Physicians and Surgeons

PHYSICIANS AND SURGEONS

Physicians and surgeons are medical practitioners who treat illness and injury by prescribing medication, performing diagnostic tests and evaluations, performing surgery, and providing other medical services and advice. Physicians and surgeons are highly trained and duly authorized by law to practice medicine.

The education and focus of chiropractors, dentists, and optometrists differ from those of physicians and surgeons. However, the laws relating to physicians and surgeons generally apply to these medical professionals as well. In addition, these healthcare providers are subject to laws regulating their specific area of practice. They are prohibited by law from practicing medicine or surgery.

A physician or surgeon does not have an unqualified right to practice medicine. The state legislature determines who is to be allowed this privilege and exercises its police power to protect the public from deception, fraud, and incompetence. A legislature's authority to regulate the practice of medicine is, broadly speaking, only limited by the requirements that the rules are reasonable, bear some relation to the object to be attained, and do not violate any constitutional rights. Legislatures have the power to require a license or certificate to practice medicine within the state and to make practicing medicine without a license a criminal offense.

Statutes and regulations carefully regulate who may use the title "doctor." Use of the title or its abbreviation without an indication of the type of degree—D.O., M.D., etc.—is specifically forbidden in many states unless the person holds a physician's and surgeon's certificate.

State statutes delineate requirements for a license to practice medicine. To obtain a license, an applicant must demonstrate requisite education and knowledge. A college degree and graduation from an accredited medical school typically fulfills the education requirement, and passing a state-licensing exam demonstrates an applicant's skills. State law determines who may sit for an exam and typically limits the number of tries an applicant has to pass the exam. Specialists, such as cardiologists, ophthalmologists, pediatricians, and neurosurgeons, must usually pass further exams beyond the initial licensing exam.

Applicants typically must also meet certain physical health standards and establish that they are of good moral character. Generally speaking, good moral character means that a person is reliable, trustworthy, and not likely to deceive the public. An applicant who is refused a license because of a lack of good moral character is entitled to receive notice of the reasons and to have a hearing on the issues. State laws typically provide for judicial review of a denial, after all administrative appeals have been exhausted.

Under certain circumstances physicians licensed in another state may be permitted to waive examination. Commissioned medical officers in the armed services are typically exempt from a state's licensing statute when performing official medical services within the state.

State legislatures have routinely delegated the authority to supervise licensing, exam, and suspension and revocation procedures to a state board of medical examiners. A board's power is limited to the express powers given to it by statute and the implied powers necessary to carry out the express powers.

For action to be taken against a practitioner, a nexus must exist between the acts or omissions and the fitness or competency required to practice medicine. In other words, past isolated incidents unrelated to the profession are generally insufficient by themselves to form a basis for a disciplinary action.

Statutes commonly use words such as unprofessional, dishonorable, or immoral conduct when describing conduct warranting suspension or revocation. Other terms sometimes used are gross immorality, willful or wanton misconduct, malpractice, gross violation of one's professional duties, gross misconduct in the practice of the profession, or grossly unprofessional conduct of a type likely to deceive or defraud. These terms are not required to be defined with any particularity. Instead, every case is judged on its own particular facts. Some of the reasons that physicians or surgeons have had their licenses revoked or suspended are: failure to keep complete and accurate records of controlled substances, conviction of a crime (particularly one involving moral turpitude), drunkenness, abandonment of a patient, deliberate falsification of medical records, fraud in procuring a license, professional incompetence, assisting or aiding another in the unlicensed practice of medicine, and sexual imposition on a patient. A license revocation in one state may be the basis for revocation in another.

State boards are charged with the duty of investigating allegations of professional misconduct. Depending upon the licensing statute, a patient, the state or state licensing board, or any other person may instigate a complaint. During the investigative stage, before a determination has been made to institute formal revocation proceedings, no requirement exists that the physician be informed of the nature of the charges, know the name of the complainant, or participate in selecting any documents. However, a license to practice medicine cannot be revoked without due process of law. Due process means that the physician must receive notice of the intended action and have an opportunity to be heard. The complainant has the burden to establish the facts in order to justify revocation.

