"Medicine in Oklahoma"
ISSUES AND ANSWERS
Board of Medical Licensure and Supervision
Volume 8, No. 5
August 1997
It's the Law
by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor
Recently a doctor called our office to ask about forcing a clinic where the doctor had previously worked to release records pertaining to patients who wished to transfer their care. The problem was the clinic would not release the patient records without a personal visit by the patient or a properly worded written release.
Within days of this call there appeared in the AMA News Ethic Forum (June 23/30, 1997, page 33) a markedly similar quandary with a resultant discussion well worth reading.
Since everything illegal is not necessarily unethical and everything unethical is not necessarily illegal, I did look at Oklahoma law governing release of medical records. Under Torts, Title 76 Section 19(a) there is the right of the patient to obtain their own records and the permissible charge that may be made to reproduce the records. Section 19(b) involves the waiver of privilege when a malpractice suit is filed.
Under Civil Procedure, Title 12, Section 1503, the physician/patient confidential privilege is established which prevents the disclosure of information to any other person.
Only under Public Health and Safety, Title 63, Section 1-5022.2 A(7), is there any provision for release of medical information among healthcare providers for continuation of care without a written release and this pertains only to communicable diseases. Although this information might appear to be more privileged than standard records there is still no other reference to doctor/doctor communication sans written release.
The medical Practice Act, Title 59, Section 509(4) defines as unprofessional conduct "willfully betraying a professional secret to the detriment of the patient."
The question then arises, is the verbal communication of medical information done for the benefit and/or with the approval of the patient but without a written release required or legal? The fact that one aspect of patient information (i.e. communicable diseases) is addressed in law and all others are ignored would seem to make certain that the transfer is not required. It is probable it is not allowed. Common sense would seem to indicate that emergency "need to know" information will at times be essential. It might, however, have to be legally defended as part of the Good Samaritan Act, Title 76, Section 5, and even there it is a stretch.
The bottom line is all physicians should look at their standard operating procedure on releasing records. An adequate written release is protection against an accusation of betraying confidence.
- "...is the verbal communication of medical information done for the ben efit and/or with the approval of the patient but without a written release required or legal?"
Page 2
As Others See Us
by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor
The Citizen Advocacy Center, located in Washington, D.C., is an organization primarily concerned with and addressed to public members of healthcare regulatory boards. The CAC recently distributed a long report concerning hospital reporting to the state boards and National Practitioner Data Bank.
The primary thrust of the publication was that there may be significant under reporting of hospital disciplinary actions against physicians and what actions should be considered in light of this inaccuracy.
Of interest, in Oklahoma between 1993 and 1996, there were annually 0.95 hospital actions/1000 beds as compared to the national average of 0.69. 73.75% of Oklahoma hospitals filed no reports as compared to the national average of 67.38% (ranges for all states were 42.5 to 83.43%).
Four factors were considered to account for the low number of reports.
t There may be few practitioners with serious perfor-
mance problems
t Hospitals may take actions not requiring reporting
(e.g. actions which affect privileges less than 30
days
t Hospitals may avoid taking adverse actions
t There may be failure to report some actions
Multiple recommendations were made to strengthen the NPDB involving steps by the Public Health Service, Joint Commission on Accreditation of Healthcare Organization (JCAHO), American Hospital Association, AMA, HHS and individual state legislatures and disciplinary boards. The report recommends higher monetary penalties for failure to report and holding specific hospital administrators responsible for the reporting.
The chief significance of the report lies in the fact that this is the way consumer organizations view the performance of the NPDB. The groups maintain very active and vocal lobbying personnel. If you don't like the NPDB now you will undoubtedly like it even less if they get their proposed "improvements."
There would appear to be two means of combating this.
One is the continued practice of maintaining lobbying
against changes and/or moving to abolish the Bank. Second would
be to attempt to have better compliance with present
requirements.
Board Meeting
July 24, 25, 1997
The Board met in regular session on July 24 and 25 with special emphasis on original licensure for residents. Fifteen personal appearance by applicants for special purpose licenses (mostly training) resulted in issuance of nine licenses, denial of five and one was tabled. Twenty-one persons made appearances in support of full licensure applications and all were granted.
Two special license holders requested modification of their privileges. One was approved and one denied.
On day two of the meeting, mostly disciplinary matters were considered. One case was dismissed without prejudice when the physician retired. The original charge had been inability to practice safely. One reprimand for failure to report prior hospital discipline on the original application was issued. Two physicians previously revoked applied for a rehearing. One involved sexual misconduct and was denied. The second involved writing controlled prescriptions without a doctor/patient relationship and the rehearing was scheduled for September.
