Journal of Medical Licensure and Discipline(Vol80N2)

FEDERATION BULLETIN
THE JOURNAL OF MEDICAL LICENSURE AND DISCIPLINE
Published Continuously Since 1913
Summer 1993
Volume 80, Number 2
All articles published, including editorials, letters, and book reviews, represent the opinions of the authors and do not
reflect the official policy of the Federation of State Medical Boards of the United Stares or the institutions or organizations with which the authors are affiliated, unless this is clearly specified.
zziailing offices. Subscription price is $35.00 a year,
single copy is $10.00.
Editor
Dale G Breaden
Editor Emeritus
Ray L. Casterline, MD
Editorial Board
Cecile H. Bostrom
Copyright 1993 by the Federation of State Medical
Boards of the United States, Inc.
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St. Francis Foundation
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Ronald C. Agresta, MD
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Thomas J. Scully, MD
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Contributing Editors
David S. Citron, MD
Bryant L. Galusha, MD
John H. Morton, MD
Stephen S. Seeling, JD
Editorial Assistant
Linda F. Vernale
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The artisan or scientist
or the follower of whatever discipline
who has the habit of comparing himself
not with otherfolloyvers
but with the discipline itself
will have a lower opinion of himself
the more excellent he is.
giacomo leopardi
1798-1837
Contributors for Summer
THE INDIV.LDUALS BELOW MADF. THIS NUMI3ER OF THE
FEDERATION BULLETIN POSSIBLE.
Andrew E. Dix, JD: Registrar, New South Wales Medical Board; Svdiiey,
Australia
Bryant L. Galusha, MD: Contributing Editor of the Federation Eaclletin;
Former Executive Vice President and Past President, Federation of State
Medical Boards; former member, North Carolina Board of Medical Examiners; Charlotte, NC
E.K. Fretwell, Jr, PhD: Chancellor Emeritus, University of North Carolina
at Charlotte; Former President, Universin• of Massachusetts Syste3n; itileT1zber,
Federation's Assessment Task Force; Charlotte, NC
Dorothy G. Harwood, JD: Assistant Vice President for Admimstr,rtivc and
Legislative Affairs, Federation of State Medical Boards; Fort Worth, TX
C. Stratton Hill, jr, MD: Director, Pain Service, Universit}r of Texas M.D.
Anderson Cancer Center: Houston, TX
John H. Morton, AtD: Contributing Editor of the Federation Bzclletin;
Consultant to the Federation Examination Board; Past President, Federation
of State Medical Boards; former member, New York State Board for Medicine;
Rochester, NY
Hormoz Rassekh, MD: President, Federation of State Medical Boards;
former member, Iowa State Board of Medical Examiners; Council Bluf1s, IA
Randolph P. Reaves, JD: Editor, The Law o,f' PrQfessional Licensing and
Certification Quarterly; Montgomery, AL
Barbara S. Schneidman, MD, MPH: lkSember, Federation Editorial Board;
Associate Vice President, American Board of Medical Specialties; Past President, Federation of State Medical Boards; former member, Washington State
Board of Medical Examiners; Chicago, IL
C. Richard Stasney, MD: Otolaryngologist; Houston, TX
David A. Swankin, JD: President, Regulatory Alternatives Development
Corporation; Washington, DC
Israel H. Weiner, MD: Chair, Maryland Board of Physician Quality Assurance; Baltimore, MD
Daniel J. West, Jr, PhD: Vice Chair, Pennsylvania State Board of Medicine;
former member, Federation Editorial Board; Gouldsboro, PA
rarxaes R Wi.n.n, MD: Executive Vice President, Federation of State Medical
Boards; former member, Texas State Board of Medical Examiners; Fort Worth,
TX,
Gail Zinimerman: Executive 17irector, Washington State Board of Medical
Examiners/Medical Disciplinary Board; Olympia, WA
74
FEI]ERr1TIOIti BULLETIN
PRESIDENT'S ADDRESS
,
,
kr
In the Spirit of Walter Bierring
HORMO% RASSEKH,,Mo
am greatly honored to be the seventy-second president of the Federation of
^ State Medical Boards of the United States. I begin my duties with a great
deal of humility as we ll as positive expectations. I come to this office as a physician
who takes pride in the contributions my profession has made toward public
health in general and the protection of the public in particular.
Because of the tremendous advances in medicine, we have tivitnessed a truly
remarkable increase in longevity and the quality of life and in the productivity
of our citizens. Despite the views of some vocal critics, the medical profession
has much of «•flich to be proud. The same can be said for the state medical
boards.
Certainlv, most nf ,^vhat we do on the medical boards is done quietly and
without fanfare. The good that we do does not command the headlines. Those
seem to be reserved for the more uncommon, sensational events.
As an Iowa physician, I am especially delighted that this installation occuts
at a time when we traditionally honor a great physician who is a native of my
adopted state: Walter L. Bierring, MD. Dr Bierring devoted his long professional life to enhancing the quality of medical care through education,
research, and, yes, regulation. He is appropriately recognized as a major figure
in twentieth century American medicine.
Dr Bierring's professional life set an example for me and had a significant
influence on my commitment to the mission and the raison d'etre of the
pcderation. My admiration for him began during the time I served as part of
the leadership of the Iowa Medical Societti°.
The society's Board ofTrustces met in the ^%'altcr Biei'ring C;onference Room
in which hung a magnificant oil portrait of Dr Bicrring. At each meeting, I
studied his features and wondered about this man. I researched his professional
life and learned of the great contributions he made to medicine and to patient
care and, of course, to medical regulation and licensure. As my knowledge
about him increased, my admiration and appreciation for what he had done
grew, and he became a ro.le model.for me. Vc.nf briefly, I wish to share with
you my perception of this outstanding man.
Dr Bierring was both worldly and cosmopolitan. Despite his commitment
to the protection of the public from the unfit and unqualified physician, he
did not pursue simplistic solutions, nor did he espouse isolarionism.
Dr Bierring did not believe that geographical boundaries should be a
5L7MMER 1993
Dr Rassekh
Adapted from a presentation given at the
Federation's 1993 Annual Meeting in San Francisco
75
deterrent to gaining medical knowledge or to providing medical care. As a
matter of fact, as an American living, learning, and practicing medicine in
Europe for several years, he too was a foreign medical graduate.
Not only did he cherish his experiences under Louis Pasteur, he became
sensitive to and understanding of the tangible and, above all, the intangible
factors which confront a foreign medical graduate-an FMG.
Perhaps this was one reason why, in 1920, he was instrumental in the
development of the reciprocal educational requirements between the National
Board of Medical Examiners and the United Kingdom. In addition, 12 years
before the creation of thc Liaison Committee on Medical Education, he made
a bold proposal to create an accreditation council between several European
countries and the United States.
As a respected medical leader and an ?unerican patriot, he believed in the
success of the mosaic nature of American society and the achievements that
derived from its ethnic diversity. He was instrumental in recruiting foreign
medical graduates to various L'nited States medical schools.
Dr Bierring's prnfessional life was full, and his career path was varied. He
was an academician. He served as chairman of the Department of Internal
Medicine at the University of Iowa. Because he understood the complexity of
the delivery of medical care and because of his devotion to the public's health,
he pursued cooperative efforts and involvement with professional organizations. After serving as the president of his county medical society, he eventually
became the president of the IoNva Medical Society. As such, he gained added
knowledge of the professional behavior of physicians.
When he assumed the chairmanship of the Iowa State Board of Medical
Examiners and became the Iowa State Commissioner of Health, he built upon
this knowledge and continued to foster cooperation between various medical
entities. His success in this regard at the state level established the basis for
his approach at the national level. Dr Bierring was probably the first to use
the word partnership in referencc to the National Board of Medical Examiners
and the Federation.
During the decades that he served as editor of the Federation Bulletin and
as executive secretary of the Federation, he intensified his involvement with
organized medicine and was widely recognized as a medical leader.
As you know, in 1934 he served as president of the American Medical
Association. It is worth noting that the public debate of that time was not
very different than it is now. Federal "sickness" insurance and physician
accountability were the issues of the day.
Dr Bierring was an advocate of public participation in the development of
medical regulations and in decisions affecting public health. Walt, as he was
affectionately called by his friends, was aware of the contribution that informed
citizens and consumers could make in the development of public health
policies and institutions, including medical boards. However, he recognized
that this contribution could not and should not be a substitute for physician
involvement. It should be, rather, part of a harmonious effort. He emphasized
repeatedly the need to involve physicians, both individually and collectively,
in all aspects of the delivery of medical care, including its regulation.
76
FEDERATION BULI.E'I7N
His views regarding professionalism and physician involvement were best
described in a speech given in Cfeveland, Ohio:
The rendering of efficient and competent medical services is still largely
governed by the individualistic relation of physician to patient. Furthermore, the practice of medicine is a profession and not a business or a
trade.
Perhaps he was paraphrasing what Paracelsus said:
Medicine is not only a science, it is also an art. It does not consist of
compounding pills and plaster. It deals with the very processes of life
which must be understood and learned before they may be guided.
During the coming year, inspired by Dr Walter Bierring's team approach and
his policies of inclusiveness, I will continue to participate in and enthusiastically
encourage discussions and consultation with providers and consumers from
both the private and public sectors. It is my belief that these consultations and
this continuing dialogue will provide us A=ith a wise and objective professional
review of our efforts as well as a better undcrstanding of our mutual concerns
and obligations. Cooperative effort is not a surrender, nor is it an endorsement
of a particular policy,
Through this dialogue, as the national voice of the state medical boards in
this country, we will express our firm belief that it is in the best interest of the
public that medical licensure remain a state function. Any erosion of the
independence of state medical licensure would face strong opposition from
the Federation.
With this in mind, we will continue to strongly endorse fairness and
integration while insisting on an in-depth assessment of the qualifications and
credentials of the candidate for medical licensure. We will continue to condemn and oppose harassment, discrimination, and fragmentation.
My friends, what some may consider challenges I consider, optimistically,
opportunities. Consider just a few of them: the need for new approaches to
the delivery of medical care; the creation of a national health plan; the impact
of new legislation such as the Americans with Disabilities Act and the North
American Free Trade Agreement.
Our challenges, our opportunities, in protecting the public, protecting
patients, and ensuring fairness for the physicians we regulate have never been
greater.
I will do my best as president of the Federation to serve the public and our
medical boards. In the spirit of Walter Bierring, you and I, working together,
can make a significant difference. Thank you for your trust and your support.
SUMMER 1993
77
EDITORIALS
Sexual Misconduct: The Magic Kiss
In his slim book of rules for physicians to live by, Kill as Felv Patients as
Possible, Oscar London, liD, (not his real name) offers a thoughtful
observation for all physicians to ponder: "Western medicine is a strict,
hands-off disciplinc." While he obviously regrets, in his sardonic way, that
even the quite innocent friendly gesture or word may be misinterpreted by
some, he makes clear there is a line that must not be crossed. "As magically
as a kiss can transform certain frogs into princes, a hug can change a patient
into a plaintiff," a$40 mote! room can become a Sl million lawsuit overnight,
and, it should be added, a hard-won carecr can vanish in smoke, never to
reappear. More important than all this, of course, is the stark reality that a
patient can be exploited by one trusted as a healer. That is a transformation
neither the public nor the medical profession can tolerate. It does harm and
is worked by sexual misconduct as surely as by any magic kiss.
Recently, there has been a growing number of high profile cases of sexual
misconduct presented in the media (Jules Masserman, MD; Margaret BeanBayog, MD; "My Doctor, My Lover," on Frontline; and others too numerous
to mention). It is imperative that state medical boards have explicit definitions
and policies to address those physicians who are violating the public trust. If
it has come to the point that a patient Eiceds to carry a video camera with him
or her in order to convince a licensing or disciplinary board that a physician
has been sexually abusive, there is something drastically wrong with our
system. And we need to keep in mind that it should be the accused physician
who is on trial, not the victim who has reported the physician's alleged
misconduct. Until this attitude changes, such cases will always cause great
difficulties for boards because of the reluctance of victims to come fo rward.
Three articles in this number of the Federation Bulletin and one in the
previous number call particular attention to this disturbing and provocative
subject of sexual misconduct by physicians.
The policy statement on medical practitioners and sexual misconduct of the
New South Wales Medical Board, which appeared in the spring number, is a
good example of what every board should have in place. In its statement, the
New South Wales Medical Board does not define sexual activity, but it says
that any practitioner who engages in sexual activity with a current patient is
78
FEAEAATIOdV BULLETIN
"guilty of professional misconduct." This is an absolute. No exceptions. The
board does not suggest such action is almost always unethical. It is al-ways
unethical. A very important difference. It would be heipful if the board were
more explicit in its definition of sexual activity, however, as well as in
delineating policies about former patients. Is it true that once a patient, always
a patient? This issue is addressed to some extent in Section 3 of the statement
in which the duration of the professional relationship and the nature ofinedical
services provided are discussed.
Building on the initiative taken in New South Wales and adding concepts
developed in Canada and elsewhere, the discussion document titled "Scxual
Abuse in the Doctor-Patient Relationship" appearing in this number of the
Bulletin proposes a strong statement from the Medical Council of New
Zealand. It presents the needed definitions and eYpresscs a firm commitment
to the principle of zero tolerance. Though not yet in final form,it represents
a vigorous and appropriately stringent approach to a serious issue.
In the article by Reaves in this number of the Bulletin, the author suggests
sexual misconduct will become the regulatory issue of the 1990s. Quite true,
I fear, but I am not sure many members of state medical boards want to spend
the next seven years dealing with these difficult, sticky, high profile cases. They
had best prepare themselvs to do so, however. Reaves describes many recent
cases and the impact they may have on the legal process. .It is hopeful to read
that he feels "courts are bending over backward to give licensing boards the
legal clout necessary to put offenders our of business." Equally encouraging
is his comment that "courts are beginning to show signs of sensitivity to the
rights of victims."
Also in this number, Winn's article, an overview of data in the Federation of
State Medical Boards' Board Action Data Bank related to sexual misconduct,
is a very helpful and educational look at what is happening across the country.
When the author presented this material at the Federation's 1993 Annual
Meeting, the explicit video he showed, taken by hidden camera in a physician's
examining room and revealing a shocking example of sexual misconduct, left
viewers profoundly disturbed and distressed. It is appalling to see so vividly
portrayed what can happeri in a physician's otlice, the impact on the victim,
and to what lengths a patient must go to be believed. Also, with all the media
attention and exposure, how some physicians can continue to participate in
this behavior is quite alarming. It demonstrates the strength of the denial that
accompanies such conduct.
Because the numbers in Winn's article seem a bit low, I wonder if some state
medical boards might not be calling sexual misconduct cases something else
in an effort to help the subject physicians save face? Some boards may be
attributing cases to chemical dependency, for example, with sexual misconduct
being seen as a symptom.
As cited in Winn's article, the Canadians are moving ahead in defining
different levels of sexual misconduct, with a lesser offense being termed sexual
impropriety and a more serious offcnse scxual abuse. They are establishing
specific definitions and specific suggestions for penalties. This is extremely
helpful and I would encourage our state medical boards to look at the several
SLTMMER 1993
79
Canadian efforts to see what tcrrninolog,v might best suit their respective
needs. As I mentioned above, the New Lcaland Medical Council has been
doing just that.
These are chronic and recidivistic problems, especially among pedophiles,
and there is a need for each board to distinguish between the chronic repeater
and other, less risky episodic problems. Even so, we do well to remember what
the New South Wales Medical Board says: those engaged in such conduct are
always "guilty of profcssionaf misconduct" and the need for discipline is
imperative. Should the license be revolCed% In some cases, there is absolutely
no question that the health and welfare of the public is at risk and that
immediate suspcnsion is rcquired. In any case, the message needs to be loud
and clear from all state medical boards that seXnal :11isc0r^duc.t INi.li not be
tolerated and penalties will be invoked.
If we do not address this problem direct?v, if we do not rcctfgni7e: its
importance over the coming years of this decade, the public will continue to
lose confidence in us, physicians respect for us. What we do about it now and
tomorrow will either help reverse that effect or accelerate it significantly.
State medical boards have a special obligation to assure the public that it can
trust the physician to heal and not to harm and that the health care environment will not be transformed by sexual misconduct into a personal nightmare
of abuse and exploitation. No magic kisses, thank you.
Barbara S. Sehneidman, MD, IviPH
Just look at yourself, Ozymandias:
A Bit of Self-Examination Would Have Been in Order, Surely
e have been thinking rather a lot lately about the Federation's Self-AsWsessment ^n.rt; r r^^t (SAI). For most of this year, the members of the
Implementation Task Force (ITF), chaired by Gerald J. Bechamps, MD, the
Federation's presideitt elect, have been urging our member boards to complete the SAI, either on the computer disk the ZTF has made available to them
or on paper. When submitted to the Federation, the data on the SAIwill be
compiled in an aggregate form and then returned to the member boards on
disk to facilitate individual board evaluation, allowing comparison with all
boards and boards of similar character.
That sounds relatively straightforward-and it is. But as of this writing, over
a third of the boards have yet to complete and submit the SAL The ITF's goal
is to have as full a set of data in hand as possible by the end of September.
After that, the compilation process will have to go forward so participating
boards can receive the information they need for evaluating their performance.
While no one is naive enough to believe every member board will complete
the SAI, there is no reason a significant majority could not do so. For all those
who have accepted the opportunity the SAI will provide for constructive
self-exarnination, success of the project will depend on as wide a response as
possible.
80
FEDERATION BLILLETIN
It is vitally important that state medical boards demonstrate their openness
to self-examinatio.n, evaluation, and change. Today more than ever, such an
active effbrt to enhance performance is essential. No board is too good to
benefit from the 5AI and no board can jusrify ignoring the potential for
improvement and self-knowledge it presents.
Self-examination is and has always been a basic need in human life and
socletV.
We were reminded of that recently when rereading "C7zymandias," an ode
written by Percy Bysshe Shelley in 181.7. The eponvrnous subject was actually
Ramses II (the Great), the Egyptian pharaoh during whose time the Exodus
may have occurred. He ruled in triumphant splendor from about 1304 to 1237
BC. It was the ruin of a massivc statue of Ramses to which Shelley referred
when he wrote:
And on the pedestal these words appear:
`N1y name is 0zymandias, king of kings:
Look on my works, yc Mighty, and despair!'
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far awav.
We doubt Ozymandias was a particularly contemplative fellow. Luxury for
the ruling class, the building of imFricnse temples and monuments, and
frequent war characterized his reign. Hubris was evidently his way and time
became his nemesis. One translation of the inscription on the base of his great
statue reads, "If anyone would know how great I am and where I lie, let him
surpass one of my works." Over three millennia later, the words ring with an
inf nite irony. Just look at yourself, 0 zyrnandias, we are tempted to sav. Heat
and sand and dust are now your measure. A bit of self-examination, some
human awareness, would have been in order even for you, surely. Less than a
century before you, the devout Aklzenaton, husband of Nefertiti, for all his
failings, left a heritage of Faith and thought for time to ponder. Yet only the
shattered granite of your monuments, the work of thousands of nameless
craftsmen, lives to remind the world of you. It is less your achievcment than
their art that survives.
That Shelley was struck by the image of Ozymandias and its implications is
understandable. He and his fellows of the Romantic era, caught up in the
humane enthusiasms of a revolutionary age, decrying abusive power and
outrageous pride, believed fervently in the value of self examination. From
Jean Jacques Rousseau's Confessions on, they were willing to look inward as
well as outward to gain a better understanding of all humankind, because they
understood that self=examination, though often disquieting, is an essential
element in the quest for good. That was true in the time of Ramses, who
mistook pride for achievement, it was tnie for Shelley and the Romantic
reformers of his day, and it is true now. It is necessary to be reminded of this
quite often, for we tend to forget or ignore the importance oEself-exarnination
in the to and fro of our own daily adventure.
S'(1'MMER 1993
81
That is certainly the message offered by two articles in this number of the
Bulletin. In his article "Self-Examination Can Be Revealing," Fretwell focuses
clear attention on the necd for self-examination within the community of
medicine. To do this, be draws on his experience in working with the
Federation's Assessment Task Force developing the Self-Assessnsent Instrument; and he explores the value of self-examination to us all, bringing a fresh
and perceptive eye to bear on our enclosed world. He encourages us to
approach the process in a positive spirit for our own benefit and for that of
society as a whole,
Complementing Fretwell's article is the commentary by West titled "Restoring Public Trust and Confidence in the Practice of Medicine." As a nonphysician who sits on the Pennsylvania State Board of Medicine, he calls
attention to the irnportance ofselF examinatioza and change in addressing the
cl}allenges faced by medicine today.
In the SAl, the Federation has offered its member boards a remarkably
valuable tool for examining themselves and their performance. This tool has
been described, discusscd, and written about since 1990. Now it is in active
use, but, as lL=c mentioned, some member boards have been hesitant to put it
to work. This is unfortunate, whatever the motivation. We encourage every
board member and executive to support the SA.I effort and every board to
join in the SAI process. When your business is protecting the public interest
and caring for the public health, self-examination is not a choice, after all. It
is an obligation. Certainiv, no state medical board and no part of the medical
community should fail to fulfill it.
"The lone and level sands stretch far away" for those who fail to recognize
that self-examination is always in order.
