What should you do if you notice a problem?
Physicians, just as all human beings, may have physical and substance abuse illnesses, which may impair their ability to safely practice medicine. The lifetime prevalence of substance abuse due to drugs and/or alcohol among physicians is estimated at between 10 percent and 20 percent. But what should a colleague do when he or she notices that these behavioral and medical illnesses are compromising an individual’s ability to provide safe, high-quality patient care and are potentially placing patients, healthcare coworkers, and the impaired physician in harm’s way?

The medical profession has publicly been accused of poor self-regulation, and an informal survey of various specialists confirms the medical profession’s relatively high rate of reluctance to report a physician’s impairment. In a 2002 survey, although 65 percent of respondents said they would report a physician colleague, more than three in 10 respondents would communicate directly with the individual without taking any further action. Protective self-interest, professional camaraderie, peer pressure, perceived lack of objective evidence, and fear of litigation were among the reasons given for not reporting an impaired surgeon.

In addition, the AAOS Standards of Professionalism on Providing Musculoskeletal Services to Patients, Mandatory Standards 10 and 11, require that an impaired orthopaedic surgeon seek professional evaluation and treatment, and limit or cease practice as recommended by the treating physician or healthcare professional. Most state medical licensing boards also have position statements confirming the professional obligation and legal duty to report an impaired colleague.

Given that physicians are often the first to observe or recognize a potential impairment of a fellow surgeon or physician, the failure to report or act may produce greater risk than carrying out the stated ethical and legal mandates. Failure to report or act carries obvious severe potential consequences, including harm—possibly even death—to patients. The welfare of all patients must be paramount, compelling early intervention and reporting rather than late.

A reporting physician who acts in good faith should not go through the process alone. Some steps that can be taken include the following:

• Engaging and discussing the matter privately with other physicians who know the impaired physician well
• Verbally and confidentially reporting the incident(s) to an appropriate hospital department chief or committee chairperson per relevant bylaws
• Contacting the state medical society or national specialty society
• Contacting the Federation of State Physician Health Programs (www.fsphp.org) to obtain an anonymous request for guidance

Intervention and treatment before patient harm or a criminal act occurs can often salvage a physician’s career. In fact, confidential self-reporting and enrollment in a treatment program by an impaired physician with the encouragement of family and professional colleagues is the ideal scenario.

Not reporting is risky
At the peer-review level, the nonreporting physician may face some risks. First, most state medical boards take the position that “failure to report (an impaired physician) could jeopardize the nonreporting physician’s own medical license.” Therefore, a physician who has any question about another surgeon’s or physician’s impairment should confidentially report the concern to the appropriate local/hospital authority for investigation. This action will generally ensure compliance with state law.

There is a general exception to the duty to report that involves patient confidentiality. This exception can occur when a physician’s patient is an impaired physician or when a patient discloses information about an impaired physician to another physician. In these circumstances, the duty to report may be subordinate to the rules of patient confidentiality. A physician who has concerns regarding this point should contact a healthcare attorney for guidance. Ignoring or covering up for an impaired physician, however, is unlikely to be legally defensible if proven.

Physicians in positions of authority who receive reports of potential impairment must examine and investigate them fairly, objectively, and in complete confidence until they are disproved, the impaired physician is enrolled in a physician health program, or the matter is elevated to the next level of authority as dictated by hospital bylaws and/or state law. A physician who submits intentionally false or accusatory information should be disciplined as dictated by local rules or law.

One new and controversial aspect of failure to disclose information about a documented impaired physician is the potential for a fraud or misrepresentation claim. Recently, American Medical News reported the case of an impaired physician who was terminated by a hospital and anesthesiology practice in Louisiana and later hired by a hospital in Washington state. The hiring was based on positive references by two of the physician’s previous partners; the hospital provided only dates of employment without any further data.

The impaired physician was later involved in a medical liability suit that was settled for $8.5 million. During the litigation, the defendant hospital and insurer learned of the impaired physician’s past. They sued the “recommending physicians and hospital” in Louisiana for failing to disclose vital information about the impaired physician. The jury awarded an initial $4 million verdict against the defendants, which is currently being appealed.

This area of the law is being closely monitored by healthcare attorneys. Physicians, group practices, and hospitals that receive a request for information about a former physician partner or employee should ask the prospective employer to obtain a signed release from the former employee. Information given to a prospective employer it should always be complete and truthful. Another method for limiting potential liability is to adopt a policy that allows disclosure of only the former employee’s position and dates of employment.

Put patients first
A physician who recognizes that a colleague is impaired must confront and engage that colleague in a voluntary rehabilitation plan. If that is not feasible or accepted, the impaired physician must be referred or reported using the appropriate local and legal guidelines. By maintaining strict confidentiality in these matters, even with the increasing risk of peer-review-related litigation, the physician will reduce liability exposure.

Patient safety is the primary goal, and reporting physicians must relinquish any thoughts of self-interest or professional camaraderie in this regard. The available resources are well-developed and readily accessible; helping the impaired surgeon receive prompt treatment and return to safe medical practice should be a priority for all physicians. Failure to act appropriately in these difficult situations does no favors for our impaired colleagues, our profession, or our patients.

David D. Attarian, MD, is a member of the AAOS Medical Liability Committee; David Teuscher, MD, is past chair of the committee. References for this article can be found online at www.aaos.org/now