Two M.D.s and one Physician Assistant submitted Voluntary
Submittals to Jurisdiction based on chemical abuse and all were
given five-year probations with standard terms of 12-step program
affiliation, bodily fluid testing, and monitoring.
One Physical Therapist accepted a Voluntary Submittal to
Jurisdiction for inappropriate sexual conduct in a practice setting. The license
had previously been surrendered and no reapplication will be allowed for
ten years.
Page 3
New from
Sidney Wolfe, M.D.
by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor
Recently received in our office was a report from Public Citizen Health Research Group entitled "Physicians Disciplined for Sex-Related Offenses." Not unexpectedly the report states that there is under-reporting and lack of discipline for these offenses. It urges mandatory reporting, publicizing a sexual misconduct policy, aggressively sanctioning offending physicians and advocating for criminal laws involving fines and/or imprisonment for such conduct.
While one may disagree with Dr. Wolfe's interpretations, our profession is virtually unanimous in decrying the abuse of trust involved in such relationships. This has been true since Hippocrates wrote in the 4th or 5th century B.C., "Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves."
The tables and graphs demonstrate several trends. There is a rising number of physicians disciplined for sex-related offenses over the five-year reporting period. These orders represent a larger percent of Board Orders year by year. Pyschiatry, Family Practice and OB-Gyn specialties are overrepresented in offenses while General Surgery, Internal Medicine and Pediatrics are under represented. Older physicians are more apt to be disciplined than younger. Male physicians are more apt to be offenders.
The entire report is on file at our office and available to be read.
Medical News and Perspectives
In JAMA, June 25, 1997 (vol 277 #24), pages 1919-1921 there is a fascinating perspective on the history of drug use in America. It is certainly apropos at this time as we celebrate a victory over tobacco (?prematurely?) at the same time that current thought is to make more free use of opiates for chronic benign pain. It points out the tendency to initially embrace drugs and later realize fault with them and the changing trendiness of mind or energy altering chemicals.
Today we look back with superior feeling toward the campiness of the movie "Reefer Madness" and the high opiate/alcohol content of turn of the century cough syrups and "women's remedies". What will future generations think of our present use of controlled and noncontrolled, recreational and prescribed chemicals.
The article is enjoyable and readable (a rarity in JAMA) and worth the effort to retrieve from the stack in the office corner.
Ratting on a Friend
Oklahoma Administrative Code 435:10-7-4(42) includes as unprofessional conduct:
Failure to inform the Board of a state of physical or mental health of the licensee or of any other health professional which constitutes or which the licensee suspects constitutes a threat to the public.
And in OAC 435:10-7-4(43):
Failure to report to the Board unprofessional conduct committed by another physician.
The AMA News on May 26, 1997 in the Ethics Forum discussed the ethical responsibility to report an impaired colleague. The discussion makes the point that the welfare of the patient is paramount. Different types of impairment are delineated and various avenues of reporting are presented.
It certainly is not pleasant to do so but failure to
report impairment of our peers is both illegal and unethical.
Under the Sun
by Gerald C. Zumwalt, M.D.
In rearranging offices of the Board recently a file of complaints from 1935 to 1965 appeared. Reviewing them revealed that professional behavior hasn't changed all that much.
The first four sheets I picked up were charges of "habitual use of habit forming drugs." Following that were public complaints of sexual misconduct and persons claiming to be doctors who apparently had not attended medical school. Many letters sent advertising for "drugless medicine", naturopathy, and cancer cures based on treating locks of hair.
It all seemed primitive and a bit naive until I realized that today the N.I.H. has a division for study of "alternative medicine" and everyone from pharmacists to R.N.s are fighting for prescriptive authority and assigning therapeutic procedures to "advanced unlicensed assistive persons."
The fact that most people survive from day to day
has to be a great tribute to the resiliency of the human body.
RENEWAL REMINDER
If your medical license was issued in September, renewal of your license is due by September 1. If your license was issued in October, renewal is due by October 1.
Remember, when completing the renewal application,
the questions at the bottom of the front page pertain only to
the time "since the last renewal or initial licensure (whichever
is most recent.)"
This publication, printed by Central Printing, is authorized by the Board of Medical Licensure and Supervision. 6000 copies have been prepared at a
cost of $566.00. Copies have been deposited with the Publications Clearinghouse of the Oklahoma Department of Libraries.
BULK RATE
US POSTAGE
PAID
OKLAHOMA CITY, OKLA
PERMIT NO. 1548
OKLAHOMA STATE BOARD OF
MEDICAL LICENSURE AND SUPERVISION
P.O. BOX 18256
OKLAHOMA CITY, OK 73154-0256
