_ISSUES and ANSWERS

Vol 10 No 3
July 1999

Illegal Versus Unethical

By Gerald C. Zumwalt, M.D.
Board Secretary/Medical Director

Section 9.031 of the American Medical Association's Code of Medical Ethics states "Physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues . . . ." It then goes on to suggest a pathway to follow in each category, with the possibility of patient harm determining the level of authority to notify.

Oklahoma Administrative Code Title 435 lists 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" [OAC 435:10-7-4(42)] and "Failure to report to the Board unprofessional conduct committed by another physician" [OAC 435:10-7-4(43)].

These two sources establish both the legal and ethical responsibility to report personal and other actions that bring dishonor and damage the reputation of our profession.

Despite the parallel message of the above-cited publications, there does arise, to the confusion of the public, the occasional dichotomy of an physician's action being unethical but not illegal or vice versa. Extremes are easily listed. Jaywalking or speeding is illegal but not medically unethical. Rudeness and unkindness are unethical (and constitute many of the public complaints we receive at this office) but are not illegal.

There then become many gray areas where the distinctions are marked. Medicare regulations make improper coding illegal but is it unethical unless done repeatedly or with an obvious attempt to profit? Temper tantrums in a professional setting are unethical but does it rise to violation of unprofessional conduct sans chronicity or patient harm? Utilizing contact with patients (other than medical treatment) for personal financial gain is unethical but not illegal without fraud as a component.

Is there a point to this dilemma? There is the real and continuing responsibility of all of us to act in a legal and ethical manner. As physicians we owe the public, the profession and ourselves the task of behaving as Caesar's wife. Public polls continue to display the esteem our group is given as opposed to the drooping reputation of politics, clergy and law. This elevated ranking will not continue to exist without continued efforts on our part as individuals. We in the present owe to the memory of past practitioners and the hope of future doctors a standard of clean and shiny conduct.

  "[T]here does arise, to the confusion of the public, the occasional dichotomy of an action . . . being unethical but not illegal or vice versa."

LETTER TO THE BOARD SECRETARY:

Since you and I had met last summer (you taught my law school class at OCU), I address this letter to you. Maybe you can forward it on to the correct party.

The short quote from the Idaho Supreme Court on page 2 of the May 1999 "Issues and Answers" concerning informed consent is correct in so far as it goes. The standard mentioned there is "a generally accepted standard" in as much as it is an "objective" standard. However, Idaho also uses the "community" standard, which is not a standard in most states, and certainly not in Oklahoma. Oklahoma uses a "subjective" standard, rejecting both the "community" standard and the "objective" standard. Let me explain.

The objective standard asks the question "What would a reasonable patient in the place of this patient like to know before proceeding?" This allows the jury to interject its own interpretation of the facts and decide if the doctor said enough to inform an average or common patient, in the jury's eyes. Usually, rare complications of a minor nature are not considered important enough to require the doctor to mention them to satisfy the standard. The idiosyncratic concerns of a given patient are ignored. Most states use this standard.

The community standard asks the questions "What do doctors in a like speciality and in good standing in their own community normally tell a patient in order to inform them of expected or possible complications?" This standard focuses on the physician's behavior compared to his peers, and basically ignores the patient's concerns, be they common or idiosyncratic. This standard was often applied prior to late 1960's but has been rejected by most states since then, largely because it provided physicians too much protection against the poor practice of medicine.

The Oklahoma Supreme Court adopted the subjective standard in the case of Scott v Bradford (1979), which it confirmed in the case of Smith v Reisig (1984). To my knowledge, Oklahoma is the only state to have firmly established this standard, thus making Oklahoma unique. The subjective standard asks the questions "What would this particular patient have needed to hear in order to be adequately informed of all the risks?" Idiosyncratic fears are taken into account by the jury in this case. Rare and minor complications are significant, if the patient can establish that he or she uniquely feared the bad outcome that did in fact occur. The jury may not believe the patient; that is the risk the plaintiff's attorney takes in making the claim. But the claim of a lack of informed consent is very easy to make in Oklahoma. It is literally true that a good quality of practice, even one that exceeds community standards, will not satisfy informed consent in Oklahoma.

Physicians in Oklahoma need to continue to do what they already do well: talk to the patient about any expected complications of a medication or surgery, and listen to the patient's concerns. Since common complications occur commonly, this will usually protect a physician against a claim of inadequate informed consent. But Oklahoma physicians should not be confused: we have a very difficult, if not impossible, legal standard to satisfy in Oklahoma. Idaho physicians enjoy a lot more protection than we do.

Curtis E. Harris, MS, MD, JD, Oklahoma City

1998 USMLE Results

The standard medical licensure exam is now the United States Medical Licensure Examination (USMLE). In times past various states had used either or both FLEX (Federation Licensing Examination) and National Board exams as a requirement for entry into the profession. To some there was the perception that the National Boards were easier and therefore there was a bias against international graduates and others mandated to use FLEX. Although there is still some integration of the previously used tests and present components of the USMLE, after 1999 only results from the USMLE will be considered for newly tested applicants.