DGB
82
FEDERAT'TON BULLETIN
Sexual Intimacies with Patients:
The Regulatory Issue of the Nineties
RlNL7Dt,PH P. REAVES, JD
Overview: The author is convinced sexual misconduct will be the issue of the
nineties for state medical boards. He briefly reviews The background of the issue
and cites several notorious cases. After noting recentstcste legislation on the subject,
he presents a summary ofjudicial action from 1977 to I993, focaasing on the trend
to give boards the legal clout they need to deal with sexual misconduct, In
conclusion, be points out the bocxrds, facing ctgrorving lack of public confidence,
have a significctnt challenge before them on this issrae.
y friend and colleague Gregon, G. KockGS•ell, JD, a public member of the
M Washington Medical Discipl.inaiA, Board, spoke to participants at a 1992
meeting sponsored by the Federation of Associarions of Regulatc.)rv Boards.
During his remarks, Mr Rockwell said, "As the impaired practitioner was the
regulatory issue of the eighties, the problem of sexual intimacies betFveen
providers and patients will be the issue of the nineties for most professional
regulatory boards."
I am convinced that he was correct. Already a number of surveys and
investigations indicate that the problem of sexual intimacics with patients is
far more widespread than previously expected. The public outcry over particularly grievous cases, some of which havc gained great notoriety, has
regulators and legislators searching for ways to stop this clearly unethical and
unprofessional behavior.
The problem of sexual
timcxcies with pcetients is
more Tvidespreced than previously expected
THE SCOPE OF THE PROBLEM
This problem is not one of recent origin. In the Hippocratic Corpus, which
dates to the foiirth or fifth century BC, a section entitled "The Physician"
acknowledges the intimacy of the physician-parfcrzt relationship. The version
commonly referred to as the Hippocratic Oath includes a prohibition against
the seduction of patients both maie and female. And scholars of ethics codes
will find similar prohibitions in writings from the Middle Ages and early
colonial America.
Sigmund Frcud warned followers of the erotic atmosphere of the
psychoanalytic relationship. In his Introductory Lectures in Psychoanalysis,'
published in 1917, he noted romantic and erotic feelings that #'emale patients
had exhibited toward him, and he labeled the phenomenon transference. Over
the course of the next 50 years, much would be written regarding transference,
SUMMER 1993
83
In the 1960s, there were a
number ofpsychiatrists
who ccelvocated pbysiccrl intimacies with patients
In ICardener's survey, 5
percent to 13 percent selfreported engaging in erotic
contact
and the number of thcrapists who ignored Freud's warning would increase
significantly. Some of the fuel for this fire developed during the human
potential movement of the 1960s. There were a number of psychiatrists and
psychologists who actually advocated experimentation with touching, disrobing and even more physical intimacies with patients.
In 1966, a serious debate began in the psychiatric profession when J.L.
1VIcCartney published the now famous article "Overt Transferencc:."' In the
article, this psychiatrist reported that 30 percent of his female patients
experienced a type of overt transference. He admitted in the article that with
10 percent he had engaged in mutual undressing, genital manipulation or
sexual intercourse. The debate was resolved unfavorably for McCartnev as he
was widely attacked and ultimately expelled from membership in the American
Psychiatric Association.
In 1973, Kardener, Fuller and Mensh surveyed 1,000 physicians in Los
Artgeles County, California.' The 46 0 anonymous respondents included 115
psychiatrists. Of the entire group of respondents, from 5 percent to 13 percent
self-reported engaging in erotic contact. From 5 percent to 7.5 percent
acknowledged that sexual intercourse had occurred. Holroyd and Brodsky
(1977)4 replicated the Kardener, et al (1973), study when they surveyed a
national sample of licensed psychologists. Questionnaires were sent to 500
male psychologists and 500 female psychologists. Analysis of the data
generated revealed that, at least within 90 days of the termination of therapy,
8.1 percent of males and 0.9 percent of females had sexual intercourse with
patients. Of those acknowledging sexual intercourse, 80 percent of the 19
men and 2 women indicated that intercourse had occurred with more than
one patient.
A study by the Committee on Women of the American Psychiatric Association, which began in 1982, obtained similar results.s From more than 1,400
usable survey responses, 7.1 percent of rnales and 3.1 percent of females
acknoivledged sexual contact with patients. In a more recent survey published
in the Western Journal of Meciicine in 1992, 9 percent of physicians surveyed
acknowledged that they had some sort of sexual contact with at least one
patient during their careers.b The 1,900 survey respondents included family
practitioners, internists, obstetrician-gynecologists and surgeons.
THE NOTORIOUS CASES
Ann Landers attacked the
psychicstric profession for
failing to take strong actions in a sexual abuse case
84
Health care professions have been reeling from the publicity some such cases
have generated. In 1992, none other than Ann Landers began a blistering
attack on the psychiatric profession for failing to take strong public disciplinary
action against a psychiatrist accused of sexually abusing a patient. Landers'
article' involved a charge leveled by a former patient of Jules H. Masserman,
past president of both the American Academy of Psychoanalysis and the
American Psychiatric Association.
The patient, Barbara Noel, wrote a book, You Must Be Dreanain8,x in which
she alleged that Masserman had in.jected her with barbiturates during treatment and had sex with her while she was unconscious. She later filed a
successful civil lawsuit that was joined by two other former female patients.
FEDERATION BTJLLETIN
In 1986, all three were outraged when Masserman was honored at an
international convention only a month after h is lawyers settled thcir civil claims
for $250,000. They filed a complaint with t11e .I1linois Department of Registration and Education, and Masserman eventually surrendered his medical
license.
The American Psychiatric Association, however, declined to expel Masserman
and voted only to suspend him for five years. This protected him from the
unfavorable publicity expulsion would have guaranteed and prompted Ann
Landers to blister the APA before her readership of 90 million.
The Masserman case is not the only such case to garner nationwide publicity.
"My Doctor, My Lover," a major segment of a PBS Frontline program,
outlined the travails of a Colorado patient allegedly seduced by a Denver
psychiatrist. The patient, Melissa Roberts-Henry, is now a public member of
the Colorado Board of Psychologist Examiners. And virtually every state has
its own horror story about a provider-patient sexual relationship in which the
physician, psychologist, chiropractor or dentist has brought his or her profession into disrepute and led to serious charges that the reguIatory systems
currently in place protect professionals rather than the public.
THE LEGISLATURES RESPOND
Prompted by the widespread nature of the problem and lobbied by a number
of public interest groups, several state legislatures have passed statutes that
criminalize sexual intimacies between therapists and patients. In recent years,
at least eight states have taken such steps. These include: California,9
Colorado,1Q Florida," Maine,'Z Minnesota,'3 New i1vIexica,'4 North Dakota"
Masserman eventuallly sacrrendered his medical license
Several states have passed
statutes that criminalize
sexuRl intimacies with
patients
and Wisconsin.16
These jurisdictions join at least three others that have statutes that impose
criminal penalties for sexual intimacies under the guise of medical treatment.
Those jurisdictions includc: New Hampshire," Michigan'y and Wyoming.19
Without question, another dozen state legislatures are pondering the passage
of some such criminal law.
THE COURTS HAVE COME AROUND
In 1977, a Florida appellate court reversed the revocation of a chiropractor's
license after he was found guilty of engaging in sexual intercourse with a
patient. The court termed the revocation too severe given the chiropractor's
previously unblemished record. {Ross v. State, Division of Professions.'°} Such
a decision is not likely to happen in the decade of the nineties. In fact, courts
are bending over backward to give licensing boards the legal clout necessary
to put offenders out of business.
A prime example of this current judicial trend is Hccley v.Medical Disciplinary
Boarcl,"' in which the Supreme Court of Washington reviewed a decision
involving a sexual relationship between a surgeon and a forrner patient.
Haley had performed a splenectomy on the 16-year-old patient in 1986. In
1987, after a non-surgical-related visit to his office, the sexual relationship
began and was accompanied by frequent and heavy use of alcohol.
The Washington State Medical Disciplinary Board found Haley guilty on
SUMMER 1993
Courts aregivin8 boards
the clout to put offenders
out of business
85
Revocation was upheld
though physiciscn patient
relationship ended before
sexual relationship began
various counts and revoked his license. The case was affirmed by the state's
Court of Appeals. Despite finding that the board erred in its determination
that Haley had engaged in a sexual rcfationship with a patient, since the
physician-patient relationship ended before the sexual relationship began, the
Supreme Court upheld the revocation.
In affirming the sanctions imposed, the court found that Haley had engaged
in conduct involving moral turpitude, that he had abused his professional
position to exploit a teenager, and had engaged in conduct that could harm
the standing of the medical profession.
In a 199 2 case, Leon v. ohio Board oJ'l'svchalogy,22 the Supreme Catirt of Qhio
went to great lengths to uphold a decision of the state's psychology board.
The agency members had voted to revoke Dr Leon's license for engaging in
a sexual relationship with a former patient. In the decision, Ohio's highest
court held that the term "immediate ex-client" was not unconstitutionally
vague even though it was not temporallv defined within the challenged
regulation. The court went on to hold that the board could legitimately find
that a client was an "immediate ex-clicnt" even though seven months lapsed
bet^vccn the rerminatiori of thcrapy and the beginning of the sexual relationship.
And cou rts are bC^If1I71i1g to Sflo^vS15^f1S of Se I151tIL'it^' to the rlghts of vlctmis.
Courts are beginning to
show sensitivity to the rights
of victinzs
A newspaper sought access
to all clUcuments
In a decision rcndcrcd by a Florida District Court of Appeals in 1991, that
court held that Florida's rape shield statute was not applicable to a disciplinary
hearing brought against a psychiatrist accused of influencing female patients
to engage in sexual relations with him because the rapc shield statute was
applicable only to criminal prosecutions. However, the court also ruled that
testimony regarding the former pati4iats' sexual histories was not properly
admitted in a disciplinary proceeding brought against this psychiatrist and that
the evidence was irrele^ent to the question of the patients' credibility. The
court further held that where significant inadmissible evidence has been
erroneously admitted and the bases for findings of fact are not sufficiently
explained so that a reviewing body can determine whether competent substantial evidence supports the findings, the harmless error standard cannot be
applied, and it set the decision aside and remanded the case to the department.
(Dept. of Professional Regulation v. Wise.23)
The Supreme Court of Kentucky recently reversed the Kentucky Court of
Appeals and issued an important opinion regarding public disclosure of
complaints filed with the state's Board of Examiners of Psychologists. The
case involved allegations of sexual improprieties against a Kentucky
psychologist who surrendered his license and agreed that he would .neither
seek relicensure nor engage in providing mental health services.
A Kentucky newspaper sought acccess to all documents relating to the
psychologist. The board provided copies of the original and amended formal
complaints, which named the complainants, and the final order. The board
refused to pcrmit inspection of the complaint file.
The newspaper brought suit, and a summary judgment in its favor was
entered by the trial court and affirmed by the Court of Appeals. In reversing,
the Supreme Court of ICentucky held that an exception from disclosure under
86
FEDERATION BULLETIN
Kentucky's Open Records Act for public records that involve matters of a
personal nature, the disclosure of which would be a clearly unwarranted
invasion of personal privacy, is an independently viable exception from disciosure not subordinate to any other and not restricted to preliminary
materials or non-final agency matters.
The court also held that a file of client complaints about alleged sexual
misconduct by a psychologist was a public record containing information of
a "personal nature," public disclosure of which ^,vould amount to a "clearly
unwarranted invasion of personal privacy" and thus, the file was within the
exception from disclosure requirements. (Kentucky Bd. of Exrcnainers v.
Courierjoasrnal.")
But what may be the most i rrzporta.nt case in this growing area of law has
only recently concluded. It involves an Alabama dentist who engaged in sexual
relationships not only with patients but also with an employee. The Board of
Dental Examiners of Alabama charged rh4 dentist with gross immorality and
gross negligence in his dental practicc- After a hearing in which those sexual
relationships were admitted, the dentist's licensc was rcvoked. On appeal, the
dentist contended that consensual sexual activity benweext. a dentist and an
employee or patient cannot be "gross negligence" or "gross immorality" and
that the board's decision was rh erefore errozleoi.is. T he ?+labaFn a Court of Cvil
Appeals disagreed, sa^•iz^ig:
Dentist contended "consensual" sexucrl activity could
not be `gross negligence' or
^j ^jss irraryan ^l^sv"
Delavan's next colnrCntlc7n, that the Board's order contains a fatal
variance, is without merit. Delavan contends that the order is inconsistent
because it found he had "consensual" sexual rcfations with an crnpEoyee
and with a 16-year-old patient, but the order then concludes that he
"sexually assaulted or abused" the wornen. Dclavan argues that this
inconsistency violates his rights of due process. We disagree. The Board
may have or could have found that Delavan committed abuse in seducing
a 16-year-old patient and a nurse [sic], and that he abused his professional
relationship with them. Additionally, we note that Delavan's conduct
with other females listed in the order is not characterized as "consensual."
Therefore, the error, if any, is harmless. Rule 45, A.R.App.]'.25
The Delavan case was decided in December 1992, and in April 1993, a
Petition for Certiorari was denied by the Supreme Court of Alabama.26
Widespread publication of the Court of Civil Appeals opinion therefore is
likely.
CAN LICENSING BOARDS SHOULDER THE LOAD?
Even a cursory review of the current regulatory literature indicates that the
public, or at least public interest groups, have lost confidence in the regulatory
systems utilized in all US jurisdictions. A recent attack on the actions of state
medical boards is just one example. Last year, in a widely publicized study
released by Public Citizen's Health Research Group, the consumer advocacy
organization charged that only one-half of 1 percent of almost 600,000 US
physicians face any state sanction each year.
svMMEx 1993
The public has lost confidence in regulcstory systems
87
Articles routinely focus on
regulato^y lapses
Articles routinely appear in publications such as the Wall Street Journal that
focus on regulatory lapscs that cOntinue to allow physicians and other health
care providers to practicc despite disciptinary sanctions in one or more
jurisdicrions or a trail of malpractice lawsuits. And these problems continue
to air on all major networks and are the focus of ongoing discussion in
legislative sunset committee hearings throughout the country.
The ramifications of patential disciplinary sanctions for sexual intimacies with
employees could be staggcring. How many hcalth care providers might be at
risk of sanction if regulatory boards move in this direction? What are the
legislative implications if they do not and criticism from the national media
and public interest groups go unanswered?
These are questions that challenge the imagination. They also make Gregory
Rockwell's words prophetic. Sexual intimacy betwcen providers and patients
(and others) already is the issue of the nineties for professional regulatory
boards.
Notes
1. Freud, S. (1958). Introductory Lectures in Psychoanalysis. In J- Strachey (Ed. and Trans.), 7he
Sttandard Editlon of the Corrapdete Psycbological Works of Sigmsanrt Freud, (Vol. 161. London:
Hogarth Press. (Original work published in 1917)2. McCartney, J.L. (1966). Overt transfcrcnce. Jonrraeal of Sex Researc6t, 2, pp. 227-37.
3. Kardener, S - I-I., Fuller, M., and IM ensh, I. ( 1973). A survey o#'physicians' attitudes and practices
regarding crotic and non-erotic contact with clients. Asnericran Joasrnral of PsychicaCrv, 130,
pp• 1077-10814. Hoiroyd, J.C., and Brodsky, A.i1^1. ( 1977) - Psychoiogists' attitudes and practices regarding erotic and
noncrotic physical contact with patients. American Prychologist, 32, pp. 843-849.
5. Garttefl, ti., Herman, J., Ofarte, S., Fcldstein, M., and Lacalio, 1L. ( 1986). 1'sychiatrist-patient sexual
contact: Rcsults of a national survey, 1: prevalcnce- rlsnericun Joternad of Psychiatry, 143,
pp. 1126-1131.
Gartrell, N., Herman, J., 0 Earte, S., Feldstein, i., and Localio, R. ( 1987) - Reporting practices of
psychiatrists who kne v ofsexual misconduct by colleagues. Americara Journal ofC3rthopsychisetrv,
57, pp. 287-29S.
C;arrrelE, N., Herni;rn, J., Olarte, S., Fcldstein, M., and Localio, R- (1988). Management and
r4hzbikitation ofsexual!. esaloitive therapists. Hospita2 and Comn:unity Psychiratrv, 39,
pp- 1470-1074.
6.
78.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
Herinafl, j.L., Gartreil, N.. Ol::rt:, S., :cldstein, -M., and Localio, R- (1987). Psychiatrist-paticnt
scxual contact: Results c fa national survey, II: Psychiatrists' attitudcs- Arrsericsen Journaal of
Psychiacrv, 144, pp. 164-169.
Study reveals doctor-paticnt sexual contact ( 199.2 ). .t'rofessionrsl Requlatiora Nesvr, Vol. 12, No. 9,
p. 4{originaf study reportcd in Western Journral of 2kTedicine}.
Landers, A. (Sept. 13, 1992). 5yndic:ated column.
Noel, B., and 4Vatterson, K. You Musr Be Dreanaing, Poseidon Press (1992).
CaE- I3us- Prof. Code, Sec. 729 (West Supp- 1989)
Colo- Kev. 5tat., Sec. 18-3-404(1)(g) and Sec- 18-3-405.5
F.S.A. 490.0111
Me. Rev. Stat- Title I7 _A, Sec. 253(2){I) (Supp. 1989)
Minn, Stat., Sec. 609.341 et seq.
Effective jui • 1, 1993. Sections 30-9-IO NMSA 1978 through 30-9-12 NMSA 1978 and Section
30-9-16 tiMSA 1978 as amended April 1993.
N.D. Cent. Codc 12-1-20-06.i •'Nlichic .SuI±p. 1989)
Wis. Stat. Ann., Sec. 940.22[2'• f 1983]
New Hampshire RSA 632-A:2
M.C.L.A. 750-90
Wyoming Stat. Ann. 1977 6-2-303(a)
Ross v. State, I7-svision of Professions, Fla- App., 342 So.2d 1023.
Haley v. Mcdical Ilisciplinary Board, 81.8 P. 2d 1062 {Wash. 1991 ].
Leon v. Ohio Board of Psychoiagy, 590 N-r:.2d 1223 (Ohio 1992).
23- Dept. of-Prolzssinnal :t.cnularinn- - tiVisz, 575 So.2d 713 f F:1-Anp. I i7isr. 19931].
24. Kcntuc-kv Ru. o'r amiaers :. Cou:-icr-ic urnal, K-, 826 S.61'.2d 324.
88
F.EDERATION BULLETIN
25. Dclavan v. Board of Dental F.xaminers of Alabama, CV-91-2312, Ala. Court of Civil AppraEs (1992),
26. Delavan v. Board ofDeriral k xaminers ofAlabama, CV-91-2312, cert. denied, 5uprcrne Court of
Alabama (April 23, 1993}.
SUMMER 1993
89
Medical Boards and Sexual
Misconduct : An Overview of
Federation Data
JAMES R. wfN N, -\ in
Overviezv: The ctatthop provides data drawn from the Board Action Data Bank
of the Federation of State Medical Boccrds on sexual misconduct by pdaysicians.
Data from almost 3, 000 records were reviewed covering the period 1990-1992.
De^"initions of szxnccl rnisconduct are presented, particularly as developed by
Canadian authorities. Also noted are the results of a number of studies on the
incidence ofsexual misconduct as self-reported by physiciccns and psychologists, and
of a recent study carried out by the College of Physicians and Surgeons of'.8ritisb
Columbia. He savs the Federation data show an increasing number of board
actions related to sexual misconduct over the past three years, rising from 84 in
1990 to 132 in 1992. They also indicate physicians tend to be in practice for a
signicccnt period25 years on average-before being brorsgbt before a board on
charges qfsexuccl misconduct.
Adapted from a presentatic^n given at the
Federation's 1993 Annual
Meeting in San Fraiicisco
[^ exual misconduct by physicians is a subject which has engendered a great
^] deal of interest in the media and in the public, as well as in the medical
profession. Despite the fact that some recent surveys suggest that the actual
incidencc ot sexual misconduct by. physicians may be declining, medical boards
are having to deal with these types of complaints on an ever increasing basis.
Part of this is undoubtedly due to an increased feeling of empowerment by
patients to report physician misconduct, and a lessening of their reluctance to
discuss misconduct of a sexual nature.
It is clear that the media is not reluctant to force this issue to the front burner.
Medical boards must realize that allegations of sexual misconduct are frequently
high profile, high visibility issues which must be dealt with in an expeditious and
confident manner. Perhaps the board on which you servc has never faced this type
of situation, but odds are it will.
Mv purpose here is to provide some information regarding data developed
from board action reports received by the Federation of State Medical Boards
over the past three years and to review the board orders that we have received
over that time to determine somewhat the activity of medical boards in this
area. I should note that about three years ago, we modified our coding system
at the Fcdcration in a manner that would identify not only the action taken
by a board, hut the grounds and reason for that action. For instance, the action
might be revocation, the grounds unprofessional conduct, and the reason
sexual misconduct. Unfortunately, all board orders do not always identify all
90
FEDERATION BULLETIN
three of these elements. Therefore, we systematically reviewed all board orders
where the grounds and reason were not elearly identified and might have
included sexual misconduct. Almost 3,000 records were audited for the period
1990 through 1992.
CANADA
Before looking at some of the data, it might be well to bring up the question
of the definition of sexual misconduct. Colleagues in Canada have done
extensive surveys of their provincial populations in regard to sexual misconduct, but do vary somewhat in their definitions. The Ontario Task Force on
Sexual Abuse of Patients recommended a two-tier dcfinition, a lesser offense
being termed sexual impropriety and a more serious offense being termed
sexual violation. The significance of the distinction would be in the penalties
available for each type of offense. Sexual iznproprietv consisted of any behavior,
gestures, or expressions that were seductive or sexually demcaning to a patient.
It also included inappropriate procedures such as inappropriate draping,
subjecting a patient to an examination in the presence of other parties without
the explicit written consent of the patient, examination or touching of genitals
without gloves, etc. Interestingly, it also included kissing of a sexual nature.
