For physicians, Physician Assistants (P.A.'s) or Nurse Practitioners (N.P.'s) understanding
the intricacies of state and federal licensing regulation can be daunting,
especially for a busy practitioner. My
objective here is not to provide a comprehensive analysis of law and policy. Rather, I hope to provide a legal and ethical
framework from which the practitioner may avoid unwanted scrutiny from state
and federal agencies.
Physicians, P.A.'s and N.P.'s are generally governed by the Medical Practice Act (See Bus. & Prof. Code §§ 2000 et seq.). The most common violations of the California Medical Practice Act that result in an investigation and discipline involve allegations pertaining to:
● Quality of Care (negligence) [Bus. & Prof. Code § 2234 (b) and (c)]
● Sexual Misconduct [Bus. & Prof. Code §§ 726 and 729]
● Fraud/Dishonesty [Bus. & Prof. Code § 2234 (e)]
● Prescribing violations [Bus. & Prof. Code §§ 2239, 2241, 2242, and 2242.1.]
● Mental or physical impairment [Bus. & Prof. Code § 820]
article focuses on ethical problems and boundary violations. These often involve unethical conduct, dishonesty
as well as sexual misconduct. In an
abstract sense, unethical conduct standing alone may not be grounds for a
medical board investigation. For
example, it is not illegal for a licensee to engage in an extramarital sexual
liaison. However, if a licensee carries on a sexual affair with subordinate staff in their medical
practice, it may be an employment issue that could lead to charges of sexual harassment,
which may in turn lead to a state board investigation and discipline. If Peer Review disciplinary action results, it
is reported to the Board and may be investigated as unprofessional conduct (See Bus. & Prof. §§ 805, 2234,736 and
Unethical or illegal Professional Dealings
Physicians and other licensees may be surprised to learn that any act of dishonesty or corruption may result in license revocation, suspension or probation. This includes tax fraud not directly involving medical practice; dishonesty in filling out employment, academic or government forms; or dishonest business transactions. If asked to provide information to a government agency, insurer, academia or employer, honesty is indeed the best policy. Fraudulent answers or even “fudging” on a reply may result in more professional grief than it’s worth.
flags should go up when a practitioner is offered a “too good to be true” tax shelter,
deals involving non-physicians outside of the Medical Practice Act (including chiropractors and other health care
practitioners looking for a doctor, P.A. or N.P. to write prescriptions) or medical sales
people pushing gray market products or services. Any offer to pay very well for high volume
physical evaluations of accident victims or workers’ compensation applicants
should send the practitioner running for cover.
Always avoid “Cappers and Steerers” as a means of expanding practice.
Maintaining Good Records
Another area of ethical and legal concern is record keeping. When I worked as a Deputy Attorney General in Health Quality Enforcement, it always amazed me to see evidence of physicians attempting after-the-fact to alter medical records regarding surgeries gone bad or attempting to cover up a prescribing error. I have seen records changed by a variety of methods; there were even instances of the alteration being made by hand but with different color ink that could be detected with the naked eye! If a record is incorrect or you discover new information of an earlier error, don’t alter the record; instead, take the time to write an addendum or clarification in the chart. Never try to change the original entry.
digital age offers a new temptation. Now
that electronic record keeping has come into being (as mandated by the
Affordable Care Act), the temptation to stray may be even greater for those
individuals who perceive computer records as susceptible to an “undetectable”
alteration or deletion. Don’t take the
bait. Any temptation to manipulate a computer entry should be tempered by the
knowledge that modern investigative techniques may allow for reconstruction of
the original record and thus clear exposure of the attempted alteration. This kind of damning evidence can damage or even
end a career. I base this observation
on actual cases I prosecuted as a Deputy Attorney General.
this: because you hold a medical license,
you are held to a higher standard than most other folks. You are expected to be
accurate in all your professional dealings.
Otherwise, the government argues in court, we cannot trust you with patient
care and the potential harm posed by a “dishonest or corrupt” physician, P.A., or N.P..
