ISSUES & ANSWERS

June 2004

Pay Attention to Advance Directives

There are sections of Oklahoma law that directly affect physician and other health providers that are not in the Medical Practice Act (Title 59 §§ 480-518). One example, which we have addressed previously in this newsletter, is the requirement found in the Tort section to furnish copies of patients’ records.

Drew Edmondson, Attorney General of Oklahoma, has formed a task force and advisory committee to address end-of-life care. At the first meeting of this study group the statement was made that a doctor’s failure to honor an advance directive constituted unprofessional conduct and would, as any unprofessional conduct, establish grounds for discipline against the license.

Examination of Title 63 §§ 3101.8 through 3101.16 and more exactly §§ 3101.9 and 3101.11 make clear a failure to either follow the instructions of the advance directive or transfer the patient to a physician who will, constitutes unprofessional conduct (§3101.11 utilizes the word “shall”). No such cases have been prosecuted at the Board and no complaints have been received concerning failure to follow.

With the publicity that the Attorney General’s study will generate, the public is expected to become more alert to the availability and positive aspects of advance directives. It is hoped that physicians will help their patients make appropriate decisions concerning the directives.

It would be wise to familiarize yourselves with the formation and commission of these legal documents. A good start will be to read Chapter 60 – Oklahoma Right of the Terminally Ill or Persistently Unconscious Act in Title 63 §§ 3101.1 through 3101.16.

Complaints to the Agency

By Gerald C. Zumwalt, MD
Board Secretary/Medical Advisor

In previous articles, we have addressed how complaints to the Board staff are evaluated and investigated as well as the average number of complaints received annually (250-300).

The question is often asked, usually by the affected doctor or licensed professional, “Who made this complaint?”

Like all other investigative material, the origial public complaint is confidential until (and if) it is used as evidence in a hearing. All licensing and disciplinary hearings are held under the rules of the Oklahoma Open Meetings Act. Citizens and news media are welcome.

The sources of the allegations have remained fairly uniform through the years. By and far most complaints are received from patients or patients’ families. At least 2/3 of all fall in this category. About 5-10% are received from other physicians and less the 1% from the state or county medical societies. Law enforcement agencies furnish about 5%. Self-reporting on the annual renewal form also accounts for about 5%.

Actions taken by states other than Oklahoma account for 3-5% of complaints but almost always result in discipline being imposed by our Board. Peer review organizations and malpractice insurance companies are a notoriously poor source for generating prosecutable cases. Hospital actions are a slightly better source. Pharmacists reported to us more often than hospitals (approximately 2-3% of investigations). It is not unusual to obtain evidence relating to unprofessional conduct from other state and national agencies (Nursing and Pharmacy Boards, DEA, OBN, etc.)

Obviously, the professional itself should take a more active role in policing the practice of medicine. If we are to continue being a self-regulated body, we must maintain the public’s faith in medicine, both as a profession and individually.

Baa, Baa, Black Sheep

During a lecture on the agricultural scene in New Zealand, the guide mentioned that there is no market value for black wool so any black sheep seen in a farmer’s pasture represents a family pet.

This brought to mind the fact that the chief joy of serving on and with this Board is not the imposition of probation or even the extreme punishment of revocation of a license no matter how necessary and justified such action might be.

Instead, it is the occasional success story of a doctor or other professional who errs, seeks treatment and returns to the proverbial fold. There we sometimes encounter a person who becomes a missionary who instead of journeying to darkest Africa, reaches out to other errant medical souls.

We find former substance abusers who host 12-step meetings and/or serve as sponsors for later converts. Some lecture to medical students or others who may be susceptible to chemical temptations. Many make recovery the focus of their lives as well as encouraging fellow professionals.

Undoubtedly, some of this activity is originated by a sense of debt and a need to repay. But must there be episodes of weakness to produce such acts of kindness?

Baa, baa, black sheep,
Have you any wool?
Yes sir, yes sir, three bags full.
One for the master,
One for the dame,
And one for the crippled boy
Who lives down the lane.

Certainly those have been given a second (and third and fourth and etc.) chance, do owe a tithe of time to needful patients and peers. All of us, however, must recognize that practicing medicine is a privilege, not an entitlement. Each of us needs to give a bag of wool to the crippled boy who lives down the lane.