Sexual violation included sexual intercourse, genital-to-genital contact, oral to-genital contact, touching of the breasts or genitals except for purposes of
appropriate physical examination or treatment, etc.
Zn Alberta, the Committee on Sexual Exploitation and Professiorzal Fclationships recommended a ehree-tiered definition. The first tier was sexual impropriety, defined essentially as in Ontario, though kissing of a sexual nature
and performing a pelvic or rectal examination without gloves were defined as
sexual violations. Also included in sexual impropriety were abusive language
of a sexual nature, rough and abusive examinations, initiating a conversation
about the patient's sexual problems or fantasies, etc. Sexual violations were
divided into two categories: Level I included performing a pelvic or anal
examination without gloves, examination of breasts, genitals, or anus under
false pretenses, kissing or hugging of a sexual nature, and full body contact.
Level 2 violations included doctor-patient sex, genital-to-genital contact,
oral-to-genital contact, etc.
Manitoba focusLd on a definition of sexual exploitation which included selfgratifving sexual conversation, dating or suggestions of sexual in^-of^^ernent,
and/or sexual romantic contact at anytime aftcr the doctor-paticnt relationship
begins and the patient continues to be emotionally dependent on the physician.
British Columbia focused on the definition that I like best: sexual misconduct
is an exploitation of the physician-patient relationship in a sexual way by the
physician's words or actions.
3,000 recorcls were cxuditetl
In Albertct, a three-tier
definition of sexual ^veisconduct was recommended
BRITISH COLUMI3IA REPORT
Table 1 is taken from the publication "Crrassiyij the Boundaries,"which is a
report of the Committee on Physician Sexual NIisconduct for the College of
Physicians and Surgeons of British Columbia. It summarizes a number of
studies from the literature and is interesting from a number of viewpoints. It
SUMMER 1993
91
Tbere appears to be some
decline in sexacal intimacy
prevalence rates
indicates that in those studies with a high response rate there appears to be
some decline in the sexual intimacy prevalance rates among physicians and
psychologists. I think it is important to note that while males predominate in
these studies, females are by no means excluded as perpetrators. Focusing on
the latcst information, the 1992 survcv done in British Columbia, we see that
almost 70% of the targetcd population responded and there is a 3.5%
prevalence ratc, 3.8% being males and 2.3°/o being female. Each ofthese surveys
actually involved self-rel-?orting by physicians, albeit anonymously. There are
pitfalls in this typc of- inf-o rm ation, but I do believe that it is valuable to at least
know that this leVe;l Of seUlal misconduct is occurring. Of particular interest
is the B ritish Co lumbia stuci`• that shows a 3.5°Ia incident rate because it rellects
some of the data that the Federation has received in its board reports.
Table I. Sexual Inrirraraev PrevRlence Ilates in Yarious Studies Adapted f:'o.ra
"Crossirig the Boundaries": The Report of the Committee on Physician
Sexual Misconduca, College of Physieiccns and Surgeons of3ritish Coloumbia *
Females
Date
Authors
Resp
Rate
Overall
Prevalence
1973
I<ardci7er , ct al
46.0°Ia
12.0°o
all
N/A
Holrovd & Brodsky+
--Pope, ct .i? ^
70.0%
..._..
58.540
77°k
12.11Q
2.6%
6 50%
9.4A
2.5%
Gartrcll, ct a[
26.0 %
6.4%
7.1°/0
3.1°/0
26.0%
6.4%
N/A
19 77
. . . . . ._..
1986
1987
Hcrniai-^, ct al
1987
:._..m__..-_..._.
1987
1'ope, ct al+
1992
G;,irtrel l, et al
__.-.-
45.6%
__...._.
n
^ rn
^
^ oo^
0.5%
4.0%
^ 70^
Sur>>ei li^^aatcd to psvcholosists. *See Referencesfr^r source citations.
Ibere has been an increasinp number of actiuns fop
sexual misconduct
N/A
•
3.61
...^_;
10.0%
1.9%
9.0%
19.0°I
Males
^_=
^
FEDERATION DATA
As I noted carlier, we reviewed almost 3,000 records. We found that there
has been an increasing number of actions taken against physicians for sexual
rtli;conduct- As Table 2 shows, there were 84 reported cases in 1990 and this
had increased to 132 cases in 1992. Table 3 indicates the number of physicians
involved in sexual misconduct has also increased, from 73 in 1990 to 120 in 1992.
Table 2. Total Actions Resultinq from Sexual Misconduct Char^es 1990-2992
200 175 150 -
(132)
125 -
100 75
(84)50
-
(l01)
25
0
1990
92
1991
1992
FEI]EIL.4TIQN BTJLLETIiV
Table 3. Total Physicians , Involved in Sexual Miscoridaact Cases 1990---1992
200 - F-^
175
150
(120)
125 -
lfl0 75
5o
(94)
(73)
25
0
1990
1991
1992
Tabte 4 is a comparison of the two previous figures and shonws that the actions
against physicians are tracking total actions, indicating that the numbcr of
actions being taken as a result of an action by a board in another jurisdiction
is relatively constant.
Table 4. Total Actions and Total Physic icsns 1990-19 92
200
17J -!
1s[)_
(132)
(10 I}
1? j- j
^_^_-/
(120)
100
75
50
25 - I
0
(84)
(73)
^~~
{94)
I
-I
1990
1991
ICey.' fine line = Actions; bold line = Physici;Ms-
1992
L'Vhen we loolc at the percentage of totai actions dtic to sexual misconduct
in Table 5, we can see that from 1990 through 1992 there was adetinite
increase in the percentage of actions reported. We also can notc that the
number of boards reporting actions has increased from 35 in 1990 to 42 in
1992. Table 6 is a graphic representation of this and demonstrates that there
has been a significant increase in actions reported of at least 50% over this
two-year period.
1990-1992 satv an increase in the percentage of
actions reported
Table S. Percentage of Total Actions Due to Sexual X iscnndasct 2 99O--I 992
Total Actions Repo rted:
Total Rccord sAuditcd:
T o t a l S exua l Mi scon d uct C ases:
Total Sra tcs Reporting Se xual NIiscond«ct : .
Perccartage of Total Actions Due to Sexual
iVlisconduct:
5L7MMER 1993
^
1990
1 991
1992
3,234
2,804
3,370
577
963
_
1 , 023
101
132
37
39
42
2.6%
3.6%
3.9%
------------ .
84
.I
93
Table 6. Percentage of Total Actions Due to Sexual Misconduct 1990-1992
--
-
( 3.9%a )
❑
3/0 2%-
(2.6°/0 ) 0--^
0%1991
I.990
We can expect an increase
in actions for sexual misconduct in 1993
1992
Table 7 demonsta-ates the numbrr of complaints rccci^ed by 42 medical
boards who responded to a Federation survey this past year. As you can see,
there were approximately 400 complaints alleging sexual misconduct which
were received by these 42 responding boards. At the end of 1992, 81 of the
compiaints had been dismissed, 18 settled by agreement, 37 complaints had
resulted in a formal action being taken by the medical board, and there remain
slightly over 250 complaints that are yet unresolved and are currently under
investigation. I think it would be a reasonable assumption that we can expect
an increased number of actions to be taken by.medical boards in 1993 against
doctors who are guilty of sexual misconduct.
Table 7. Sexual Misconduct Complaints, 1992
Number" of Sexual iVlisconduct Complaints Filed in 1992
(No figures available for prior years)
To tal Complaints:
Total Dismissed:
393
--
81
Total Settled by Agreement:
18
Total Actio ns Re sulting from Compdaints:
37
Total Cases Currently Under InvestigationL
257
"l3ased on Responsesfrorn 42 Boards
Loss oflicense occurs in 45%50% of sexual misconduct
cases that come for formal
board action
94
Table 8 is a review of the statistical categories which we use to demonstrate
the severity of actions taken against this group of physicians. "Loss of license"
includes both revocation, surrender, or a definite loss of privileges alTorded
by the license. "Suspension ot license" is a well defined category. "Restriction
of license" includes probation or other restrictions on the license. "Other
actions" includes any modification of a license or the privileges granted by
that license that results in a penaln.7, a reprimand, a fine, etc. This includes
stipulation agreements or consent orders that are unspecified or unclassified.
In table 9, we can scc thc range of these actions over the three year period
studied. The upper bold line indicates the number of very severe actions taken
which resulted in some type of loss of licensure. Somewhat unexplainable is
the dip in 1991 in the number of severe actions taken. However, we can see
an increase in suspensions (upper fine line) and probations (lower bold line)
at that time. The lower fine line, representing other actions, remains relatively
stable throughout the thrcc year period. I do think that it is very important
to realize that, in general, loss of license occurs in 45°/a-50°/0 of'the cases that
come for formal board action.
FEDERATION BULLETIN
Table 8. Statistical Categories
(A)
LOSS OF LICENSE: Includes revocation, surrender or mandatory
retirem ent of license, or loss of privileges afforded by that license.
(B)
SUSPENSION OF LICENSE: Includes suspension oflicense for a
specific period of tinie.
(C)
AESTR.ICTIQN OF LICENSE: Includes probation, limitation or
restriction of license, or licensed privileges.
(D)
OTHER ACTIONS: Includes any modiricarion of a physician's license or
the privileges granted by that license that resu€ts in a penalty or reprimand,
ctc, to the physician. This includes license denial, hnes, reprimands, and
stipUlation agreements or consent orders no t ot he nvi se c l assified.
Table 9. Percentage of Total Sexual Misconduct Actions Broken Doinn by Loss of
License, Suspension ofLiceyue, Restriction of License and Other Actions
50°/0 ^
459°
{4$.;^°/n}
(50.0%)
4QIo -35% (25.7%)
30°/0 2 S°I ---20°Ia -
(21.4%)
15%-
(15.5%)
lq%-
(13.1°Io}
5%
{20.5°Io}
{I3.91o}
^^
{12.1°^0}
-
Q%
1990
1991
1992
ICey: upper bold line = Loss of License; upper fine line = Suspension of License;
loiver bold line = Restriction of License; loxver fane line = Dther Actions
We also attempted to look at some of the demographic:s of these physicians based
on the limited amount of informadon that the Federation maintains in its Data Bank.
When we reviewed the ages of the subject physicians, we sa« that over the three year
period the peakage group for those involved in sexual misconduct.vas age 40 through
age 69. This is comparable to the studies performed bv British Columbia and may
indicate a number of factors at play, including increasing occupational stress, marital
stress, time in practice, etc. Of interest are the two physic.-ians in 1991 who were over
80 years old at the time they were discipFiined. Both physicians were involved in
inappropriate hugging, kissing, and fondling of their patients.
Table 10 shows that the shortest interval of time from medical graduation
to the first action being taken was three years, the longest 56 years, the average
25 years. This suggests there is a significant length oftime in medical practice before
a physician is brought before the medica] board on charges ofsexuai misconduct.
The peak crcledroaip for
those involved in sexual
misconduct was age 40
through age 69
TaGle 10, Length ofTirne From Graduation to First Action
Shortest interval:
^ yc:ars
Longest inten=at:
56 years
1 Average interval:
25 years
SUMMER 1993
95
The older the physician, the
more likely the surrender of
the license
Table 11 illustrates the breakdown of physicians by age (those less than 50
years of age and those older than 50 years) who resolved complaints against
them by either surrendering their license or agreeing to a stipulation or
consent order. As you can see, the older the physician, the more likely the
resolution would be surrender of the license. There is not as great a difference
between the age groups in resolving the action by stipulation order agreement
consent order.
Tcsble 11. Percentctg'e of Total Sexual Misconduct Cases Resulting in Surrender of
License or Stipulcation/Consent Order 2990-2992
solid column: Physicians less than 50 years of age
shaded column: Physicians 50 years of age and older
70%I :i5.7n',•,
60°.0 50%--
40°/0 30°Ii-
36 9°'n,l
20°Q -
1^
I0°u 0% Surrender of License
Stipulation/Consent Order
Surrender of License:
Physicians less th an 50 vears of age:
17 (36.93a)
Physicians 50 years of age and older:
7
(63.1%)
46
Stipulation/Consent Order:
Physicians less than 50 years of age:
39 (44.3%)
Physicians 50 years of age and older:
42(55.7°/0)
88
Total Number of Physicians whose cases
were resolved by Surrender afLicense or
Stipulation/Consent 0rder;
A large percentage of
pbysiciccns are unlikely to
want togo through a
public hearing
134 (46.795)
I think it is interesting that out of the total number of cases reviewed, 46.7%
indicated that the complaint was resolved by either surrender of license or a
stipulation agreement or consent order. This indicates that a very large
percentage of physicians are unlikely to want to go through a public hearing
on this type of allegatic^n. Perhaps more worrisome is the possibility that some
physicians are willing to accept penalties for alleged infractions of a minor
nature simply to prevent themselves from being exposed to public trials.
CONCLUSION
I recognize that these data raise many questions. However, I do believe it is
very important that the Federation continue to track this information and to
make it available to our member medical boards.
In closing, let me echo part of the message included in the introduction to
96
FEDERATION BULLETIN
"Cv'ossing the Boundaries": The Report of the Committee on Physician Sexual
Misconduct by the College of Physicians and Surgeons of British CoiumbiaSexual misconduct is a serious problem, "It is serious-not because of a
particular `incidence rate'-but because it has eroded the public's confidence
in the medical profession and it has placed doubts in patients' minds about
their trust in thcir physicians and about the profession's ability to police itself."
At the root of all this information a zi d all of these reports are patients. "Patieil ts
have a right to expect their physicians to adhere to the highest standards of
professional conduct. When patients seek advice from their physicians they are
vulnerable, and physicians must always honor and understand that. The
physician-patient relationship is based on trust and the physician is clearly the
trustee. . . . Professional standards must be set by the profession itself. ..."
However, "those standards must be communicated to the profession and
enforccd fairly and consistently. .. through the disciplinary process." That is
the role of state medical boards and one I hope ^^ ill be assulned in a
straightforward and responsible manner.
Patients have the right to
cxpect their physicians to
adhere to the highest standards
References
Committee on Physician Sexual M isconduct. "Crosrin8 the ?3o:endaries"• 711c• Reporr of the Comsnittee
on PFrysicdrtn Sexaanl Misconduct. Coilegc of Physicians anci Surgeons of British Cnlt ernbia,
Vancouvcr, BC. 1992
Gartrell N, Herman J, (]lattc 5, et al. Psychiatric-Patient Sexuai Conra; t: Rcsults of;i tia'i: nal ^<<rvey,
1: Prevalence- Arnericran ]ozsrnal of PsycFiiatry I987;143:112f.i-1 1.iI .
Gartrell N, Millikcn N, Goodson WH, et al. Physician-Patient Sexual Contact: Pre •alencc and Problems.
Western journal ofMedicine 1992;156:139-143.
Herman f, Gartrel! N, Dfartc 5, et al. Psychiatric-Patient Sexual Contact: Results of aNational 5urvey,
II: Psychiatrists' Attitudes. American journal of PsvcFiirttry 1987;144:164-169.
Holrovd JC, BrodskyAM . Psychologists Atritudes and Practices Regarding rrotic and \on-Erotic
Physical Contact with Patients- Awcricasa .('sycholog:'st 1977;327843 -849Karderner ST-I, Fulfer M, iYlcnsh IN. A Sucti ^ of i'hysicians Attit.^dcs a zd Practices Regarding Erotic
and ;1ion-Erotic Cnntact with Paticnts. Americaax jqurnazl of Psyrhiatry 1973;13[]:1 0 77-10$1Popc KS. 1'herapist-Patient 5ex Syndrome: Research Findings. Paper presented at the ?uznual i'wleeting of
the Ainerican Psychiatric rLssociation, Washington, DC, M a 1986. C:ited in Brodsky r1e. Sex
Between Patient and Therapist: Psychofogies Data and Resp n^zc. In Sexual E.eplodtation in
Prof'essioyaral Relqtionslrips, Glen Gabbard (ed). American Psvchiat^ic Press Inc, Washington, DC,
1989. (Chapter 2, page 25.
Pope KI), -l'abachnik B G, FCeith-5pieael P. Ethics of Practicc: Belicts and Bchaviors ok Psi, chofogists as
Thcrapists. American Psychodagist 1987;42:933-1006.
SUMMER 1993
97
Self-Examinarion Can Be Revealing
E.K. FRETWELL, Jr, PhD
Dverviem: The author, a member of the Federation task force that developed
the Self-Assessrnent Instrument for State Medical Boards, stresses the importance ofselfexa rnination to the state medical boards and the covnrnunity of
rnedicine. He reviervs the concept of self-examination from the perspectives of the
public, the practitioner, and the profession, noting the constructive value ofseeing
ourselves as otbers see us.
Adapted from the Platter
Lecture delivered by Dr
Fretwell at the Federation's
1993 Annual Meeting in
San Francisco
Board members may already
be finding out tbings they
didn't know
enjoyed so much serving as the "outside" member of the Federation's
lAssessment Task Force which developed the Self-Assessrraent Instrunaent for
State Medical Rorzrds (SAI), which made its debut at your annual meeting in
the Boston area a year ago. It's a gratifying experience to be invited back!
You will be hearing a great dcal more about the SAI in the future, of course,
and many of your boards havc already been involved in early use of the
instrument. I hope all of you will take advantage of the opportunity provided
by the SAI as the project goes forward.
This major advance by the Federation in stimulating the boards to examine
themselves in a systematic way is worthy of great commendation. If things are
going well with your board, it's reassuring to have some additional hard
e«.dence of that fact. You will be able to compare your findings with those of
other leading boards. You may even become a role model for others. Since
very few organizations arc perfect, however, through the process of self-assessment you are able to identify areas which can be improved which you can
then address. Board members may already be finding out things that they
didn't know about their own operations.
Are changes in procedures indicated? You may possibly conclude that you
can do a better job of serving and protecting the public through changes in
legislation, better funding, greater freedom from heavy handed yet sometimes
well-meaning bureaucracies, and better communication with the profession
and the public.
As my title suggests, self-examination can be revealin.g-----and useful!
TO SEE OURSELVES
Self studV', incidentally, is in the best tradition of colleges and universities,
which have engaged in it as a part of voluntary regional accreditation since
early in this century. As many of you know, a campus sets up an internal team
98
FEDERATION BULLETIN
which sttidies cz-itci-ia provided by the acci'editin- ao-cncy and thcn evaluates
itself in such arcas as cLlrrlcLllLlI7t, quality of tcachiilg, library and other
instructional support, fiiZan.cial resources and ma€>.a-ement, and sen,ices to
stLIdC:llts and other "customers." It attempts to ideiltiti, specitic cn>.tcon7es.
A carelt>.llv selected visiting team of leadership persons, faculn and statffi'om
other ilistitutions, reads the report, carries out an intensive three- or toLlr-daV
visit, and thcn reports its findings and sLiggesti011s hc3tll to the instittition
visited and to the acci•editing agency. The rrsLllting accreditltiorI decision by
th c ass(7clation is irnportant, bilt tlhC Ilelp ltll tlice1771 osticaspGcts of thC C rPcricnce
make it especially Nvorthwllile. I.1in 1<ot vrt reaciv to recommend that all state
1_xoards ot medical exanlinel-s be ~,rlslted by pL'e r o-,CC]L117 tC<ims, b ut if tinlc, tncrgy,
Bacvns suMestecl it
and Licsii'c N'<°crc all available, it might be yet another toi'm of Llselill selF-cxaI113l1atioil taking advantagc of the persptctivc of intornlcd visitors. After all,
we could see ourselves
would be wonderful if
as others see as
the Scottish poet t^obert I3urns 10n,^; ago suggested that it Nvould be Nv{]11dei'1L1l
if we had the Pt^Nvcr to see ottrsclves as others see us.
OTHER ASPECTS
What other aspects of examination and sclt-rxallliiYatioi7 sllould we he coilecr>.lcd abOLit? I will mentioll thrcc N'<<hich are rsprcia€k° pei-tincilt iil toda}•'s
clilnatc. They crnictril the p ublic, the practitioner, and the prr^fession (as
rcpresciitcd by the boards). Three 1''s!
The Public
First, the public. I don't nzcd to tell you that there is a tast-estalating ptlUlic
There is afast-escalating
111TCrcst 111 the perceil•Cd cost, qualltl', and .ll'a11,i1)iflCl' of I11Cdlcal care lll our
public interest in medical
C:{7LEI1tr1'.
care
You
1CI1tll1'
what's
going
(]ll
and
l[3L1
lil:ll
h:ll't
some
lL'`1tii11atL'.
G()11CGrI7S, 5()111i CJLIlC:1C C:\a111p1C.s and L1Ll(lCatl(?lls tr(]Ill i{lif('.re.llt s(]CII-ccs.
•
"Ta
llc back to v C3Lli'
have
a
right
to
doctor. DC]il't he intimidated or s1` C['t-t<1lkx:. You
ask
C1LItstI()lls
i3]]tll
1'()Ll
get
s:ltlsfactoi"1•
al1s^^ CrS."
{ Parctde, April 4, 19913.) Havm.: caught the i'eader's c~,•c the article
then
becomes
more
17(]sltll'e
:ll]t{
tiLlggests
that
"talklll`LT,
with
yoLll'
doctor can pay life-saving dividends" and makc the patient an active
part Of the cLlre.
•"17octors' pay resented, and it's Linderestinlatc^3." (Hcadiillc in the
New York Times, March 31, 19913.} The article suggests the ptlhlic
Inight be eveii IIIOFc outragecl by the salaries oF ilospital administrators
and insurance executives, not to 1llL'i1ttC?ll dl"L15^.r company offlicel"s.
