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By Diana Nordlund, DO, JD, FACEP
Compliance Officer, Emergency Care Specialists, PC, Grand Rapids, MI; Partner/Attorney, Nordlund|Hulverson, PLLC, Spring Lake, MI
Dr. Nordlund reports no financial relationships relevant to this field of study.
The national focus on healthcare provider wellness is gaining traction. As an integral part of this process, the medical community has seen an increased openness in the discussion of personal experiences, such as in the article penned by Dr. Susan Haney in the December 2018 issue of ACEP Now.1 Dr. Haney’s story details how her self-disclosure to the state medical board regarding her personal health adversely affected her career.
When reflecting on the challenges of a state licensing board investigation (and the public nature of the board’s determination), a question that often follows is: If licensing investigations and state board determinations are public information, how does this process affect medical malpractice actions? More broadly, regardless of whether there has been a formal board investigation, how do physician health issues/potential impairments factor into a medical malpractice case? One can look to Holmes v. Lyons to explore how one state has recently approached this question.2
In Holmes, Bonnie Holmes sued Thomas Lyons, MD, regarding complications of gynecologic surgery performed in 2015. After the surgery, which included a laparoscopic hysterectomy and lysis of adhesions, Ms. Holmes was diagnosed with a distal ureteral injury and developed uterovaginal fistulas. Initially, the case was dismissed at the trial level. Multiple claims were brought by the plaintiff, but for the purposes of this discussion, we will focus on the appellate court’s disposition of the plaintiff’s claims of fraud, battery, and negligent misrepresentation.
In 2010, Dr. Lyons filed insurance claims with his disability carriers regarding what he believed was his impaired ability to continue to perform gynecologic surgery. When those claims were denied, he filed a civil suit against his insurers. Although the court opinion in Holmes does not state at what point the plaintiff became aware of this information (i.e., before or during her lawsuit), it is not disputed that it was not disclosed to her prior to the 2015 surgery at the crux of the case.
As part of Dr. Lyons’ disability claim (presumably discovered by the plaintiff by the interrogatories related to her initial claim), he submitted a PT evaluation that stated, in part, his “functional capabilities do not match the physical demand requirements of his job” due to weakness affecting his ability to stand, vision problems affecting depth perception, and bilaterally diminished fine and gross motor function of the hands.
Dr. Lyons’ explanation for his disability included orthopedic issues and that he had suffered a stroke in 2011. His insurance claim and its supporting paperwork were entered into evidence by the plaintiff in support of her malpractice claim as well as in support of her separate claims of fraud, battery, and negligent misrepresentation. This was an attempt to support her allegations that the defendant was, by his own admission, not capable of performing surgery.
Further, the plaintiff alleged that the defendant failed to obtain informed consent when the physician did not disclose his physical impairments that affected his ability to perform surgery. This raised a battery claim and an allegation that these impairments increased the plaintiff’s risk and directly resulted in her injury.
These allegations were echoed by the plaintiff’s expert medical opinion in support of her medical malpractice claim.
In Georgia, where the events giving rise to this suit occurred, state law proscribes that a physician’s failure to disclose “negative life factors” that may adversely affect physician performance and/or ability to meet the standard of care is not a basis for claims separate from the malpractice action.3 Previously, a court interpreted the law thusly: Because such factors were not included among the statutorily enumerated risks required to be disclosed, and because the statute must be interpreted on its face (i.e., by its plain language), physicians were not required to disclose personal factors that might affect their performance. Therefore, a failure to disclose could not be the basis of a separate cause of action.4
However, the Court of Appeals of Georgia took a new approach, distinguishing the current case from the prior interpretation. The appeals court applied the statute more broadly because here, the personal factors were directly related to the treatment (i.e., specific risks of surgery, such as ureteral injury). Therefore, the court ruled that the summary dismissal of plaintiff’s separate claims must be overturned.
First, it is important to note that this is not a ruling on the merits of plaintiff’s claims; instead, it simply reverses the summary disposition (i.e., dismissal) of the plaintiff’s initial claims. Georgia has yet to rule on the merits. Second, the facts in the case are unique in part because they pertain to the defendant’s own admission of his disability and its direct impact on his ability to practice medicine and meet the standard of care in his chosen specialty. Third, state law varies; the interpretation here cannot be readily extrapolated to apply similarly in all states. However, considering this case speaks directly to one state’s handling of physician health factors affecting a patient’s civil suit, it is useful to examine.
How does this apply to licensing investigations and determinations reached by a state medical board? First, as is true of the civil suit filed by Dr. Lyons against his disability insurers, state medical board action is public information. Additionally, it is discoverable by the plaintiff in the normal course of a medical malpractice lawsuit. Thus, this information is likely to come into play during a malpractice action. Second, although a state board investigation may not as cleanly delineate how a provider’s alleged disability directly affects specific aspects of care (particularly in a manner supported by a medical expert retained by the physician), it certainly will speak to the ability of the provider to practice and meet the standard of care. Thus, a similar application in malpractice litigation is likely. If a physician’s health issue (including mental health and substance abuse) can be argued to directly affect the ability to practice and meet the standard of care, a plaintiff almost certainly will attempt to use it to support his or her claim.
What does this mean for providers? Is a physician required to share confidential medical information with patients to practice? Preliminarily, the most palatable answer lies in self-regulation. It seems reasonable to suggest that physicians are well-qualified to determine which health issues will affect practice substantially. A non-punitive, confidential mechanism to self-police (and allow colleagues to assist those providers without sufficient insight to do so) would be a significant step toward protecting patients and providers alike. Until such a framework is universally available, the answer becomes more complicated (and beyond the scope of this article). The burgeoning focus on provider wellness and resources is a step in the right direction.
Practically speaking, if a state board licensing investigation is initiated, it is wise to immediately consult an attorney who is familiar with applicable law. The provider’s medical malpractice carrier may be an appropriate resource, depending on policy coverage. Regardless, inaction or unguided interaction with investigators may yield a damaging result, as was illustrated by Dr. Haney’s description of her interaction with her state medical board. Cases like these are a challenging factor in the tension between physician wellness and the shift to a culture of openness about physician wellness and medicolegal risk. Thus, physician involvement in shaping how the states manage these issues has the potential to positively affect the health of both physicians and their patients.
Financial Disclosure: Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), is a consultant for Ethicon USA and Mobile Instrument Service and Repair. The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Diana Nordlund, DO, JD, FACEP (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), Amy M. Johnson, MSN, RN, CPN (Accreditations Manager), and Leslie Coplin (Editorial Group Manager).