Reporting Incompetent Physicians: A Comparison of Requirements in Three States

See generally Porterfield, Defining the Scope of Physician Competence, Hospital Medical Staff 5(8); 14 (August 1976); Noie, How to Recognize and Respond to Physician Incompetence, Hospital Medical Staff 6(1): 29 (January 1977).

See New York State Department of Health, What Every Physician Should Know About Professional Misconduct (May 1982).

See The Impaired Physician–-Building Well-Being, in Proceedings of the fourth Ama Conference on the Impaired Physician, October 31-November 2, 1980, in Baltimore, Maryland (AMA, Chicago) (1981).

For a good discussion of the disabled physician, see Block, Disabled Physician, New York York State Journal of Medicine 79(7): 1025 (June 1979).

A variety of articles have been written on the subject of disruptive physicians particularly with respect to their constitutional rights and the hospital's potential liability for failure to discipline. See Hollowell E.E. , Physicians' Disruptive Behavior: Grounds for Discipline, Law, Medicine & Health Care 11(1): 25 (February 1983). See also Welch L.N. , Assisting the Medical Staff in Dealing with the Problem Physician (unpublished manuscript from the American Hospital Association's Division of Medical Services) (AHA, Chicago).

For a good discussion of the unscrupulous physician, see Unscrupulous Physician, New York State Journal of Medicine 79(7): 1021 (June 1979).

See Derbyshire R.C. , Physician Competence, New York State Journal of Medicine 79(7): 1028 (June 1979) [hereinafter referred to as Derbyshire].

Id.

Fla. Stat. Ann. §455.201(4) (West 1981). Title 31, of which this section is a part, governs the regulation of “professions and occupations,” which range from podiatry and pharmacy to plumbing and massage.

Fla. Stat. Ann. §455.225 (West 1981 & Supp. 1983).

Fla. Stat. Ann. §455.225(1) (West 1981 & Supp. 1983).

“Probable cause” is defined as “a reasonable ground for belief in the existence of facts warranting the proceedings complained of. An apparent state of facts found to exist upon reasonable inquiry which would indicate a reasonably intelligent and prudent man to believe … that a cause of action existed.” Black's Law Dictionary (5th ed. 1980) at 1081.

Fla. Stat. Ann. §455.225(3) (West 1981 & Supp. 1983).

Id.

Fla. Stat. Ann. §455.225(10) (West 1981) See also Fla. Stat. Ann. §395.065(2) (West Supp. 1975).

Fla. Stat. Ann. §455.225(10) (West 1981).

Fla. Stat. Ann. §458.331(1) (West 1981 & Supp. 1983).

Fla. Stat. Ann. §§458.331(1)(f), (h), (x) (West 1981 & Supp. 1983).

Fla. Stat. Ann. §458.331(2) (West 1981 & Supp. 1983).

Fla. Stat. Ann. §458.339 (West 1981).

Fla. Stat. Ann. §458.339(3) (West 1981).

Fla. Stat. Ann. §458.337 (West 1981).

Fla. Stat. Ann. §458.337(2) (West 1981).

Ann. Laws Mass. ch. 112, §62 (Michie/Law. Co-op. 1975).

Ann. Laws Mass. ch. 112, §5 (Michie/Law Coop. 1975 & Supp. 1983).

Id.

Id.

Ann. Laws Mass. ch. 111, §53B (Michie/Law. Co-op. Supp. 1983).

Id.

Under §44 of chapter 123, “licensees” are those persons or entities deemed by the Division of Drug Rehabilitation of the state Department of Health to be responsible for maintaining a “facility,” which is defined elsewhere as, “any public or private place … providing services especially designed for the treatment of drug dependent persons….” Ann. Laws Mass. ch. 123, §38 (Michie/Law Co-op. 1981). These provisions are now found in chapter 111E, as §7 and §1, respectively.

If the legislature had indeed intended to require only drug rehabilitation facilities to meet the reporting requirements, it would have cited §44 prior to §51, for when referring to sections within the same chapter, the sections are cited in numerical order. The American Medical Association has also discussed this apparent discrepancy: “While §53B by its terms appears to mandate reporting of disciplinary actions taken only by such drug treatment “facilitites,” we have been informed by state administrative officials that the mandatory reporting requirement … was intended to, and is currently being construed by the state as applying to, licensed hospitals….” American Medical Association, Statutes Providing for Mandatory Reporting of Impaired Physicians, State Health Legislation Report 8(3): 12, 20 (October 1980).

