Mitchell Warner, P.A. - Medical Law Alert

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IMPAIRED AND INCOMPETENT PHYSICIANS AND YOUR DUTY TO REPORT THEM

By Steven K. Sanborn, Mitchell Warner, P.A.

In November, 1998, the North Carolina Medical Board ("NCMB") adopted a new position statement regarding a physician's professional obligation to act when confronted with incompetence, impairment, and unethical conduct of colleagues. The Statement states:

When appropriate, an offer of personal assistance to a colleague may be the most compassionate and effective intervention. When this would not be appropriate or sufficient to address the problem, physicians have a duty to report the matter to the institution best positioned to deal with the problem.

The Statement notes that a physician should report impaired physicians and physician assistants to the North Carolina Physicians Health Program. Incompetent physicians should be reported to the clinical authority empowered to take appropriate action, such as a hospital, or the NCMB. If there is no other institution reasonably likely to be willing or able to deal with the problem, then the physician should report to the NCMB.

The Statement concludes that the duty to report is subordinate to the duty to maintain patient confidences. This would apply if the colleague is a patient or if matters concerning a colleague is brought to the physician's attention by a patient. The Statement states: "[T]he physician must give appropriate consideration to preserving the patient's confidences in deciding whether to report the colleague."

The NCMB is not the first entity to create an ethical duty to report. The American Medical Association (AMA) issued an ethical opinion in 1992 which creates an ethical obligation to report impaired, incompetent or unethical colleagues. AMA Code of Medical Ethics 9.031. This opinion is similar to the NCMB statement in regard to reporting impaired or incompetent physicians. In regard to reporting unethical colleagues, the Opinion differentiates unethical conduct into three categories:

Conduct that threatens patient care or welfare. The Opinion states that this type of conduct should be reported to the appropriate authority for a particular clinical service.
Conduct that violates state licensing provisions. This type of conduct should be reported directly to the state licensing board or the impaired physician's program, when appropriate.
Conduct which violates criminal statutes. This type of conduct must be reported to the appropriate law enforcement authorities.
All other unethical conduct should be reported to the local or state medical society.

The Opinion notes further that if the inappropriate conduct of the colleague continues despite the initial reports, the reporting physician should report to a higher or additional authority. Physicians who receive reports of inappropriate behavior, including anonymous reports, have an ethical duty to critically and objectively evaluate the reported information and to assure that identified deficiencies are either remedied or further reported to a higher or additional authority. The AMA Opinion notes that physicians who are under scrutiny or charge should be protected by the rules of confidentiality until such charges are proven or the physician is exonerated.

Other states have enacted statutes making it a legal requirement for health care providers to report other health care providers. For example, in Kansas, a physician must report any other health care provider who (1) is or may be below the applicable standard of care and has a reasonable probability of causing injury to a patient, or (2) may be grounds for disciplinary action by the appropriate licensing agency. Failure to report could result in licensure discipline, and if the failure to report was willful and knowing, it could result in a misdemeanor.

Similarly, in Washington, a physician is required by statute to report if the physician has personal knowledge that a physician has engaged in unprofessional conduct or cannot practice with reasonable skill and safety due to impairment or mental or physical condition. Failure to report could result in licensure discipline.

To conclude, a physician with personal knowledge of another physician's impairment or incompetence has an ethical duty to report the impaired or incompetent physician to a body authorized to take action against such physician. Failure to report an impaired or incompetent physician could have the obvious consequence of harming innocent patients. Now, failure to report could jeopardize the non-reporting physician's own medical license.

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The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell at (800) 662-7403 or ehollowell@nchealthlaw.com