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Legal Consult: Physician, Curb Thyself!
Physicians are special. Because they are special, they are held to higher standards than non-physicians. Two recent Massachusetts Supreme Judicial Court decisions serve to remind us of this fact. In one case, Welter v. Board of Registration in Medicine, misleading advertising was punishable without a showing that the physician had a fraudulent intent. In the other case, Schwartz v. Board of Registration in Medicine, a physician’s disruptive behavior led to discipline in the absence of proof that behavior had an adverse effect on patient care. Without condoning the physician’s behavior in either case, the decisions remind us that what might be considered acceptable in other walks of life is not permitted to physicians.
The Welter case arose out of the operation of a hair restoration practice. Dr. Welter hired Clark Tan, a foreign medical graduate with an MD but not a Massachusetts license, as a “nonprofessional assistant.” Prior to doing so, Dr. Welter consulted with the Massachusetts Medical Society and believed he could delegate work to Dr. Tan as a non-licensee. The practice’s website referred to Dr. Tan as a “surgeon” and mentioned him on a par with Dr. Welter. Nowhere on the site was it disclosed that Dr. Tan’s medical degree was from a foreign medical school, or that he was not licensed to practice medicine anywhere in the United States. Dr. Tan was issued business cards as “Clark Tan, MD,” introduced himself to patients as Dr. Tan, and consent forms used by the practice suggested that Dr. Tan’s services were those of a “doctor.”
Two physician patients of the practice learned Dr. Tan was not a licensed physician and complained to the Board of Registration in Medicine (BRM). After the complaint was filed, Dr. Welter “removed all references to Tan from [the practice’s] website and changed Tan’s position so that he would no longer conduct consultations, assist with procedures, or have contact with patients.” The BRM found that Dr. Welter had violated BRM regulations that prohibit advertising that is false, deceptive, or misleading; and that he was practicing medicine “deceitfully, or engaging in conduct which has the capacity to deceive or defraud.” Dr. Welter’s license to practice was suspended, but this suspension was stayed upon Dr. Welter entering into a probation agreement under which his credentialing applications, advertising, and media communications would be monitored.
Dr. Welter argued that he should not be disciplined if the BRM could not prove he committed fraud. The common law elements of fraud are: misrepresentation of a material fact, with knowledge of its falsity, for purposes of inducing another to act in reliance on the misrepresentation, and the plaintiff relied upon the misrepresentation as true, and acted in reliance on it to his/her damage. The court noted that the specific language of the BRM regulations did not require a finding of fraudulent intent in misleading advertising: the regulations prohibit advertising that is false, deceptive, or misleading, and physicians may not engage in conduct that “has the capacity to deceive or defraud.” Those regulations impose an objective standard on physician advertisements, without requiring the BRM to show that the physician had an intent to deceive, or that a particular patient relied on any misleading statements to their detriment. In other words, a physician’s partial statements of fact, without proof of fraudulent intent, reliance, or patient harm, can lead to physician discipline.
The court also agreed with the BRM’s more general point--that it had broad authority to “protect the image of the medical profession” and “sanction physicians for conduct which undermines public confidence in the integrity of the medical profession,” the exercise of which is not limited to cases involving patient care, criminal activity, or deceit. This broad authority is based on the constitutional doctrine that the right to engage in a particular occupation is not a fundamental right, infringement of which deserves strict judicial scrutiny. Rather, a license to practice medicine is a non-fundamental right, regulation of which only requires a reasonable relation to a permissible legislative objective. The court noted that specifically with respect to advertising, physicians, like other practitioners of learned professions, are held to a higher standard of honesty than is prevalent in the general marketplace.
The Welter decision imposes higher standards on advertising by physicians than apply to non-professionals: commercial puffery is inappropriate in professional advertisements. The Schwartz decision supports disciplining physicians for their behavior even if that behavior does not necessarily have an adverse impact on patient care. In the Schwartz case, the physician became “upset, agitated, and loud” when he had difficulty accessing patient records while the hospital’s computerized medical record system was off line for maintenance. In another incident, the physician was trying to complete medical records in a treatment room that doubled as his office and refused when asked to leave the room so it could be used to examine a patient. He was then observed arguing loudly with another physician in the hallway outside the treatment room about a medication issue, and when told that the patient in the treatment room could hear them, Dr. Schwartz said “I don’t care.”
When Dr. Schwartz admitted to the hospital’s CEO that he had been disruptive, he was suspended from the hospital and subsequently resigned. In a subsequent BRM action, the BRM alleged that Dr. Schwartz committed misconduct in the practice of medicine, lacked good moral character, engaged in conduct that undermines public confidence in the integrity of the medical profession, and finally, that he violated the BRM’s disruptive physician behavior policy. The BRM indefinitely suspended Dr. Schwartz’ license. In reaching that decision, the BRM magistrate noted that Schwartz was “good with patients” and that some other hospital staff agreed with him about patient care at the hospital and appreciated his efforts to improve patient safety. At the same time, it was noted that Dr. Schwartz had an earlier incident in which he was reprimanded by the BRM for violating the disruptive physician policy.
The BRM’s decision was affirmed by a single justice at the Supreme Judicial Court. On appeal, the Court re-affirmed that decision. It disagreed with Dr. Schwartz’s argument that violations of the disruptive physician policy required an impact on patient care. The court stated that he could be subject to discipline without violation of that policy on the grounds of his having committed “misconduct in the practice of medicine.” In any event, the Court disagreed that Dr. Schwartz’s conduct had no impact on patient care. “When a patient overhears doctors arguing with each other, and hears a doctor state that he does not care that patients can hear the argument, there is an impact on patient care.” Moreover, the court stated that Dr. Schwartz’s conduct impacted his relationship with his colleagues, “and it is not hard to imagine that this, in turn, can have an impact on patient care.” The court did not choose to describe exactly what impact on patient care these incidents might have had and seems not to have entertained the possibility that vigorous patient advocacy, even if conducted rudely, might have a positive impact on patient care.
The two decisions read together paint a picture of a profession being held to high standards of commercial and personal conduct. What might be considered acceptable conduct in the “rough and tumble” of the marketplace is not permitted in a highly regulated learned profession. This calls to mind Chief Judge Cardozo’s description of fiduciary duties: “A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” (1) In dealing with patients, colleagues, and the public, physicians must keep in mind these higher standards and pause before giving into the temptation to engage in behavior the wider public might condone. +
Peter Martin, Esq., is a partner at Bowditch and Dewey.
References
1. Meinhard v. Salmon, 249 N.Y. 458, 464 (1928).
