Opinions on Ethics and Professionalism

An AAOS Opinion on Ethics and Professionalism is an official AAOS statement dealing with an ethical issue, which offers aspirational advice on how an orthopaedic surgeon can best deal with a particular situation or circumstance. Developed through a consensus process by the AAOS Ethics Committee, an Opinion on Ethics and Professionalism is not a product of a systematic review. An AAOS Opinion on Ethics and Professionalism is adopted by a two-thirds vote of the AAOS Board of Directors present and voting.

Second or Additional Medical Opinions in Orthopaedic Surgery

Issues raised

What are the ethical obligations involved in relationships between orthopaedic surgeons with respect to providing second or additional medical opinions? What different types of second or additional medical opinions exist? Applicable provisions of the Code of Medical Ethics and Professionalism for the Orthopaedic Surgeon

"I. B. The physician-patient relationship has a contractual basis and is based on confidentiality, trust, and honesty. Both the patient and the orthopaedic surgeon are free to enter or discontinue the relationship within any existing constraints of a contract with a third party ...."

"I. C. The orthopaedic surgeon may choose whom he or she will serve. An orthopaedic surgeon should render services to the best of his or her ability. Having undertaken the care of a patient, the orthopaedic surgeon may not neglect that person. Unless discharged by the patient, the orthopaedic surgeon may discontinue services only after giving adequate notice to the patient so that the patient can secure alternative care."

VII. D. When a patient submits a proper request for records, the patient is entitled to a copy of such records as they pertain to that patient individually. Charges should be commensurate with the services provided to reproduce the medical records."

Other references

Principles of Medical Ethics and Professionalism in Orthopaedic Surgery, Article I. "The orthopaedic profession exists for the primary purpose of caring for the patient. The physician-patient relationship is the central focus of all ethical concerns. The orthopaedic surgeon should be dedicated to providing competent medical service with compassion and respect."

Code of Medical Ethics and Professionalism for Orthopaedic Surgeons, Article VII.A. "An orthopaedic surgeon should practice only within the scope of his or her education, training and experience."

American Medical Association, Current Opinions of the Council on Ethical and Judicial Affairs,

Section 3.04 ("Referral of Patients")
Section 7.01 ("Records of Physicians: Availability of Information to Other Physicians")
Section 7.02 ("Record of Physicians: Information and Patients")
Section 8.12 ("Patient Information")

Background

Patients ultimately control their own personal health care decisions. While some patients may choose to limit their control of choice by enrolling in managed care organizations, all patients have the option to obtain health care services from whomever they wish. The physician assumes a contractual obligation in undertaking the care of a patient; the patient, the ultimate purchaser, owns and has a right to participate in all decisions in this contract.

Many patients find medical decision-making difficult, particularly regarding advanced medical technology. For this reason and economic pressures to contain costs, the process of seeking a "second opinion" from another physician has developed. While patients have independently sought second or additional opinions to confirm medical decisions in the past, the frequency of seeking additional medical opinions has skyrocketed in the past decade. Indeed, some patients now seek the opinions of multiple physicians, a practice called "doctor shopping," as a matter of course. In today's environment, there is an undercurrent of skepticism and distrust that encourages the solicitation of additional medical opinions. To compound this, confusion exists about the medical decision-making process in the lay and health care communities. Second or additional medical opinions sometimes have produced anxiety, frustration, anger, and intimidation in patients and physicians alike.

Many questions concerning the ethics of seeking and providing second or additional medical opinions have been raised. Some actions have resulted in accusations of impropriety and unethical behavior. While unethical behavior has occasionally occurred, many times the conflict has arisen from a lack of proper communication and mutual respect between the treating physician and the physician from whom the patient has sought additional information. This conflict raises the specter of "turf," greed, and dishonesty and, when aired in the public forum, does much to discredit the profession.

Definitions

Distinct types of interactions exist involving the gathering of additional medical opinions to which different ethical rules apply. They include:

• Consultations with a colleague, initiated by the treating physician, on behalf of and with the implicit consent of the patient, to gain additional diagnostic insight or confirmation in order to continue providing a comprehensive treatment plan for the patient;


• Referrals to a colleague, initiated by the treating physician, on behalf of and with the consent of the patient, to share the care of the patient in the performance of a specified service. A referral might be temporary or permanent; this decision should be made between the two physicians at the time of the referral.


• Transfers, initiated by the treating physician, to transfer all care of the patient to another physician. There are legal requirements for the treating physician in transferring a patient. The consent of the patient is required.


