The Ohio Medical Board’s “slip rule” and when to contact the Ohio Medical Board if you relapse

Happy New Year!

I am often asked what Ohio physicians who are under probation with the Ohio Medical Board should do, if they relapse on drugs and/or alcohol or if they believe they have inadvertently been exposed to alcohol or a drug that may cause impairment.

If you are licensed to practice medicine in the State of Ohio, the Ohio Medical Board may take an action against your professional license if it has reason to believe that you are impaired in your ability to practice medicine (OAC 4731-16-01).  In such event, typically, a physician will enter into a Step I Consent Agreement with the Ohio Medical Board in which the physician’s medical license is suspended while they seek treatment for substance or alcohol abuse or addiction.

Once the physician has completed treatment and the Ohio Medical Board determines they are fit to resume practice,  the physician will be offered a Step II Consent Agreement, which reinstates the physician’s medical license subject to probationary terms.  Once a physician’s license is reinstated, they are generally placed on probation for five years. During probation, they are typically required to maintain abstinence, submit to random drug and/or alcohol testing, complete aftercare treatment, attend AA (12 Step) meetings, and complete other monitoring conditions.

During probation, the physician is not permitted to consume any alcohol and/or ingest drugs (except as prescribed).  The physician will be subjected to random alcohol and/or drug testing that is highly sensitive and can detect even incidental exposure.

What should the physician who is under probation with the Ohio Medical Board do if they consume alcohol or a drug to which they have not been prescribed or  believe they have been inadvertently exposed to these substances? 

A relapse is defined in Ohio Administrative Code 4731-16-01(B) as follows:

“Relapse” means any use of, or obtaining for the purpose of using, alcohol or a drug or substance that may impair ability to practice, by someone who has received a diagnosis of and treatment for chemical dependency or abuse, except pursuant to the directions of a treating physician who has knowledge of the patient’s history and of the disease of addiction, or pursuant to the direction of a physician in a medical emergency. An instance of use that occurs during detoxification treatment or inpatient or residential treatment before a practitioner’s disease of addiction has been brought into remission does not constitute a relapse.”

If a physician relapses on alcohol or a drug to which they have not been prescribed, the Ohio Medical Board may take further action against their professional license, including but not limited to suspending their license and/or requiring them to seek additional treatment.  However, if the physician is experiencing a first time relapse by consuming alcohol (or a drug) for less than one day, the Ohio Medical Board may determine that it will not take further action, if the physician immediately seeks treatment, self reports to the Ohio Medical Board within 48 hours of the relapse and follows all other requirements of OAC 4731-16-02(D).

OAC 4731-16-02, commonly known at the “slip-rule”, may prevent a physician from having their Ohio medical license suspended or being subjected to further discipline by the Ohio Medical Board in the event of a relapse. However, the physician must meet all of the requirements of the rule.  If you are a physician who is subject to monitoring by the Ohio Medical Board for alcohol or drug addiction or abuse, you should be familiar with the requirements of OAC 4731-16. http://codes.ohio.gov/oac/4731-16

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

The Hippocratic Oath: A Blueprint For Certain Legal Requirements Applicable to Ohio Physicians

The Hippocratic Oath (“Oath”) is arguably the most widely known ancient Greek medical text.  The Oath governs ancient Greek physicians’ professional and ethical behavior.  Although written approximately 2,500 years ago, certain standards in the Oath are reflected in current legal requirements concerning Ohio physicians’ medical practice and behavior.

This is a literal translation of the original version of the Oath:

I swear by Apollo Physician and Asclepius and Health and Panacea and all the gods and goddesses, making them witnesses, that I will make complete this oath and this written covenant according to my ability and discernment: 

To regard my teacher of this art as equal to my parents and to share my livelihood (with him), and to make a contribution to him when he is in need of a debt, and to judge his offspring as equal to my brothers in manhood, and to teach this art – if they want to learn it – without wage and written covenant (to them), to make an imparting of the set of rules and lecture and all the rest of instruction to my sons and those of my teacher, and to those pupils who have been indentured and who have taken an oath according to the medical law, but to no one else. 

-I will use diets for the assistance of the sick according to my ability and discernment; but also to keep away injury of health and injustice. 

