Tag: boundary violation with patient

State Medical Board of Ohio, Uncategorized

Physicians .. do you need a vacation?

I have written about work/life balance in the past (see “Do You Have Balance in your Life,” April 18, 2012) however, as the holiday season approaches, I think it is important to consider whether this is a good time to suggest taking a break from the hectic pace of your practice. In the news again today, there was a story about how Americans are given less vacation days per year than any other major industrial nation (10 days vs. 30 days for most Europeans) and that Americans rarely use all their vacation days. http://today.msnbc.msn.com/id/3041440/vp/50068545#50068545

Many people think that they are too busy to take a vacation or that if they leave for even a few days they will return to even more work than when they left. In some cases, Americans are afraid that if they do take a few days off their bosses will recognize that they are dispensable and may re-assign their work and their job to others. Despite whatever real or imaginary fears you might have about taking a break from work, the reality is that everyone needs to rest, relax and step back from the stress of their daily lives so that they have the energy to return to the workplace prepared to work. Physicians are no exception. Physicians deal with extremely stressful situations on a daily basis. Failure to take the appropriate breaks from your practice can lead to weight gain, depression, additional stress and poor decision-making.

As noted in previous posts, stress can lead physicians to make poor decisions related to patient care or can lead to them making poor personal decisions such as drinking and driving, committing a boundary violation with a patient, or seeking unacceptable ways to relieve stress such as sharing personal information with patients or “friending” patients on social media sites.  Ultimately, failure to implement appropriate stress management tools, including taking a vacation, can lead to future professional problems.

Whether you choose to stay home for a “staycation” or take that long-awaited trip, give yourself (and your practice) a break. It will do you a world of good.

As always, if you have any questions about the State Medical Board of Ohio or this post, please feel free to call me at (614) 486-3909 or email me at beth@collislaw.com.  My office will be closed from December 24, 2012 to January 3, 2013 to give everyone at CSC a much needed break.

State Medical Board of Ohio, Uncategorized

The Digital Age Brings Down Another Prominent Figure

In the past, I have written about the dangers that participating in social media can present to medical professionals (August 23, 2012 post “Social Media Can be a Dangerous Pastime for Medical Professionals”).  The resignation of General David Petraeus yet again demonstrates that the digital age presents significant perils to those individuals who ignore or attempt to circumvent the appropriate use of such media.

I found it interesting that it has been reported that General Petraeus and Paula Broadwell allegedly wrote emails in “draft”, left the drafts in a draft email folder which they could both access and read, but did not send to each other, thereby attempting to avoid creating a trail of emails.

Engaging in social media creates a trail that can be used by employers, governmental agencies, criminal investigators, and State licensing boards as evidence of wrongdoing.  When a professional, like a physician, engages in email, texting, Facebook, Twitter, or other forms of social media with patients, they risk being determined to have committed a boundary violation with a patient.  A physician may not engage in a personal, sexual, or financial relationship with a patient.

In the past, these relationships were more difficult for employers or governmental agencies to prove because, in many instances, cases came down to a “he said – she said” situation.  However, in the digital age, impermissible relationships are documented in emails, texts, photos, videos, Facebook posts, and Tweets.

It is a violation of the State Medical Board of Ohio’s laws and rules to engage in a personal, sexual, intimate, or financial relationship with a patient.  Such relationships subject a physician to discipline by the Board.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to email me at beth@collislaw.com or call me at 614-486-3909.

State Medical Board of Ohio

Physician, employer, friend, neighbor, lover … which hat are you wearing? Choose one.

A physician cannot have a sexual relationship with a patient that they are currently treating.  While most physicians will say that they see the “clear line in the sand” when it comes to the prohibition against having a sexual relationship with a patient, they often don’t see the other boundary violations they may be committing.  It is also a boundary violation to engage in a financial relationship with a patient or to prescribe a medication to a friend or employee without conducting a physical examination or maintaining a patient record. Professional boundaries are blurred in many ways aside from the obvious prohibition against sexual involvement with a patient.

