• Question: A hospital-based doctor underdeclared his income and was found guilty of income tax fraud. This prompted the hospital administrator to request a hearing by the peer review committee, which decided to suspend the doctor’s privileges. The committee then referred the case to the state medical board for further action.
Which of the following factors should the board consider?
A. Whether the doctor’s dishonesty can be said to be related to the practice of medicine.
B. Whether his legal transgression adversely affects the integrity of the medical profession.
C. Whether it would impact his fitness to practice.
D. Whether there is a provision in the state disciplinary code governing this specific criminal offence.
E. All of the above.
• Answer: E. The peer review committee is typically the initial reviewer in matters pertaining to standard of care and ethical conduct of a hospital’s medical staff – and any adverse decision, as in this hypothetical case, is reportable to the state medical board. In reviewing a case, board members sitting in judgment will need to consider all relevant factors, including whether the accused doctor had violated any specific state statute, and whether his ethical breach, if any, will impact his fitness to practice and/or the integrity of the profession.
Disciplinary regulation of the medical profession is under state mandate, so different rules apply in different states. In general, the disciplinary arm of a state medical board receives and responds to complaints, investigates, and conducts hearings to determine physician guilt. These administrative proceedings are quasi-criminal in nature. State boards also serve additional functions such as the licensing and continuing education of doctors.
The Federation of State Medical Boards (FSMB) is a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories (accessible at www.fsmb.org).
Physician veracity is at the heart of professionalism, and dishonesty underpins many acts and situations that may be labeled as professional misconduct.
At one extreme is the perpetration of outright fraud, which may be punishable under the criminal code, as in Medicare/Medicaid fraud and abuse (see my earlier column, "Understanding Medicare and Medicaid Fraud"). Other familiar instances of dishonesty in clinical practice include falsifying CME attendance or patient records, and "gaming" the system by deliberate miscoding to obtain prior authorization or payments from third-party payers. Research misconduct and plagiarism are other examples.
The list is by no means exhaustive, and it is not any willful filing of a false report that necessarily constitutes unprofessional conduct. In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his capacity as a member of the medical profession is not sanctionable by the state board of physicians.
On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the practice of medicine, even if there is no issue of the individual’s grasp of particular technical skills.
However, the term "practice of medicine" is liberally construed. In Cornfeld v. State Board of Physicians (921 A.2d 893 [Md. 2007]), the defendant argued that providing false testimony at a peer review hearing could not be construed as being part of the practice of medicine. But the court held that by its very nature, hospital peer review of medical treatment relates to the effective delivery of patient care.
And in Kim v. Maryland State Board of Physicians (9 A.3d 534 [Md. 2010]), the defendant was found in violation of the Maryland Medical Practice Act by willfully making false statements in his medical license renewal. He had falsely denied involvement in a malpractice lawsuit in response to specific questions in the application questionnaire.
The doctor argued that his conduct was not within the practice of medicine, as was statutorily required; but the court ruled that his misconduct was sufficiently intertwined with the effective delivery of patient care. The court interpreted the phrase "the practice of medicine" to embrace unethical conduct evincing unfitness to practice medicine, either by harming patients or by diminishing the standing of the medical profession in the public eye.
Other allegations of dishonesty arguably fall outside the practice of medicine, but both medical boards and courts have tended to infer the presence of professional misconduct where physician veracity is at issue.
For example, in Windham v. Board of Med. Quality Assur. (104 Cal. App.3d 461 [1980]), the California Court of Appeals rejected the defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional qualifications, functions, or duties. Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.