Judicial review of a suspension or revocation is limited to a determination of whether the deciding board abused its discretion. A court will examine whether a sanction is so disproportionate to the offense that it is shocking to a reasonable person's sense of fairness in light of all the circumstances.

Generally speaking, a physician with a license to practice medicine has the unlimited authority to prescribe for and treat the ill and afflicted and may choose to employ any legitimate method of treatment. In some instances state law might permit a physician to practice optometry or dentistry, although the converse is never permitted.

A physician stands in a fiduciary relationship to her patients, meaning that the physician must always exercise the utmost good faith and trust when dealing with patients. A confidential relationship exists between the parties: because a patient must feel free to disclose any information that might pertain to treatment and diagnosis, the physician has the professional obligation to keep information confidential absent a patient's consent. But a physician cannot attempt to shield his own incompetence by refusing to disclose information. Moreover, a physician may have a statutory duty to reveal information concerning a patient. Doctors are required to provide authorities with information regarding birth and death, child abuse, and contagious or infectious diseases. A physician may also have a duty to disclose confidential information to third parties in other circumstances.

Physicians and their patients have a contractual relationship. A request for an appointment will not suffice to form a doctor-patient relationship, but a telephone call to initiate treatment might. The relationship continues until treatment is completed or upon agreement by the parties. The physician agrees to treat the patient but rarely promises a specific outcome or cure. If a doctor promises a specific outcome but fails to deliver it, the doctor may be liable for breach of contract. One example would be a surgeon who promises that cosmetic surgery will produce certain results.

A physician's conduct must always meet the standard of care set by the profession, or he may be liable for malpractice. Physicians and surgeons must possess and exercise the same level of skill and learning ordinarily possessed and exercised by other members of their profession under similar circumstances.

Although not absolute in every instance, some of the responsibilities a physician or surgeon has toward a patient include a duty to

  • Fully inform a patient of her condition;
  • Notify a patient of the results of a diagnosis or test;
  • Inform the patient of the need for different treatment or refer the patient to a specialist or other qualified practitioner;
  • Continue medical care until proper termination of the relationship;
  • Give proper notice before withdrawal from treatment;
  • Not abandon a patient, including making arrangements for treatment during absences;
  • Treat nonpaying patients the same as those who pay;
  • Use diligence in treatment in providing all necessary care;
  • Obtain a patient's informed consent before performing a medical procedure;
  • Instruct others as to the care and treatment of a patient;
  • Warn others of exposure to communicable and infectious diseases.

A patient has a duty to cooperate with a physician and participate in treatment and diagnosis. For example, a patient does not have a general duty to volunteer unsolicited information but is required to disclose a complete and accurate medical history upon questioning by a physician. A patient also must return for further treatment when required. Failure to cooperate or participate in treatment may result in a limited recovery for a physician's malpractice or completely bar recovery, depending upon the circumstances of the case.

Malpractice occurs when a patient is injured by a physician's bad or unskillful practices. Malpractice is the failure to do something that a reasonably careful physician or surgeon would do, or doing something a reasonably careful physician would not do, under the same circumstances. In other words, malpractice is a deviation from an established standard of practice—a failure to exercise the required degree of skill, care, and diligence or follow accepted rules. It can be willful or due to lack of skill or neglect; it can be a single act or something occurring over the course of treatment.

Ordinarily, in the absence of a special agreement, a physician need not exercise extraordinary skill. Nor must a physician anticipate consequences resulting from peculiar characteristics and conditions of a patient, if the physician has no knowledge of them or would not be expected to reasonably discover them. Not every wrongful act by a physician amounts to malpractice. A physician is ordinarily not liable for injurious consequences if she exercises the required degree of skill and care. A want of skill or care must be the proximate cause or a substantial factor in the injury or death, but not necessarily the sole cause.

