Revised Medical Practice Act Offers New, Confidential Option for Disabled Docs

Prior to July 1, 2010, Colorado’s Medical Practice Act included within its definition of “Unprofessional Conduct” any physical or mental condition that rendered a physician or physician assistant unable to practice with reasonable skill and safety to patients. As a former attorney for the Colorado Medical Board, this was one of the most troubling aspects of the Medical Practice Act, because doctors who had done nothing wrong were subject to discipline. Often we were put in the position of having to discipline a physician who self-reported a physical disability and would voluntarily agree to limit their practice, because the Board had no other mechanism for enforcing practice limitations. This resulted in public discipline for a doctor who had never endangered patients.

Fortunately, the General Assembly reworked the law, revised C.R.S. ยง 12-36-117(1)(o), and enacted 12-36-118.5 entitled “Confidential Agreements to Limit Practice. The new statute permits the Colorado Board of Medical Examiners to enter into confidential practice-limitation agreements with physicians and physician assistants who suffer from a physical or mental condition. This is a welcome departure from the prior rule, which many considered draconian.

The new law, however, is not without its limitations. First, Board Rule 295 makes clear that the new law is permissive, and that the Board is not required to enter into a confidential agreement if it deems the agreement inappropriate. Also, alcohol and drug use are not considered to be within the scope of the new rule. Thus, doctors and P.A.s with alcoholism or drug addiction will not likely be able to avoid public discipline. Physicians are expected to self-limit their practice and may be subject to discipline if he or she fails to act within the limitations imposed by their condition. For example, a surgeon with failing vision or motor-control issues who nonetheless performs surgery commits unprofessional conduct and may be disciplined. Even if a licensee does not endanger patients by practicing outside their physical or mental limitations, he or she may be disciplined if they do not timely report the condition to the Board. The agreements themselves will require periodic monitoring with C.P.H.P. and can be modified based on changes in condition. Once a confidential agreement is reached, the physician/P.A. may be disciplined for violation.

The reporting requirements associated with the new statute must be followed or a confidential agreement is unavailable. BME Rule 295 requires both doctors and P.A.s to report any condition which impacts their ability to perform a medical service with reasonable skill and safety within 30 days of the date that the condition begins to impact their practice. The Rule requires that licensees notify the Board, in writing, of their diagnosis, date of diagnosis, treatment plan, treating physician and whether they are undergoing treatment with C.P.H.P. Rule 295 imposes an obligation on the licensee to notify the Board of any changes in condition (positive or negative) within 30 days as well. Consequently, it is important that all licensees familiarize themselves with the new Rule, which can be viewed here.

Importantly, the “safe harbor” provisions available through C.P.H.P. are still available. Thus, if a physician has a disability, he can voluntarily seek assistance through CPHP, and continue to practice. If the physician remains in compliance with any conditions or restrictions put in place by CPHP, the doctor or P.A. does not need to report the condition to the Board. However, if the Board learns of the condition, the licensee may be subject to discipline. The new statute and rule are step in the right direction, and may permit responsible physicians and P.A.s who become disabled to continue their careers unburdened by public disciplinary actions.

Colorado’s Proposed New Rules for Front Range Medical Malpractice and Business Lawsuits

Last week the Colorado Supreme Court held hearings on the proposed “Civil Access Pilot Project” which proposes new, streamlined procedures for two types of lawsuits: 1) medical malpractice actions, and 2) certain types of “business” litigation. If approved by the Supreme Court, the pilot program will apply to cases filed in five Front Range jurisdictions (Jefferson County, Denver, Adams County, Arapahoe County and Boulder County) for two years after the effective date. After that period, presumably a decision will be made whether to adopt the rules statewide. The new rules will affect physicians and other health care providers in medical malpractice and business lawsuits, health care and medical malpractice lawyers, and plaintiffs. The new procedures will not apply to Colorado state medical board cases.

Assuming the proposed rules are adopted in their current form, they represent a departure from the current civil rules. According to Law Week Colorado, the Colorado Medical Society is concerned that the new rules will make it more difficult to defend themselves in medical malpractice cases. This concern appears to be based on the new expert witness rules applicable to medical malpractice cases. For example, the new rules require that the parties produce expert reports simultaneously, rather than allowing a defense expert to respond to the plaintiff’s expert. The “simultaneous disclosure” provision is similar to the procedure used in medical board cases, and does present a significant issue for doctors defending their care. The new rules also will require that expert witnesses submit a complete, signed report, with all supporting material, and a host of other information typically requested in discovery.

Significantly, the new rules prohibit expert depositions, and limit expert witnesses to one per side per specialty. This provision is especially troublesome for cases involving multiple providers, as it may limit a party’s ability to choose their own experts. The proposed rules contemplate that physicians of the same specialty will share a single expert “unless the parties are able to demonstrate a lack of commonality.” Another interesting provision does not count treating providers towards the expert limit, as long as their opinions are limited to their own evaluation, diagnosis, care and treatment. A defendant physician will be permitted to testify on his or her own behalf, and also have an expert witness. It is possible that the new rules will be a positive change if enforced properly and minimize the time and expense of litigation. However, it may hamper a doctor’s defense in medical malpractice cases.

A copy of the proposed Civil Access Project Rules can be viewed here.

Colorado Extends Transparency Act To All Licensed Health Care Providers

In 2007, Colorado enacted the Michael Skolnik Transparency Act, which directed Colorado’s Department of Regulatory Agencies to create a database of information on physicians. The stated purpose of the Act was to provide transparency to the public regarding the competency of their doctors and to permit Coloradans to make informed health care decisions. The Skolnik Act was one of the first of its kind in the country, and required doctors to make public a broad range of information, including previously confidential information such as involuntary hospital privilege restrictions and malpractice settlements.

In 2010, the General Assembly enacted new legislation to expand the scope of the Transparency Act to include not only medical doctors, but most licensed or registered health care provider within Colorado. The Act covers audiologists, acupuncturists, podiatrists, chiropractors, dentists, dental hygienists, hearing aid providers, physician assistants, mid-wives, nurses, optometrists, physical therapists, psychologists, social workers, professional counselors, marriage and family therapist, addiction counselors and unlicensed psychotherapists.

As a practical matter, the new Medical Transparency Act goes into effect for non-physician health care providers July 1, 2011. For all licensing/registration cycles after July 1, 2011, these health care providers must provide certain information to their respective regulatory agencies. The information that must be provided includes such things as Board certifications and specialties; affiliations with or clinical privileges held at hospitals or health care facilities; health care-related business ownership interests; disciplinary actions in other states or countries; health care-related employment contracts; DEA registration surrenders; criminal convictions and malpractice settlements and judgments. Penalties for non-compliance include administrative fines of up to $5,000, and discipline for unprofessional conduct.

The precise reporting requirements for each board will vary and will be generally dictated by DORA policies, and will be dependent on individual circumstances. While at the attorney general’s office, I co-authored the Medical Board’s policy compliance with the Transparency Act.

The entire Medical Transparency Act of 2010 can be viewed here.