• Withdrawals, initiated by the treating physician, to discharge a patient from his or her care. There are legal requirements for the treating physician who is withdrawing services from a patient. In addition, the Academy's Code of Medical Ethics and Professionalism for Orthopaedic Surgeons provides that "unless discharged by the patient, the orthopaedic surgeon may discontinue services only after giving adequate notice to the patient so that the patient can secure alternative care."


• Second opinions, initiated by a third party payer or the insurance company of the insured prior to giving authorization to the physician to perform the procedure. In most health insurance contracts, patients must comply with this requirement to receive the full benefit of their contract. The choice of which provider will provide the additional opinion is the sole decision of the insurer.

The patient may seek additional medical opinions by initiating a consultation with another physician concerning his or her care plan or by dismissing the treating physician and transferring all care to another health care professional. The patient's course of action is entirely within the patient's prerogative.

Ethical considerations

The patient has the ultimate decision-making authority in seeking second or additional medical opinions and referrals. Although the patient may choose to give up a certain degree of free choice by participating in managed care plans or by accepting insurance coverage with certain limitations, the choice of the options ultimately remains with the patient.

The American Academy of Orthopaedic Surgeons recommends that orthopaedic surgeons observe the following guidelines regarding second or additional medical opinions and referrals:

1. Any illegal action is unethical. For example, it would be illegal as well as unethical for the orthopaedic surgeon providing the second or additional medical opinion to slander the referring physician if the slanderous information is known or can be proven to be false.


2. In accepting a patient for consultation, it is ethical for the consulting orthopaedic surgeon to render an opinion and return the patient to the treating physician for continuing care. The consulting orthopaedic surgeon should communicate with the patient as well as the referring physician about the opinion.

It is unethical for the consulting orthopaedic surgeon to solicit care of the patient. However, at the sole discretion of the patient, the patient ethically may choose to terminate his or her relationship with his or her treating physician and then enter into another treatment relationship with the consulting orthopaedic surgeon. It is not unethical for the consulting orthopaedic surgeon to accept the patient under these circumstances, although some orthopaedic surgeons choose not to accept the patient because of their personal view that a conflict of interest situation might be created.

3. When treating a patient referred by a colleague, the accepting orthopaedic surgeon ethically should return the patient to the referring physician after the index care has been rendered unless prior arrangements have been made with consent of both the referring physician and the patient to transfer the patient's care permanently. In a referral, professional courtesy dictates that some type of direct communication be given to the referring physician.


4. In the specific case where orthopaedic surgeons agree to render "second" medical opinions for a third party who then directs patients to them, the assumption of that patient's care may be prohibited expressly by the terms of the physician's arrangement with the insurance company. If the patient independently is seeking an additional medical opinion, the orthopaedic surgeons may render an opinion and advise the patient of a proposed treatment plan, provided the contract permits such action. The physician must be aware of the provisions of his/her agreement with the third party.


5. As an extension of patient autonomy, patients have an ethical right to prompt and complete access to their medical record information unless the physician is bound by a contract with the patient's third party payer. As a corollary, orthopaedic surgeons who proffer second or additional medical opinions at the treating physician's or patient's request also have the right to complete access to this information. In general, the physician (or the physician's clinic or group practice) legally "owns" the patient's medical records that he or she maintains. However, this ownership is subject to the patient's right of privacy and, in legal proceedings, the doctor-patient privilege. It is also subject to the patients' right in most states to obtain copies of those records or to have copies transferred to another person.

It is in the patient's best medical interests for orthopaedic surgeons to cooperate fully in sharing copies of a patient's medical records, including physician notes, prescriptions, charts, reports, laboratory results, technical information used to assess the patient's health condition, letters, photographs, x-rays, and diagnostic imaging. This is true whether the patient is referred by one orthopaedic surgeon to another for a consultation or if the patient elects to see another orthopaedic surgeon for continuing treatment.

6. The orthopaedic surgeon is bound legally and ethically to give his or her best medical opinion, regardless of whether the orthopaedist is the treating physician or the physician who is asked to render a second or additional medical opinion. The best interest of the patient should clearly remain the guiding principal. Ultimately, patients independently may choose their treating physicians, request transfers of their care, and dismiss their physician at their own discretion.

© February 1992, Revised May 2002 American Academy of Orthopaedic Surgeons
This material may not be modified without the express written permission of the American Academy of Orthopaedic Surgeons.

Document Number: 1200

For additional information, contact Richard N. Peterson at (847) 384-4048 or email peterson@aaos.org