• II1vcstigativc pi-isrntations { P-rirrrE°2 iinc Live) by tcievision Ilcn'v'orks
stIc:h as ABC have attracrcd llaticfnal attention by zrroing in on state
board practices in di;•fcrcnr states, not to mci7tion Zllegcd unhcalthti>.I
Investag^tive television
zeroes in on state boards
practlccs in fC)C]d retaill[l`^.
• Speaking Ot'tcltvision, C:135, on its scrirs StreetStorics, focused reccntl}'
oli a physician in San 1'rallcisco, Dr Mark Renicker, ~,vho calls himself
"The Medical Equalizer." He comCs across as a sort of medical
dztcctiVe who suggests that from the point of vic\v of maily patients
the 117C:L{lc..ll 1V(]rld is "Too cC)I11p 1C\. ... tllc p atlc llt lle[°ds a tl'<1llslator."
According to the TV prescntation, this doctor tries to be a good
SUMMER 1993
99
listener, to help patients get many opinions on their malady if they so
desire, and "to hLlp the patient become an expert in his own illness."
But he doesn't prcvide niedical care himself; he's a sort of consultant.
• The non-profit organization Consumers Union, publishers of the
widely-read Consumer Reports, is currently polling its four million
members not just on how the used car turned out, or does the color
television requirc a]ot of repairs, but-you guessed it!-on the nature
and quality of mcdicaI care as perceived by the patient. I have just filled
out the forty-itern chcclclist as to how I feel about my physician. Sample
questions: Was the examination thorough? Was there expressed concern about ni v emotional well-being% Was I interrupted or talked down
to?
The positive image of'iyadividual physicians also
receives attention
Consumers can provide a
"balanced perspective"
about issues
100
The examples could go on and on.
Articles about indi%=idual physicians who present a %^ ot1C^crf^llll' l^C)Sltll'C image
also receive attention in the 131L'dla. Modern lkfceturity, a publication of the
AAR1' (April-May 1993) features Barbara M. Korsch, MD, of Childrens
Hospital Los Angeles, also Profcssor of I'ediatrics at the University of5outhern
California, as a 30-year pioneer in the field of treating the whole child, not
just the problern, The article i5 callcd "The Good Doctor." On the East Coast
the Providence (Rhode Island} Journcsl-l3aslletin (aN/Iarch 4, 1993) describes
the role of Dr Marsha Fretwell (no kin) and her colleagues in the enterprise
known as Aging 2000, supported by the John A. Hartford Foundation and
headed by Ira Magaziner. A goal is to involve older patients more actively in
their own care and in preventive medicine.
There are plennf of other constructive examples.
I conclude that the public has a variety of increasing concerns, that they are
becoming less pleased wit11 situations that they don't understand or don't like,
but they continue to be attracted to and even inspired by practitioners who
are reasonably open and frank and demonstrate that they are competent and
truly care about thcir patients as human beings. They expect state medical
boards, even though they don't always understand thern, to stand up for
quality performance.
(One positive sign, tor whatever it's worth: there still ac'crt't as many putdown
doctor jokes going around as there arc lawyer jokes.)
As to national health policy, in a state of considerable flux with the current
efforts of the Clinton & Clinton admiztistration, is there a role for public input?
YES, says Dr Steven M iies who works with Minnesotans for Affordable Health
Care. "I cannor overestimate the need for informed, empowered citizen
groups," he told those of us at a dinner of the Bioethics Resource Group in
Charlotte. Consumers, he concluded, can provide a "balanced perspective"
about issues that doctors, hospital officials, insurers or politicians cannot." (As
quoted in the Charlotte Observer, March 25, 1993.)
How does the public find out more about the state medical board? The
telephone company Nvhere I live tries to be helpful through its yellow pages,
where there are little boxes undcr certain headings called "Consumer Tips."
Just before the listing of physicians and surgeons, you are invited to call
522-9999. After a little music, a friendly Ns=oman's voice tells you that there is
FEDERATION BULLETIN
a state medical board, that it is "an independent part of the executive branch
of state government" (oxymoron?) and that if you want more information,
you can ask the doctor of your choice. Is this all the public needs to know? I
think boards should try harder to get their messabe out to the public in a bit
more detail, particularly for people who think they might have a complaint.
Practitioners
Let's talk now about practitioners. This is aimed mainly at physicians but may
also pertain to the rest of us in one way or another. Wise practitioners, at leastfiguratively, constantly feel the pulse of the public as well as that of their own
patients. What else do they do? Several steps come to mind.
• Work constantly to fine tune practice to real and often changing needs.
This involves ideas and information from medical sz)clctzes, specialty
groups, and components of continuing medicai educatior7. Time and
energy shortages may be possible inhibitors.)
■ Understand and support forward-looking movements of the various
state medical boards.
• If appointed, serve on the state board with dedication and even
distinction.
• Conduct their professional work in such a way that young people
through their example might seek to follow in their footsteps. (Putting
it another way, badmouthing can become a form of poison.) I asked
my favorite physician (who has just turned 40) how her children
seemed to feel about medicine as a career. Even though quite young,
they can sense the stresses and the commitmcnts of time. But two of
three are showing interest!
• Find time somehow to communicate more and more effectively with
their patients (a theme I find myself repeating). In a commencement
address to medical graduates, the late Norman Cousins (as included
in his book Flead First, p. 309) reminded them that in a patient's
hospital room the main distance is not from the door to the bed, "but
from the patient's eyes to your own." He speaks also of the need for
the physician to bend low:
Boards should try harder to
get their message out
Fine tune practice to real
and changing needs
There is a need for the
physician to bend low
to the patient's loneliness and fear and pain and the
overwhelming sense of mortality that comes flooding
up out of the unknown, and when the physician's hand
on the patient's shoulder or arm is a shelter against the
darkness.
In the same vein, a perceptive Spanish source has rephrased an old saN^ng:
The dying man cries out not so much for light, but
for warmth. It isn't the darkness that l:ills; it is the chill.
Please permit me a personal note here. One of the great joys of so-called
retirement is being more nearly master (after all these years!) of my own time.
SUMMER 1993
101
Medical training must emphasize inte8rity, respect,
and compassion
"Illness is no laughing matter. ,.but maybe it ought to
be"
This permits opportunity for serious walking, reading, thinking, quality family
time spread over four generations, and being associated with such organizations as this Federation which seek to improve the way in which organized
professions and other people of conscience carry out their civic and professional responsibilities.
Thanks to my friend and neighbor Dr David Citron, among others, I've been
introduced to the thoughts of Dr Phil Manning, Dr Kerr White, to publications of the Federation and related organizations, and--special pleasure-to
the work of Charles E. Odegaard, PhD, former president of the University of
Washington at Seattle, himself a substantial scholar, historian, and thinker on
behalf of the practice of medic.ine and medical education. I was familiar with
his national AHEC study, but only during the past few weeks did I have
opportunity to explore his 1986 work for the Henry J. Kaiser Family Foundation entitled Dear Doctor: A Personal Letter to a Physician. I hope some of
you have read it.
Dr Odegaard, with whom I worked 40 years ago on a Whitney Foundation
project on the improvement of teaching of the humanities and their value in
our lives, quotes the Guide of the Board of Internal Medicine, "which first
identifies the qualities desired in a physician as integrity, respect, and
compassion." He reminds the reader that medical training "must emphasize
these qualities as necessary for excellent care of patients." Candidates for
residencies, he goes on to say, "will be mature, reasonable, and well-intentioned. ...But they will find themselves charged with new and serious
responsibilities in unfamiliar situations that can be stressful, disturbing, frightful, or frustrating. Behavior that undermines good care and sound relationships may flow from these negative feelings and may become habitual."
(Guide, p. 56)
The scientiffcally-based aspects of medical education are an absolutely essential bedrock foundation. But the portions of the Guide cited most emphatically
by President Odegaard are in the section entitled "Enhancing the Physician's
Understanding of Humanism." The central theme: How can the relationship
between physicians and patients be isnprovecl s
One more thought while we're still tal.king about individual practitioners?
Let's focus for a moment on the desirability of a good sense of humor. In the
graduation talk mentioned earlier, Norman Cousins reminded the new doctors that "illness is no laughing matter... but maybe it ought to be." He cites
a Martin-Lefcourt study at the University of Waterloo which found that
students who had the greatest ability "to produce humor on demand" in
impromptu routincs were best able to cope with tensions and severe personal
problems. It can also relieve patient stress under some circumstances. I wonder
if there would be fewer impaired physicians if there were more stress relief
through appropriate humor?
Mr Cousins, as a crowning experience of his interesting career, was Adjunct
Professor in the School of Medicine at UCLA. His advice to the graduates
could provide a message for all of us. Monitor your own life, he suggests.
"There is a great deal of pressure these days to be a fast jumper whether with
respect to businesses, beds, beliefs, or buddies." Would your sclf-examination
102
FEDERATION BULLETIN
in these domains be revealing?
The Profession
The profession and the boards are already working together in far more ways
than I know or understand. Through results of using the Self-Assessment
Instrurraent (SAl), as mentioned earlier, a great deal can be done to identi.ty
effective management, where it exists, and to pave the way for changes, where
needed. The basic functions of licensure, discipline, and all that goes with these
ttcaGy responsibilities must continue to receive major attention.
13 Ltt there are three remaining questions worthy of assessment which I would
leave with you. The first has to do with evalaccetion ofclinical skills ofpersons
seeking licensure. What I have read and heard suggests that new physicians
recently out of medical school are filled with knowledge but are not always
ready to use it effectively in the real world. Leon Eiscnberg, 1.SD (in Kerr L.
White, The Task oflWedicine, p. 20$) describes the situation this «-av: "Educated in tertiary care centers, they are poorly prepared for the problems patients
present in primary care."
In 19 89, the report entitled A Proposalfor a Single Excamiracrtion f'or Licensure
(p. 26) put it this way:
While well-designed standardized examinations are usefiil and valuable
tools in assessing the cognitive componcrits of competence, such evaluation instruments have limitations in that they do not and cannot assess
all aspects of physician competence, (eg, behavioral characteristics,
psychomotor skills). Therefore, when valid and reliable methodologies
become available to evaluate such clinical skills, it is anticipated that they
will be incorporated into Step 2 and/or Step 3 of the proposed examination.
I realize that in 1963 the National Board of Medical Examiners abandoned
the clinical-oral exam which had been in use since I915. But, I am heartened
by the report prepared for The Fifth Ottawa International Conference on the
Assessment of Clinical Competence held at Dundee, Scotland, September 1-3,
1992. If you haven't read this 26-page report, or at least the last few pages
entitled "Plans for the Future," I commend it to you. As a lavperson, I'm sure
I don't understand all of the ramifications, but I am positively impressed by a
concluding statement which indicates that the data provide us with "encouraging evidence that we are on the right track" in clinical slcills using the standard
patient approach.
More recently I understand there has been considerable progress, that
effective use of the standard patient is becoming more widespread, and that
this aspect of assessing a candidate's clinical effectiveness could becozne a
regular part ofthe USMLE at some point. Members of the so-called "Philadel-.
phia group" as well as centers on the West Coast are an important part of this
movement, I am informed. This is good news which will be increasingly
welcomed by many including the public. Congratulations to those involved!
Keep working at it? *
SUMMER 1993
A good deal can be done
using the SAI
Standardized examinations have limitations
Use of standard pc^tients
in clniccrl skills assessment
has shown progress
103
The second quescion raises even more issues in my mind and pertains to a
situation which calls out for some form of evaluation. But by whom% I refer
to proposed legislation which would create additional boards of examiners for
other fields related to health cure, These proposals seem to have little or no
relationship (perhaps on purpose) to present arrangements for the licensing
of MD physicians. In the North Carolina legislature at the moment, there are
bills, among others, which would establish separate boards for licensing the
practice of acupuncture, practitioners of "complementary medicine," and the
practice of naturopathy.
In the People's Republic of China in 1975, I observed major surgery
performed under conditions of acupuncture. It appeared to be quite effective.
I am in no way competent, however, to judge either the nature of such
practices or whether certain proposed legislation should be passed in the form
offered. If the work of some or all of these fields is based on solid scientific
research and practice, and it serves patients well, then it would seem to belong
in the House of Medicine and possibly existing boards should expand their
If these fields do not measure functions and take charge. If thcsc f elds do not measure up as being
up scientifically, official
scientifically sound, then there is little logic in granting official recognition,
recognition is not logical
There are obvious financial, political, and jurisdictional overtones here. The
situation would seem to call for objective, external assessment. But who can
or will do it? Any volunteers for self-examination?
My third question concerns cantinuing rnedical educcctiora {CME}. In the
fast-changing world of medical practice, there appears to be a fantastic
expansion each year (if not each month) of new knowledge, new approaches,
and new aspects of pharmacology and technology, among other things. I hope
that the Fedcration-through the Self-Assessment Instruanent and in other
ways-will encourage each board to examine the effectiveness of its oversight
of the CME of its licensees. There is value in defending the choice of each
doctor to determine what he/she will do within the pertinent regulations to
meet the requirements, but just conceivably there are some mainstream
aspects of "the new knowledge" which every physician should be following.
Self-examination by the profession can determine whether this assumption is
true. If so, what are the central points, and how can they best be followed.
Personallv, I would like to see a little self examination carried out within the
I would like to see selfspirit of CME. What would happen if periodically each physician arranged to
examination in the spirit
have a trusted, friendly colleague observc him/her in the clinical setting and
of CME
then sit down subsequently over a cup of coffee and talk about it. (This
arrangement is used in the world of academe where I work-but far, far too
seldom.)
A physician might also have his/her clinical work recorded on video for
private self-examination a little later. He/she could then try to look objectively
as to how the situation might be vieNved through the eyes of the patient (who
would need to give permission to have the camera in the clinical sctting). What
we're talking about here could be not only self-examination but also selfrenewal?
In his wish for external perspective, Robert Burns might approve of this
approach!
A second question involves
creating bocerds fQr otber
fields related to bealtli care
104
FEl]EIZA.TION BULLETIN
CONCLUSION
There you have it. I've stressed the concept of self-examination in a wide
range of ways in an attempt to stimulate your thinking and quite possibly
your action both as board members and as individuals. We've looked at the
scene with attention to the public, to the role of practitioners, and to what
the profession and boards might do working together, All this is in the spirit
of the Federation's 1993 Annual Meeting theme: Pcrspcctives and Opportunities in Quality: The Continuing Role of Medical Boards.
I close with two very short quotations. Plato reminds us that: The unexamined life isn't worth living. St. Luke's familiar admonition is not unrelated:
Physician, heal thyself. But before the healing comes the workup and the
examination. In many cases, it's a self-examination. The whole process can
be revealing.
Before healin8 comes
workup and exapnination
Note
°Since writing these remarks, I was pleased to reccive additional information from Altnn I. 5utnick,
MD, Vice President of the Educational Commission for Foreign Medical Graduates, concernin€;,
among other issues, the use of standardized patients in skills assessmcnt of foreign rnedical graduates. I
conclude that this approach has considerable merit.
SUMMER 1993
105
Restox^.ng Public Trust
and Confidence in the
Practice of Medicine
DANIEL J. WEST, Ir, PhD
Overviezv: Continued self-examincrtion can improve behavior and stimulate
growth and developrnent. The author urges pbysicians, as individuals and as a
profession, to actively engage in self-excsminRtion. Hefocuses on seven specific areas
ofconcern he believes deserve particular attention iftbe erosion ofpublic trust cxnd
confidence in the medical p,°ofessaon is to be holted and reversed.
R
ecently, I had the privilege of attending the Annual Meeting of the
Federation of State N.Xcdical Boards of the United States in San
Francisco. The theme of that rneeting was "Perspectives and Opportunities
in Quality: The Continuing Role of Medical Boards." The comments that
follow were stimulated by the Platter Lecture given by Dr E.K. Fretwell,
president emeritus of the University of North Carolina, Charlotte. His
presentation focused on self examizzation as a vital process in the practice of
medicine. Although most of the meeting concentrated on quality of care
issues, this particular lecture prompted several observations that might be of
inrerest to others. I must admit they are not meant to be all inclusive; rather,
just "food for thought."
Understctnding our actions requires continual
self-examination
Legislating and qegulating do not necessarily lead
to improvement
106
Having had the opportunity to observe medicine in this country for almost
twenty-five years, and h avi.ng watched all of the efforts of the American Medical
Association, the Federation, state licensing boards and other related health
care entities, it a}}pcars to me there are a number of fundamental issues that,
if properly addressed and internalized by physicians, could change the direction of medicine in this country. I have always been of the belief that we are
to be judged by our actions as opposed to our good intentions. Understanding
our actions requires a continual self-examination in order to improve our
behaviors and allow refinement for future growth and development.
There is no question in my mind that public trust and confidence in the
medical profession has eroded. I would even go further and state this erosion
of public trust and confidencc not only relates to physicians but the entire
health care dclivery system in the United States. This erosion, which Iwi11
admit is probably more perceptual in nature by the consumer, has forced a
proliferation of regulatory and legislative efforts to ensure public accountability and quality health care. However, most of us would agree that legislating and regulating do not necessarily lead to quality improvement. I believe
that quality comes from a strong commitment on the part of the profession
FEDERATION BC]LLETIN
to develop and refine the art and practice of rnedicinc^ a continual effort to
meet customer needs, values and dcsires.
As a public member of the Pennsylvania State Licensing Board, and as a
consumer of health care services, I would suggest that there are several areas
for self-examination as a process for self-improvement. I can truly understand
the concern about government intervention in the practice of medicine. But
I am most concerned when I hear statements from physicians such as "if I had
it to do all over again I wouldn't. ..," or "I would never encourage my children
to go into medicine," or "I only have a few more years to go and then I am
out of this rat race." Statements such as these concern me to the extent that
individuals vocalizing them have adopted a defeatist attitude. At a macro level,
such defeatist statements connote that professionals will accept the status quo
rather than mold a new future with positive direction for the profession.
There are several
arecxs for selfexamination as a
process foy° self-irnprovenaent
KEY OBSERVATIONS
I offer the following personal o b sc rvationswith a beiief that iFphysiC ians would.
take the time to reflect on what they have done, and actively cngage in a
seif=assessment process, that the current direction of the profession and
perceptions about physicians would change in a positive manner. The following are areas I feel require self-examination and introspection,
Humanistic Behaviors
Most of what we do as professionals does not necessarily relate to the
knowledge and skills we have acquired in advanced academic training; rather,
how we approach people is related to the values and attitudes we maintain
about what it is we are doing. I would submit that public perception is a key
ingredient and variable in the new equation for changing health care in this
country. The public must be left with a perception and feeling that medicine
and physicians are concerned and care for the individual person. Even though
the new integrated health care models being advanced seem to focus on
systems and population subsets of these systems, we cannot forget the
individual patient. This humanistic approach assumes that the practitioner of
the healing arts will devote sufficient time to each patient. It is the attitude of
the physician and personalized care that rn<ikes all the difference in the world.
Introducing quality into the patient/physician relationship is an cssential step
to leaving a patient with a perception that the physician truly cares. This helps
to replace current perceptions that physicians are more concerned about
making money and seeing lots of patients than about devoting quality time
to each patient relationship and ensuring a highly satisfying process.
Strict Adherence to a Code of Ethics
Being a physician is an honorable profession, and in spite of all of the negative
comments that are directed at physicians in today's environment, I truly
believe that most individuals still perceive medicine as being an advanced
occupation that only a few will attain. As I interact with the medical cominunity, I often wonder how many physicians truly read, and reread, the
Hippocratic Oath. As a public member of the Pennsylvania State Licensing
SUMMER 1993
We cannQt forget the individual patient
I wonder hoyv many
physicians read and reread
the Hippocratic nath
107
Board, I feel that the Hippocratic Oath is a guide for physicians to follow.
Having read this oath several times myself, it becomes very apparent to me
that there is a code of ethics embodied within the oath that is essential to the
practice of medicine. I am often amazed when I walk into physicians' offices
and see all of the signs for billing, customer relations, directions and commitment to quality. But very rarely do I see the Hippocratic Oath being displayed
publicly for the patient to read. Our twentieth-century marketing inventions
are nowhere close to addressing the key values and behaviors implied in the
Hippocratic Oath which physicians pledge they will follow.
It is not possible to separate
physical and mental health
The public turns to the
profession to goverpa itself
Treating the Total Person
A recent article in the New EnBland Journal of Medicine suggests that a
significant number of Americans use other forms of treatment to supplant the
traditional health care delivery system in this country. I was appalled at the
frequency with which consumers continually utilize services outside the
mainstream of our health care delivery system to meet their physical health
needs. It appears to inc that people {the patients and customers) perceive
themselves as total persons having physical, psychological, social and spiritual
needs. It is not possible to separate physical and mental health, nor is it possible
to separate social and spiritual needs from the physical treatment processes
that we use in our health care delivery system. By refocusing our efforts on
the total person, I think physicians can inculcate a feeling on the part of patients
that physicians are concerned about total health care needs. We can no longer
continue to treat people in a vacuum, but must recreate the aura of concern
and caring for the person as an individual, taking into consideration all spheres
of living.
Compliance With Professional Standards of Conduct
This is truly where "the rubber meets the road." It is in this arena that the
American Medical Association, state medical associations and local medical
societies can do more to help the profession than they have done in the past.
It is in this arena that we look at the process of peer review: a process that is
to examine utilization, quality of care and quality improvement. Public
perception of this process is critical as the profession takes steps to improve
the art and science of medicine and znaiiatain public trust and confidence. I
would submit that it is in this particular area that we can do most to modify
the perception that pbysicians are more interested in making money than they
are in treating people. Self-referral and conflict of interest are addressed under
a professional standard of conduct. The public turns to the profession to
govern itsel f, and to make sure that those individuals who practice inferior or
incompetent medicine are dealt with by peers who will take appropriate action
to protect the patient and the public at large. And yet, having watched the
peer review process, I know that practitioners are reluctant to address concerns
that they see in their colleagues.
