Doctors and DUIs: What to do if you’ve had one too many

Just like every other segment of the population, Colorado physicians are not immune from making the mistake of drinking and driving. Unlike other segments of the population, however, a DUI or other alcohol related offense can result in professional discipline. So, what do you do if you are a licensed health care provider who gets a DUI?

The Colorado Medical Practice Act requires that all physicians report within 30 days any “adverse action” by a law enforcement agency that would constitute grounds for discipline under the Medical Practice Act. Although it is arguable that a first-time offense of drunk driving or other related offense would not constitute grounds for discipline and would not, therefore be reportable, under the MPA, the wiser course is to report the action to the Medical Board within 30 days of any conviction. A physician would be required to report the conviction during the next licensing cycle regardless, so it makes sense to self-report early. Like many things, the failure to report could result in greater discipline than the act itself.

Doctors should be aware, however, that once the matter is self-reported, the Medical Board will require the licensee to undergo an evaluation with the physicians’ health program, CPHP, and will issue a complaint letter to the physician to investigate the matter. A great deal of the Board’s decision making with respect to possible discipline will depend on the outcome of the CPHP report. If the report identifies an underlying physical or mental disability, discipline is likely and could include treatment and monitoring. Given the potential downside, the best course of action if you have one too many is to call a cab or get a ride. The trip to pick up your car the next day will be significantly less of a hassle than the damage caused to your license.

Colorado Medical Board Statistics Show Trend Towards More Severe Discipline

Every year or so, the Colorado Board of Medical Examiners releases a “Board Action Summary” showing the number and types of disciplinary actions over the prior decade. The most recent summary (from June 2009*) reveals a trend towards more severe discipline for doctors and physician assistants over the past several years. The BME licenses more than 23,000 physicians and physician assistants. Statistically, the number of complaints received is relatively small (778 complaints in 2009) with about 3-6% of licensees receiving complaints in any given year. In recent years, however, although complaints have decreased, the Board has disciplined more licensees and imposed more severe sanctions.

In 2000, the Board disciplined 75 licensees on 867 complaints (8.6%). In 2009, the Board disciplined 140 licensees on 788 complaints (17.8%). Moreover, it appears that the severity of discipline has increased. In 2008 and 2009, “serious” Board actions (i.e. revocation, license surrender, and suspensions) reached their highest level of the decade and increased significantly over the previous two years. In 2008 and 2009, the Board, revocations, surrenders and suspensions accounted for 81 of the Board’s 261 actions (31%); while in 2006-07 the same actions accounted for only 11% of Board actions (23/199). This suggests one of two things: 1) physicians are committing more disciplinary offenses or 2) the Colorado Medical Board is handing out more severe discipline for the same offenses.

Regardless of the reason, those that come before the Board risk more severe discipline than in years past. Over the next few months, I’ll be discussing the different types of “unprofessional conduct” that can result in discipline (for not only doctors, but nurses and other health care providers), how to respond to Board complaints, and more importantly, how to minimize the chance of popping up on the BME’s radar, based on my experience both as an attorney representing the Colorado Medical Board and defending physicians and others against complaint.

GUEST POST: Tom McMahon on a Physician’s Right to Sue over Faulty Peer Review Process

One frustration many physicians have with their hospitals is the failure to follow peer review procedures as adopted in the medical staff bylaws. One such situation led to a lawsuit handled by Miller | Kabler senior litigator Tom McMahon against Penrose hospital. In that case, the Colorado Supreme Court ruled in 2007 that a physician may file suit for damages against a hospital arising out of a faulty peer review process as soon as that administrative proceeding is complete.

Consequently, once the physician in question completed the peer review process at Penrose, he filed a breach of contract action against the hospital for damages. Penrose immediately moved to dismiss, arguing that – despite what the Colorado Supreme Court had just said – completing the administrative proceeding wasn’t enough after all. According to Penrose, a physician must also first file a separate suit seeking judicial review of the peer review process and obtain a reversal there of the administrative result before filing a damages suit against the hospital. The trial court agreed with Penrose and dismissed the suit.

On appeal, in 2010 the Colorado Court of Appeals reversed the lower court and upheld the physician’s right to sue the hospital over a flawed peer review process as soon as the administrative proceeding is completed. Penrose then sought review by the Colorado Supreme Court in an attempt to have the trial court ruling reinstated, but that was denied, thereby preserving the two appellate court rulings.

