_ISSUES and ANSWERS

Vol 10 No 4
September 1999

In Search of Common Sense

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

In a recent CD, Jimmy Buffett sings, "There's no dumb-ass vaccine." This failure to develop an inoculation against un-understandable actions may explain a lot of laws, regulations, governmental activity, judicial decisions and even medical events.

Is there justification in performing an operation just because it can be done or is it just an exercise in surgical showmanship? When there is a demonstrable deficit in funds to supply childhood vaccines adequately and no money to staff child abuse teams, why is there a transplant of a hand in a person with a working prosthesis?

The recent legal dispute in Tulsa over the treatment of an infant against the religious views of the parents cannot be solved easily as part of the eternal conflict of individual rights versus society's obligations to protect the innocent. What may be more pertinent and less philosophical is the question of why treatment was continued for many months when, according to newspaper reports, there was no chance of cure or even extra-hospital existence.

One doesn't have to look at extraordinary medical adventures to see absurdities of medical lore. The continued requirement of premarital serological tests for syphilis confronts the fact that virtually no previously unknown case of syphilis has been discovered in our professional lifetime. Yet, we do not require testing for the commonly occurring gonorrhea or chlamydia.

All practitioners active in the past 25-40 years have seen the financial bonanzas enjoyed by purveyors of electrical lift chairs, physical rehab programs for disabled never "hab"ed in the first place, lung transplants for the continuing smoker and heroic treatment plans for the terminally ill. At the same time, simple treatments and cheap prescriptions for hypertension, diabetes, and pain relief are withheld or unobtainable due to an individual's financial distress. Since we are trying to compare apples with apples, we won't even entertain how much medical care could be paid for with the cost of one cruise missile.

In a recent issue of Newsweek, a nephew of Mo Udall compellingly wrote of the distressing decline of that statesman into the dungeon death of Alzheimer's Disease. He largely blamed the stretching out of this painful process on the failure to execute any advanced directive. But, given the frequent ignorance of such a document by health and legal personnel, the probability exists that such terminal interminability occurs because too many doctors and families refuse to regard death as a natural part of life. Viewing death as defeat, many of us drag our patients through unnecessary and unavailing, painful procrastinations.

Obviously, doctors and patients alike want to "fight the good fight." But even heavyweight championship bouts have a fifteen-round limit. Death probably is not the Hollywood ascent up shiny stairs to the sound of angelic choirs but common sense and decency must dictate that we draw an ethical line somewhere to preserve dignity and minimize suffering.

Or perhaps in my dotage, I'm just becoming a medical Luddite.

  ". . . the probability exists that such terminal interminability occurs because too many doctors and families refuse to regard death as a natural part of life."

Footprints on the Sands of Time

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

Many inquiries and complaints received in this office from doctors and the public concern medical records, specifically the maintenance and transferring of said records.

Oklahoma law addresses these instruments in several sections. Title 76, Sections 19 and 20 mandate individuals' right to acquire copies of their own records (with the exception of certain psychological/psychiatric records), the cost of the copies and the penalty for failure to produce these on demand. There is no set time requirement listed. The rules in OAC Title 435:10-7-4 list as unprofessional conduct: (35) the failure to transfer patient records on proper authority; (36) failure to properly manage records; and (41) failure to produce and maintain records adequate to substantiate diagnosis and treatment. Title 59, Section 509 (19) lists as unprofessional conduct the failure to maintain accurate records.

The AMA Code of Medical Ethics has a chapter on Opinions on Physician Records. Section 7.01 mandates providing records to other physicians upon proper authorization by the patient. It prohibits withholding such records due to unpaid bills for medical treatment. Section 7.02 essentially mirrors the requirements of Oklahoma law Title 76, Section 19. Sections 7.03 and 7.04 cite the responsibility to maintain records on retirement or on departure from a group. It also states that it is unethical conduct for the group not to furnish to patients the new address of the departed doctor. Section 7.05 addresses what information should be retained and (somewhat) for what period. Generally records are to be kept as long as they are "of value to the patient." Specifics listed include operative notes, chemotherapy and immunization records to be retained "always". Other examples are Medicare and Medicaid records to be kept at least five years.

Obviously, all patient records should be available until the statutory time limitation for filing suit has expired and in the case of children this only starts when they reach their majority.

Copies of the current Code of Ethics may be ordered from:

Order Department
American Medical Association
515 N. State Street
Chicago, IL 60610

"The rules . . . list as unprofessional conduct . . . failure to produce and maintain records adequate to substantiate diagnosis and treatment."

Board Meetings

Board Meeting June 25, 1999

During the June Board meeting, fourteen applicants for special licenses for residency training were approved. One approval required an agreement that the licensee would continue in a 12-step program for alcoholism and would allow monitoring of body fluids and conduct.

Twelve full licenses were approved. Two were issued with agreements to monitor alcohol and/or other substance abuse and to continue in recovery programs. Two applications were denied. One was denied on the basis of multiple exam failures and poor performance in residency. The other was denied based on a fraudulent application and revocation of license in another state.

