Bringing Miscreants to Justice

Notorious problems attend the disciplining of professionals for negligent, fraudulent, or otherwise unacceptable conduct. It is not the wealth or social status of the offenders that obstructs justice; there is no difficulty with trying these people for common crimes. But conflicting expectations arise around professional discipline—that the profession will discipline itself; that the hospitals will take responsibility for the competence of the professionals on their staffs; that state agencies will police the health marketplace and arrest wrongdoers; that the federal and state governments will use their power to withhold Medicare and Medicaid reimbursement to drive crooks and incompetents from the profession; that somehow insurance companies will act for and not against the interests of the patient; and that because the contract between professional and patient is a private one, private litigation is the best protector of rights.

The end product of these conflicting expectations is a nightmare of overlapping jurisdictions. There are, for example, clear cases of the impaired physician, usually a physician involved in substance abuse, where there is a clear trail of substance consumption (e.g., bills from the liquor store, prescriptions not justified by patient need) and substandard practice. These are handled at the state level, with reasonable penalties and conditions of rehabilitation. For the remainder of allegations of inadequate care, no one is clearly in a position to initiate action. But once a health professional has been accused of misconduct, every agency—federal, state, or professional—involved at all with the profession typically attempts to get into the case. Routine involvement in all cases is the only way the agencies can ensure public perception of their importance and continued public support. Private lawyers preparing malpractice or negligence suits often alert public agencies to the possibility of professional (usually medical) incompetence because public citation will strengthen their case. When all the agencies take off after a physician at once—threatening loss of hospital privileges and/or the right to prescribe drugs, fines for incorrect billing of Medicare or Medicaid and insurance companies, and devastating publicity for the whole affair—the result can be personally and professionally catastrophic, and quite unjust. On the other hand, complaints continue that physicians work essentially without supervision, that it is very difficult for patients to criticize or check their work, and that bad physicians are practicing, able to evade all scrutiny.

Not all problems are technical or supervision problems. There are conflicting principles at the root of some problems. One of the most common is the conflict between patient autonomy and the protection of patient welfare. If adults regularly choose treatments or interventions that serve very little medical purpose (e.g., liposuction, cosmetic surgery or implants, experimental drugs), who shall be held responsible for the undesirable outcomes? To what extent shall the medical profession be forbidden, by law, to provide such services?

Another typical conflict is that between the salvaging of a professional career and patient protection. A health professional's training is long, difficult, and expensive, and society cannot afford to lose the investment that it represents. There is good reason, then, to try to rehabilitate health professionals who have mismanaged their practices. The problem lies in deciding which lapses are remediable and which are not. There is always a danger that the professional who has offended once will do so again, no matter how tight the supervision. The problem is compounded by the need, given the nature of the professional—client relationship in healthcare, to keep the professional's problems absolutely confidential. Typically, if the physician or other practitioner is impaired—psychologically incapacitated, found not guilty of a crime by reason of insanity, alcoholic, drug abusing, or otherwise unable to practice until a course of therapy has been completed—the records will be kept confidential while the person undergoes therapy. Should the physician leave therapy or breach other agreements (by testing positive for controlled substances, for instance), the matter becomes one of misconduct rather than impairment and is no longer confidential.

Another typical case of conflict, becoming more common, is between the patient and the insurance company, with the health professional caught in the middle. If the physician says that a treatment, test, or referral is needed, and the insurance company disagrees, whose side is the physician on? Since Hippocrates, the physician has been expected to advocate for the patient; under the new market dispensation, such advocacy may threaten a professional career.

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