Taken together, these appellate decisions ensure that physicians subject to peer review have recourse against hospitals that fail to play by the rules which they themselves have adopted. For more information contact Tom McMahon at tmcmahon@joneskeller.com or visit his website, www.coloradoantitrustlaw.com, or the Miller | Kabler website, www.joneskeller.com.

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.”

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.

WYOMING: Supreme Court Upholds Revocation of Privileges for “Disruptive Physician”

One of the primary reasons doctors receive Medical Board complaints is communication with patients, but also with hospital and office staff as well. Although many believe that treatment of hospital staff cannot result in discipline or privileging issues, a recent Wyoming case illustrates otherwise.

On February 24, 2001, the Wyoming Supreme Court upheld the St. John’s Medical Center’s revocation of medical staff privileges of a physician described as “disruptive.” Significantly, both sides agreed that only the doctor’s behavior toward staff, not the quality of care to patients was at issue. The case illustrates the high standards placed on physician behavior.

The physician, an orthopedic surgeon, was described to have “repeated instances of behavioral issues” with hospital staff. When the doctor applied for reappointment to the staff, he entered into a “Medical Staff Reappointment Agreement” that identified behavioral concerns and placed conditions on reappointment. Several months after reappointment, the entire operating room staff signed a petition refusing to work with the surgeon. Subsequently, the Medical Executive Committee summarily suspended and ultimately terminated the surgeon’s privileges. The physician challenged the revocation of his privileges on several grounds, including his right to due process, and the hospital’s decision to bypass its “Disruptive Practitioner Policy.” The Wyoming Supreme Court ultimately upheld the hospital’s decision. In reaching its decision, the Court quoted the Oregon Supreme Court’s holding in Huffaker v. Baily, 540 P.2d 1398 (Ore. 1975):

The factor of ability to work smoothly with others is reasonably related to the hospital’s object of ensuring patient welfare. This conclusion seems justified for, in the modern hospital, staff members are frequently required to work together or in teams, and a member who, because of personality or otherwise, is incapable of getting along, could severely hinder the effective treatment of patients…. Hospitals uniformly consider cooperativeness an important factor, and in these circumstances it seems questionable whether this court should gainsay the hospitals’ experience and judgment in this matter.

QUICK READS: Healthcare Law In the News

Here are a few good articles related to healthcare law nationally and locally.

QUALITY OF CARE ISSUES:

HEALTH CARE LEGISLATION

Colorado To Exempt Active Military Personnel from Licensing Requirements

The Colorado General Assembly is considering a new bill which will exempt active duty military personnel from most professional licensing requirements. The bill, HB 1013, will apply to licensed professionals such as physicians, nurses, physician assistants, and other health care providers. The bill exempts licensed, certified or registered professionals from payment of any license or registration fees, including renewal fees and from any continuing education or professional competency requirements while on active duty and for six months following completion of service. The bill is limited to military personnel who are called to active duty for more than 12o days in a “war, emergency or contingency.” Thus, a physician or nurse called to active duty is not responsible for payment of license fees if the renewal period falls within the period of service or the following six months. One open question would be how this bill affects licensees who are subject to a stipulation or under Board-ordered probation at the time they are called to active duty. Generally, Board discipline is held in abeyance while the licensee is on active duty.

Thus far, the bill has passed through committees with out opposition and will likely pass easily.

Colorado Once Again Considers Licensing Naturopaths

The long-running saga of licensure for naturopaths in Colorado has garnered some national attention, although the odds that Colorado will pass licensure legislation remain slim. The New York Times ran an article — Licensing Naturopaths Incites Debate in Colorado – NYTimes.com – this week discussing the many sides of the battle over HB 11-1173.

The debate over licensure creates unusual allies. Proponent of licensure are primarily naturopathic doctors, who attend four-year accredited programs and receive some medical training. Naturopaths argue that creation of a regulatory scheme will protect the public. Opponents include the Colorado Medical Society, (representing the interests of medical doctors) and alternative medicine providers who do not fit the definition of a naturopathic doctor. The medical community feels that the law would permit naturopaths to treat beyond their expertise and be dangerous to patients. The non-naturopath alternative providers believe licensure will squeeze them out of business. The Boulder Daily Camera ran this article —Naturopath licensing bill worries alternative healers— on Sunday which also discusses the proposed new law and the debate.