Compliance With State Licensing Laws
I am truly amazed at the number of physicians who conie before the Pennsyl-
10$
FEDERATION BULLETIN
vania State Licensing Board who have not read, though they possess, a copy
of the licensing act. I am disturbed by the number of physicians overall who
have never taken the time to read their own licensing law and understand the
implementing rules and regulations. When a profession cannot regulate itself
properly, this creates a breeding ground for consumcr advocacy groups to take
stronger actions to make sure that the government intervenes. This became
even more apparent to me when I attended a Consumer Advocacy Meeting
in Washington, DC, and listened to a presentation entitled "Watching the
Watchdogs." The bottom line is that most consumer advocacy groups feel
that the profession fails to monitor and appropriately regulate members of the
profession.
Ensuring Professionalism
The public demands that physicians adhere to a higher standard of conduct.
This higher standard of conduct means that physicians must be a model for
other people to follow. Being a physician means commitment to a higher
standard and continuous modeling of professional behaviors for the public at
all times. Accountability necessitates that all physicians maintain active continuing medical education. It is understandable that the public wants a system
in place that assures the consumer that recertification of clinical skills necessary
to practice the art and science of medicine exists. What comes to my mind
immediately is that we must eliminate a perception that dz2ig companies
provide all kinds of perks under the guise of continuing medical education.
Furthermore, given all of the malpractice suits, it is obvious that in many
instances practitioners do not meet the communin• standards of medical care
they advocate. Being a health care educator and consunner, I am convinced
that physicians rn ust continually improve their skills and abilities and maintain
competency levels to remain in active medical practice. Perhaps a refocusing
on the type of education we require can help to restore confidence and
credibility to the public we serve.
Public Service and the Community
I am sure everyone recalls the issue ofpatient dumping and everyone is acutely
aware of the uninsured and underinsured problem in this country. Given the
number of physicians practicing, a mere mathematical division of the number
of uninsured and underinsured by the number of physicians would seem to
indicate that if everyone did their "fair share" we would not have an indigent
problem. I am by no means suggesting that the problem can be solved by
physicians alone. What I am suggesting is that if all health care providers were
to do their "fair share," we would certainly take steps in the right direction to
solving a major problem. The second component relates to physicians taking
an active role in the community. For some reason, physicians have shuffled
this responsibility to the hospital setting or other professionals. It is the
hospital that is to take the lead in community activism and involvement. I
think that physicians as a profession should assume higher levels of community
involvement. What I am suggesting here is that physicians look for ways to
become involved with the public in solving problems, that they work with
SUMMER 1993
I am amazed at the numher of pdrysicians who have
not read the licensirag act
Being a physician means
commitment to a higher
standard
Plrysicians should assume
higher levels of compnureity
involvement
109
people rather than do things for people in seeking solutions. The former
position suggests that there would be a willingness and true interest on the
part of physicians to become involved in activism at the community level.
Having served on numerous cotnmuniry boards, I can attest to the fact that
it is extremely difficult to get physicians interested in addressing the total health
care needs of the community. It is for this reason that I am suggesting the
AIM.A., state medical societies and other health organizations focus on social
responsiveness and social responsibility as a way of restoring public trust and
confidence.
There is a need to develop a
new perception of trust
and confidence
110
CONCLUSION
I hope those who have taken the time to read these comments and to focus
on the key points I havc laid out will scc the potential merit in self-examination.
There is a need to develop a new perception of trust and confidence in the
medical profession. Efforts in Iccy areas could help us to structure a paradigm
focused on cost, quality and access to re-energize a prior paradigm called "the
art and scicnce of medicine." As a public member of a state licensing board,
as an educator and consumer of health care, I would like to see more time and
effort devoted to developing and advancing medicine, to steady health care
reform, than to reacting to government regulation and legislation. I would
like to spend less time trying to isolate "hidden motives" and more time in
creating and maintaining the best health care delivery system in the world.
FEDERAT1oN BULLETIN
Registration of Medical Students
in New South Wales, Australia
ANDREW E. DIX, Jll
averviesv: Nezv South Wales' 1992 Medical Practice Act includes provision for
the registration ofinediccal students. The author points out this is intended to allow
the board to assist in dealing with impctired ynedical students. It does not authorize
the board to consider matters of misconduct or improper behcsvior vY staidents.
n 1992, the New South Wales State Parliamcnt passed the Mcdical Practice
I Act which introduced the concept of registration of medical students by the
New South Wales Medical Board. This innovative measure will come into effect
on 1Tuly 1993 and represents the culmination of several years research and
consultation aimed at addressing the problem of the impaired medical practitioner at the earliest possible stage.
THE NEW SOUTH WALES MEDICAL BOARD AND ITS ROLE
The New South Wales Medical Board is the statutory authority in the State of
New South Wales (one of the eight States and Territorics that make up the
Commonwealth of Australia) and carries the responsibilin, for registering
medical practitioners and administering the health and discipline provisions
within the State. The Board is fiinded solelv by registration fees paid by
registered practitioners and is independent of the government, the Health
Department and medical professional bodies, such as the Australian Medical
Association. Its 18 members (both medical and public) include nominees of
the universities, the Minister for Health, the Royal Colleges (ie, the specialty
Boards), the Austral.ian Medical Association and several other groups, but its
charter is to impartially protect the public interest by ensuring the maintenance
of standards of conduct and practice. It is scrupulous to avoid any suggestion
of a partisan approach based on the views of any of the nominating organisations.
Unlike many other jurisdictions, the New South Wales Medical Board is
responsible for the registration of interns and junior medical officers from the
time of graduation onwards, and it supcrvises the accreditation of intern
training and the allocation of medical school graduates to the 500 positions
available annually in the State.
The Board is independent
of tbegovernrnent
The Board registers interns
and junior medical officers
THE RATIONALE FOR STUDENT REGISTRATIGN
The concept of student registration arose out of concern expressed by medical
SUMMER 1993
7^^
The number of impaired
students has always been
small, but the waste has
often been tragic
All students must be
registered
The boarcir's sole concern
mith students relates to impairment
112
students, faculty, staff and members of the profession at their inability to assist
with the treatment and rehabiiitation of medical students who manifested
impairment that had the potential to jeopardise their ability to practise
medicine effectively and safely and yet who were lacking the insight to undergo
appropriate treatment of their own accord. While the numbers have always
been small, the waste, both from the students' and the public's point of view,
has often been tragic. In the course of any year, the Medical Board is advised
of several interns or junior medical officers who are encountering difficulties
arising from health problems. When appropriate intervention and treatment
is commenced, the comment is frequently made that the road to recovery
would have been a lot shorter if the doctors concerned had commenced
treatment when the problems first surfaced during their undergraduate years.
The lack of any ability to require compliance with treatment has been at the
root of this problem.
In 1991, the Board canvassed proposals for the registration of students and
engaged in discussions with the student medical societies, the medical schools
and other interested groups so as to shape a proposal that would address all
of the concerns, both from the point of view of establishing appropriate
mechanisms and also from the point of view of mininaising any intrusive or
paternalistic aspects of the process.
THE MEDICAL PRACTICE ACT OF 1992 AND IMPAIRED
REGISTRANTS
The Medical Practice Act of 1992 now outlines the broad principles concerning student registration which are the result of that consultation process.
As a starting point, all medical students in New South Wales must be
registered with the Board as a prerequisite to undertaking a course of medical
study at a medical school in the State. There is no fee payable for registration
and it is intended that the process of registration will be integrated with the
enrollment process so as to minimise paper work and inconvenience.
Once a student is registcred with the Board, there is only one area of the
Board's jurisdiction that has any effect upon the student, namely the process
of evaluating and assisting impaired registrants through the mechanism of the
Iinpaired Registrants Panels. The concept of an Impaired Registrants Panel is
also an innovation in the Act and has been specifically included so as to distance
the processes used for dealing with registrants suffering from physical or mental
impairment from those required to deal with professional misconduct and
discip li n a ry rz1 a tte rs .
Therefore, the Board's sole concern with medical students relates to impairment; the Board does n or have the authority to consider matters ofrnisconduct
or improper behaviour on the part of students. (It should be noted that, upon
applying for registration as a medical practitioner, every applicant is required
to make a declaration concerning criminal convictioxas so that the Board can
satisfy itself as to the requirement that the practitioner is "of good character."
However, the Board has no mandate in this area as regards students.)
In practical terms, the jurisdiction of the Board in relation to impaired
registrants can be invoked by any person notifying the Board of possible
FET?ERATION BULLETIN
irnpairtnent of a practitioner or student. After an in itial assessment to ensure
that the notification is not vcYatirus or frivolous, the Board has the power to
refer the matter to an Impaired Registrants Pancl 'vuhich consists of two
persons, of whom at least one must be a medical practitioner. The Board may
require the student or practitioner to undergo a medical examination at the
expense of the Board and failure to attend the examination without reasonable
excuse may be considered to be an indication of impairmcnt.
The Panel rN i ll consider any medical reports together with other relevant
information and it may require the student and appropriate witnesses to
appear before it to give evidcncc. There is no right of legal representation
before the Paziel, ^^hic i1 «ill co[nLjitC't p r'()cc eLj1I1`.;5 lil an d.17.C1L]lsltoCk0,l, no(] - J Cj,
versarial fashioza.
After consiciiring the niatter, the I'ancl m av r['c(71T1nlelnd that the I3oarci
impose specified conditions on the way in which the student may undertake
clinical studies or, in an extreme case, it may keep the student from undertaking such studies. Such a case, where prohibition may be required, is where
the student suffers from a dangerous psychotic illness, while the more usual
situation would be a student suffering from a bipolar disorder who may be
required to satisfy the Board that he or she complies with treatment required
by the treating doctor.
A student who believes that the conditions are unreasonable may appeal to
the Medical Tribunal, which is a quasi-judicial body chaired by a District Court
Judge, with full rights of representation and a more traditional legal process.
CONCLUSION
It is the Board's expectation that the protectivc provisions Contained in the
new Act will only need to be made use of on rare occasions. When these
occasions do arise, the Board hopes that it will be able to use the provisions
positively to assist an impaired student who is undergoing difficulties, arresting the possibility of deteriorarioEti to the point ,,A=her-e rehabilitation becomes
a more doubtful proposition. The effectiveness of studcnt registration and the
Impaired Registrants Panels will depend, to a certairl cltent, upon the degree
of understanding and cooperation shown by medical practitioners and medical
students. The Board is confident that, with the growing acceptance within
the profession of its activities in this area during recent years, this will be
forthcoming.
SL'MMER 1993
The Board has the pozver to
refer a matter to an Impaired
.Registrcunts Panel
17)e Panel may recommend the
Board impose conditions
The Board hopes to utie ti,)e
provasions posatavely to assist impaired students
113
The Evolution of Medical Licensing
Examinations in the United States
JOHN H. MQRTUN, MD
Overview: The author briefly traces the history and background of medical
licensing examinations in the US from the farst efforts of the National Board of
Medical Examiners, through development of the Federation Licensing Examination, to the coming ofthe United States Medicctl Licensing Excsmination. He notes
the challenge for the fittzcre will be to keep the USIVLL current and relevunt.
I
The National Board was estaFilished in 1915 to provide quality examinations
n the last half of the nizYeteenth ccatury the states began to examine and
license individuals who wished to practice medicine. The examinations
differed from one state to anoth.er, and many of them were mediocre at best.
In an effort to improve the process the National Board of Medical Examiners
was established in 1915. The goal of the National Board was to provide
examinations of such, quality that the individual state might accept them in
lieu of the state's own examinations for licensure. By the time of World War
II the National Board examinations were accepted by many states although
all states continued to develop their own examinations as well.
NATIONAL BOARD EXAMINATIONS
Examinations at this time
involvecl essay questions
The National Board examinations were given in three parts, the first two parts
during undergraduate medical education and the third part after medical
school graduation. The first part of the sequence tested knowledge in basic
medical science, the second part in clinical science and the third part in patient
management skills. Examinations at this time involved essay questions in the
various basic science and clinical disciplines, and a score was recorded for each
discipline. Part III was conducted in a different manner. The candidate took
histories and carried out physical examinations on real patients, usually on the
hospital wards. He or she was then questioned by one or more practicing
physicians concerning the findings and the appropriate management of the
patients.
MCQ's ADOPTED
The advantages of multiple
choice items are obvious
114
In the early 1950s the National Board changed from essay examinations to
the use of multiplc choice questions. In retrospect, the advantages of multiple
choice items are obvious. (1) Much greater scope can be achieved in an
examination with several hundred multiple choice items than in a test with
four or five essay questions. (2) A well-prepared candidate might encounter
FEDERATION BULLETIN
a series of essay questions in areas with which he or she was unfamiliar; in the
same way a poorly-prep7red candidate might be lucky enough to find test
items in areas in which he or she was adequately prepared. The large number
of items on a multiple choice examination reduces the likelihood that a
candidate will pass or fail by chance alone. (3) Since multiple choice examinations can be graded by machine, it is much easier to grade a large number of
papers in a finite period of time. (4) Examiner bias may be a problem in the
grading of an essay question; the examiner with a strong opinion in a
controversial area may give a poor score to a candidate with a different view
of the subject in question. Once an examination committee has selected the
correct answer to a multiple choice item, grading is entireiy objective. {5} Even
for an unbiased examiner it may be difficult to grade a large number of papers
in a uniform way. After a certain number of papers have been read, the
examiner develops a feeling for the approach of these candidates to the
question. In reading the remainder of the papers, he or she may change the
grading system, becoming either more lenient or more strict based on this
first group of responses. (6) A candidate with very poor handwriting may
receive a poor grade on an essay question when an examiner cannot read the
response; with a multiple choice answer sheet the candidate is graded on
knowledge, not on penmanship. (7) A candidate who misinterprets one
question on an essay examination may lose enought points to fail. Similar
misinterpretation of one multiple choice item carries a much smaller penalty.
Despite these obvious advantages many state medical boards were verv upset
by the change, and acceptance of the National Board certificate dropped
appreciably.
By the early 1960s, the superiority of multiple choice examinations was
generally recognized, and once again the National Board examinations were
accepted by most state medical boards. At the same time, significant changes
were made in Part III. The number of individuals to he examined made the
use of real patients impractical, and a written, multiple choice examination was
developed to evaluate skills in patient management.
Many state boards were
upset by the change to naasltiple choice items
STATE EXAMINATIONS
During this period many state hoards adopted multiple choice questions for
their own examinations. However, state board examinations remained of very
uneven qualitv. State examinations were given to medical school graduates,
and they placed little or no emphasis on basic medical science. IMedical school
faculty members and many practicing physicians, state medical board members
among them, felt that the state board examinations were inadequate screens
for individuals beginning the increasingly complex practice of medicine.
FLEX
In an effort to improve this situation during the mid-1960s, the Federation
of State Medical Boards developed its own examination, employing the
multiple choice format. The new examination, known as the Federation
Licensing Examination (FLEX), was given for the first time in 1968. Only
seven states participated in the first administration. However, New York and
SUMNIER 1993
State board examinations
remained of very uneven
quality
FLEX -wasgiven for the
first time in 1968
115
FLEX 3 was clesignecl to
measure clinical conapetence
Some state medical board
meynbers felt the NBME
and FLEX systems should
be combined
The new FLEX of 1985
was no longer derivecl from
the NBME examinations
116
California were early additions to the list, and the idea spread rapidly. By the
late 1970s, FLEX was the Iicensizag examination in every state.
Initially, FLEX was a derivative examination, its test items being selected
from previously used National Board test questions. National Board Part I
items were written by seven discipline committees representing anatonay,
behavioral science, biochemistry, microbiology, pathology, pharmacology and
physiology. Six subjects-medicine, obstetrics-gynecology, pediatrics,
preventive medicine-public health, psychiatry and surgery-were covered in
National Board Part II, Although the item writing committees for both parts
were composed of specialists in these fields and subscores were measured for
each individual discipline, the items were intermixed so that the examinations
appeared as general tests. In grading FLEX 1 and FLEX 2, the final grade on
each was the mean of the respective discipline scores.
The goals of FLEX 3 were different. This examination, drawn from the
National Board Part III, was not discipline-oriented. It was designed to
measure clinical competence, the ability of the physician to deal with sick
people. This segment of the examination sequence received somewhat less
attention from the FLEX test committees than the first two. Members of these
test committees were all practitioners, and they paid the greatest attention to
items in their own disciplines. The undifferentiated nature of FLEX 3 meant
that no group of test committee members had a special interest in either the
test outline or the actual items for this segment of the examination sequence.
In retrospect, this limited attention to FLEX 3 was probably a mistake because
of the importance of FLEX 3 in the grading system adopted for the original
FLEX, the so-called FLEX tiVcighted Average. Candidates passed or failed
FLEX based on performanci on all three parts measured together. The
candidate's grade was derived with different weights for the three segments.
FLEX I scores made up one sixth, FLEX 2 scores one third and FLEX 3 scores
one half of the final grade.
Many medical schools required all students to pass Part I of the National
Board sequence, and some schools requircd successful completion of Part II
as well. It was logical for these students to obtain National Board certification
by completing Part III because most states accepted National Board certification for licensure. Because FLEX was derived from the National Board
question pool, it seemed appropriate to some state medicaI board members
that the two systems be combined into a single licensing examination.
However, this was not feasible since only students or graduates of American
or Canadian medical schools were eligible to take the National Board examinations. Without FLEX, many qualified applicants from foreign medical schools
would have been disenfranchised.
THE NEW FLEX
In an effort to improve the process further, the Federation and the National
Board introduced in 1985 a new FLEX which was no longer a derivative of
the National Board examinations. All test items were developed by interdisciplinary committees, and subscorcs for individual subjects were no longer
measured. The examination was given in two components, and it was necessary
FEDERATION BULLETIN
to pass each component separately-the FLEX Weighted Average was
eliminated.
Changing to a completely new examination responded to the complaint that
American and Canadian students had an unfair advantage over foreign medical
graduates: with the original FLEX the Arn.erican or Canadian who £ailcd the
National Board sequence could take FLEX and encounter some of the same
test items. Nevertheless, there were still two separate examination sequences
leading to licensure. A candidate who failed either of the examinations could
complain that he or she would have completed the other successfully.
USMLE
Finally, in the 1990s a single examination system for licensure is becornirae; a
reality. The National Board and the Federation have joined other interested
parties in the development of a new examination path^vay to licensure, the
United States Medical Licensing Examination fIUSINILE}. As the USMLE is
phased in, both the National Board cYaminations and FLEX are being phased
out. US,-^ILE is a three step examination sequence, and each step must be
successfully completed. Step 1 and Step 2 are taken by medical students,
usually during the second and the fourth year respectively. However, the
student decides when he or she is ready to take either examination, Since
USMLE is available to any doctor seeking a license in the United States, the
first two steps are given to students at American and Canadian medical schools.
Both steps are also offered to medical students or physicians at centers around
the world under the auspices of the Educational Commission for Foreign
Medical Graduates.
Both Steps 1 and 2 were administered for the first time in 1992. To be eligible
to take Step 3 the candidate must graduate from medical school and pass Steps
1 and 2. Since the authority to grant licenses lies with the states, Step 3 will
be given only in the United States under the auspices of an individual state
medical board. It will be offered for the first time in June 1994.
All three steps are composed of multiple choice items. Following the lead of
the new FLEX, Steps 1 and 2 are not organized along traditional disciplinary
lines. Step 1 is a comprehensive examination in basic medical science including
important new areas which fall outside the examination outlines of the
discipline committees. In a similar war^, Step 2 is a comprehensive examination
in clinical science. Step 3 is being developed by an interdisciplinary committee.
The committee concluded that this portion of the examination should mimic
what the physician encounters in practice. With this goal, each test item will
begin with a brief vignette of clinical information. Questions will follow the
vignette, testing the physician's ability to take a history, interpret physical
findings, order and interpret appropriate laboratory work, make a diagnosis,
establish a prognosis and institute a plan of care. Step 3 will not repeat Steps
I and 2, but the candidate will be expected to understand basic mechanisms
of disease. The committee believes that an understanding of basic science is
essential in order for the doctor to cope with the unexpected event or the
unusual illness. It is this ability to think through the complex problem which
distinguishes the physician from the highly skilled medical technician, and the
SUMMER 1993
USMLE is available to
any doctor seeking a license
in the US
Steps 1 and 2 are not organized along traditional
disciplinary lines
117
Step 3 is to test the ability
to asndertake independent
practice
118
committee believcs that it is essential to evaluate this ability insofar as possible
during Step 3. The committee has also defined the field encompassed by Step
3: it is designed to test the ability of the general physician to undertake
independent practice, and emphasis will be placed on common problems
encountered in the office or the emergency department. It is not intended to
be the equivalent of a specialty board examination, and the test items are
constructed specifically to evaluatc diagnosis and management by the general
physician.
By June 1994, a great deal of effort will have been expended to make all three
steps of USMLE as effective as possible. Since medicine continues to change
rapidly, it will be necessan, for the examinations to change as well. The
challenge for the comrnittees responsible for the further development of
USMLE will be to keep the examination current and relevant. It is anticipated
that the physicians and scientists who undertake this role will share the
enthusiasm and excitement which has surrounded the steps leading to the first
administrations of this important new examination.
