In our culture, we often wait until things are really bad to say something. But you shouldn’t wait, because even more harm can occur, and being silent also deprives the colleague of a chance to remediate. —Jo Shapiro, MD
Explore This Issue
May 2020
Concerned colleagues who suspect egregious behavior can find recommended actions in the AMA Code of Medical Ethics. The AMA states that a physician should report the conduct to appropriate clinical authorities after the first instance so that possible impact on patient welfare can be assessed and remedial action taken, Dr. Holt said. This should include notifying a hospital’s peer review body or the local or state medical society if the concerning physician doesn’t have hospital privileges.
If the conduct in question poses an immediate threat to a patient’s health and safety or violates state licensing provisions, it should be reported directly to the institution’s appropriate physician oversight individual (e.g., department chair, chief medical officer), Dr. Holt said. If the conduct continues unchanged or if the physician is outside an institution’s purview, it’s appropriate to report the concern to a higher authority, such as the state medical board.
Challenges for State Medical Boards
The challenge for a state medical board is gaining access to medical records, due to HIPAA. “If a board can’t get a patient’s medical records, they could ask for an opinion from another doctor in that specialty, but that isn’t easily done,” Dr. Stankiewicz said. “If an inquiry is done by an individual hospital or other practice members, in which a problem is documented and it’s relayed to the state licensure board, the board can either remove a physician’s licensure or put them on probation.”
Dr. Holt, who is a past pro bono reviewer for his state’s medical board, said state medical boards take complaints seriously and thoroughly investigate them. “Most medical boards would rather remediate physicians who have had incompetent or unethical behavior, but they are willing to take strong action against a physician if less stringent measures are unsuccessful,” he said. These less-stringent methods may range from intense courses on ethics and patient care, to oversight by a fellow physician, to license suspension or revocation.
Legal Obligations
So, what should a physician do who has learned about a colleague’s misconduct? “This very complex obligation doesn’t have much precedent,” said Dr. McHale. “A physician will need to understand federal and state regulations, including defamation laws, and make a subjective determination about another physician’s conduct without much of the context used in the decision-making process.”
Nearly every state has a statute that requires a physician to report a colleague to the state medical board if they have reasonable cause to believe that another physician has engaged in prohibited or unprofessional conduct. “In my experience, very few physicians appreciate or understand this obligation,” Dr. McHale said. “But in most states, if a physician fails to report, he or she could be disciplined by a state medical board.”
Part of the obligation also depends on the type of misconduct. Reporting laws pertaining to malpractice that result in patient harm are different from laws that apply to reporting federal fraud like billing for services that weren’t performed. Another aspect depends on the state where the alleged misconduct occurred.
Potential legal exposure for physicians who fail to report misconduct are also based on their leadership roles. While a physician with oversight responsibility is generally thought to be protected from personal liability when serving in that particular role, failure to investigate, act on, and report suspected misconduct acts can expose an organization to liability, Dr. McHale said.
Additionally, according to Dr. McHale, while a state may not have a statute mandating reporting, a physician’s role in concealing prior misconduct committed by another physician can expose the concealing physician to claims of fraudulent concealment. Furthermore, many organizations have bylaws that require physicians to report suspected misconduct. “Failure to report misconduct in this case can be considered a breach of contract and can be grounds for terminating an employment contract,” Dr. McHale said.