The standard of care was traditionally determined with reference to the geographic locality of the treatment, meaning the level of care exercised by other physicians or surgeons in good standing in the same general line of practice in the same or similar locality. The locality standard developed when there were significant differences in the opportunities for continuing medical education and vast differences in access to hospitals. However, the twenty-first century's increased ease in dissemination of information, coupled with more uniform methods of treatment, have significantly downgraded the importance of the locality rule. Many jurisdictions now view locality as only one factor to examine rather than a conclusive limit on the degree of skill required. Other authorities have completely abandoned the locality rule in favor of a national standard.

Specialists are held to the standard of care of other specialists in the same field under similar circumstances. This typically means that specialists, because of their advanced training and knowledge, are held to a higher standard than that required of general practitioners. Even though not certified as a specialist, those who hold themselves out to be specialists or perform procedures normally done by specialists will be held to a specialist's standard.

A physician must refer a patient or seek a consultation if he knows, or should know, that the treatment of a particular patient is beyond his skill. If a physician fails to make a referral or seek a consultation, he will be held to the standard of care applicable to the appropriate specialty that should have been consulted.

A physician or surgeon is bound to follow the methods that are generally approved and recognized by the profession but is not limited to the most generally accepted treatment methods.

Determining whether a treatment is a respected minority treatment can present a difficult task. Nevertheless, a practitioner who otherwise adheres to the applicable standard of care will typically not be held liable for an error in judgment in choosing from different accepted treatments or diagnostic methods. A physician's actions are viewed in terms of the state of medicine at the time of the claimed malpractice, rather than on subsequent medical discoveries or knowledge.

A physician has a non-delegable duty of care, which means that the physician is responsible for injury caused by assistants, employees, agents, or apprentices, when that injury is caused by a lack of proper skill or care. For example, a surgeon who retains control over the procedures used by an anesthesiologist may be liable for the negligent actions of the anesthesiologist. Generally, a physician will not be liable for a hospital's negligence or the negligence of others not within his control but may be liable where the negligence is discoverable by the physician in the ordinary course of treatment.

A physician may have an affirmative duty toward a third person who is not the physician's patient when there is a foreseeable risk of harm of the third person by the patient, of which the physician is aware or should be aware. For example, this duty may arise when a psychiatric patient threatens to harm a known victim or when a patient with a sexually transmitted disease refuses to notify his sexual partners of the illness. At least in the latter case, a physician's duty would generally be limited to those persons readily identified as being in danger. To prevail on such a claim, a third party must demonstrate that she was within the scope of a foreseeable risk of harm and that negligent treatment of the patient was the proximate cause of her injuries.

A minority of states recognize wrongful life claims. These are actions brought by or on behalf of a disabled child, alleging that the child was born due to a doctor's negligent failure to properly advise the parents, even though the doctor did not cause the disability. The first case to recognize a wrongful life claim took place in 1980 in California, when a doctor negligently failed to detect Tay-Sachs disease (Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 [Cal. App. 1980]). The parents had specifically sought prenatal testing for the crippling disease. The severely disabled baby girl had a life expectancy of no more than four years. The court ruled that the serious nature of the harm, coupled with the fact that the disease went undetected because of a lack of due medical attention, sufficed to permit the action.

wrongful birth and wrongful life actions arise out of the same set of circumstances but are brought by different parties. In a wrongful life suit, the child (or someone acting on behalf of the child) is the plaintiff; in the wrongful birth case, the parents bring suit. Often the term wrongful birth encompasses two categories: wrongful conception or wrongful pregnancy cases involve a woman who gave birth to an unwanted but healthy child; wrongful birth involves a child who was born with a handicap.