I will neither give any deadly drug, having been asked for it, nor will I guide the same advice. Similarly, I will not give an abortifacient pessary to a woman. In purity and in holiness I will maintain my life and my art. 

-I will not use the knife, not even on those suffering from the stone, but I will give way to those who are practitioners of this work.

And as many houses as I may go into, I will go in for the assistance of the sick, being free from all voluntary injustice and mischief and the rest, even abstaining from sexual pleasures of both female and male persons, both free and slaves. 

-That which I may see or hear during treatment, or even outside of treatment concerning the life of men, which must not in any way be divulged outside, I will not speak, regarding such things to be unutterable. 

And so may it be to me making complete my oath and not making it of no effect that I enjoy the benefits of my life and art and be honored by all men for time eternal; but may it be the opposite of this to me transgressing and swearing falsely. 

The Oath taken today has been revised from the above original text.  Although there are portions of the original Oath which are no longer applicable or sworn to by physicians, there are interesting parallels between certain standards in the original Oath and the present-day laws in the Ohio Revised Code (“ORC”), pertaining to Ohio physicians’ medical practice and behavior, the violation of which subjects a physician to disciplinary action by the State Medical Board of Ohio (“Ohio Medical Board”).

No Harm To Patients

The Oath provides: “I will use diets for the assistance of the sick according to my ability and discernment; but also to keep away injury of health and injustice.”  I interpret this provision generally to require the ancient Greek physician (i) to use dietary regimens to assist people who are sick, (ii) not to harm their patients, and (iii) not to do any injustice to their patients.

ORC §4731.22 authorizes the Ohio Medical Board to discipline a physician based acts would could result in patient harm including but not limited to:

ORC §4731.22(B)(2): Failure to maintain minimal standards applicable to the selection or administration of drugs, or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease;

ORC §4731.22(B)(3): Selling, giving away, personally furnishing, prescribing, or administering drugs for other than legal and legitimate therapeutic purposes;

ORC §4731.22(B)(6): A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances (whether or not actual injury to a patient is established); and

ORC §4731.22(B)(18): Violation of any provision of a code of ethics of the American medical association; and/or

ORC §4731.22(B)(29): Failure to use universal blood and body fluid precautions established by Ohio Medical Board rule.

No Injustice To Patients

ORC §4731.22 also authorizes the Ohio Medical Board to discipline a physician based on an act which evidences an injustice to a patient including but not limited to:

ORC §4731.22(B)(1): Permitting one’s name or one’s certificate to practice or certificate of registration to be used by a person, group, or corporation when the individual concerned is not actually directing the treatment given;

ORC §4731.22(B)(5): Making a false, fraudulent, deceptive, or misleading statement in the solicitation of or advertising for patients; in relation to the practice of medicine and surgery;

ORC §4731.22(B)(7): Representing, with the purpose of obtaining compensation or other advantage as personal gain or for any other person, that an incurable disease or injury, or other incurable condition, can be permanently cured; and/or

ORC §4731.22(B)(8): The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice.

Although the requirement of the Oath to, “keep away injury of health and injustice” is phrased more broadly than the specific requirements in the ORC, a parallel between the requirements of the Oath and the ORC is apparent.  The dictates imposed by both the ancient Greek caregivers and the Ohio legislature evidence important standards that a physician do no harm to the patient and promote the just (ie, honest and truthful) relationship between the physician and the patient.

Sanctity Of Life 

The Oath provides: “I will neither give any deadly drug, having been asked for it, nor will I guide the same advice. Similarly, I will not give an abortifacient pessary to a woman. In purity and in holiness I will maintain my life and my art.”  The requirements (i) not to give or recommend any deadly drug, (ii) not to induce an abortion, and (iii) for the physician to hold his or her own life in purity and holiness, individually and collectively, support the notion that ancient Greek physicians held human life as sacred.

ORC §4731.22(B)(3) authorizes the Ohio Medical Board to discipline a physician for selling, giving away, personally furnishing, prescribing, or administering drugs for other than legal and legitimate therapeutic purposes.  Additionally, assisted suicide is against public policy in Ohio (ORC §3795.02(A) and is required to be enjoined by a Court of Common Pleas (ORC §3795.02(B)).  Consequently, ORC §4731.22(B)(37) authorizes the Ohio Medical Board to discipline a physician for assisting suicide.

