ISSUES AND ANSWERS

Volume 8, No. 2
March 1997

"Too Many Cooks"

by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor

A letter from an Oklahoma doctor inquired about the responsibilities of physicians and pharmacists when patients were obtaining controlled substances from more than one provider. The word provider is used deliberately since we now have doctors, physician assistants, dentists, podiatrists, optometrists, and advanced practice nurses prescribing drugs.

Although the letter addressed controlled drugs, it is obvious that there is danger in many combinations of drugs resulting in either toxic or ineffective levels of therapeutic agents.

Both in the Medical Practice Act and the rules of the Board there are prohibitions against the prescribing of controlled substances in excess of the amount considered good medical practice. The requirements of the Drug Enforcement Administration and the Oklahoma Bureau of Narcotics dictate reporting of apparent attempts to obtain controlled substances illegally and this responsibility is borne by both physicians and pharmacists. Pharmacists have a discretionary duty to contact physicians whenever prescriptions are questionably of a disadvantageous consequence to a patient. There are no clear reporting requirements in the Pharmacy Act.

Communication between treating physicians would seem to be not only proper but necessary. Fear of a breach of patient confidentiality would occur only with "willfully or negligently violating the confidentiality between physician and patient to the detriment of a patient except as required by law" [Oklahoma Administrative Code 435:10-7-4(14)].

Good medical practice does require that the treating physician (primary or specialist) know what medications (controlled, prescribed, or OTC) their patients are taking. Only constant vigilance by physicians and pharmacists will capture the rare patient who tries to subvert the prescribing of necessary and advantageous medications.

Reading the Bad News

by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor

One legislated reason for the existence of the Oklahoma Board of Medical Licensure and Supervision is to protect the public by attempting to guarantee that possessors of medical licenses are competent, of good moral character, and adequately trained. One method of ascertaining competency is to try to identify those who are incompetent. While this obviously does not prove that everyone else is competent, it, at this time, may be the only practical and affordable criteria we can use.

The Board has dictated certain procedures to follow which attempt to find doctors who by one characteristic or another may constitute a risk to patients. At the original application for medical license stage we require proof of education, postgraduate training, passage of licensing exams and physical and mental health suitable to perform those actions necessary to practice medicine.

International graduates are required to pass written and oral English competency tests. On relicensure applications, we inquire about adverse legal actions including malpractice suit filing and finalization, and any significant personal medical event. At attainment of age 75, and each five years thereafter, there is a mandated personal interview with the Board Secretary.

For years the Board Secretary has reviewed each malpractice claim against our licensees when the claim is made and when final resolution is achieved. Some other state medical boards are required by law to open an investigation each time a malpractice suit is filed. Our review therefore is twofold. First, to utilize the claim as a source of possible incompetency/malfeasance, and second, as a proactive move to prevent the passage of such a requirement by our legislature.

Our Board is also the conduit whereby all reports to the National Practitioner Databank concerning Oklahoma M.D.s are funneled. All reporting entities that take action which adversely affects a doctor's practice for more than 30 days must send a report to us and we must forward it to the Databank.

Of these two reviews (malpractice claims and Databank reports), the Databank constitutes a much more fruitful field of information for our starting an investigation. This certainly comes as no surprise since most malpractice cases result from a bad result. That is, it is an individual and unique occurrence. Actions concerning restriction of clinical privileges on the other hand almost always result from a series of bad actions or results. There are, of course, exceptions. There are single malpractice suits where the mistake is so egregious that it demands immediate address.

So what it comes down to is that our Board must look at quality of care overall if it is to take protective and proper action. There is always a need for expert witnesses willing to expend the time and inconvenience to evaluate and if necessary testify concerning fellow physician's actions. If anyone reading this has any interest in so serving please contact me or Mike Kiser, Director of Investigations, at this office.