FEI]ERATIQN BL'LLE'I'IN
FROM OUR INTERNATIONAL EXCHANGES
NEW ZEALAND
Sexual Abuse in the Doctor-Patient
Relationship: Discussion Document for the
Profession
It is always the respon sibility of the doctor to ensure tha t
interaction with each patient occurs in a context in
avhich the patient is informed and consents. The doctor
recaest take the history, examine and treat in a manner
which is respectful, sensitive and apprQpricrte.
Council is committed to eradicating all forms of sexual
abuse in the dr3rtor-parient relatioitship For the foflo^,v ing reasons:
Fr•nna the <L,fedic:c' Council of
New Zeaaland's MCNcwZ
Number 6, December 1992
• The ethical doctor-patient relationship depends
upon the doctor creating an environment Nvhere
mutual respect and rrust can exist, and where the
patient can have corzfxdence and safety.
• The onus is always on the doctor to behave in a
professional manner. Total integrity of doctors is
the proper expectation of the community and of
the profession. The community must be confident that personal boundaries will be maintained
and that as patients they will never be at risk. It is
never acceptable to blame the patient for the
sexual misconduct.
• The doctor is in an uniquely privileged position
regarding physical and emotional proYimity.
Patients may be expected to disrobe and to allow
doctors to examine them immediately. Boundaries can easily be broken in this enviroment.
of the doctor-patient relationship risk
causing psychological damage to the patient.
Sexual misconduct by a doctor inevitably harms
the patient.
• The doctor-patient relationship is not one of
equality. In seeking assistance, guidance and
SUMMER 1993
treatment, the patient is vulnerable. Exploitation
of the patient is an abuse of power. Because of the
power imbalance patient consent can never be a
defence.
• Sexual involvement with the patient leads to impairment of clinical judgment.
Zero Tolerance
Council adopts the principle of zero tolerance with
respect to a doctor who engages in sexual activity with
a current patient. Zero tolerance means that:
- Council does not tolerate sexual abuse by doctors.
Council is «•orking towards the development of
sufficient support for victims so that they can come
fonvard and they can have help to heal.
Council is «-orking diligently towards educating
doctors and the public about appropriate behaviour
and attituries, so abuse cannot occur out of ignorance on the part of either doctor or patient.
- Council continues to support touch as a crucial,
healing part of the practice of medicine, when that
touch is caring or nurturing, and not sexual or
exploitative.
The zero tolerance principle applies to current
patients ( adults and children) and their close relations.
Sexualization of a relationship with a former patient
also carrics considerable potential for harm. Council is
working towards developing clear guidelines on these
more complex boundary issues.
The guiding principle is that there be no exploitation of the patient (whether adult or child) or their
immediate #amily rnetnbers. There must not be abuse
of the doctor's power.
The council rejects the view that changing social
sttndards require a less stringent approacia. The na[ure
of the professional doctor-patient relationship must be
one of absolure confidence and trust. It transcends
social values and no standard other than the highest
can be acceptable.
The Medical Council believes the issue of the power
differential between patient and doctor means that
consent of the patient is not a defence in disciplinary
119
findings of sexual abuse. It may become an issue in
consideration ofpenalty. Each case must be examined
in relation to the degree of dependency benveen
patient and doctor and the duration and narure of the
profcssionai relationship.
Definitions
Council considers that sexual abuse can be described
in three levels:
1. Sexual impropriety
2. Sexual transgression
3. Sexual violation
1. Sexual impropriety means any behaviour such as
gestures or expressions that are sexually demeaning to
a patient, or which demonstrate a lack of respect for
the patient's privacy.
Sexual impropriety includes, but is not limited to:
i:iappropriate disrobing or draping practices
conducting an intimate examination ofa paricnt in
the presence of students or other parties without
the informed consent of the patient
inappropriate comments about, or to, the paticnt,
such as the making of sexual comments about a
patient's body or underclothing
- making sexualized or sexually-demeaning comments to a patient
ridicule of a patient's sexual orientation
; homosexual, heterosexual or bisexual)
making comments about potential sexual perforniance during an examination or consultation (except where pertinent to professional issues of sexual
function or dysfunction)
requesting details of sexual history or sexual likes or
dislikes not clinically indicated for the type of consultation
any conversation regarding tho sexual problcrns,
preferences or fantasies of the doctor.
2. Sexual transgression nlLans .;nv inappropriate
touching of a patient that is of a sexual nature, short
of Sexual violation.
Sexual transgression irzcludes, but is not limited to:
manual internal examination without gloves
the touching of breasts or genitals, excepr for the
purpose of appropriate physical examination or
treatment, or where the patient has refused or
120
withdrawn consent to the touching as part of such
examination or treatment
kissing o f a sexual nature
proposition'sng a patient
3. Sexual violation means doctor-patient sexual activity, whethcr or not initiated by the patient, including, but not limited to:
sexual intercourse
masturbation
- genital to genital contact
oral to genital contact
oral to anal contact
- genital to anal contact.
Penalties for these three levels of offence range from
censure through fine, conditions on practice and
suspension, to the ultirnatc sanction of removal from
the rcZistcr.
Application for Re-registration
The primary concern of the Medical Council is to
protect the public . For that reason council will tend to
be cautious in approving applications for registration
from doctors who have been struck off as a penalty for
sexual abuse. The guidelines for rehabilitation arc still
being formulated, but it is expected that for an application to be successful it will have to provide evidence
of.'successful thcrapv and rehabilitation of the doctor.
it will also have to be supported by an independent
assessment by a person appointed for that purpose by
council.
Acknowledgement
In compiling this discussion document for the profession in New Zealand, council (through its working
party on sexual abuse in the doctor, patient relationship) has had access to a wide varien, of world litcrature, background inforniation and initiatives. Council
is particularly indebted to the College of Physicians
and Surgeons of Ontario and to the New South Wales
Medical Board for access to their statements on sexual
abuse in the doctor-patient relationship.
Council welcomes constructive comment on this
documciat over the coming months, so that a statement for the profession can be finalised by July
1993.
FEDERATION BULLETIN
FROM OUR MEMBER BOARD EXCHANGES
MARYLAND
Clinical Note
IS RrlE L H. 4VE I N E R, NI D
From the Maryland BPQA NEWSLETTER,
Sp•i.ag 1993
l.Frozn time to time, we would like to call your attention
to clinical prabletys.r which the Board has noticed to be
repeated causes for complaints to the Board, or f'ar
malpractice actions. We would hope to raise your index
of suspicion for these problems, and to shcrrpen your
rraca nsrgem en t of tbe tn. ]
One frequently missed diagnosis in Emergency
Departments, and by primary care physicians, is the
mild spontaneous subarachnoid hemorrhage
which often precedes a major catastrophic bleed by a
few days or weeks. Failure to make this diagnosis can
be disastrous. It denies the patient definitive surgical
treatment of the usual underlying cerebral aneun•sm
before there is severe brain damage and at a time when
he or she is an optimal surgical risk. It is estimated that
30°Io of patients who suffer such a bleed will have a
recurrent hemorrhage in the following four weeks.
About 50% of those recurrences will be immediately
fatal. Frequently, the mild initial episode will not be
accompanied by any objective neurologic findings,
and too often patients are sent home with a diagnosis
of migraine and given simply symptomatic treatment.
The diagnosis is not difficult. Any sudden, severe headache
is a subarachnoid hemorrhage until proven othervvise.
Sudden means irzstuntc^^^rrc^r--the patient cwi tell you exactly
what he or she was doing NG hen the headache struck. Exerdon
or straining may have been involved, but not nect^^aiiy. Severe
means tbe avmst heaacluclx the patient has e-ver hu^.'. Vvith tdhis
quickly eGdtable history, the diagnosis is highh• stLspect Ifthere
was transient loss of conscaousncss or vomitulg, the level of
suspicion tises, but these symptoms are not necessary.
The neurological examination may well be quite
SUMMER 1993
negative. There may not even be any neck stiffness.
There may or may not be hypertension or bradycardia.
As a neurosurgeon, I recommend CT scanning as the
confirmatory diagnostic test of first choice. If there is
blood density in the subarachnoid spaces, or brain, call
your consultant. If the CT is negative, a subarachnoid
hemorrhage is not yet ruled out. CT will not detect
a thin bleed in a high percentage of cases.
With a suspicious history and a negative CT, lumbar
puncture is indicated. I suggest that the LP be done
with the patient sitting on the side of the bed or
stretcher, rlcxed forward over a pillow in the lap, or a
bedside table. In this position, it is much easier to
accomplish a clean, quick, accurately mid-line,
atraumatic tap than in the classical lateral position. If
the fluid is bloody, note whether it clears in successive
tubes, suggesting a traumatic tap. Also, centrifuge a
sample, and note if the supernatant is xanthochromic
or colorless as compared to water. Usually, blood in
the CSF for more than a few hours will stain it
yellowish, but this is variable and convincing only if
present. Even non-xanthochromic fluid does not rule
out hemorrhage. If the CSF is clear and colorless, subarachnoid bleeding can be considered to be ruled out.
When in doubt, go back to the history, and recall the
significance of that sudden, severe headache. An
unneccssan- call to your neurological consultant is
better than the possibility of missing this diagnosis.
MISSISSIPPI
Prescribing, Administering or Dispensing to
Family Members
From the MISSISSIPPI STATE BO.r'1RD OF
MEDICAL LICENSURE tiIE.WSLET['E.k?`,
Wirater 199.3
The Viississippi State Board of Medical Licensure is
continually tacing the issue of licensees prescribing,
administering or dispensing controlled substances to
family members. In the State of Mississippi, there is
121
no law or regulation proinulgated which prohibits this
practice; however, the frequently-stated position of
the Board is that a licensee should not treat farnilr
members, particularly with controlled substances.
Licensees are advised to consider the following:
1. Regulation IV., E. and F. requires detailed medical
records be maintained regarding the administering,
dispensing, and prescribing of controlled substances.
This includes documentation ofan examination, diagnosis, and medical indication thereof. Family members are not exempt from this regulation.
2. These records should include all prescriptions,
including call-in medications.
3. The prescribing of controlled substances to farnily members is strongly discouraged except for extreme emergencies, and only then, for an amount
to cover the period of the emergency.
4. Physicians are urged to maintain a primary care
physician for the treatment of one's sclf and fantily
members or close friends. This helps to maintain
objectivity.
Case in Point:
A physician was found to be administering, dispensing
and prescribing various controlled substances to an
ex-spouse and to the current spouse. Soth patients had
well-documented histories of controlled substance use
and abuse. The physician was warned by personal visits
from investigators followed up with written letters
from the Executive Officer to correct the prescribing
and treatment practices. Despite the warnings, the
physician continued to aggressively prescribe Tylenol
#3, Demerol injectable, Ritalin, and 13enzodia?cpincs
to the patients.
As a result of this physician's practices, the Board
took formal disciplinary action and restricted this
physician's controlled substances privileges to
prescribing for non-fa€nil5• members and in-paticnt
( hospital-bound) patients only.
Prescription Format: One Drug, One Prescription
The investigative staff of the Mississippi State Board
of Medical Licensure is frequently challenged by pharmacists regarding prescriptions on which more than
one drug has been written by a physician.
The Board's regulations do not address this matter;
thus, the practice is technically legaI. However, the
physician is asked to consider what is best overall for
the patient.
The filling and filing of prescriptions which contain
more than one drug per blank creates problcros, not
only for the patient, but for the pharmacist, especially
if a controlled substance is involved in the issue.
It is not unusual for a pharmacy to be remporarily
out of a drug. If a prescription lists more than one
drug, the patient could be delayed in getting the
122
medication or be forced to search for a pharmacy that
has all the meds in stock. If the pharmacist fills a
portion of the prescription, a delay of up to nventyfour ^24] hours or longer could occur before the
intcnded therapy begins because of the inability of the
pharmacist to return the unfilled portion of the
prescription containing the multiple drugs to the
patient. If the prescriptions are issued on separate
prescription blanks, as is recommended, patients have
the option to have each prescription filled at the
pharmacy of their choice and/or at the pharmacy
which has the medication available.
On occasion, physicians have been documented issuing prescriptions for controlled substances on which a
Schedule II medication is indicated along with a controlled substance from a lower schedule. Federal and
State regulatic^€^s require the pharmacist to tlle
separately, the prescriptions in Schedule II from
prescriptions in other schedules and legend drugs.
This then creates a serious filing problem for the
pharmacist.
Recent investigations by the Board identified
physicians prescribing controlled and non-controlled
drugs on common prescription blanks with an indication of up to five (5) refills documented on the
prescription. This opens the door for the pharmacist
to interpret the refill intentions of the physician. The
basic question asked is, "Are both drugs intended to
be refilled up to five (IS) times?" In order to avoid this
potential for inappropriate therapy, the physician
should issue each prescription on a separate prescription blank and clearly indicate the number of refills
intended or indicate "None" if no refills are intended.
From an economic standpoint, issuing prescriptions
on separate blanks allows patients the opportunity to
easily seek the best possible price for their medication.
Prescription blanks listing more than one drug also
offer an opportiuiity for the patient to add a drug on one
of the unused lines. Use of multi-line blanks thus can
open an other casy route to divert controlled substan ces.
As a matter of good practice, physicians are strongly
encouraged to consider what is put in motion when
multiple drugs are included on one prescription blank.
The Board strongly urges physicians to carefully consider their prescribing practices and issue prescriptions
which contain only one medication per prescription
blank.
MISSOURI
The Professional Patient
From the Missouri State Board of Registration
for the Healing Arts Healing :Iats Nc^vs,
August 1992
FEDEti.A'x'ION BULLETIN
We received a letter from a physician in Lebanon, T^,10,
who wrote " . . . When a physician learns that he or
she has a professional patient ... he then has a
dilemma. Should he inform the patient that he should
find another physician {and possibly he accused of
abandonment), or is the physician obligated to give
the patient adequate time (i.e. 30 days) to find another
physician? And if the physician gives the patient adequate time, is he obligated to refill the prescription as
he would have done previously? ...".
The following strategies may be useful vhen confronting suspected drug seekers.
1. Always give advice with reference to the patient's
chief complaint. For example, physicians who do
not ordinarily prescribe narcotics for certain types
of diagnoses should say so to the patient.
2. Maintain a professional demeanor throubhout the
encounter. Drug seekers who are fiustrated in their
attempts to obtain drugs often become angr^ . 1:'his
response is so typical that some clinicians consider it
diagnostic of drug seeking hehavior. If necessary,
security staff or the police should be summoned.
3. Confront the patient in a gentle, respectful
manner. It is important to avoid being judgmental
or showing antagonism. Some examples of confrontational techniques include inquiring as to
whether the patient believes that he or she has a
problem with prescription drugs, noting the addictive properties of the medications sought, and expressing concern for the patient's welfare. When
confronted, some patients admit that they are addicted to prescription drugs and claim that they
want to stop taking them, These patients should be
referred for formal assessment and treatment.
A dilemma commonly encountered is %4•hether to
provide a patient with a supply of drugs until he or she
can obtain treatment for the underlying dependence.
What to do depends in part on which prescription drug
the patient abuses. Withdrawal from narcotics can be
debilitating, but is rarely faral. Withdrawal from barbiturates and benxodiazepines can be fatal and patients
addicted to these drugs should be held in a medically
supervised setting for management of withdrawal.
Another dilemma for a physician is whether to believe
drug seekers' claim that they wish to stop their drug
use. The admission itself may be ge.nuine, but it also
may be another ruse. When in doubt, patients should
be referred to a specialist in drug rehabilitation for
expert consultation. (A list of federally Iicensed treatment centers was published in the last edition of
Healing Arts News.)
The above suggestions relate to first-riine patients. In
the case ofan established patient, the physiciui has several
options. First, the physician may offer a non-«arcotic
agent f'orpain. The physician may also izistruct the patient
that he or she can no longer trcat the patient and then
SLTMMER 1993
make arrangements for the patient to be seen by a drug
rehabilitation or pain management specialist. The arrangement will prevent the physician from violating
the patient abandonment statute. The physician is not
obligated to continue prescribing narcotics.
It has been suggested that a valid prescription must
have a medical need. Therefore in the case of non-narcotic addicrion ifaarbiturates or benzodiazepines), the
physician in good faith may prescribe a limited amount
to prevent withdra«'a[ symptoms. It is important to
note that the burden is then placed on the physician
to make sure that the referral is made and the appointment is kept. For example, a physician makes an
appointment for the patient to be seen by a specialist
in two wceics. The physician then prescribes a two
week supply of medication to prevent withdrawal of
the rion-narcotic. The physician should at that time
inform the patient that an appointment has been made
and that if the appointment is not kept, or if the
medication is lost, a refill will not be written. This will
prevent the patient from the ruse of returning in two
weeks with an excuse stating that he or she could not
make the appointmentand that they would like to have
another appointment and a refill for the duration of
the waiting period.
TEXAS
Pain Control and the Texas State Board of Medical Examiners
C. RICI-LARD STASNEY, &Ill, :^1,;.\.IJ C. 5T•iLAT°I'0N
HILL, NiD
From the Texas State Board of Medical
Esaminers NEWSLETTER,
Spring/5urnmer 1993
Qualin, medical practice dictates that those citizens of
Texas who suffer pain and other distressing symptoms
should be adequately relieved so that their quality of
life is as optimum as can be. Therefore, in agreement
with the International Narcotic Control Board, Section 21 of the Code of Federal Regulations and the
Intractable Pain Treatment Act of Texas, the Texas
State Board of Medical Examiners recognizes that
opioids (narcotics) and other Schcduled Controlled substances, are indispensable for the treatment of pain; and,
are useful for relieving and controlling many other distressing symptoms that patients may suffer. It is the
position of the Board that these drugs be prescribed for
the treatment of these symptoms in appropriate and
adequate doses after an appropriate diagnosis is made.
In dctermining the standard of practice for the use
of these drugs the Board will focus on their use for the
targeted symptom diavnosed after a careful historv_
123
physical exarnination, and appropriarc laboratory
studies have been done. 'I'he Board recognizes that
pain, and many other symptoms are subjective complaints and appropriateness and adequacy of drug and
dose will vary from individual to individual. The standard will be determined largely by the treatment outcome taking into account that the drug used is
pharmacologically recognized to be appropriate for
the diagnosis as determined by a consensus of medical
practitioners in the State, or by recognized experts in
the fie.ld for which the drug is being used. Quantiry
and chronicity of prescribing will be judged on the
basis of the diagnosis and treatment of the targeted
symptoms and neither of these factors are prima facie
evidence of inappropriate or excessive prescribing
The Board further recognizes that controlled substances are subject to abuse by individuals who seek
them for mood altering and other psychological effects
rather than their leaitimate medical uses. When
prescribing controlled substances, the practitioner
should be diligent in preventing them from being
diverted from legitimate to illegitimate use. Tolerance
and physical dependence are normal consequences of
sustained use of these drugs and are not synonymous
with psychological dependency (addiction) on them.
Psychological dependency is characterized by the compulsion to take the drug despite its harmful and
destructive effect on the individual.
The Board hopes this statement «i.f.l ckuify its position on
the appropriate use of opioids and other scheduicd cirugs
for treatment of pain and other distressing symptoms.
WASHINGTON (M)
Complaint Process
GAIT. GIM_%It:RMAN
From the Washingtori 5trxte Board of Medical
Examiners/Medical Disciplinary Board
Medical Bulletin
Fall 1992
When a complaint is received by Department of
Health staff and assigned to the Medical Disciplinary
Board (MDB), the following process is carefully followed.
Intake and Review
The intake coordinatorreceives the compiaints, which
are received from the public as well as mandatory
reports. Upon receipt of a complaint the intake coordinator sets up the file, checks licensure status and
traces former cases. The file is then forwarded to the
medical consultant for review and preparation of a
complaint summary.
124
Case Staffing
The MDB Executive Director, MDB Program
Manager, Medical Consultants, Chief of Investigations, and Chief StaffAttorney meet weekly to review
complaints and recommend case dispositions. Cases
requiring investigation are forwarded to MDB investigations or, if a drug related case, to the Board of
Pharmacy. Once the investigations are complete, the
cases are f'onvardeti to the Reviewing Board Member
for review, recomnlendation, and presentation to the
Board.
Revieaving Board Member/Medical Consultant Presentations
Reviewing Board Members review cases and make a
recommendation to the Board to take no action or to
pursue further action. The Medical Consultant
presents medical malpractice cascs to the Board each
month. All cases are presented in closed session
and NO PHYSICIAN OR PHYSICIAN ASSIS"1'ANT NAMES are used. The Reviewing Board
Member does not take part in deliberations or the kinai
decision on whether to take action on a particular case.
Further Action
Cases are returned to MDB staff attorneys and/or
Assistant Attorneys General to prepare Statement of
Charges or other appropriate documents.
Settlement Conference
The settlement conference is a meeting made available
to all physicians who have formally received a Statement
of Charges alleging violation of the Physician and
Surgeons' licensing law. The meeting is conducted by
the Reviewing Board Member and attended by the
Medical Consultant, the Assistant Attorney General
(AAG), and/or staff attorney, the physician, and the
physician's attorney ( if represented).
The charges and underlying circumstances are
reviewed and discussed. The desired outcome of the
settlemcnt conference is a mutually agreed upon
Stipulation and Agreed Order which can be presented
to the Board for approval.