The National Board Examiner, Vol. 46, #1 (Winter 1999) gives the results of the USMLE given in 1998. The exams were given twice for each section during that time frame. (In the future the exams will be given by computer and will be available throughout the year.)

Step 1 exam results revealed a passing score was achieved by 91% of domestic allopathic takers and 82% of osteopathic students. Of international medical graduates, 67% passed.

Step 2 exams showed a passing score for 93% of domestic allopathic students, 78% of osteopathic students and 73% of international graduates.

Step 3 administration resulted in passing by 93% of domestic allopathic students, 94% of osteopathic students and 75% of international graduates.

Not surprisingly, all three Steps showed a higher passing rate for first-time takers than for repeaters. And the lower the score made on the previous exam, the less likely the candidates were to pass on subsequent attempts.

Board Meeting
May 6, 7, 1999

The Board met in regular session on May 6^th and 7^th, 1999 to consider applications and hear disciplinary matters.

Eight medical licenses were issued and twelve more were approved pending passage of Step 3 of the USMLE (United States Medical Licensing Exam). One medical license was ordered issued once the applicant passes the Special Purpose Examination (SPEX) to assess current clinical competence since he has been out of clinical practice for an extended period.

Two training licenses were approved with agreements to participate in 12-step substance abuse programs. One Special License to practice anesthesiology was denied.

Two licensees had their terms of probation modified; one to allow prescribing of controlled drugs utilizing serially-numbered, duplicate pads and one to allow application for OBN and DEA certificates. One probation involving past substance abuse was terminated.

One licensee was reprimanded for prescribing anorectics without proven need and failure to keep adequate records. Two doctors were suspended—one for 50 days followed by a five-year term of probation with usual terms relating to substance abuse. The other was suspended indefinitely for violation of an agreement previously made with the Board along with writing controlled substance prescriptions without possession of an OBN certificate and committing conduct harmful to the public.

The Board accepted the surrender of two licenses. The first was accepted after finding a probationer had relapsed into substance abuse and the other was for dismissal from a residency program due to failure to perform medical duties adequately.

Unlicensed Practice of Medicine

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

In these days of many different professions treating, diagnosing and prescribing, it may seem a trifle picky to be concerned as to how people are addressed and how they sign their name. It is the law in Oklahoma that one must have a license if he "append[s] to his or her name the letters "M.D.", "Doctor", "Professor", "Specialist", "Physician" or any other title, letters or designation which represent that such person is a physician" (Title 59 O.S., §491 and §492). Section 492 goes on to define the practice of medicine (and exceptions) while 491 further lists the extent of criminal punishment (fines and imprisonment) for violation of Section 492. Enforcement of the criminal aspect is dependent on the local district attorneys.

Violations of these sections most often come to the Board's attention in the form of advertisements for beauty or nutritional products both in print and on the Internet. Local publications generally are cooperative in removing offending terminology in subsequent editions but electronic ads are uncontrolled and frequently associated with offers of legend drugs without adequate (or any) examination or establishment of a doctor/patient relationship. As foreign as it is to most physicians, it appears the only possible solution to this indiscriminate distribution of medications is some type of national or even international control. Our aversion to a more controlling central government is junior to the fear of harm to the public from this self-medicating.

Troubling, although much less dangerous, is the previously addressed semantic problem of public confusion of "Doctor." Members of other callings who undergo the expense, time and effort of achieving Ph.D., Th.D., or doctorates in other professions richly deserve to vocally display their exhibits of learning. The public rarely is confused into asking a physicist or pastor about the correct dosage of digoxin. It becomes more problematic when practitioners of medicine-associated activities (e.g., counseling, nursing, pharmacology) are introduced as "Doctor."

One is left in a quandary whether to believe Shakespeare's "A rose by any other name would smell . . ." or Gertrude Stein's "A rose is a rose is a rose."

CME Reminder

Reporting of CME will begin with renewals in the time frame of July 2000_June 2001. Physicians are required to obtain 150 hours of CME (at least 60 Category 1 hours) within the three years preceding their reporting deadline. CME reporting will be every three years; however, licenses still will be renewed annually.

CME Credit Now Available from Home or Office

The Irwin Brown Office of CME at the University of Oklahoma Health Sciences Center now offers physicians the opportunity to receive CME Category 1 credits from their homes or offices. Recently added to this service are the January through June issues of THE VECTOR, a pediatrics infectious disease monthly newsletter, and new issues will be added monthly through December 1999. Each issue is worth one CME Category 1 credit. In addition, back issues of THE VECTOR from July through December 1998 are also available. The OUHSC CME home page has added "Medical Ethics" worth two Category 1 credits. New programs are being added to this page as they become available.

To access the CME home page, go to http://research.ouhsc.edu/cme/homepge.htm and click on "CME." The CME office is also looking for one-to-two-hour CME programs that are appropriate for offering through this medium. For more information, contact Jim Romero at 405/271-2350.