It is important to keep in mind what role you play as a physician. If you have a doctor-patient relationship with a person, you should not employ that person in your practice, loan them money, enter into financial arrangements with them, agree to pick medications up for them at the pharmacy, agree to treat them privately for “free off the books” because they do not have insurance or for any other reason. You need to treat all persons to whom you provide medical care to the same. While you may have sympathy for a patient who does not have insurance or may not be able to get an appointment with their “regular treating doctor”, if you elect to treat someone as a patient, you must follow the accepted standards of care for such treatment.

There is no prohibition from a physician treating an employee of their practice. However, the employee needs to be treated exactly like every other patient in the practice. They need to be physically examined and a patient chart needs to be maintained for any treatment or prescribing that is done for the patient. They need to be referred out for consultation or sent for followup tests or evaluations. Their chart should also include the same history, physical and background information that you would include for any patient.

When treating friends or employees, physicians will often fail to maintain a patient record or fail to accurately record the examination and treatment that they provided to the patient. Any written record is better than no written record, however, you should prepare a written medical record for this friend/patient as you would for any other patient in your practice.

Too often, physicians allow themselves to be “cornered” by a neighbor to call them in a prescription over the weekend and then they fail to take the appropriate steps to examine the patient and document their treatment.  I have also seen physicians who have agreed to treat a patient for free and then not maintain any medical record for the patient. They have told me “I wasn’t billing insurance, so I did not create a record”. This is inappropriate. You may subject yourself to disciplinary action by the State Medical Board of Ohio if you do not maintain medical records when you treat a patient. It doesn’t matter if you are not billing insurance for your service. If you provide medical care to a patient, you need to have a medical record showing what treatment you provided.

Know what hat you are wearing. It is never a good idea to have multiple relationships with patients. However, if you choose to treat a friend or an employee, you still need to practice above the standard of care, which dictates that you record a history and physical and document the treatment you provided to the patient.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, feel free check out my website at www.collislaw.com  or email me at beth@collislaw.com or call me at (614) 486-3909.

State Medical Board of Ohio

Ohio Courts will not reverse Medical Board decisions if the sanction seems too harsh

I recently read of a Medical Board disciplinary matter in the State of Illinois, in which the Illinois Medical Board revoked a physician’s medical license for engaging in a sexual relationship with a patient. Then, the Illinois Appeals court reversed the decision and sent the case back to the Illinois Board to issue an alternative sanction after finding the sanction was “overly severe” given the physician’s conduct. William Joel Kafin v. The Division of Professional Regulation of the Department of Financial and Professional Regulation.   I was struck by this case, as this would never happen in Ohio.

In Ohio, under Ohio Revised Code Chapter 119, decisions of the State Medical Board can be appealed to the Franklin County Courts. The Court will then determine if the decision of the Board was based on reliable, probative and substantial evidence and is in accordance with law. Pons v. Ohio St. Med. Bd., 66 Ohio St.3rd 619, 621. However, case-law exists in Ohio that the Courts will not reverse a decision of the Medical Board purely on the belief that the sanction is too harsh. Henry’s Cafe, Inc. v. Bd. of Liquor Control, (1950), 170 Ohio St.233. Even if the evidence is clear that the Ohio Medical Board imposed a sanction that was different or harsher than was imposed in other similarly situated cases, the Courts still not reverse a Medical Board decision.

The only way to obtain relief from a Medical Board decision by the Courts is to show that the Board based its decision on evidence that was contrary to law or was not reliable, probative or substantial. While it is not unheard of to have a Medical Board decision reversed by the Court, it is certainly an uphill battle.