The statement in HB1173 that licensure is not currently required to practice naturopathic medicine in Colorado is incorrect. Despite the fact that hundreds if not thousands of naturopathic doctors and alternative providers treat patients in Colorado, none are legal. Under the current law, naturopaths and other alternative medicine providers who diagnose and treat patients for any illness, condition or disease (or use the title “doctor”) are technically practicing medicine without a license, and run the risk of legal action by the Colorado Board of Medical Examiners and could face criminal charges. When I represented the Colorado medical board, we obtained injunctions against alternative providers, including naturopaths, nutritional advisers, oxygen providers and others who claimed to treat all sorts of maladies. Licensure would eliminate some, but not all of those actions. The new bill would essentially create a limited medical license for naturopaths, similar to that for nurses, chiropractors and podiatrists. While a regulatory scheme would create some safeguards for patients and legitimize the field, it would also create hurdles for providers who become licensed. Just as every other licensed health care provider in Colorado, licensed naturopath would face discipline for substandard care, boundary violations, substance abuse and exceeding the scope of their licensure. All of this may be moot, however, as every similar bills advanced by the naturopathic community over the past decade has been defeated. Nothing in the current legislative climate indicates a change from that history.

The House Health and Environment Committee will hold a hearing on the bill on March 1, 2011. HB 11-1173 can be viewed here.

Do Physician Non-Compete Agreements Have Teeth in Colorado?

I was recently asked how non-compete clauses work in physician employment contracts and whether they can be used to force a doctor to pay damages when leaving a practice or prevent them from taking another job. This is a relatively common issue that is often misunderstood.

Generally, non-compete clauses are not valid in Colorado. There are exceptions to the rule, most notably, contracts for the purchase and sale of a business may contain non-compete covenants and employment contracts may allow recovery of education and training if the employee has worked for less than two years. Physicians, however, have their own rule. Physician groups and medical partnerships can build into employment, partnership and corporate agreements damage provisions requiring a departing physician to pay damages when they leave a practice, but they cannot prevent a departing doctor from taking another position or opening a competing practice.

Colorado’s statute, C.R.S. § 8-2-113(3), provides that

“Any covenant not to compete provision of an employment, partnership, or corporate agreement between physicians which restricts the right of a physician to practice medicine, as defined in section 12-36-106, C.R.S., upon termination of such agreement, shall be void; except that all other provisions of such an agreement enforceable at law, including provisions which require the payment of damages in an amount that is reasonably related to the injury suffered by reason of termination of the agreement, shall be enforceable. Provisions which require the payment of damages upon termination of the agreement may include, but not be limited to, damages related to competition.”

There a couple of interesting points about the statute. First, the rule only applies to medical doctors. Although, I could make a decent argument that it applies to psychologist, chiropractors, and others who provide healthcare, it appears clear that only physicians licensed by the Colorado Board of Medical Examiners are covered. Second, it applies to not only employer-employee agreements, but also to partnership and shareholders agreements as well. The rule is built to discourage doctors from setting up rival practices, so the form of the contract is not really an issue.

Colorado is somewhat unique in that it provides some measure of protection for both the departing physician and the practice group that is losing a member. But there are pitfalls of which both sides should be aware.

Foremost, any damages called for under the contract must be “reasonably related to the injury suffered by reason of termination of the agreement” and cannot constitute a penalty. One Colorado court has found that the damages must reasonably approximate the true lost net profits the practice would actually suffer from the doctor’s departure. The rationale is that damages should be related to the harm that the practice would suffer, and not the benefits that the departing physician will get. For example, a damage provision that requires a departing doctor to pay his or her former practice a percentage of his or her future income does not pass muster. However, a provision that requires the departing physician to pay the practice a fee for each patient that follows the new physician to his or her new practice or simply leaves the old practice might. In my opinion, any contract that calls for payment of a set amount is a problem.

Another related issue is when a physician leaves the fee-for-service world and moves to a managed care system, like a staff-model HMO. Under these circumstances, when the departing physician moves to a closed system, it is difficult to say that they are in competition with their former practice because patients can’t necessarily follow the doctor to their new location without completely changing health insurance plans. Thus, the former practice may have difficulty proving damages related to the physician leaving.

Other issues may arise involving the geographic scope and time restrictions of the “competition” that triggers the damage provision. For example, a provision that requires payment of damages if the departing physician moves to any practice in the western United States during the next ten years would likely be unenforceable. But a 10 miles and two-years are generally considered acceptable.

The take-away for both practice groups and individual doctors is that non-compete clauses should not be taken at face value. A careful analysis of the agreement, the practice, and the facts surrounding a physician’s departure from a practice is necessary before anyone can tell if the contracts have teeth.

Copyright Miller | Kabler, P.C., Attorneys-at-Law