Subject to certain express conditions and exceptions in Ohio law beyond the scope of this article, ORC §4731.22(B)(23) authorizes the Ohio Medical Board to discipline a physician for performing or inducing an abortion upon a pregnant woman.

No Sexual Misconduct

The Oath provides: “And as many houses as I may go into, I will go in for the assistance of the sick, being free from all voluntary injustice and mischief and the rest, even abstaining from sexual pleasures of both female and male persons, both free and slaves.

OAC §4731-26-02(A) authorizes the Ohio Medical Board to discipline a physician for engaging in sexual misconduct with a patient.

Confidentiality 

The Oath provides: “That which I may see or hear during treatment, or even outside of treatment concerning the life of men, which must not in any way be divulged outside, I will not speak, regarding such things to be unutterable.”

ORC §4731.22(B)(4) authorizes the Ohio Medical Board to discipline a physician for willfully betraying a professional confidence.

Conclusion 

The standards in the Oath applicable to ancient Greek physicians to do no patient harm, to have a just patient relationship, to take no act contrary to human life, to abstain from sexual misconduct with a patient, and to protect patient confidential information, are reflected in present-day legal requirements applicable to Ohio physicians’ medical practice and behavior.

That the Oath is recited in medical schools even today (See: http://medicine.osu.edu/news/archive/2012/08/21/reciting-the-hippocratic-oath-a-family-centered-tradition.aspx) is a testament to the enduring verities contained in the Oath.

As always, if you have any questions about this post or the Ohio Medical Board in general, please contact Collis, Smiles & Collis, LLC or Beth Collis at 614-486-3909 or Beth@collislaw.com.

How are decisions made by the State Medical Board of Ohio

I am often asked by clients, “Who makes the final determination as to the sanction that will be imposed against a physician at the State Medical Board of Ohio?”  In theory, this is a simple answer. The Board Members review all the evidence in the case and a vote of six members will result in a sanction against a physician. Alternatively, if the case does not proceed to a hearing, two members of the Board, the Board Secretary and Supervising Member review the evidence and offer terms for a settlement in lieu of proceeding to a hearing.

To make the appropriate determination as to the sanction that should be imposed, the Medical Board has Disciplinary Guidelines, which are posted on the Board’s website (http://www.med.ohio.gov/pdf/meddis.pdf) that outline appropriate sanctions for various violations of the Medical Board’s laws and rules.

In addition, the Medical Board is to review similar prior Board actions and make a determination that is consistent with similar sanctions that have been imposed in similar cases in the past. This is called following precedence.

However, this is all “In Theory”.  What we have seen in the past year is that the Medical Board has been reluctant to follow the disciplinary guidelines (they are advisory only, not mandatory) and the Board has been unwilling to follow prior Board decisions in imposing discipline against physicians.

This change can be based on a variety of factors. First, each year as Board vacancies open up, the Governor is charged with appointing new Board members. New members often come to the Board and look at cases differently than former Board panels.  This change can be refreshing as a shakeup in the Board makeup can bring fresh perspectives to the Board. However, it also leads to inconsistent results, and leaves members of the medical community unaware of how they might be sanctioned if they do violate a Board law or rule.

Recently, we have seen that if the case before the Board does not affect the physician’s medical practice (i.e. a conviction unrelated to medicine) that the Board members have been reluctant to sanction the physician. On the opposite end, if the case involves prescribing of pain medications or even minor violations of a prior Board sanction, the Board has been very punitive.

In this time of uncertainly, I still believe that you put your client in the best position before the Board if you provide the Board Members with as much information through the settlement or hearing process as possible. Board Members often complain that they do not have enough information about the physician to make a reasoned decision about their case. Therefore, I have found that while the Disciplinary Guidelines and prior case actions can be helpful in determining how the Board might proceed in any case, a recommended way to handle any case is to put as much information about the physician and their facts and circumstances about their case before the Board.  This might mean taking more cases to hearing than the Board has seen in recent years.  However, until the Board settles into a rhythm of making consistent decisions on similar cases, this might be the only way to effectively represent the client before 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 contact one of the attorneys at Collis, Smiles and Collis at 614-486-3909, check out our website for more information at www.collislaw.com or email me at beth@collislaw.com.

