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Ethics, Bioethics & Law
Table of Contents:
American Psychiatric Association Membership Ethics
AAPL:"Ethical Guidelines for the Practice of Forensic Psychiatry"
(articles)
Sexual Relationships with Patients
Membership Ethics
Principles of Medical Ethics
Procedures for Filing Ethics Complaints
from Cyberounds: Health Law and Bioethics
Educational Objectives
Upon completion of this Cyberounds®, the participant should be able to:
- Discuss the paradox of the duty to refer
- Discuss how this paradox can confuse judges in malpractice cases
- Describe the correct rule of liability in failure-to-refer cases.
Given all the unkind jokes I hear about lawyers, I rarely choose to criticize the profession but I occasionally make an exception when judges espouse positions and reasoning in particular cases that are, shall we say, inexplicable. So I thought I'd share with you a case entitled Murphy v. Nordhagen, decided by an intermediate appellate court in Wisconsin (588 N.W.2d 96, 1998).
The case was a malpractice suit brought against Nordhagen, a chiropractor, by a patient who alleged that the chiropractor had failed to properly treat her herniated disc. Specifically, the patient accused the chiropractor of failing to refer her to a medical doctor for diagnosis and treatment of her condition. The court upheld a dismissal of the suit on the ground that a chiropractor "does not have a duty to refer a patient who is not treatable through chiropractic means to a medical doctor." (588 N.W.2d at 99).
Was the Court wrong?
At first blush, the court's position seems absurd. Surely, someone who seeks health care services from a chiropractor, or from any other health care provider whose scope of practice is more limited than a physician's, should be able to rely on being referred to a physician if the problem is beyond the scope of the limited practitioner's expertise. This is borne out by many other legal authorities. The Supreme Court of New Jersey, for example, states that "chiropractors have long been expected to diagnose and refer patients whose conditions require medical or other treatment," adding that "[t]he rule protects the public health and welfare by making certain that chiropractic treatment shall be given only when genuinely justified." (Rosenberg v. Cahill, 492 A.2d 371, N.J. 1984).
The first paradox
The effect of the Wisconsin court's rule could be to give chiropractors a blank check when it comes to legal liability for treating ailments that are beyond their expertise. So, here's the first paradox: Under the court's ruling, a chiropractor in Wisconsin can be sued for unreasonably causing injury to a patient in the course of treating a condition that is properly within the scope of chiropractic but might not be held liable for causing injury when treating a patient for a condition that is beyond the scope of chiropractic care. This is particularly troubling in view of the fact that chiropractors have been known to attempt to treat patients for serious illnesses utterly beyond the chiropractor's expertise.
Although judges, with all due respect, sometimes may do stupid things, they are not stupid people. So what was the reasoning behind the Wisconsin court's decision? It's another paradox. Here's the court's language:
[B]ecause implicit in a requirement that a chiropractor refer a patient to a medical doctor is the imposition on the chiropractor to make a medical determination that the patient needs medical care, such a determination could not be made without employing medical knowledge. Because a chiropractor is not licensed to make such a determination, we hold that a chiropractor does not have a duty to refer a patient who is not treatable through chiropractic means to a medical doctor. (588 N.W.2d at 99)
What should we reasonably expect a professional to know?
The court's reasoning has a certain plausibility (of course paradoxes always do, which is why they are such mental challenges): How can we expect a person who is not a physician to know when someone else needs to see a physician? Wouldn't that entail having precisely the type of medical expertise that they are presumed to lack?
But wait. Doesn't this reasoning also apply to the duty of primary care physicians to refer patients to specialists? How can a physician be liable for not referring a patient to a specialist without requiring the physician to know what the specialist knows in the first place? Yet, in dozens of cases, physicians have been held to this duty. [For a compilation, see Jerald J. Director, Annotation: Malpractice: Physician's Failure to Advise Patient to Consult Specialist or One Qualified in a Method of Treatment Which Physician Is Not Qualified to Give, 35 A.L.R.3d 349 (1999).]