It is the intent of Ohio administrative procedure law that state agencies be given the authority to regulate others in their profession. Arlen v. State Med. Bd (1980), 61 Ohio St.2d 168. Therefore, if a physician is issued a Notice of Opportunity for Hearing (citation letter), it is important to put your best case forward at the administrative hearing before the Medical Board.  The Court will rarely disturb the final decision of the Medical Board.  Unlike Illinois, Ohio courts will not reverse a Medical Board decision because the Court thinks the sanction is too harsh.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to email me at beth@collislaw.com or call me at (614) 486-3909 or see our firm website at www.collislaw.com.

State Medical Board of Ohio

Social media can be a dangerous pastime for medical professionals

You have probably seen the “news” reports in the past two days of a naked Prince Harry having a good time in Las Vegas. These clandestine photos were obviously taken when Prince Harry believed that  he was in a private setting. However, they were secretly released to the press and quickly went viral to the great embarrassment of the Royal Family.

You may wonder what this has to do with physicians and the medical profession? We are now in a world where virtually everyone is carrying a camera/video camera on their phones with the ability to take and upload photos and videos to the internet and to the world in moments.  Behaviour that professionals may have engaged in that they thought was private may now be published to the world.

I have not seen a case yet where the Ohio Medical Board uses video footage of a physician “acting badly” as evidence of impairment or inability to practice medicine, however, in my opinion it is just a matter of time. Physicians need to be aware that the Medical Board can take an action against a physician for their conduct, even if it is not related to the practice of medicine. You do not need to be “falling down drunk” at work to be disciplined by the Medical Board. A photo or video of you clearly impaired at a bar taken at 2am when you are scheduled for surgery at 7am could serve as the basis for discipline.

Social media can also be evidence of a boundary violation with a patient. Do you “friend” patients on Facebook? Do you have photos of yourself and a patient taken in social settings? These could all constitute boundary violations with patients.

Social media can be a wonderful tool to reconnect with old friends and to share photos with family members and friends. But, it can also lead to trouble for professionals if not used wisely. As physicians, your conduct needs to be professional 24/7.

As always, if you have any questions about this post or about the State Medical Board in general, please feel to contact me at 614-486-3909 or email me at beth@collislaw.com.

State Medical Board of Ohio, Uncategorized

Physician/patient relationship = power imbalance

The State Medical Board of Ohio addressed two cases at its March meeting concerning the physician-patient relationship.  http://www.med.ohio.gov/pdf/Agenda/Agenda%20-2012/03-12agenda.pdf

In one case, the Medical Board suspended the license of a physician for 180 days after a hearing based on the finding that the physician had engaged in a sexual relationship with an indigent patient after providing the patient with “free” medical care and “free” medicine. From the physician’s perspective, she honestly believed that she was providing a medical service to the patient that he could not otherwise afford and that she should not then be “punished” for providing this care.   The physician did not comprehend that having a personal (read: sexual) relationship with the patient violated the physician/patient relationship.  Regardless of the fact that the medical care provided to the patient without charge, a physician-patient relationship was created.  The Board suspended the physician’s license for 180 days for the boundary violation.

In the second case, the State’s attorney offered for Board approval a Consent Agreement  for a physician who had engaged in a sexual relationship with a patient, which proposed to impose no active suspension on the physician’s license. The rationale given by the State’s attorney for no suspension was the fact that the patient was also the corporate attorney for the medical practice and therefore the legal staff did not believe that there was the same imbalance of power between the physician and the patient that usually leads to physician discipline. The state’s attorney argued that the physician and attorney/patient were on a more even footing.  The state’s attorney argued there was no imbalance of power and consequently no suspension should be imposed on the physician’s license.

The Board members did not agree with this argument. In a rarely seen move by the Board, the proposed Consent Agreement, was rejected by the Board.  While this is a very unusual fact pattern, it clearly shows the Board believes strongly about the inherent imbalance of power in a physician-patient relationship.

As always, if you have any questions about this post or about the medical board in general, please feel free to call me at 614-486-3909 or email me at beth@collislaw.com.