Wrongful pregnancy cases may arise when the defendant negligently performs a sterilization procedure or otherwise provides ineffective contraception; when a doctor negligently performs an abortion, resulting in the birth of a healthy child; or when a physician negligently fails to diagnose a pregnancy and the mother is thereby denied the choice of an abortion at a timely stage. A majority of states recognize a wrongful pregnancy cause of action. Most, however, limit damages to the pain associated with the failed procedures. A few jurisdictions permit recovery of child-rearing expenses, but some of those states require that the award be offset by the parents' emotional benefits of raising a healthy child.

Wrongful life claims are permitted in some jurisdictions, but some courts have ruled that the cause of action does not exist in the absence of a statute giving rise to the claim. In addition, the cause of action has been specifically eliminated by statute in some jurisdictions.

In 1989 Congress created the National Practitioner Data Bank (NPDB) to mandate collection of information regarding incompetent practitioners. The NPDB began operation on September 1, 1990; its reporting requirements are not retroactive. The data bank collects information on all malpractice payments of more than one dollar made on behalf of physicians, dentists, and other licensed healthcare practitioners. The NPDB also collects information regarding disciplinary actions taken by state medical and dental boards. Additionally, it monitors professional review actions taken by hospitals and other entities adversely affecting a physician's clinical privileges for more than 30 days and a practitioner's voluntary surrender of clinical privileges during an investigation for incompetence or improper professional conduct. The NPDB also collects information on adverse actions by professional societies against its members.

Insurers, hospitals, medical societies, and boards of medicine must report to the NPDB; plaintiffs or their attorneys may not submit reports. Practitioners receive copies of the reports against them and have an opportunity to dispute the accuracy of the information.

The data bank has been criticized because the current regulations sometimes allow "corporate shielding" to protect practitioners from being reported. Because only individuals, not entities, must be reported, a practitioner would probably not be reported when a malpractice settlement was made on behalf of an incorporated group practice without naming a specific physician. Others criticize the data bank's one-dollar requirement, arguing that "nuisance" claims under a certain amount should not be reported or that different specialties should be given different monetary thresholds before reporting is mandated.

By regulation hospitals must query the NPDB when considering a physician for a medical staff appointment or for clinical privileges. They must also query at least once every two years concerning any physician who is on its medical staff or has clinical privileges at the hospital. Boards of medical examiners, professional societies, other state licensing boards, or other healthcare entities that are entering an employment or affiliation arrangement with a physician may also request information at any time. In addition, a physician may query the NPDB concerning his own record at any time. Attorneys may have access in very limited circumstances where proof exists that a hospital failed to make a required query.

medical malpractice insurers are not allowed access to NPDB information. Access to information in the NPDB is available to entities that meet the eligibility requirements defined in the provisions of P.L. No. 99–660 and the NPDB regulations. In order to access information, entities must first register with the Data Bank. NPDB information is not available to the general public. However, the NPDB maintains an internet site and makes available information in a form that does not identify any particular entity or practitioner.

further readings

Appleby, Kristyn S., and Joane Tarver. 1994. "Confidentiality of Medical Records." Trial Diplomacy Journal (September-October).

Borzo, Greg. 1996. "Liability Records Going On Line in Massachusetts." American Medical News (July 1).

Guglielmo, Wayne J. 1996. "Are Doctors Evading the Malpractice Data Bank?" Medical Economics (May 28).

Jackson, Anthony. 1995."Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England." Loyola of Los Angeles International and Comparative Law Journal (April).

Koop, C. Everett. 1991. Koop: The Memoirs of America's Family Doctor. New York: Random House.

National Practitioner Data Bank. Available online at <www.npdb-hipdb.com> (accessed August 22, 2003).

Snider, Howard C., Jr. 1989. A Jury of My Peers: A Surgeon's Encounter with a Malpractice Crisis. Greenwood, Fla.: Penkevill.

cross-references

Health Care Law; Health Insurance; Malpractice; Managed Care; Medicaid; Medicare; Patients' Rights; Physician-Patient Privilege; Privileged Communication.

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"Physicians and Surgeons." West's Encyclopedia of American Law. 2005. Encyclopedia.com. 31 Aug. 2016 <http://www.encyclopedia.com>.

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