Are chiropractors somehow different in the eyes of the Court?
What gives? Is there something different about physicians and chiropractors such that only physicians should be expected to know when to refer a patient and a chiropractor should not? Is it the fact that a chiropractor is not trained the same as a physician? But, then, neither is a primary care physician trained the same way as a board-certified neurosurgeon. Indeed, it is precisely because the chiropractor is not a trained physician that the patient needs the protection of being referred to a physician in the appropriate circumstances.
A personal analogy about Ski Patrol
This issue actually takes on a personal dimension for me since I am a member of the National Ski Patrol. In my role as a ski patroller, I often puzzle over whether or not to tell the patient to see a doctor and, in some states, I might be sued if I make a mistake.
It is the analogy to primary care physicians and ski patrollers, not to mention virtually all other non-physician health care professionals, that exposes the flaw in the Wisconsin court's thinking. Obviously, a chiropractor, like a primary care physician or ski patroller, cannot be expected to have the actual knowledge and skill of a physician or, in the case of a primary care physician, of a specialist. But they can be expected to know when the patient may need the services of a physician or specialist. Ski patrol training, for example, stresses two subjects: How to provide first aid to an injured skier and when to advise that skier to see a physician. We are taught the signs and symptoms that indicate the need for greater expertise than we are assumed to possess.
One standard fits all
The same standard should be applied to chiropractors. They should know what to look for in a patient to tell them whether to proceed with further chiropractic care or to refer the patient to a physician. This isn't expecting the chiropractor to act like a physician -- to use the Wisconsin court's language, to make a "medical determination - but to act like a reasonable chiropractor, or ski patroller, or primary care physician, under the circumstances.
So the correct approach for the courts, when dealing with a failure-to-refer case, is to ask whether the defendant exercised the proper level of skill in determining whether or not to refer the patient. In the case of a chiropractor, this won't be the same level of skill that a physician would be expected to employ. The question isn't whether the chiropractor behaved the way a reasonable physician should but the way a reasonable chiropractor should. In some cases, chiropractors may make mistakes and proceed to treat patients for conditions for which they should have seen a physician but, so long as the chiropractor's mistakes are reasonable, they should not be legally liable.
created 7/19/99; reviewed 7/21/99; modified 7/23/99; end date 7/23/01
Sexual Relationships with Patients
Maxwell J. Mehlman, J.D. Sexual relationships with patients are problematic, not only because they may be unethical and may compromise patient care, but because they may lead to civil actions for damages, criminal actions, and disciplinary proceedings by state medical boards.(1) While concern focused originally on relationships between patients and psychiatrists, it is now generally recognized that the problem extends to non-psychiatric physicians as well.
But how far does the taboo extend? Suppose a state medical board seeks to discipline a physician for having an affair with a patient, but both the patient and the physician insist that the patient consented to the relationship. Should the board dismiss the proceeding?
Obviously, not if the patient is a minor. Consent is not a defense to a charge of statutory rape or sexual imposition on a minor.
But what if the patient is a competent adult?