Telephone interview with Kelly Michael , Associate Complaint Counsel, Massachusetts Board of Registration in Medicine, Boston, Massachusetts, May 2, 1983.

Id.; telephone interview with Carroll Patrick R. of the Massachusetts Hospital Association, Burlington, Massachusetts, May 2, 1983. Both Kelly Mr. Carroll Mr. agreed that the statute does not compel a hospital treating an impaired physician to report to the Board unless the hospital takes an action affecting the physician's staff privileges at the facility administering the treatment.

The Massachusetts Board advises inquiring physicians that they will be immune from liability if they voluntarily file reports, but suggested that “the statute could be more supportive” of physicians making such reports. Kelly, supra note 32.

N.Y. Educ. Law §6509 (McKinney 1972 6k supp. 1982–1983).

N.Y. Educ. Law §6509(10) (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §230(11)(a) (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §230(11)(b) (McKinney supp. 1982–1983). In addition, Section 230(8) states: [N]o member of a committee on professional conduct … shall be liable in damages to any person for any action taken or recommendation made by him within the scope of his function as a member of such committee … provided that (a) such member … has taken action … without malice, and (b) in the reasonable belief after reasonable investigation that the act or recommendation was warranted, based upon the facts disclosed. N.Y. Pub. Health Law §230(8) (McKinney 1972 & supp. 1982–1983).

N.Y. Educ. Law §6527(5) (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §230(11)(c)(i) (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §230(11)(d) (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §230(11)(d)(i) (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §230(11)(d)(ii) (McKinney supp. 1982–1983). A literal interpretation of this section suggests that the chairpersons of these committees have the responsibility of reporting this information to the Board, as they would fall into the category of those required to report under N.Y. Pub. Law §230(11)(a) (McKinney supp. 1982–1983). See supra note 37 and accompanying discussion.

N.Y. Pub. Law §230(11)(d)(iii) (McKinney supp. 1982–1983).

N.Y. Pub. Law §230(11)(e) (McKinney supp. 1982–1983).

At common law, a physician could be compelled to disclose information acquired while treating a patient. However, N.Y. Civ. Prac. Law §4504 (McKinney 1963) provides for a statutory privilege of nondisclosure, whereby medical information obtained by a physician in the course of, and necessary for, the treatment of a patient could not be disclosed without the patient's consent. There are additional statutory provisions which protect disclosure under these circumstances. They are closely related to N.Y. Civ. Prac. Law §4504 (McKinney 1963) and are cross-referenced to that rule. N.Y. Pub. Health Law §230(9) (McKinney supp. 1982–1983); N.Y. Educ. Law §6527(3) (McKinney 1972).

The demonstration project (and the accompanying exemption) was in effect from April 2, 1980, until March 2, 1983. Because of the legislative emphasis on the importance of documenting the project's effectiveness, Section 230(ii)(g) provides for the submission of a written report to the Commission of the Department of Health and to the Director of the Division of Alcohol Abuse of the Department of Mental Hygiene. For a thorough discussion of the mechanics involved in the three-year demonstration project, see Nagy B.R. , Help for the Impaired Physician, New York State Journal of Medicine 81(10): 1531 (September 1981).

1980 N.Y. Laws, c. 343, §1.

N.Y. Pub. Health Law §2803-e (McKinney supp. 1982–1983).

N.Y. Pub. Health Law §2803-e(3)(b) (McKinney supp. 1982–1983). It should be remembered that hospital administrators who know of professional misconduct on the part of a physician must also report to the Board pursuant to Section 230(11)(1) of the Public Health Law.

Telephone interview with a Senior Medical Conduct Investigator, New York State Office of Professional Medical Conduct, Department of Health, Albany, New York (May 29, 1983).

The Office of Professional Medical Conduct must prove a “pattern” of poor medical practice in order to take strong disciplinary action. Id.

See Comment, The Impaired Physician: An Old Problem Creates the Need for New Legislation, St. Louis University Law Journal 26:727 (1982).