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.

On probation with the Medical Board? Beware .. there is a new sheriff in town

Physicians who are on probation with the State Medical Board of Ohio related to alcohol or chemical dependency or abuse are generally required to submit to monitoring conditions during probation, including submitting to random urine drug tests, attending weekly AA meetings, completing 104 aftercare sessions, attending quarterly Board appearances,  and having a physician monitor their practice.

In the past, as long as a physician on probation did not have a positive alcohol screen, i.e. illegal substance or prescription medication without  a valid prescription, the Board generally did not always require perfect compliance with all other probationary terms. Again, generally,if a physician failed to submit a quarterly declarations of compliance or failed to attend all required AA meetings, the Board would customarily  address the issue at their quarterly meeting or would send the physician a “friendly” letter advising them that they were not in compliance and requesting that steps be taken to ensure compliance.

Under the direction of former Board Member, Mr. Albert, the Board rarely charged a probationer with failure to comply with the terms of their Consent Agreement, unless they tested positive for drugs or alcohol.  Most recently, however, the Board has taken a much stricter position on probationers who are not 100% in compliance with ALL the terms in their Board Orders or Consent Agreements.

Recently, the Medical Board issued a Notice of Opportunity for Hearing to a physician who had been on probation with the Board since 2005.  Despite the fact that all of the physician’s urine screens were negative, the Board proposed to discipline the physician for allegedly failing to comply with the following terms of the physician’s Consent Agreement: failure to submit quarterly reports to the Board in a timely manner; failure to submit AA logs to the Board; failure to seek Board approval for required courses and for a monitoring physician. Despite no evidence of relapse, the Board voted at its June meeting to revoke this physician’s medical license for failure to be 100% in compliance with the Board’s Order or Consent Agreement.

If you are under probation, please beware. The terms and conditions of Board Orders or Consent Agreements are mandatory. Failure to strictly comply with all terms and conditions of the Board Order or Consent Agreement can serve as the basis for further Board disciplinary action.

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

Time to renew your Ohio Medical license – not something that should be delegated!

Depending on the first initial of your last name, it might be time to renew your Ohio medical license. This can be done on-line by going to the Medical Board’s website http://www.med.ohio.gov/.  If it is your renewal time, you should have been sent instructions from the Medical Board with your login information to complete your renewal application on-line. Or, you may request that the Board send you a paper renewal form to complete and return to the Board. Whether you choose to renew online or to complete the paper renewal form it is important that you take a few quiet minutes to yourself to complete the form on your own!

Often, physicians think they are too busy to take the time to personally complete the renewal form. I am often told by physicians that they allow the “girl” (their assistant) to complete the renewal forms for them. This is a mistake.  Does your assistant know that you were arrested in college for disorderly conduct or an open container violation?  Does your assistant know of the reckless operation of a vehicle charge that you plead guilty to on the way home from your sister’s wedding? Probably not.

However, by signing the renewal application you are certifying to the Medical Board that all information contained in the application is correct and complete. The Medical Board reviews all original applications for licensure and renewal applications very seriously and will take a disciplinary action against a licensee who fails to provide the Board with correct and complete information.

It is important to read all the questions on the renewal application carefully and to provide the Medical Board with clear, complete, honest and correct answers to their questions. If you do not understand a question, you may call the Medical Board staff and ask  – however, the staff is unable to give legal advice.

If you provide the Medical Board with an incorrect or incomplete answer or if you omit information called for in a question, the Board may take a disciplinary action against you based on a violation of Ohio Revised Code 4731.22(B)(5), “for providing false, fraudulent, deceptive or misleading statement … to obtain certification of registration from the Board.”

The Medical Board’s disciplinary guidelines permit the Board to impose a minimum sanction of an indefinite suspension (minimum one year) to a maximum penalty of permanent license revocation if a licensee provides, false information to obtain anything of value.  http://med.ohio.gov/pdf/meddis.pdf

When completing an initial application or submitting your renewal application to the Medical Board, complete the form yourself and take the time to answer all the questions with complete, clear, concise and correct answers.

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