The American Medical Association Council on Ethical and Judicial Affairs states categorically that "[s]exual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct" (Opinion 8.14). In an article in JAMA announcing the policy, the Council rejected the position that sexual relationships should be permitted with the patient's consent on the ground that "the relative position of the patient within the professional relationship is such that it is difficult for the patient to give meaningful consent to such behavior." (
2)It is interesting that the AMA categorically condemns sexual relationships to which patients allegedly consent. The American Bar Association, for example, although taking a dim view of these relationships, does not absolutely rule out the possibility that a client has given effective consent:
The lawyer may be called upon in a disciplinary or other proceeding to show that the client consented, that the consent was freely given based on full and reasonable disclosure of the risks involved, and that any ensuing sexual relationship did not in any way disadvantage the client in the representation; that is, the attorney's judgement remained independent, the representation proceeded free of conflicts, the privilege was not compromised and the other ethical obligations to the client were fulfilled. (3)Moreover, courts have indicated that, despite the physician's greater power within the relationship, they are willing to consider on a case- by-case basis whether to uphold agreements between patients and physicians in which the patient agrees not to sue the physician for malpractice.(4)
Why then does the AMA absolutely prohibit sexual relationships with consenting adult patients? Perhaps it would be too expensive or time-consuming to scrutinize the propriety of these relationships and the effectiveness of consent on a case-by-case basis. For example, the Supreme Court of the United States has upheld maximum age limits for police officers against the challenge that they violate the Constitution by depriving the officers of the ability to show that they in fact are physically capable of doing the job past the age cut-off.(
5) Or perhaps the AMA feels that there simply are no circumstances in which a patient could give valid consent.What about sexual relationships after the patient-physician relationship has ended? You would think that these would be OK, so long as the physician did not abuse the relationship. But the AMA takes the position that ending the professional relationship may not be enough: a relationship still may violate professional ethics "if the sexual contact occurred as a result of the use or exploitation of trust, knowledge, influence, or emotions derived from the former professional relationship." (
6) When would this be the case? The only other guidance that the AMA gives is of little help:
Relationships between patients and... physicians may also include considerable trust, intimacy, or emotional dependence. The length of the former relationship, the extent to which the patient has confided personal or private information to the physician, the nature of the patient's medical problem, and the degree of emotional dependence that the patient has on the physician, all may contribute to the intimacy of the relationship. In addition, the extent of the physician's general knowledge about the patient (i.e., the patient's past, the patient's family situation, and the patient's current emotional state) is also a factor that may render a sexual or romantic relationship with a former patient unethical.Is the idea that the more intimate the former patient-physician relationship, the less ethical a subsequent sexual relationship? Or is it the other way around?
Some commentators have suggested that the way to deal with sexual relationships with former patients is to impose a minimum waiting period following the termination of the patient-physician relationship. Appelbaum and his colleagues, for example, propose three to six months. This suggestion raises some peculiar practical problems, however. If the patient and physician, for example, have discovered a yen for each other, what kind of relationship are they permitted to engage in while waiting for the mandatory period to expire? In any event, the AMA rejects this idea, citing research that shows that patients continue to have strong feelings about psychotherapists for five to ten years after the therapeutic relationship ends. As mentioned in the beginning of this conference, the issue of sexual misconduct originally focused on patients in psychotherapy. The American Psychiatric and the American Psychological Association have their own codes of ethics. Perhaps the CyberoundsTM moderators in psychiatry/neuroscience, Dr. Dean Krahn and Dr. Bruce McEwen, as well as CyberoundsTM members will have some further comments on these issues. For further reading on some of the legal ramifications of sexual relations with patients, I suggest:
Sandra H. Johnson, "Judicial Review of Discipliary Action for Sexual Misconduct in the Practice of Medicine," 270 JAMA 1596 (1993). returnJ. Barker, "Comment: Professional-Client Sex: Is Criminal Liability an Appropriate Means of Enforcing Professional Responsibility?" 40 U.C.L.A. Law Rev. 1275 (1993).
T. Dobash, "Note: Physician-Patient Sexual Contact: The Battle Between the State and the Medical Profession," 50 Wash. & Lee Law Rev. 1725, 1729 (1993).
References
Council on Ethical and Judicial Affairs, American Medical Association, "Sexual Misconduct in the Practice of Medicine," 266 JAMA 2741 (1991). return
American Bar Association Formal Ethics Opinion 92-364, "Sexual Relations with Clients." return
Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963). return
Massachusetts Board of Retirement v. Murgia, 427 U.D. 307 (1976). return
Council on Ethical and Judicial Affairs, American Medical Association, "Sexual Misconduct in the Practice of Medicine," 266 JAMA 2741, 2743 (1991). return
Paul S. Appelbaum, Linda M. Jorgenson, Pamela K. Sutherland, "Sexual Relationships Between Physicians and Patients," 154 Arch. Internal Med. 2561 (1994). return
© Mark I. Levy, MD, FAPA 2000