Board Stipu la tion Presentation
The Reviewing Board Member and the staff attorney
present the Stipulation and Agreed Order to the Board
for approval. The respondent physician and
physician's attorney may appear. In alleged sexual
misconduct cases the Board requires the respondent
piiysician to be in attendance. If the stipulated order
is accepted, the Board Chair's signature is obtained by
the staff attorney, returned to the Board staff for
service on the physician, the physician's attorney, and
Assistant Attorney General (AAG) prosecutor. If the
stipulatiorz is not reached or is rejected by the Board,
the case is referred to the prosecuting Assistant Attorney General and the Department of Health prehearing
FEDERATION BULLETIN
officer (PG) in preparation for a hearing
Prehearing Process
A prehearing conference will be schedtiled and will be
conducted by an independent hearing j udge appointed by
the Board. The Assistant Attorney General ^AAG;:
prosecutor and the physician's attorney and/or the
physician will attend the conference. The purpose of the
conference is to obtain agreements and make rulings in th c
case so that the hearing process will be efficient. 'I'he
hearings judge obtains agreements of the parties as to legal
and factual matters, rules on discovery issues, and rules on
legal and evidentiary matters. One or more prehearing
conferences may be required prior to hearing. A prehearing order which will govern the course of the formal
hearing will be issued by the hearing judge.
The Board may choose to involve an Administrative
Law 7udge (ALJ) in the hearing process. The AL.T
hears the case and develops a proposed ordcr. The
hearing record and the proposed order are submitted
to the Board or a panel of the Board for final decision.
Board Formal Hearing
The cases are presented in formal hearing by an Assistant Attorney General (AAG). Once disposition is
SUMMER 1993
made by the Board, the AAG Board advisor drafts
fiormal hearing orders, the Board Chair's signature is
obtained and the document is forwarded to Board
staff. The orders are served on the physician, the
physician's attorney, and the AAG prosecutor. Final
orders called Findings ofFact, Conclusions of Law and
Order may mandate revocation, suspension, restriction or limitation, a progratn ofcontinuing education,
treatment and monitoring of an impaired physician
and/or fines. All Statements of Charges and final
orders arc public!}° disclnsed.
Appeal Process
At this juncture, the phvsician has the right to apptal
the decision of the Board to c h e superior court.
Compliance
The compliance officer monitors the conditions set
forth in all orders including, but not limited to practice
reviews, triplicate prescriptions, and reports appearances before the Board.
Reinstatement
When conditions of compliance are met, the physician
requests a removal of jurisdiction or reinstatement
from the Board and appears for final disposition.
125
PAGING THROUGH OUR PAST
Present Non-Uniformity of Medical
Licensure: Report of a Special
Committee of the Federation ofState
Medical Boards of the United States
This report wRsfeattrcred in the October 1 915 number of
the Federation's Monthly Bulletin. It was prepared by
Walter L. Bierring, MD, and others in response to a
recommendation
Charles H. Cook,
Meetin,y of 1914.
Annual Meeting
made by the Federation's. president,
MD, ofMassachusetts, at the Annual
It had been formally presented to the
held in February 1 9I5, at whieh time
the committee was asked to continue its work for another
year. A supplerFaentpry report was delivered at the 1916
sesston.
The need frw 2¢:aif'nrrn standards of licensure was
clearly of compr;lliud interest to the Federcrtirrn frorra its
beginnin8', but the suggestion raised by this committee
for creation by Congress of a central board or council,
similar to that in Canada, had to be tempered with a
recognation ofthe sovereignty ofthe states and the powers
of the state boards. The conclusion, that the work of the
Federation could provide the "harmonizing stimulus"
needed to move toward unifarmity and universal interstate endorsement, was certainly ambitious. We doubt
Dr Bierring would be surprised to lear•n we are still at
it crlrreosc 80 years on.
At the last meeting of the Federation, the address of
the President, Dr. Charles H. Cook, contained the
recommendation to have a committee appointed that
should report at this February meeting on existing
conditions as to medical practice acts, reciprocity relations, and character of examinations, prevailing in the
different states of the Union, with such suggestions
whereby the Federation could promote a state of
greater uniformity of medical laws and interstate relations for higher standards of medical practice and
education.
The proposal probably had its precedent in the work
126
of a similar committee in Canada, that has culminated
in the creation of the Medical Council of the
Dominion of Canada. In a similar way the Conference
of Conzmissioners of Uniform State Laws has been
engaged during the past twen[y-five years, in preparing uni#iorm laws on the more pressing subjects, to
present them to the legislatures of the various states
for enactment.
The Committee was constituted as follows:
Dr. Walter L. Bierring, Chairman, Des Moines, Ia.
Dr. Otto V. Huffman, Secretary, Albany, N.Y.
Dr. J. N. Barney (SeCretary-'I'reasurer of the Virginia
Board), Fredericksburg, Va.
Dr. W. S. Stewart (Secretary, Arkansas State Medical Board
of the Arkansas Medical Society), I'ine Bluff; Arkansas.
Dr. Conrad N. Surtner (Secretary of the State Board of
Medical Examiners of Washington), Walla Walla, Wash.
Dr. Gardner T. S^ •arts (Secretary of Rhode Island State
Board of Health), Providence, R.I.
In endeavoring to carry out the purpose of President
Cook's recommendation, the committee has tried to
familiarize itself by careful study of the different medical practice acts, reciprocity relations, and methods of
examinations, as they prevail at the present time in this
country, besides drawing freely on the excellent discussions presented at previous meetings of the Federation, and at this time also acknowledges its
appreciation for personal opinions fcindly expressed by
prominent medical examiners during the course of this
inquiry.
At the otttset the committee recognized the great
difficulty of the problem, and that it was a serious
matter for which to find a solution.
Medical education and medical licensure in this
country is controlled by 49 individual states, including
the District of Columbia, each of which in rhese
matrers is legally independent of each other. In these
49 states rh ere are 49 different Practice Acts, providing
for 37 different licensing boards, no two of which
entirely agree in the details of the matter of standards
enforced.
In 38 states there is provision for a mixed Board, in
FEDERATION BULLETIN
which the several schools of medical practice are represented. In five states a single Board ex.ists, the
members all belonging to the regular school of practice, and in the remaining six states two or three
separate Boards are provided-homeopathic, eclectic,
and regular. In seven states representation is given to
osteopaths on the Board; in one state with a membership of nine there are two osteopaths. The President
of one State Board of Examiners is an osteopath.
In several states special examinations are provided in
osteopathy, and in three states a special provision is
made for the examination of so-called drugicss practi tioners.
In regard to preliminary or premedical education of
the applicants for licensure, there is provision in the
law of 4S states for some form of pre-medical education, while in four states there is no such provision. In
37 states a standard of four years of high school or
higher is required, and with the prescnt vear, in 24
states, there is a preliminary requirement o f one or two
years of college work, seven State Boards requiring
two years.
In 45 of the 49 states, all applicants for licensure are
required to be graduates of a medical school; in four
states the law does not specify to this fact. The laws of
33 states give full authority to the Board to refuse
recognition to low grade medical colleges.
All states now require some form of licensure examinations; in 39 states this is entireiy wri tten, in seven
some form of practical examination is given, usually in
the laboratory branches, and during the coming year,
three more states expect to add a practical test to the
written examination. In one state, Pennsylvania, a
bedside examination is required from applicants coming from other states. Three states have added an
additional fifth or hospital year to the medical educational requirements.
In regard to reciprocal relations with other Boards,
it is noted that in 39 states there is provision for
reciprocity, varying in number from 7 to 31 rec.iprocating states. In ten states there is no provision for
reciprocity.
The term reciprocity implies an exchange of the
courtesies of licensure usually effected by the exchange
of a duly executed and signed contract stipulating the
terms of acceptance of the licentiates of the other
states.
In some states this is governed by a so-called
"gentfeman's agreement," and in others by a simple
endorsement of the requirements of the reciprocating
state. In a number of states a supplemental examination is required on those subjects not covered by the
other Board. This includes in some states an additional
practical or laboratory test, and in one state (Pcnnsylvania) a bedside examination.
In one state (California) an arrangement has been in
SUMMER 1993
tiorcz since Aog. 10, 1913, whereby licentiates from
other states are admitted to practice without examination, after presenting credentials acceptable to the
California Board, but no provision is afforded whereby
a contract may be signed permitting Iicentzates of
California to qualify in such other states. According to
recent information 23 states have favorably considered
California on this reciprocity basis, and in these states
California licentiates are admitted through reciprocity,
yet the Iicentiates of the remaining 26 non-reciprocating Boards are admitted without examination if otherwise acceptable to the California Board.
While recognizing the lack of uniformity in standards
that prevail, when statistical data are collected and
compared with conditions a decade ago, a very marked
improvement is everywhere noticeable. At that time a
preliminary education of four years high school or
higher was required in only ten states, while now
pro. ision for the same exists in 37 states, and similar
changes have come in other directions.
On the other hand it must be recognized that, while
in some states the public is well protected against
illiterate and incompetent doctors, in other states,
because of poor laws or political boards, the right to
practice is easily secured by any person no matter how
incompetent he may be.
If a doctor has had his license revoked in one state
for malpractice or other reasons, he promptly goes to
another state where he seldom fails to secure a license.
If he is caught again he promptly transfers his allegiance to a third state.
Again, any study of existing conditions must reveal
the fact that strong efforts are constantly being made
to lower the standards demanded of the general practitioner.
To correct these serious conditions a greater uniformity of standards and effectiveness of methods is
essential among State Boards. If there was a legal
provision under our Constitution for a national control of the licensed physicians in the United States,
such as exists in practically every other country, it
.ti•ould be an easy matter to solve.
The Committee does not feel able at this time to
make a definite recommendation, but it begs to submit
certain conclusions to the Federation, that have
resulted from an inquir,v into this matter during the
past year.
Any plan of standardization that is proposed, must
nevertheless be ofnational or central character, but just
which form that agency will take will be left to this
Federation to determine,
The Committee considers that this may be accomplished under one or two definite plans of action.
At the Confcrczzcc last year Lieutenant Colonel john
R. Kean of the Medical Corps, U.S.A., in a very
interesting paper advocated the use of the Govern127
ment Medical Service in raising the standards of medical education. He recommended the appointment of
a board composed of representatives from the different
government services, one from the Council on Medical Education of the American Medical Association,
and one or possibly two representatives from this
Federation, who should examine candidates for the
Medical Reserve Corps of the Army or Navy, and if
these were generaily accepted and licensed by the State
Boards without examination, the first step toward a
central examining bureau would have been realizcd.
Under similar or different constitution a medical
council could be formed like that of the Dominion of
Canada.
This central board or council could be establisllcd
under the concurrent sanction of the national government by action of Congress, and thus have all the
importance and influence of any other federal service.
This central board or council should not in any way
supersede the State Boards, but it would do what a
group of boards could not do; to set a standard which
all will accept, again attract those men who have
migratory instincts, and who may desire special honors
or appointments, and for whom the seal of approval
of a general board or council would be valuable.
This would still require licensing boards in the different states, but it would do away with many of the
difficulties incident to reciprocity and interstate certification.
Such a central board or council, by cooperation and
128
frequent conference with the different State Boards,
would tend rapidly to practical standardization of
examinations and practice regulations in all the states.
If the central agency is not to be considered in this
form then the standardizing^ influence must come
through this Federati^^n.
To relinquish in any degree the sovereignry of state
police pow-ers will not mect with favor, as each state
justly considers itself the better judge as to who shall
practice mc-dicine within its boundaries.
A unitorm practice act is probably impossible, and
perchance is not entirely necessary. There must be,
though, a better understanding of reciprocal interests
and a greater uniformity in methods of procedure, in
which direction the Federation should be able to exert
its particular function.
With the publication of the MONTHLY $ULLE'1 TN, a means is at hand for frequent interchange
of knowledge as to the work of the various State
Boards. In this way standards of examinations can be
established, uniformity in laws and requirements for
licensure more easily accomplished, and thus through
the harmonizing stimulus of this central agency, the
Federation, there must inevitably come in this country
a universal interstate endorsement of licentiates in the
different branches of medical practice.
This report is respectfully submitted by
The Committee,
WAI.TFR L. BIERRING, Chairman
OTTO V. HUFFMAN, Secretary
FEDERATION BULLETIItiF
MEDICOLEGAL DECISIONS
Recent rnedicolegal decisions involving or of interest to medical boards.
REPRINTED FROM THE CITATION. TO SUBSCAl13F,, CALL 800-626-5210.
SECTION 1: MEDICAL BOARDS
Improper Prescribing Habits Result in License
Suspension. ... A psychiatrist found guifnf of
prescribing controlled substances illegally was disciptined properly, an Ohio appellate court ruled.
On the complaint of a pharmacist, the Ohio State
Medical Board initiated an investigation of a
psychiatrist and determined there was reasonable cause
to suspect illegal drug transactions. The Board began
undercover activity. An investigator had three oflicc
appointments with the psychiatrist during 1983 and
1984. All conversations between the "patient" and
psychiatrist were tape recorded surreptitiously.
On the first visit the psyciiiatrist prescribed Halcion
because the agent statcd he vvanteci something to "kick
back and relax," for "getting high," and to get a
"buzz." During the second oificc visit the ,igent
indicated he wanted Quaalude, and after some co nversation, the psychiatrist accommodated the "patient"
with a prescription for 20 tablets. During the third
office visit the investigator informed the psychiatrist
the Quaalude previously prescribed were being shared
with his wife and were being used in conjunction with
alcohol. In spite of this information the psychiatrist
once again wrote a prescription for Quaalude.
The Board sent the psychiatrist a citation in February
1987, three years following the last visit of the under I
cover investigator. A hearing followed and the hearing
officer recommended revocation of the psychiatrist's
license to practice medicine. The Board modified the
proposed order and substituted a minimum two year
suspension with a permanent denial of the right to
prescribe controlled substances other than those in
Schedules IV and V. The psychiatrist appealed this
order to the trial court, which affirmed the Board's
SUMMER 1993
action.
The psychiatrist appealed. The psychiatrist claimed
he had been cntrappc:i by the undercover investigator.
The court noted evidence included in the original
hearing showed the psychiatrist had been involved in
six other patient encounters where Schedule 11 drugs
had been prescribed under questionable circurnstances. In one instance the psychiatrist wrote a prescription for Parest after a patient had been admitted to an
emergency room for ingestion of an overdose of that
drug. In another situation the psychiatrist had
prestribcci amphetamines for weight loss even though
he admitted "I don't have a scale in the office" and
acceptcd the patient's statement about weight as an
appropriate means of monitoring therapy. In view of
these facts the court determined the psychiatrist exhibited a predisposition to commit an offense, which
was sufficient to avoid the accusation of entrapment.
The court said the state had provided the psychiatrist
with the opportunity to prescribe drugs, and nothing
fiirther was necessary. There was credible evidence to
indicate the psychiatrist prescribed drugs on several
occasions in an inappropriate manner.
The psvcGiiRtrist exbii6iterf a prertisposition to
LaFnrnat an offense, ivhich was sufficient to
avoid the Rccusation of entrapment
The psychiatrist claimed the lapse of three years
bcm cen complct.ion of the state's investigation and
the issuance of a citation improperly prejudiced his
rights. The court of appeals did not agree. Finally, the
psvchiatrist ar,ued all of the determinations adverse to
him were based on the concept that Quaalude was a
street drug. The court decided the term "street drugs"
applied to substances subject to abuse and distributed
through illegal means. Schedule I narcotics and street
drugs were not necessarily synonymous, the court said.
The crrors ciaimed by the psychiatrist were rejected,
and the court affirmed the original Board action and
the decision of the trial cou.rt.-McCutcbeon v. Ohio
State Medical Board, 582 N.E.2d 1030 (Ohio Ct. of
App., Oct. 12, 1989)
129
Puerto Rico Medical School Graduate Denied
License .... The Board oFMcdical Quality Assurance
did not err in denying licensure as a physician and
surgeon to a graduate ofa Puertcf Rico medical school,
a California appellate court ruled.
The applicant graduated from a medical school in
Puerto Rico in June 1981, From 1981 through 1983
she completed clinical residency studies in an accredited New York hospital. From 1984 to 1986 she
did a fellowship in internal medicine in iVlassachusetrs.
She obtained licenses to practicL medicine in Puerto
Rico, Vermont, Massachusetts, and New York. In
March 1988, she was employed by the U.S. Navvas a
physician and workcd at a tederal tacilin• in 1.ong
Beach, California.
In October 1987, she al3plicd to the Board for a
physician's and surgeon's certilicare. The Board
rejected her application because the medical school
was not an accredited medical school, After a hearing
the Board denied her application. The applicant
sought a court order forcing the Board to issue her a
license. The motion was denied.
Applicant could not fopce the Divisiox zo
approve the medical school
Affirming the decision, the appellate court said the
Board did not err in ciassifying the medical school as
not approved. California has a two track physician's
and surgeon's licensure procedure, one for gradtiates
of medical schools in the U.S. and Canada and another
for graduates of foreign medical schools. Only
graduates of accredited U.S. medical schools are
eligible for licensure. A statute permitted the I7ivision
of Licensing to grant approval to a substantially complying but nonaccredited medical school, but the ap plicant could not force the Division to approve the
medical school, the court said.-Lopez v. .8oard of
Medical Quality Assurance of California, 8 Cal. Rptr.
2d 22 ^Cal. Ct. of App., May 13, 1992)
Medical Practice Statute Unconstitutional. . . .
A statute that was so broad it prohibited administration of injections by nurses and self-injection of
insulin by a diabetic was unconstitutional, the Georgia Supreme Court ruted. Several medical groups
challenged the statute, which prohibited persons
other than physicians, dentists, podiatrists, and
veterinarians from performing "any surgery, operation, or invasive procedure i n wlaich human or
Language of the sttttute vcrs so broad That
it prohibited conduct that should ! iave
been alloved
animal tissue was cut, pierced or otherwise altered by
the use of any mechanical means, laser, ionizing radiation, medication administered by injection or the
130
removal of foreign bodies from within the tissues of
the eye." All parties conceded the language of the
statute was so broad that it prohibited conduct that
should have been allowed. The statute prevented
drawing blood, piercing ears, embalming, tattooing,
administration of injections by nurses, and self injection of insulin by a diabetic. The supreme court said
the statute was so wide-ranging in its impact it could
not possibly make a single interpretation of the statute
which would render it constitutionai. It was inappropriate for the court to undertake the type of major
rewrite the state medical association requested. The
court affirmed the trial court's holding the statute was
unconstitutional. The court said repeal of the
naturopathy statute by the General Assembly was
effective even if the statute intended to replace it was
unconstitutional--.'4liller P. Medical Association of
Georgia, 423 S.E.2d 664 (Ga. Sup. Ct., Dec. 3,1992)
Acupuncturist Records May Be Seized. ... A North
Carolina appellate court ruled an acupuncturist illegally practiced medicine without a license.
The Board of Medical Examiners of North. Carolina
requested the Attorney General to investigate an
acupuncturist for unauthorized practice of medicine.
The investigation led to issuance of a search warrant
for the acupuncturist's clinic. Patient files, financial
records, and diplomas were seized. The acupuncturist,
who was also a1i,ituropath, and her patients sued the
Board for inj unctive and declaratory relief and
damages regarding the criminal investigation. A trial
court dismissed the action, and the acupuncturist
appealed.
The appellate court disagreed with the
acupuncturist's contention her federally protected
privacv rights had been violated by the state's inves[igation. The caurt cited a North Carolina Supreme
Court ruling in a case where the Board of Medical
F;xaminers had revoked a physician's license conditionally for administering homeopathic medical treatment to his patients. "There is no right to practice
medicine which is not subordinate to the police power
of the states," the high court said.
"There is no right to practice medicine mhich is
not subordinate to the police power of the states"
The acupuncturist's patients attempted to convince
the court their privacy rights had been violated by
seizure of their records and by prevention of their
choice to obtain acupuncture as medical treatment.
They invoked a decision in Texas stating there was a
"constitutional right, encompassed by the right of
privacy, to obtain acupuncture treatment." Citing the
prior decision that recognized no fundamental right
to receive unorthodox medical treatment, the court
upheld the trial court's decision.-Majebe P. Board of
FEDERATION BULLETFN
Medical Examiners, 416 S.E.2d 404 ^N.C. Ct. of
App., May 19, 1992)
Patient's Medical Records Disclosed to Judge...
. A trial court did not err in ordering a psychiatrist to
produce her medical records of a patient for review by
a judge in chambers, the Illinois Supreme Court ruled.
The Department of Professional Regulation tilcd a
complaint with the Medical Disciplinary Board agairnst
a psychiatrist alleging he engaged in improper rreatment during the course of attending a paticnt. He
diagnosed her as suffering from hulimia and borderline personality. The complaint stated the psychiatrist
purchased dinner for her and sp{ on-fed her during a
therapy session in his office; that he v, e_nt to her home
during the evening and spooia-fed her ice cream and
observed her vomiting; that he picked her up at her
home one evening and drove her to a park and'R-i.ssed
and fondled her; and that he participated in oral sex
and attempted sexual intercourse with her in his apartment. At a hearing, only four witnesses testified. The
psychiatrist sought the patient's medical records from
the psychiatrist who was then treating her. A trial court
ordered him to produce the records for examination
by the judge in his chambers. An appellate court
reversed the trial court's order. On further appeal,
the supreme court ordered the trial court's
decision
R eviesv of'the rnedical records by the isac^,,^•
woeld be signifacrrnt
reinstated. The court said review of the medical
records by the judge would be significant to discovering if or when the patient was diagnnsed as a borderline personality and when, if any, psychotic
transferences occurred. The patient's mental condition
was part of the Department's complaint and was a
proper subject for disclosure, the court said.Goldberg v. Davis, 602 ti'.E.2d 812 (111. Sup. Ct., Oct.
15, 1992)
Physician's License Revoked for Felony Conviction. ... An Ohio Court of Appeals affirmed a
decision to revoke a physician's license for felony
convictions.