Board Hires New Executive Director

Carole A. Smith retired as Executive Director this month after 24 years with the Board. [See related article in this issue] Taking her place is Lyle Kelsey, CAE. Mr. Kelsey comes from the Oklahoma State Medical Association where he spent a total of eighteen years. Since 1987, he has served as Associate Director of OSMA. Mr. Kelsey received his M.B.A. at the University of Central Oklahoma in 1977. He is married and has one daughter. The Board and staff are very excited about the opportunities this change will bring.

Access to Medical Records Copies

A. Any person who is or has been a patient of a doctor, hospital or other medical institution shall be entitled to obtain access to the information contained in all the medical records of the person upon request, and shall be furnished copies of all records pertaining to that person's case upon request and upon the tender of the expense of such copy or copies. Cost of each copy shall not exceed twenty-five cents ($0.25) per page. The physician, hospital or other medical professionals and institutions may not charge a fee for searching, retrieving, reviewing and preparing medical records of the person in order to determine which medical records are to be copied. Provided that this entitlement to medical records shall not apply to psychological or psychiatric records.

[O.S. Title 76, Section 19 (A)]

Many complaints received at this office are occasioned by the failure of doctors to follow the above law. Paragraph #10 further provides that the failure to do this constitutes a misdemeanor. The rules of this Board state, "Failure to transfer pertinent and necessary medical records to another physician in a timely fashion when legally requested to do so by the subject patient or by a legally designated representative of the subject patient" [OAC 435:10-7-4(35)], constitutes unprofessional conduct.

Admittedly, there have been few prosecutions either by the District Attorney or this Board for violations of this type since most doctors do comply once investigators or attorneys get involved in the request. The expense to this Board and the ill will engendered by these unnecessary efforts is considerable.

All legal authorities hold that records cannot be held hostage to enforce payment of past bills, however justified these bills might be.

It should be pointed out that nowhere in Title 76, Section 19 does it address a financial restriction on contracts between physicians and third parties. There is a difference between a request by patients to produce records (covered by 76 (19)(A)) and permission by patients that medical information may be obtained by others (not covered).

New Hats for New Tasks

by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor

There are certainties in life. It will always rain on the day you plan a picnic. The time between Thanksgiving and Christmas will be shorter than the time between Christmas and New Year's. All your grandchildren will be beautiful.

One certainty has now ceased. After 24 years of service to the Oklahoma Board of Medical Licensure and Supervision, Carole Smith has retired. She has chosen to stop and smell the roses of family, home and garden.

During her tenure the Board has seen marked changes. There has been the utilization of computers and centralized credentials. New concerns of doctor-patient relations has necessitated education and focus of investigation. Old professions have become newly licensed.

The Board will continue to exist. It is too big and too important to rest solely on one person. The Board will exist—it just won't be quite the same.

Meeting Dates for 1997

• March 13, 14
• May 15, 16
• July 24, 25
• September 11, 12
• November 20, 21
  

Board Meeting - January 9 & 10, 1997

In a regularly scheduled meeting the Board issued a one year limited special license for training and denied three applications for special purpose licenses.

Three cases were continued to the March meeting with the applicant/licensees prohibited from practicing in Oklahoma until they could be heard before the full Board. Five cases were continued without the prohibition.

One license was reinstated with permanent probation due to personal chemical abuse. One Physical Therapy license was reinstated with the requirement that treatment for an illness continue.

Two licenses were revoked. One involved filing fraudulent documents on application and one was related to use of drugs and/or alcohol.

One reprimand was issued for prescribing controlled drugs with failure to establish a valid doctor-patient relationship with the additional stipulation that the physician would not renew his Oklahoma license.

Seven Voluntary Submittals to Jurisdictions were accepted. One resulted in a one year suspension followed by probation due to habitual use of drugs. There was a three year probation due to sexual misconduct. Prescribing without a valid doctor-patient relationship brought forth five year and three year probations. Conviction of Medicare fraud imposed one year suspension and five years of probation. Five years of probation were agreed on after personal use of alcohol affected a practice. There was a four year probation imposed on a physical therapist for embezzlement and filing false patient reports.

In all the discipline cases, cost of investigation, prosecution, and monitoring were imposed.