flurry of lawsuits, not always successful, has alleged the development or aggravation of diabetes in patients taking antipsychotic drugs. These cases are usually directed at the manufacturer for allegedly withholding data from the FDA.

Finally, antidiabetic drugs themselves can cause serious side effects, and the injured patient may prevail if it can be shown that the drugs’ use was unwarranted, or that the side effects were not disclosed.

Examples are hypoglycemia and weight gain from insulin and sulfonylureas, as well as other less common but important side effects such as liver failure from troglitazone (Rezulin, withdrawn from the market in 2000), coronary artery disease from rosiglitazone, bladder cancer from pioglitazone, pancreatitis from incretin mimetics or DPP-4 inhibitors, and lactic acidosis from metformin.

The list is not exhaustive, and doctors should consult the PDR or other drug sources for information and updates.

Medication-induced hypoglycemia can lead to driving accidents. The patient who is not warned of such a risk can sue the doctor for lack of informed consent. Furthermore, notwithstanding absence of the traditional doctor-patient relationship, an injured nonpatient third party may allege that a "special relationship" exists if the injury is foreseeable (Internal Medicine News, January 2013, p. 53).

A questionnaire survey of patients in U.S. and European diabetes clinics revealed that half of type 1 diabetes patients who drove and three-quarters of type 2 diabetes patients who drove purportedly never had a discussion with their physicians regarding hypoglycemia and driving. In that study, type 1 patients but not type 2 patients – including those on oral agents or insulin – had more driving mishaps than their nondiabetic spouses (Diabetes Care 2003;26:2329-34).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 [email protected]. This column, "Law & Medicine," appears regularly in Internal Medicine News.

• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.

Which of the following factors should the board consider?

A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.

B. Whether his legal transgression adversely affects the integrity of the medical profession.

C. Whether it would impact his fitness to practice.

D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.

E. All of the above.

• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.

Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.

The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).

Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.

At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.

The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.

However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.

And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.

The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.

Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.

For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The California court stated that it was difficult to "compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients."

Likewise, the Washington Supreme Court upheld the suspension of a doctor’s license following his conviction for tax fraud (In Re Kindschi (52 Wn.2d 8 [1958]). In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

Who gets into trouble with medical disciplinary boards? In a California study (Arch. Intern. Med. 2004;164:653-8) of the characteristics associated with physician discipline (for all manner of misconduct, not just dishonesty), the authors concluded that male physicians were nearly three times as likely as women physicians, and those who were non–board-certified were twice as likely as their board-certified counterparts, to be disciplined.

Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk. In another study, medical students with professional misbehavior were found to be more likely to display similar behavior after graduation.

In 2011, there were a total of 6,034 disciplinary actions of all types taken against doctors, with the highest number in Wyoming (6.79 per 1,000 doctors), Louisiana (5.58), and Ohio (5.52). The lowest rates were in South Carolina (1.33 per 1,000 doctors), Washington, D.C. (1.47), and Minnesota (1.49).

Many believe these numbers vastly underestimate the prevalence of physician misconduct, and that the widely disparate statistics do not indicate any state having more or fewer bad doctors. Instead, the numbers reflect the suboptimal functioning of medical disciplinary boards.

Dr. Tan is emeritus professor of medicine at the University of Hawaii. 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 [email protected].

• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.

Which of the following factors should the board consider?

A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.

B. Whether his legal transgression adversely affects the integrity of the medical profession.

C. Whether it would impact his fitness to practice.

D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.

E. All of the above.

• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.

Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.

The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).

Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.

At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.

The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.

However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.

And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.

The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.

Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.

For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The California court stated that it was difficult to "compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients."

Likewise, the Washington Supreme Court upheld the suspension of a doctor’s license following his conviction for tax fraud (In Re Kindschi (52 Wn.2d 8 [1958]). In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

Who gets into trouble with medical disciplinary boards? In a California study (Arch. Intern. Med. 2004;164:653-8) of the characteristics associated with physician discipline (for all manner of misconduct, not just dishonesty), the authors concluded that male physicians were nearly three times as likely as women physicians, and those who were non–board-certified were twice as likely as their board-certified counterparts, to be disciplined.

Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk. In another study, medical students with professional misbehavior were found to be more likely to display similar behavior after graduation.

In 2011, there were a total of 6,034 disciplinary actions of all types taken against doctors, with the highest number in Wyoming (6.79 per 1,000 doctors), Louisiana (5.58), and Ohio (5.52). The lowest rates were in South Carolina (1.33 per 1,000 doctors), Washington, D.C. (1.47), and Minnesota (1.49).

Many believe these numbers vastly underestimate the prevalence of physician misconduct, and that the widely disparate statistics do not indicate any state having more or fewer bad doctors. Instead, the numbers reflect the suboptimal functioning of medical disciplinary boards.

Dr. Tan is emeritus professor of medicine at the University of Hawaii. 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 [email protected].

• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.

Which of the following factors should the board consider?

A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.

B. Whether his legal transgression adversely affects the integrity of the medical profession.

C. Whether it would impact his fitness to practice.

D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.

E. All of the above.

• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.

Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.

The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).

Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.

At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.

The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.

However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.

And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.

The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.

Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.

For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The California court stated that it was difficult to "compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients."

Likewise, the Washington Supreme Court upheld the suspension of a doctor’s license following his conviction for tax fraud (In Re Kindschi (52 Wn.2d 8 [1958]). In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

Who gets into trouble with medical disciplinary boards? In a California study (Arch. Intern. Med. 2004;164:653-8) of the characteristics associated with physician discipline (for all manner of misconduct, not just dishonesty), the authors concluded that male physicians were nearly three times as likely as women physicians, and those who were non–board-certified were twice as likely as their board-certified counterparts, to be disciplined.

Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk. In another study, medical students with professional misbehavior were found to be more likely to display similar behavior after graduation.

In 2011, there were a total of 6,034 disciplinary actions of all types taken against doctors, with the highest number in Wyoming (6.79 per 1,000 doctors), Louisiana (5.58), and Ohio (5.52). The lowest rates were in South Carolina (1.33 per 1,000 doctors), Washington, D.C. (1.47), and Minnesota (1.49).

Many believe these numbers vastly underestimate the prevalence of physician misconduct, and that the widely disparate statistics do not indicate any state having more or fewer bad doctors. Instead, the numbers reflect the suboptimal functioning of medical disciplinary boards.

Dr. Tan is emeritus professor of medicine at the University of Hawaii. 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 [email protected].