The Medical Board Confidentiality and Transparency Balancing Act

One complaint many patients have when they file a medical board complaints is the lack of feedback the Medical Board provides and how little information is shared. Colorado has for years taken the position that medical board investigations, files and complaints are confidential. Colorado’s Medical Transparency Act provides patients with a centralized database of information concerning health care providers, but does not “open the books” on Board of Medical Examiners’ investigations and relies on physician self-reports. . The Colorado Medical Board has, for years, relied upon a statute that exempted investigations and other information from open records laws, however, the statute didn’t expressly make the records confidential. In 2009, the Colorado Supreme Court in DeSantis v. Simon, found that the Medical Board’s investigations were not confidential and could be obtained through discovery in a civil suit.

To combat this, the Colorado General Assembly amended the Medical Practice Act, section 12-36-118(10) to provide that “records related to a complaint” filed with the Medical Board would receive the same protection as peer review materials. This means that now, Medical Board investigations are not subject to subpoena or discovery in any civil suit brought against a physician. The revised statute essentially overrules the Supreme Court’s ruling in DeSantis, and makes BME investigations confidential.

The General Assembly’s attempt to extend the same protection from discovery to other professional licensing boards, including pharmacy, podiatry, chiropractic, dental, nursing, psychologists and nursing home administrators died on March 22, 2011, when HB 1128 was killed by the house judiciary committee. Based on this, it would appear that complaints against health care providers other than physicians and physician assistants are discoverable in malpractice cases. Under the circumstances, health care providers should consider carefully their responses to licensing board inquiries.

Colorado’s trend towards non-disclosure seems to be bucking a trend towards transparency. Washington’s push for transparency may be an early push, according to this Seattle Times article from March: “Legislative Measure Seeks Medical-Board Transparency“. According to a recent American Medical News article “States Eye Public Access to More Doctor Disciplinary Records,” “at least five states have recently passed or are considering legislation that would create more transparency, particularly regarding physician disciplinary records and procedures. The measures would release more physician information, make that information easier for consumers to get, and provide quicker responses on requests to investigate physicians.”

QUICK READS: Healthcare Law in the News

After resisting the urge, I signed up for a Twitter account – @SteveKabler. One of the nice things about Twitter is that it gives you quick access to all sorts of different news. Here are some of the articles I found this week related to med mal, social media and new legislation:

MEDICAL MALPRACTICE

SOCIAL MEDIA AND MEDICINE

I’ve run a couple of posts about the impact of social media on medicine in the past month. Here are a couple of other interesting articles:

MEDICAL REGULATION

Apparently, the Missouri Board of Registration for the Healing Arts claims it is too difficult to discipline physicians. A new law aims to change that: “Legislature Sends Doctor Discipline Bill to Governor.” I’m most interested in the fact that Missouri hasn’t summarily suspended a doctor in 25 years! Colorado suspended more than 150 between 2000 and 2009 alone.

Tips for Ending the Physician-Patient Relationship With Problem Patients

One question I get from time to time is how a doctor may discharge “problem patients” and end the physician-patient relationship. Doctors who terminate the relationship improperly can face disciplinary charges for patient abandonment or worse. Medical Board complaints for patient abandonment are generally the result of poor communication and typically are the product of a doctor moving to a new practice group; the closing of a medical practice; or a physician moving to a new city. I’ll deal with closing and departing from a medical practice in another post. The issue today is the “problem patient” — one who is disruptive, non-compliant, delinquent or simply has a personality clash with the physician or staff. Discharging these patients should be done with care.

The physician-patient relationship is not a life-long commitment for either the doctor or the patient. With the exception of certain requirements of EMTALA (the Emergency Medical Treatment and Active Labor Act of 1986), physicians are not obligated to accept every patient who seeks his or her services. Once the doctor-patient relationship is established, however, a doctor must follow certain guidelines when discharging a patient to avoid abandoning the patient. Colorado Medical Board policy 40-02 sets out the procedural guidelines for discharging a patient. The Medical Board recommends that:

  • Any discharge be in writing and sent to the patient via certified mail;
  • In the discharge letter, the doctor agrees to provide 15-30 days of provisions coverage while the patient finds a new doctor;
  • The physician provide information for referral to new physicians, if possible; and
  • The letter notify the patient that the patients’ records will be sent to the new physician upon receipt of a written authorization from the patient.

Keeping in mind that problem patients are being discharged for a reason, care should be taken to make sure that a physician minimizes the risk of being charged with abandonment or worse by virtue of the discharge. Even where procedural guidelines are followed, physicians must take care that all discharges are for non-discriminatory reasons, not in violation of anti-discrimination laws such as the Americans with Disabilities Act, and do not jeopardize the welfare of the patient. Thus, a discharge letter should also explain the reasons for discharge in clear and concise language, taking care to spell out the non-discriminatory basis for ending the relationship. A properly prepared discharge letter can eliminate many headaches for the doctor down the road.

Social Media & Medicine — Tips for Avoiding Trouble

The ever-increasing popularity of social media sites like Twitter, Facebook and others, can create issues for doctors and other health care providers. A few weeks ago, I posted about the Rhode Island physician who lost her job and was reprimanded by the Medical Board for inadvertently  identifying a patient on Facebook. Other than the HIPAA and physician-patient privilege issues, social media can present other issues for doctors. For example, last year, CNN.com ran a story about physicians on a humanitarian mission to Haiti posting photos on Facebook. The article, which can be read here, indicates that the Puerto Rican Medical Board investigated the posting of photos of doctors drinking, posing with guns and partying. Ultimately, Medical Board exonerated the physicians, but the incident itself highlights the risks of social media for doctors.

A major concern for health care providers with an online presence is maintaining professional and personal boundaries. The AMA has issued a policy on professionalism in the use of social media for physicians that should be required reading for all healthcare professionals. The AMA Policy can be viewed here.

Doctors and other healthcare providers who choose to have a social media presence should keep a couple of things in mind:

  • Nothing about the Internet is Private. The physician-patient privilege and HIPAA prohibit disclosure of any information that would identify a patient. The more unique a case is, the more likely a description would identify the patient. Don’t discuss patients or cases, no matter how interesting. Here’s what can happen.
  • Boundaries become Blurred Online. As with the physicians in Haiti discussed above, the lines between private and professional life can be difficult to discern. An April 2007 article in the AMA Journal Of Ethics, cautions against physician’s disclosure of personal issues to patients, such as similar medical conditions, in an attempt to empathize with the patient. Allowing patients “behind the curtain” into a physician’s personal life is a situation ripe for problems. Although patients may feel a greater connection to the physician, they can also start to view the relationship as something more. Most commenters recommend avoiding “friending” patients on Facebook. See”A Doctor’s Request: Please Don’t Friend Me” from USA Today; and “Practicing Medicine in the Age of Facebook” from the New England Journal of Medicine. Because of the unique nature of the physician-patient relationship, keep your personal and professional life separate.
  • The Same Rules Apply Online as Off. If physicians or practices choose to have Facebook or other social media presence, keep in mind that all of the rules that apply in the real world apply online. This means that poor advice, poor decisions, and poor communication online can have the same affect as that given in person.