Terms of one probation were modified to allow additional sites of emergency room practice.

Board Meeting July 22, 23, 1999

One special training license was approved and one was denied due to unsatisfactory performance in a previous residency. Six full, unrestricted licenses were issued after personal appearances by the applicants. Two licenses were reinstated—one license was issued under terms of an agreement to allow periodic review of patient records; the other was issued under terms allowing the Board to monitor for abstinence from chemical abuse.

One disciplinary hearing resulted in revocation of medical licensure for conviction of sexual misconduct involving minors. One Respiratory Care Practitioner license was surrendered after an on-the-job urine test was positive for cocaine. One licensee was suspended until an accepted evaluation for professional competence could be obtained following a conviction for Grand Larceny. One licensee was suspended for sixty days and given an indefinite length of probation for chemical abuse. Another physician was put on an indefinite length of probation for chemical abuse relapse. One reprimand was issued for discipline by the Texas Medical Board for fee splitting and inadequate record keeping. Another reprimand was issued, followed by permanent retirement, for writing controlled, dangerous substance prescriptions without examination and failure to keep adequate patient records.

Two licenses were reinstated under terms of permanent probation. One involved working in a controlled environment and continuing psychiatric counseling and the other involved continuing psychiatric counseling.

Board Meeting September 16, 17, 1999

During this meeting, three full, unrestricted medical licenses were granted after personal appearances by the applicants. One Occupational Therapy and one Respiratory Care Practitioner license were issued under standard terms of Agreements following histories of substance abuse. One Respiratory Care Practitioner license was denied for a similar history and one application was tabled until additional information on treatment and 12-step affiliation could be furnished.

Results of disciplinary hearings included one reinstatement of a previously suspended license with a five-year term of mandatory psychotherapy following a felony conviction. Repeated violation of the pharmacy law regarding proper labeling of dispensed medication brought a reprimand and three-year prohibition on dispensing for one physician. A reprimand followed by acceptance of the Physician Emeritus status was the agreed resolution to charges of prescribing without adequate medical examinations.

The Board approved the request of two physicians to present to the public certification by the American Board of Sleep Medicine and urged any other Oklahoma physicians certified by that organization to apply with the Board for the right to publicize such certification as required by Title 435:10-7-2.

Permanent Cosmetics Vs Tattooing (Is there a difference?)

by Lyle Kelsey, CAE
Executive Director

The Medical Board has received numerous calls about the legality of permanent cosmetics, who can do it legally and who is trained to perform these procedures.

Oklahoma is one of a number of states that has a law against the "art" of tattooing. Oklahoma Statutes Title 21 sections 841 & 842 provides as follows:

841. Tattooing prohibited-Definition-Exemption. It shall be unlawful for any person to tattoo or offer to tattoo any person. As used herein to "tattoo" means to insert pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, so as to produce a permanent indelible mark or figure visible on the skin. Provided, however, that the provisions hereof shall not apply to any act of a licensed practitioner of the healing arts performed in the course of his practice.*

842. Penalty. Any person violating the provisions of 21 O.S. 1961, 841, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment in the county jail not to exceed ninety days or payment of a fine of not more than five hundred Dollars ($500.00) or both such fine and imprisonment. [Emphasis added]

*Designation of a practitioner of the healing arts is found in Oklahoma Statutes Title 59 Section 725.2 and "basically" states there are seven (7) recognized practitioners of the healing arts. They are: Podiatrists (DPM), Chiropractors (DC), Dentists (DDS), Medical Doctors (MD), Optometrists (OD), Osteopathic Doctors (DO), and Health Service Psychologists (Ph.D.)

When all these statutes are combined, it is the Medical Board's opinion that the legal definition of tattooing covers the practice of permanent cosmetics.

Therefore, the practice of permanent cosmetics is illegal unless performed by a practitioner of the healing arts. Since there is a specific law against tattooing, the Medical Board's legal opinion is that it does not allow the practitioner of the healing arts to delegate, supervise or train someone else (licensed or unlicensed) to do permanent cosmetics under the guise of his/her control, supervision or monitoring.

This is a very popular procedure and there are a number of people performing this service in homes, beauty salons, cosmetics shops and doctors offices. The qualifi cations of those individuals performing permanent cosmetics in Oklahoma range from licensed cosmetologists, licensed registered nurses, and licensed practitioners of the healing arts to those who are unlicensed in any profession. Note: the only people legally allowed to perform permanent cosmetics in Oklahoma are practitioners of the healing arts.

It is our understanding from the Oklahoma Board of Nursing that all nurses are restricted from performing permanent cosmetics whether or not supervised by a physician unless it is for a legitimate medical reason on order from a physician.

Medical Doctors should be aware that if they allow anyone else under their control and supervision to perform this procedure they could be cited for aiding and abetting the violation of state law under the provisions of unprofessional conduct in the Medical Practice Act. These procedures are not without risks and a patient who complains about a bad outcome or subsequent scarring could open the door for such a citation. Procedures that are illegal are outside the protection of informed consent.