American Medical News
By — Posted March 11, 2013
An impaired or incompetent physician can be a liability to a medical practice and pose a safety threat to patients. Still, some practices have found it difficult to discipline or report such a physician, especially if he or she is a partner in the practice or a longtime colleague with a previously impeccable career.
Experts say doing nothing could result in lawsuits, higher liability insurance rates, ruined reputations for practices and all involved, and even possible losses of practices and the licenses of nonreporting physicians. They say physicians may be able to resolve the matter discreetly, fairly and without acrimony in-house, provided they have policies and procedures that define what is expected of each doctor and what will happen if a doctor doesn't meet those expectations.
“Having policies and procedures in place in the event of a partially or totally impaired physician is like having a prenup agreement,” said Neil Maxwell, a New York attorney specializing in health care regulatory matters for solo and small medical practices. “It lays out exactly how the practice will act in this situation.”
Maxwell said practices should have an operating agreement for staff doctors as well as a shareholder's agreement for partners. The shareholder's agreement will deal with dissolution of the partnership, if necessary, as well as what would happen if the partner took on a lesser job or fewer hours. He said practices should write the agreements at the beginning of the employment or partnership, when everyone's healthy, so no one could be accused of taking sides.
Not all small practices have such agreements in place, said Peter Angood, MD, chief executive officer of the American College of Physician Executives. He said practices need to at least be aware of any state requirements relating to maintenance of medical certificate and licensure. They also should have a letter of understanding that outlines the practice's expectations for standards of care that reflect the community's expectations, an ability to report any deficiencies to a supervisor without fear of retribution or dismissal, and an opportunity for the person of concern to discuss the situation and file an appeal, if needed.
Most state medical boards and professional associations, including the American Medical Association, say physicians have an ethical obligation to report any physician they know who is incompetent, impaired or unethical.
In New York, failure to do so is considered misconduct, with the risk of the nonreporting physician losing his or her license in extreme cases, Maxwell said.
Still, a study in the July 14, 2010, Journal of the American Medical Association found that only one in three doctors did so. Just 64% of nearly 2,000 physicians surveyed completely agreed it was their responsibility.
Reporting an impaired physician could help a practice if the physician refuses to leave or becomes hostile. The board could decide to terminate the physician's medical license.
Whether or not there is formal contract language in place, experts say physicians who suspect problems with a partner first must determine if a colleague is incompetent or impaired, which they agree can be difficult in itself, and if it is a one-time event or an ongoing problem.
“You need to consider competence in terms of intellectual knowledge in the decision-making process and basic content of medical science, which is a cognitive discipline,” Dr. Angood said. “It's easier to detect technical incompetency, but both are difficult.”
Dr. Angood said more group practices are heading toward using such measures as board certification, recertification, licensing, maintenance of continuing medical education requirements and the medical staff application process — all done at the state level — to determine competence.
Another way is to have the doctor whose competency is being questioned and another doctor in the practice each pick an outside physician to make an assessment. Or they can ask the state medical board to choose one of its member physicians. Practices with disability buyout insurance can use the policy's criteria for paying off a claim to make its determination, Maxwell said.
If a staff physician is deemed incompetent or impaired, Maxwell said, most practice contracts allow the physician to be terminated without cause.
An informal approach and open dialogue in the beginning works best. Have the doctor who has the best relationship with the physician in question sit down and objectively talk about the situation. Let the person know the practice is on his or her team, said Judy Capko, health care management and marketing consultant with Capko & Associates of Thousand Oaks, Calif. She suggested that the first meeting include a discussion of the issues that were raised, the results and what the next step should be.
Capko said documentation would not be necessary until a pattern starts to show. At that point, Maxwell said, it's imperative.
“If there's no documentation, it didn't happen,” he said.
If it's determined that a physician partner no longer can handle his or her usual functions, the doctor can either agree to take a different job in the practice or early retirement.
A shareholder's agreement would provide a road map of what would happen if a partner would need to be bought out. It should make it financially feasible for the partner to leave. Maxwell said the partner would be treated the same as if he or she retired early or left for another job. The doctor would be entitled to a proper share of accounts receivable, hard assets and goodwill value, if there is any. However, there should be a stipulation in these cases that the departing partner wouldn't open a practice elsewhere. He said the remaining partners can pay for the buyout with the proceeds from their disability buyout insurance.
“Some doctors can still review charts. To throw them out to the curb would be a morally terrible thing to do and harmful,” said Patty Skolnik, founder of Citizens for Patient Safety, a nonprofit that is working with the Colorado Medical Society to train retired doctors to conduct workshops for the group.