It can be difficult to know what to do when you hear that a colleague supposedly did something unethical or incompetent—especially if it’s heard secondhand.
Explore This IssueMay 2020
According to Jo Shapiro, MD, senior faculty at the Center for Medical Simulation at Massachusetts General Hospital, and associate professor of otolaryngology–head and neck surgery at Harvard Medical School in Boston, that’s often the case. “Many times, a physician won’t actually witness a problematic behavior, but will instead hear it from a patient or colleague.”
James Stankiewicz, MD, ABIM, professor and former chair of the department of otolaryngology–head and neck surgery at Loyola University Medical Center in Chicago, said, “Unless a physician directly encounters an ethical or moral violation, they may be hesitant to challenge a colleague. They may not have access to a patient’s history and physical due to proprietary and confidentiality reasons.”
Another deterrent is the ramifications of notifying authorities. “A physician might be concerned that they could be sued for defamation of character or restraint of trade,” said Michael Setzen, MD, clinical professor of otolaryngology at Weill Cornell Medical College, in Great Neck, N.Y.
“There’s a broad mix of state statutes regarding whether or not the reporting physician’s (whistleblower’s) identity is protected,” noted Stephen McHale, MD, JD, resident physician in the department of otolaryngology–head and neck surgery, at the University of Kansas Medical Center, Kansas City, Kan. “One broad conclusion is that some states offer complete protection/anonymity, while others offer no anonymity whatsoever.”
Unethical versus Incompetent Behavior
A wide range of behaviors may constitute unethical conduct, which should be distinguished from incompetent behavior, said G. Richard Holt, MD, MSE, MPH, MABE, D Bioethics, professor emeritus and clinical professor in the department of otolaryngology–head and neck surgery and a faculty member at the Center for Medical Humanities and Ethics at The University of Texas Health Science Center at San Antonio. The former is a range of unprofessional behavior that goes to the core of physician professionalism and is associated with adherence to the tenets of a physician’s obligation—honesty, compassion, ethical decision making, to name a few.
Incompetence, however, is a subset of unethical behavior in the sense that a physician fails to properly adhere to standards of care and lifelong learning, doesn’t stay up to date, and/or fails to follow professional and specialty guidelines, state medical board regulations, and laws of the land. All are important to maintain proper patient care and obligations to the profession and society, said Dr. Holt.
Considering serious patient complaints about another otolaryngologist requires thinking maturely and examining the facts. “First, establish the veracity of a patient’s complaint, then evaluate any documents that might indicate incompetence or unethical behavior, as well as the otolaryngologist’s own history, examination, and evaluation, to uncover the case’s facts,” Dr. Holt said.
If an otolaryngologist has obtained accusatory information from a patient, they may first want to contact the otolaryngologist in question to make neutral inquiries about their diagnosis, findings, examination, evaluation, and treatment. “This works best if there’s an established relationship. It can be effective to hear the other otolaryngologist’s rationale and compare it with the initial information,” said Dr. Holt. If the otolaryngologist in question is curious about why their colleague might be asking these questions, it’s best to come clean without being accusatory.
Dr. Setzen concurred that a peer-to-peer discussion is a good first step to broach the subject with a colleague who had shown unethical or incompetent behavior. For example, if a colleague were performing surgical procedures that didn’t align with best practices, clinical consensus statements, and/or clinical practice guidelines, you could ask the physician why they are practicing that way and suggest that it would be more prudent to practice in alignment with these documents.
When approaching an accused physician, you could start the conversation by saying something like, “I don’t know if this is true or not, but I’ve heard some concerns about you. I think you’ll want to hear about them,” Dr. Shapiro said. “If the concerns are valid, then you could speak with the doctor about ways to respond or change behaviors.”
The earlier someone receives feedback, the better. “If it’s a minor problem, they can correct it going forward,” added Dr. Shapiro, who was the founding director of the Center for Professionalism and Peer Support at Brigham and Women’s Hospital in Boston. “In our culture, we often wait until things are really bad to say something. But being silent allows more harm to occur and deprives the colleague of a chance to remediate.”
According to data collected by the center, most physicians who exhibited inappropriate behaviors changed them after receiving feedback intervention from Dr. Shapiro and their supervisory physician.
If confronting a physician isn’t successful, then Dr. Shapiro recommended reporting the physician to an organization’s professionalism committee or peer review board before reporting them to the state medical board, which should be reserved for egregious behaviors such as criminal activity or sexual harassment, said Dr. Shapiro.
More Serious Behaviors
If a situation is delicate or egregious, reporting the suspected violations through the established channels right away may be the most appropriate course of action, Dr. Holt agreed. If you suspect criminal behavior, then it may be appropriate to report the physician to the police.
