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Understanding Legal and Regulatory Adverse Actions: How Trouble Could Come at You

Feld, Kayla A1; Feld, Andrew D2,3

Clinical and Translational Gastroenterology: March 2016 - Volume 7 - Issue 3 - p e158
doi: 10.1038/ctg.2015.56
Gut Instincts: My Perspective
Free

1Sidley Austin LLP, Singapore, Singapore

2Program Chief, Gastroenterology Group Health Cooperative, Seattle, Washington, USA

3Clinical Professor of Medicine, University of Washington, Seattle, Washington, USA

Correspondence: Andrew D. Feld, MD, JD, Program Chief, Gastroenterology Group Health Cooperative, Clinical Professor of Medicine, Seattle, Washington, USA. E-mail: afeld@u.washington.edu

published online 24 March 2016

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INTRODUCTION

Legal and regulatory issues often receive only brief attention during medical training, given the significant competing curriculum. Medical institutions and insurance companies may educate physicians on potential liability, but the curriculum is designed to focus on the knowledge most important to protect the medical institution and insurance company, rather than the physician. While this will often overlap with protection of the individual, that is not always the case. This note will overview the ways a physician may face trouble. The purpose is to raise awareness so that one may come out unscathed (or at least, less scathed).

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TRADITIONAL TROUBLE: THE LAWSUIT

Even the most conscientious, well-trained, and competent gastroenterologist is at risk of becoming a defendant in a lawsuit. A malpractice suit can be initiated with relative ease and a low evidentiary requirement in most states. Although most doctors—approximately 80%—will eventually prevail, a lawsuit is a stressful process regardless of the outcome, and may lead to personal loss of self-esteem, depression, family stress, credentialing issues, and financial worry. The fear of being subjected to a lawsuit is pervasive in medicine, and may affect how a physician practices (i.e., defensive medicine). The angst is perhaps more proportionate to the perception of the pain and humiliation associated with the process and character of a lawsuit than to the frequency of occurrence.

When faced with a malpractice lawsuit, the physician must take the suit seriously, should generally seek legal advice, and must abide by the following principles:

  1. Never alter the medical record. It is not only unethical, but against your interest, as the record has already been copied for the plaintiff's attorney.
  2. Do not discuss the case with your colleagues, who may be subpoenaed to testify as to the content of your conversation.
  3. Consider and ask your insurance company-provided attorney whether there are any conflicts of interest in that attorney's representation of you. If so, you may need an independent attorney to represent solely your interests.
  4. Consider the importance of your demeanor; do not appear arrogant, demeaning, or unprepared.
  5. Deposition tips: be well prepared. Reread the medical record thoroughly, research the medical problem at issue, and have it down cold. Don't rush.
  6. If asked whether certain texts, journals, or guidelines are the accepted authorities in the field, be sure to qualify any affirmative answer that no one source is the sole authority.

A complete analysis of the above principles can be found in our review article for gastroenterologists “ What to do if sued”.1

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STATE MEDICAL BOARD (SMB)

The SMB is the state agency responsible for licensing and regulating physician behavior. The primary goals of the SMB are to protect the public from physicians considered unfit to practice. The SMB is responsible for receiving or gathering information that might indicate unfitness for practice, and then undertaking an investigation to verify the information. The SMB can (1) restrict or remove the physician's license; (2) require that the physician completes a remedial program to maintain his or her license; and (3) list the complaint and the decision on its publically searchable website for further transparency. This SMB public listing is often linked to various doctor-rating sites that may increase the availability of the adverse finding and affect the doctor's public persona.

The SMB may act upon information received from a variety of sources, including the following:

  1. A complaint about a physician directly to a SMB. While in many cases the complaint is made for legitimate reasons, it could also come from a disgruntled patient, a concerned colleague, or some other motivated member of the public.
  2. Malpractice actions against the physician are reported to the SMB for review and may be a cause for them to act.
  3. Restrictions of hospital privileges or discipline by the medical institution in which the physician works can be reported to the SMB, and in many instances there are mandatory reporting requirements in place.

Gastroenterologists should take complaints or actions by the SMB as seriously as with a lawsuit. When responding to such actions, it is important to take time to accurately represent your point of view and to strongly consider legal representation to guide you in answering for any serious complaint.

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FORMAL PERFORMANCE IMPROVEMENT PROGRAM (PIP)

We all strive towards practicing high-quality compassionate medicine. Nevertheless, during a physician's career, an event may occur that raises questions in colleagues' minds about that physician's performance. Generally, detailed and thoughtful conversations and mentoring by team leaders along with that physician's willingness to accept accurate criticisms and modify behavior as necessary will lead to resolution of the issue with informal processes.

In some circumstances, particularly if the severity of the issue merits, the physician will be required to engage in a formal PIP. This program might involve attending required educational classes, proctoring of procedures, and being mentored. A formal PIP has a dual purpose: (1) to get the physician's attention and improve the physician's performance to a satisfactory level, and (2) document the institutional warning and any difficulty or inability the physician has to meet standards. The institution is therefore in a better position to show cause to fire a physician who fails or refuses to achieve target standards.

A response to a formal PIP is a delicate balance. You want to demonstrate willingness to improve on the concerns raised and not seem overly defensive or resistant. However, it is also important to take care to not admit fault, where it is ambiguous, and as a result have your own admission held against you. Take the process seriously and understand where improvements need to be made. Neutral third parties and mentors can be helpful, especially if your view and the institution's view of the problem differ markedly.

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CONCLUSION

Health-care providers generally achieve their goals of providing competent and compassionate care. Nevertheless, a misstep, or perceived error, can begin a cascade of adverse actions. Understanding how “trouble can come at you” may help prevent issues, or guide you through troubled waters.

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CONFLICT OF INTEREST

The authors declare no conflict of interest.

DISCLAIMER

This article is intended solely for educational purposes, and cannot be construed to provide specific legal advice. For that, one must contact a health-care attorney.

1. Feld AD, Moses RM. Most doctors win: what to do if sued for medical malpractice. Am J Gastroenterol 2009; 104: 1346–1351.
© 2016 by Lippincott Williams & Wilkins, Inc.