Executive Summary
A physician who becomes aware of another physician’s impairment generally has no legal duty to report the concern, but plaintiff attorneys are likely to sue anyone suspected to have had knowledge of impairment who neglected to report it.
Plaintiff attorneys may allege there is a duty if a patient/physician relationship exists or the physician is supervising the impaired colleague.
An employer can be held liable for the negligent actions of the impaired physician.
Evidence of impairment would be admissible if the impaired physician was sued.
Impaired physicians might face allegations of recklessness resulting in punitive damages being imposed.
Physicians’ reluctance to report impaired colleagues has always posed a known barrier to prompt recognition of physicians who should receive medical and/or psychological or psychiatric care in order to ensure patient safety, says Dan Groszkruger, JD, MPH, principal of Solana Beach, CA-based rskmgmt.inc.
"This natural reluctance was reinforced when the Medical Board of California eliminated its diversion’ program a few years ago," Groszkruger says. Physicians who sought voluntarily treatment were protected from disciplinary action, so long as they adhered to the program’s rules.
"Unfortunately, the medical board concluded that the diversion program was not sufficiently effective to ensure the safety of patients under the care of impaired physicians in diversion, so the program was eliminated," says Groszkruger, who has represented physicians in licensing and disciplinary matters before the medical board. "The result has been even fewer reports of impairment, since lodging such a report could signal the end of the physician’s ability to practice medicine and to earn a living, not to mention its relevance to medical malpractice litigation."
Knowledge of a colleague’s impairment "puts a physician in a very difficult and possibly vulnerable position, legally," says Groszkruger. "When someone under a physician’s care is harmed, lawyers tend to cast the net broadly.’ Certainly, lawyers would sue anyone suspected to have had knowledge of impairment, but who neglected to report it."
Suit would be damaging and costly
Groszkruger says that absent unusual circumstances, such as if that physician directly supervises the impaired physician and is responsible to monitor his/her professional competence, there is no legal duty to report substance abuse, bizarre behavior, or other similar conduct to the authorities. Therefore, if a patient is harmed due to the impaired physician’s malpractice, the other physician would normally bear no legal liability for damages. "This is not to say that a physician has no professional or moral and ethical duties in such a situation," he says. "Even though there may not be a clear legal duty to report, the physician should be guided by moral and ethical duties to protect the patient’s safety."
Impaired physicians are a danger to themselves, patients, and possibly fellow physicians, says Linda M. Stimmel, JD, an attorney at Wilson Elser Moskowitz Edelman & Dicker in Dallas.
"Legally, of course, an employer who has an impaired physician would also be sued for the negligent actions of the impaired physician," says Stimmel.
If a physician is treating the same patient as the impaired physician, a plaintiff attorney could allege that since a physician/patient relationship existed, the physician therefore had a duty to report the impaired physician and the employer, and possibly tell the patient of their concerns.
"A case against a colleague would be hard to win unless it was proven the colleague had actual’ knowledge of the impairment, but you may still be sued," says Stimmel. "That type of lawsuit would be damaging to a reputation and costly."
Punitive damages possible
Regarding legal risks for the impaired physician, Groszkruger says that evidence of substance abuse or mental disorder, known to the physician who continued to practice, would be admissible on the issue of foreseeability.
"The knowledge of impairment would help to show that the physician was negligent or even reckless, by ignoring a known danger that his or her impairment could interfere with safe care," he says.
The most significant legal effect of such evidence would be an allegation of "recklessness" sufficient for an award of punitive damages.
"Punitive damages, by law, cannot be covered by insurance and must be paid by the reckless physician," he says.
- Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc., Solana Beach, CA. Email: [email protected].
- Linda M. Stimmel, JD, Wilson Elser Moskowitz Edelman & Dicker, Dallas. Phone: (214) 698-8014. Fax: (214) 698-1101. Email: [email protected].