In our culture, we often wait until things are really bad to say something. But you shouldn’t wait, because even more harm can occur, and being silent also deprives the colleague of a chance to remediate. —Jo Shapiro, MD
Concerned colleagues who suspect egregious behavior can find recommended actions in the AMA Code of Medical Ethics. The AMA states that a physician should report the conduct to appropriate clinical authorities after the first instance so that possible impact on patient welfare can be assessed and remedial action taken, Dr. Holt said. This should include notifying a hospital’s peer review body or the local or state medical society if the concerning physician doesn’t have hospital privileges.
If the conduct in question poses an immediate threat to a patient’s health and safety or violates state licensing provisions, it should be reported directly to the institution’s appropriate physician oversight individual (e.g., department chair, chief medical officer), Dr. Holt said. If the conduct continues unchanged or if the physician is outside an institution’s purview, it’s appropriate to report the concern to a higher authority, such as the state medical board.
Challenges for State Medical Boards
The challenge for a state medical board is gaining access to medical records, due to HIPAA. “If a board can’t get a patient’s medical records, they could ask for an opinion from another doctor in that specialty, but that isn’t easily done,” Dr. Stankiewicz said. “If an inquiry is done by an individual hospital or other practice members, in which a problem is documented and it’s relayed to the state licensure board, the board can either remove a physician’s licensure or put them on probation.”
Dr. Holt, who is a past pro bono reviewer for his state’s medical board, said state medical boards take complaints seriously and thoroughly investigate them. “Most medical boards would rather remediate physicians who have had incompetent or unethical behavior, but they are willing to take strong action against a physician if less stringent measures are unsuccessful,” he said. These less-stringent methods may range from intense courses on ethics and patient care, to oversight by a fellow physician, to license suspension or revocation.
So, what should a physician do who has learned about a colleague’s misconduct? “This very complex obligation doesn’t have much precedent,” said Dr. McHale. “A physician will need to understand federal and state regulations, including defamation laws, and make a subjective determination about another physician’s conduct without much of the context used in the decision-making process.”
Nearly every state has a statute that requires a physician to report a colleague to the state medical board if they have reasonable cause to believe that another physician has engaged in prohibited or unprofessional conduct. “In my experience, very few physicians appreciate or understand this obligation,” Dr. McHale said. “But in most states, if a physician fails to report, he or she could be disciplined by a state medical board.”
Part of the obligation also depends on the type of misconduct. Reporting laws pertaining to malpractice that result in patient harm are different from laws that apply to reporting federal fraud like billing for services that weren’t performed. Another aspect depends on the state where the alleged misconduct occurred.
Potential legal exposure for physicians who fail to report misconduct are also based on their leadership roles. While a physician with oversight responsibility is generally thought to be protected from personal liability when serving in that particular role, failure to investigate, act on, and report suspected misconduct acts can expose an organization to liability, Dr. McHale said.
Additionally, according to Dr. McHale, while a state may not have a statute mandating reporting, a physician’s role in concealing prior misconduct committed by another physician can expose the concealing physician to claims of fraudulent concealment. Furthermore, many organizations have bylaws that require physicians to report suspected misconduct. “Failure to report misconduct in this case can be considered a breach of contract and can be grounds for terminating an employment contract,” Dr. McHale said.
Both reporting and not reporting come with risks, depending on what constitutes misconduct. “A physician may grossly deviate from the standard of care or practice guidelines, making the misconduct objectively discernible, but a lot of suspected physician misconduct is subjective in nature,” Dr. McHale said.
Several states, such as Minnesota, Oregon, and Delaware, have statues that recognize the subjective nature of misconduct and stipulate that a physician make a report if they reasonably believe that misconduct occurred. Some states use a tiered approach to misconduct, whereby only certain acts of misconduct rise to the level of mandatory reporting, said Dr. McHale. This guidance can help address whether a physician is required to report based simply on a patient complaint or whether there must be adequate facts to justify the report.
Physicians need to be aware of their duty to report as an ethical issue and a legal requirement. Physicians and institutions also need to better use available tools to identify and prevent adverse events before they become actionable. In part, it’s incumbent upon institutions to promote a culture of safety and best practices, Dr. McHale noted. But part of it also rests upon individuals and specialty societies to promote evidence-based practices and best data use.
In addition, Dr. Shapiro believes that all physicians should be taught how to have difficult conversations and provide feedback. “It should be part of residency training and required faculty development training,” she said. “At the very least, leaders should be taught how to do it. Providing critical feedback is what moves us forward.”
Karen Appold is a freelance medical writer based in Pennsylvania.