Every California physician, P.A. or N.P. must comply with a network of the laws regulating sexual misconduct and sexual exploitation of patients. Please take a moment to “Google” and/or review Sections 726 and 729 of the state’s Business and Professions Code. Section 726 proscribes sexual misconduct with patients and can result in discipline, including revocation of your license. Section 729 references sexual exploitation of patients and can result in a conviction and jail term. However, even minor boundary situations where the physician was not the aggressor in a physician-patient sexual relationship can result in serious professional harm, ranging from a public reprimand revocation. Which brings us to the wonderful case of Dr. Roy.
Dr. Roy was an Ob-Gyn who failed to draw a clear line with medical ethics when the law said he should do so. The result was a public reprimand that he fought tooth and nail with every arrow available in his legal quiver. He lost. The case is illuminating not so much for what it says about Dr. Roy, but because the court took the time to detail the history and intent of the relevant law and medical board policy as it has evolved over twenty years.
patient was referred to Dr. Roy for evaluation.
The patient was attracted to Dr. Roy and she fictitiously told him she
was taking a college course and needed to interview a professional. She asked if they could meet after work at a
restaurant. He agreed. The meeting occurred and the “student” came
with a note pad, asking appropriate questions for a school paper. Afterwards, Roy walked the patient to her car
and offered his hand in farewell. The
handshake turned into an embrace, followed by sexual groping of Dr. Roy by his “interviewer.”
Roy told the student that he could engage in any sexual activity with her because
she was his patient. However, he then got
into her car and the two of them continued the embracing and fondling for some
time. When Dr. Roy departed, he said he could not see the student romantically
because of her patient status. However,
several months later, when the student was no longer a patient, Dr. Roy contacted
her. They dated. After a breakup, the
patient filed a medical board complaint regarding the initial encounter.
As his defense Dr. Roy presented evidence that this was an unintended, brief encounter that did not involve more than touching. He testified about the phony student story that enticed him into the encounter. The administrative law judge hearing the matter was sympathetic and described the doctor’s violation as minimal. The ALJ recommended that the matter be dropped. However, the Medical Board disagreed and imposed a public letter of reprimand. Most attorneys and physicians would have been thrilled with this low level disciplinary result, but not Dr. Roy. He was incensed. He petitioned the superior court for a writ of mandate (which was denied) and then took his case to the court of appeal.
The appellate court also turned him down, and in so doing ruled that a doctor can be a mere "gropee" and still be subject to discipline. According to the court, the Legislature decided that the only way to stop physicians from engaging in these unethical practices was to ban "any act of sexual abuse, misconduct, or relations" between physician and patient." The court noted: "The idea that a physician could, with legal impunity, receive sexual favors from a patient as long as he does not return them would, in our view, create a loophole in the statute that the Legislature could neither have imagined nor intended." The court concluded by emphatically saying ". . . we reject the idea that Roy was exempt from discipline under section 726 unless he was the giver and not merely the recipient of sexually intimate contact . . . ."
To avoid coming within the investigative cross-hairs of the Medical Board, physicians and other licensees must realize they are in a fish-bowl when it comes to their practice and especially when it comes to personal relationships with patients. Physicians should avoid any situations where a potential misperception might tarnish their career. This includes being careful to avoid discussing any of the physician’s personal issues or problems with a patient; doing so only raises the possibility that a patient might wrongfully assume the doctor has personal interest in developing a deeper (and possibly sexual) relationship.
Bear in mind that this short discussion is only the tip of a very large iceberg. I hope this brief summary prompts readers’ review of the California Business and Professions Code sections referenced above. Doing so will lead to a better awareness of the traps and stumbling blocks that can send an otherwise competent practitioner into the dark maze of disciplinary action.
However, even if you are aware of these issues, there is one other “take away” lesson. Make sure you have competent counsel to provide assistance early on should you be on the receiving end of a notice from your medical board that you are under investigation.
About the Author
The author, Steve Boreman, is a partner in the law firm of SLOTE, LINKS & BOREMAN, LLP. He regularly represents Physicians and Surgeons, P.A.'s and N.P.'s in matters affecting their practices and professional licenses. He is a faculty member teaching Professional Ethics for Professional Boundaries Inc. (PBI) accredited by the U.C. Irvine School of Medicine. A former Deputy Attorney General, he worked in the Health Quality Enforcement Section and served as Liaison to the California Medical Board and the Osteopathic Medical Board of California. He can be reached by email at firstname.lastname@example.org.