A physician was convicted on counts of forgerv, theft
and medicaid fraud following a bench trial. She "'as
sentenced to a one-year term on each count, but the
sentences were suspended, and she was placed on two
years probation. In addition, she was ordered to pay
restitution. She appealed her conviction and lost. The
Ohio State Medical Board then ordered the
physician's license revoked. The physician appealed,
stating three errors to the court.
The physician contended the law that calls for the
state attorney general to act as both advisor to and
SUMMEA 1993
prosecutor before the Medical Board was unconstitutional. The assistants to the attorney general who
represented the agency during the prosecution phase
were not entitled to take part in Board deliberations;
they d id not J o so- There was no prcjudicc:, the e:nurt
said.
77ycre iras zothirtg tsncrnxstitutioncal cabout thc
2rocess of rappointir{.•] a fact-finder
The second and third assignments oferror concerned
the constitutionality of laws that permitted the health
board to appoint its own hearing examiner. The
phvsician claimed she was denied due process as a
result ot'the application of those laws to her case. Yet,
the court pointed out, the situation the physician
objected to was no different than that of a trial judge
appoinring a referee to hear evidence and make a
recoinmendatinn for disposition. There was nothing
unconstitutional about the process of appointing a
fact-tinder. The presence ofoverwhehning evidence to
support the physician's felony convictions and consequerit charges of misconduct on her part strongly
suggested the hearing examiner would have acted
exactlV the same way no matter who appointed him,
the court said.-DeBlanco P. Ohio StRte Medical
Board, 604 N.E.2d 212 (Ohio Ct. of App., Feb. 4,
1992)
Colorado Board Ruling Upheld on Foreign Medical Graduates.... Foreign medical school graduates
must he subjected to essentially the same requirements
in applying for licenses as graduates of Colorado
medical colleges, the Colorado Supreme Court ruled.
In Jatiuary 1987, two graduates of a medical school
in the Caribbean applied for licenses to practice
medicine in Colorado. Their applications were denied
on the grounds they could not prove, as required by
the Colorado Medical Practice Act, that the medical
school from which they graduated was approved in
accordance with Colorado statutes. The applicants
requested and received a hearing before an administrative law judge. They contended that foreign medical
school graduates should not be subject to the requirement of having received a degree from an approved
mcdical college. The judge did not agree and decided
the license applications should be denied.
The applicants filed exceptions to this decision with
the State Board of Medical Examiners. The Board
upheld the decision that since the applicants' college
was not approved, they were not entitled to practice
medicine in Colorado. An appellate court reversed the
Board's decision. It noted another section of law
provided for "parallel, yet separate and exclusive,
standards and procedures for licensing Colorado and
foreign medical school graduates." Because the applicarions in question were governed by this section,
131
they should have been approved. The court ordered
that licenses be issued to the applicants.
Standards for licensing F'MGs must be
'substantially the same as those forgrcaduates
from medical colleges in this state"
The supreme court struck down the appellate court's
decision. The section applying to graduates offoreign
medical schools makes it clear that the standards for
their licensing must be "substantially the same as those
for graduates from medical colleges in this state," and
the Board may require two years of post-graduate
clinical training. The two sections in question were
meant to complement and not contradict each other,
the court said.-Colorado State Board of Mcdicnl
Extasniraers v. Sctddoris, 825 P.2d 39 (Colo. Sup. Ct.,
March 10, 1992)
Tennessee Medical Board Protected From Lawsuit
by Quasi-Jud.icial Immunity. . . . Members of the
Tennessee Board of Medical Examiners were immune
from civil actions arising from their role as members
of the Board, a federal appellate court for Tennessee
ruled.
A physician licensed to practice in Tennessee had a
practice focused on weight loss programs in which he
prescribed a Schedule II drug, Preludin jphenmetrazine}. The Department of Health brought charges of malpractice and unprofessional conduct against
him for prescribing controlled sti bstances in improper
quantities. His license was suspended summarily pending revocation hearings. A suspension hearing was held
one week later, and the decisic^n to suspend was
upheld.
Before the revocation hearings could take place, the
physician filed suit against the five physicians who
made up the Board ofMedical Examiners for violation
of his due process and equal protection rights. He
alleged "as a result of several welI-published actions
involving black physicians, (he) was not afforded a
presumption of innocence by (the Board), and he was
treated in a manner different from similarly situated
physicians." In addition, he said, the charges had not
been stated with sufficient specificity, no proper record
was made at the time of the suspension hearing,
witnesses were allowed to testify "off the record" and
not under oath, and his DEA certificate authorizing
dispensing of controlled substances had been surrendered under coercion. Members of the Board invoked the privilege of absolute judicial immunity as a
defense. The trial court denied their motion for dismissal, and they appealed.
The appellate court cited numerous cases in which
courts had decided absolute judicial immunity ap
plies to any body, state or federal, with an adjudicatorv
function. Indeed, "few doctrines were more solidlV
132
established at common law. ..," according to a 1967
decision. However, if the Board in this case was not
subject to restraints and safeguards comparable to
those built into the archetypal judicial process,
Board is absolutely imrraune from licability for
(its) judicial racts"
absolute immunity would not apply, reasoned the
court. The court said the Board was in fact subject to
numerous procedural safeguards. The Board members
were independent professionals (Tennessee law required the Board to be composed entirely of duly
licensed physicians) who by law must be provided with
substantial due process protection in making Board
rulings.
As to the procedural errors alleged by the physician,
the court determined, the Board "is absolutely immune from liability for (its) judicial acts even if (its)
exercise of authority is flawed by the commission of
grave procedural errors."-Wcrtts P. Baarkhcsrt, 978
F.2d 269 (C.A. 6, Aug. 12, 1992)
Revocation of Ohio Physician's License Upheld. .
.. License revocation proceedings against an
obstetrician were conducted in a timely and proper
manner, an Ohio appellate court ruled.
The physician's certificate to practice medicine and
surgery in Ohio was revoked in connection with his
treatment of five obstetrical patients over a three year
period. He objected to the conduct of the revocation
proceedings and appealed.
'I'he appeilate court said his assignments of error were
without merit. The ph,.sician said he had been denied
due process because he had received a list of the
Meciical Board's witnesses a day before the hearings,
and only then had he been informed of the details of
the charges against him. The Medical Board pointed
out he had forn•-one days from the time of notification
of the hearings to prepare. That notice had included a
detailed description of the seven allegations against the
physician. In addition, the physician did not request a
list of witnesses until the day before the hearing and,
when he did, it was promptly issued to him. The court
found in reviewing the record of the hearing there was
no indication the physician's defense was prepared
inadequately, "It was in both the public's and the
physician's interest to hold such a hearing promptly,"
said the court, "and the fact the defense was not
successful does not indicate inadequate opportunity to
prepare."
Board was not required by law to open its
delibera tion meetings to the public
The court also rejected the physician's contention the
Board had violated the law by not conducting its
deliberations in a public meeting. The court noted the
FEDERATION BULLETIN
Board Voted to adopt the order of re. ocation in a
meeting open to the public, It was not required by law
to open its deliberation meetings to the public.Only
those sessions in which the actual order of revocation
was discussed needed to be public, and the record
showed they were.-Angerrnctn v. Qhio State Medical
Board, 591 N.E.2d 3^Ohio Ct. of App., 10 Dist.,
Dec. 31, 1990)
Licensing Board Authorized to Pass Information
on Physician Seeking Endorsement.... The Ildissouri Board was permitted to pass information to
another state's board on a physician seeking its
favorable endorsement, a Missouri appellatc court
ruled.
A physician applying for a license to practice
medicine in Florida sought a favorable endorsenient
of his qualifications from the Mlissouri Board. Initially,
the Board gave such an endorsement but eight months
later informed its Florida counterpart the physician
had been dismissed from his post at a hospital and had
obstructed the Board's attempts to investigate. The
physician sought to block the investigation of his
removal from the hospital and any communicad otx to
the Florida Board about an investigation of him. He
also sought to compel the Missouri Board to issue a
favorable endorsement to the Florida Board.
Board »sts entitled to disclose information coracerni,aq its investigcttions as part of a volunt as-v int erstate exchange of information
The appellate court upheld denial of the physician's
request because it was clearly within the rights of the
Board to conduct its investigation. Missouri regulations required the Board to review all disciplinary
actions or voluntary resignations from hospitals or
ambulatory surgical centers. By statute the Board was
entitled to disclose information concerning its invcstigations as part of a voluntary interstate exchange of
information about its licensees.
The physician claimed a state regulation entitled him
to a Eavorable endorsement from the Board. The
regulation stated "the Board will supply endorsements
of a licensed practitioner's qualifications on proper
application forms upon the payment of a proper fee."
But clearly, said the court, there was no basis for the
physician's interpretation that only favorable endorsements were allowed. The regulation did not address
the content of the endorsements nor did it prohibit
the communication of negative information.-Gould
v. Board of Regulation for the Hectling Arts, 841
S.W.2d 288 {Mo. Ct. of App., Nov. 10, 1992)
Physician Not Entitled to License to Practice....
The Department of Professional Regulation properly
denied a physician a license to practice medicine in
sUM11IER 1993
Iliinois, the Illinois Supreme Court rulcd.
The physician passed the examination aciministered
by the Educational Commission for Foreign 1.Ieciicai
Graduates (ECFMG). In 1985, he passed the FLEX
examination, a licensing requirement for the state. On
June 6, 1986, he applied to the Department for a
license to practice. After receiving the completed applications, the Department questioned two answers.
Representatives of the Department held an informal
conference with the physician and his attorney.
The physician answered a question asking him to list
the occupational schools he had attended. He listed
one school in Juarez, iMexico. At the conference he
rc,, ealed he had been enrolled at the Indiana Universirr School of Medicine while enrolled at ruare7.. To
Departrnent's deterrnination the mistatements
ivere material and shozved lack of moral chrarrscter was entitled to judicial defcrence
another question he answered he had not been denied
a license, permit, or privilege of taking an examination
by any licensing authority. At the conference he
revealed he had applied for medical licenses in three
other states, and none of them granted him a license.
The day after the conference he submitted an addendum to his original application and ga^•c reasons for
his failure to disclose the required information. He
explained he believed the question about schools attended applied only to schools from which he had
received a degree. As to the other question he gave the
circumstances that surrounded each license application
and concluded that each application had not been
considered and denied formally. The Department
denied his license for making false statements on the
application, failing to meet the educational requirenzents of the iiIedical Practice Act, and having a false
and fraudulent transcript of credit hours from Indiana
University Medical School printed. The physician
never used the false transcript to obtain academic
credit at Juarez and never tendered the false transcript
to the Department,
A trial court reversed the Department's decision and
ordered it to issue a medical license to the physician.
The court said the conclusion the physician lacked
good moral character was based on the findings
regarding dual enrollment and misstatements of
material facts. The court said the findings were not of
a magnitude that would support a finding of lack of
good moral character. An appellate court affr.rmed.
On appeal, the supreme court said denial of the
application was supported by competent evidence.
The Department notified the physician of the reasons
for denial of his license application and afforded him
due process. The court said the denial was based on
numerous misstatements in his application. That
evidence supported the decision to deny the ap133
plication, the court said. The Department's determination the misstatements were material and showed
lack of moral character and ethical judgment was
entitled to judicial deference. Denial ofthe application
was warranted, the court said.---Abrtahasnso.x v. Illinois
Department of Professional Regaaltttiora, 606 N.E.2d
1I11 (III. Sup. Ct., Nov. 19, 1992)
students from American medical schools were receiving training. The physician testified before the credentials committee that neither of the hospitals where he
did rotations had residents from American medical
schools.
Physician Awarded Attorney's Fees After Disciplinary Hearing.... A physician who was charged with
excessive prescribing of5chedule II amphetamines was
entitled to attorney's fees after a court overturned an
order revoking his license, an Ohio appellate court
ruled. The State Medical Board revoked the
physician's license for a period of three years after a
hearing on charges his prescribing of amphetamines
for weight control violated several provisions of state
Iaw. A trial court found the board order was not
supported by reliable, substantial, and probative
evidence and not in accordance with law but denied
the physician's motion
A trial court upheld the Board's decision, and the
appellate court affirmed. The requirement that an
applicant obtain superG=ised clinical training at an approved hospital offering approved residency prograrn
was related reasonably to the legitimate goal of ensuring that foreign medical school graduates received the
minimum education and training necessary to practice
medicine safelr and competcntly. The Board had no
discretion to consider other factors relating to the
physician's training once it determined that his unsupervised clinical training was insufficient.-Last v.
Virginia Sta te Bocard ofMedicirae, 421 S.E.2d 201(Va.
Ct. of.r's,pp., July 28, 1992)
Board was notsubstsxntially justfed in
believing the pdaysician had devitated from the
rrainimuPra standards of care
for attorney's fees. An appellate court affirmed. The
supreme court said there was no evidence the Board
was substantially justified in Mitiaiing administrative
proceedings against the physician. T.. o physicians
testified on behalf of the physician that his prescribing
did not deviate from minimal standards of medical
care. The Board's only evidence was patient records,
the PDR entry on Biphetamine and Qbetrol, and an
excerpt from Facts and Comparisons on amphetamines. The court said the physician was entitled
to an award of attorney's fees because the Board was
not substantially justified in believing the physician
had deviated from the minimum standards of care in
prescribing amphetamines for weight control.-In re
Williams, 605 N.E.2d 475 (Ohio Ct. of App., March
5, 1992 )
Physician Denied Licensure for Z]napproved
Clinical Rotations. ... A foreign medical school
graduate who performed his clinical rotations in unapproved hospitals was not eligible for licensure, a
Virginia appellate court ruled.
The physician graduated from the American University of the Caribbean. While he was a student there, he
did clinical rotations in the U.S. at hospitals that did
not have approved residency programs. The State
Board of Medicine denied the physician medical licensure by endorsement because his clinical rotations did
not meet the requirements of state law. Rotations were
required to be completed in American hospitals offering approved residency programs or in hospitals where
134
Clinical training requirement reasnnabl,v
rele:ted to a leBitimrategoal
SECTION 2:
OTHER HEALTH
PROFESSION BOARD S
Pharmacy Did Not Violate Pharmacy Practice
Act. . . . A pharmacy did not violate the Pharmacy
Practice Act by allowing an unlicensed employee to
ring up sales of prescription drugs, enter refill inforrnation, or retrieve containers at the pharmacist's request, an Illinois appellate court ruled.
On February 22_ 1987, an Illinois Department of
Profcssional Regulation ^DPR) inspector visited the
pharmacy. At the time of the inspector's visit, the
pharmacist in charge was not in the store but another
licensed pharmacist was present. Two other employees
of the pharmacy were present. Neither of the two
employees had a valid license to practice pharmacy.
One of the empiovees, a pharmacy technician, had
diligently attempted to renew his license by following
the proper procedures. He was unlicensed at the time
of the inspection only because the Department had
lost his application. The technician's responsibilities
included ringing up the sales of prescription drugs,
entering refill information into a computer, and assisting pharmacists in filling prescriptions by retrieving
containers of drugs from the shelf. The other
employee did not have a pharmacy or a technician
license.
On February 8, 1988, the DPR filed a complaint
against the pharmacy seeking the revocation or
suspension of the pharmacy's certificate of registration
for participating in the unlicensed practice of pharmacy. On AprilBth, a hearing was held before a DPR
hearing officer. The Pharmacy Board recommended a
finding that the pharmacy allowed the unauthorized
FEDERATION BULLETIN
practice of pharmacy and should be put on prohation.
The DPR accepted the recommendation and put the
pharmacy on probation. On further review a trial court
stated the acts performed by the employees did not
constitute the practice ofpharmaLy,
restrictive means of regulating commercial speech, it
had to choose a "reasonable means of regulation which
is in proportion to the interest served." According to
the court, "the interference with commercial speech
in the statute at issue is broader than is necessary to
Pharmacy technician was not aanlicensed
because he complied ivdth the rerluire::zentr
Interference with commercial speech in the
stat sre was broader than ncces.sa;-v to prevent
the evils fecarest
for renewal
appeal, the court agreed with the triai court's
determination that neither employee engaged in the
practice of pharmacy. The employees gave no direct
advice or explanations to customers concerning
prescription drugs. Additionally, ringing up sales on a
register that happened to be near the pharmacy
counter was not dispensing a pharmaceutical for which
a license was required. Entering refill information and
retrieving containers was not the practice ofph armacy,
the court said. Finally, the court said the pharmacy
technician was not unlicensed because he complied
with the requirements for renewal.----Wcxlgreen v.
Selcke, 595 N,F,.2d 89 (I11. Ct. ofApp., May25, 1992 )
Chiropractors Allowed to Solicit Accident Victims By Mail. ... Chiropractors' commercial speech
rights were violated by a statute prohibiting them from
directly soliciting patients or potential patients who,
because of their particular circumstances, are vulnerable to undue influence, the Louisiana Supreme
Court ruled. The court ruled unconstitutional the
statute's ban on direct mail solicitation, and left intact
prohibition of in-person ;includin,; relcphoncj
solicitation.
A group of chiropractors and a chiropractic clinic
brought suit attacking a 1991 statute which restri4tc:d
direct solicitation of patients. They prevailed in trial
court because their advertisements were not deceptive
or zmisicading; an absolute ban was not justified. The
l.ouisiana Board of Chiropractic Examiners, charged
with implementing the statute, appealed to the state
supreme court.
The court recognized the validity of the state's intcrests in (1) reducing unnecessary medical treatment,
(2) reducing insurance costs, and (3) protecting
citizens from possible overreaching by health care
providers' attempting to influence people to seek
medical aid. It was not necessary, however, to impose
a blanket ban on such advertising to promote these
interests. Indeed, said the court, citing a suprcmc
court decision in Kentucky, "targeted mail solicitations generally could be regulated by the state through
less restrictive and more precise mcans than a total ban,
such as by requiring submission of letters of solicitat.ion to a state agency for approval and restricting or
penalizing only those letters which were abusive."
While the state was not required to use the least
prevent the evil(s) feared" by the state. The statute's
prohibition on telephone solicitations was left in efl`ect
to avoid potential abuses perceived by the court, such
as invasion of privacy and outright fraud. Print advertising was seen to be "more conducive to reflection
and the exercise of choice on the part of the consumer. "-Gregory v. Board ofChiroprcretic Examiners,
508 So.2d 987 (La. Sup. Ct., Nov. 30, 1992)
Chiropractors Entitled to Licenses by Endorsement.... Two chiropractors licensed in Pennsylvania
were entitled to licenses in Florida by endorsement, a
Florida appellate court ruled. In 1989, the chiropractors applied to the Florida Department of Professional
Regulation, Board of Chiropractic, for licensure by
endorsement as chiropractors from Pennsylvania. On
July 27, 1989, the Board notified both chiropractors
of its intent to deny their applications for licensure.
The notice was given 94 days after one of the apptications was completed and 10 1 days after the other was
Board could not impose an excarsxincation
canafitioFe on approval of'the chiropractors'
default licenses
completed. A state law required the Board to approve
or deny a iicense application within 90 days of the date
an application was completed. The chiropractors appealed the order, and a hearing officer ruled they were
entitled to be licensed by default. The Board then said
the chiropractors were entitled to default licenses but
said they must first complete the National Chiropractic Board Examination, Parts I, II, and a Clinical
Competency Examination (Part III) within three years
from the date of the filing of the final order. The
appellate court said the Board could not impose the
condition on approval of the chiropractors' default
ticenses.-Krrakow v. Department of Prof'essional
Regulation, Board of Chiropractic, 586 So.2d 1271
; Fla. Dist. Ct. of App., Sept. 30, 1991 }
Florida Psychologist Should Not Have Faced Disciplinary Action. .,. Professional misconduct charges agairist a psychologist accused ofacting improperly
in administering psychological tests for the children of
his lover should be dismissed, a Florida appellate court
ruled.
A complaint of sexual misconduct against the
SUMMER 1993
135
;...
psychologist was dismissed by the Board of
Psychological Examiners. The Department of Professional Regulation then issued a letter of guidance in
connection with a related case. A Probable Cause Panel
of the Board had determined the psychologist, in
treating the children of his lover, probably had violated
the same professional conduct statute at issue in the
sexual misconduct case. He had tested the children for
scholastic purposes and sent the results to a school the
children were attempting to enter without revealing
he was romantically involved with their mother.
The psychologist requested a hearing to dispute the
probable cause determination of the panel. He argued
his substantial interests were affected by the actions
taken, and he was entitled to an e`ridentiary proceeding. The Department denied the request because such
proceedings were conducted only in the event of a
formal complaint. Letters of guidance were not formal
complaints and did not affect a licensee's substantial
interests.
The appellate court disagreed. It found that because
issuance of a letter of guidance could be used against
the psychologist in future proceedings, his substantial
interests were affected. If there existed any disputed
issue of material fact, a hearing could be requested.
The psychologist disputed whether administration of
the Myers-Briggs test constituted a psychological service. The court decided not to remand for a hearing,
though, and instead decided the psychologist had been
Casart decided Psychologist had been cleared of
the second misconduct charge at the time of his
herarirag for the farst
cleared of the second misconduct charge at the time
of his hearing for the first. The Board had found in
that proceeding "the testing of (the) children for
scholastic purposes . . . had been given in friendship
and not in a professional capacity." The probable cause
panel should have been bound by that finding and
should not have returned a finding of probable cause
of wrongdoing. The court remanded with directions
to dismiss.-.8rown v. Deprarefnent of Professional
Regulation, 602 So.2d 1337 (Fla. I7ist. Ct. of App.,
July 23, 1992)
SECTION 3: OTHER ISSUES OF
INTEREST
No Breach of Contract Claim Against Psychiatric
Board .... A psychiatrist had no breach of contract
claim against the American Board of Psychiatry and
Neurology for failing to waive its postgraduate inrernship certification requirement, a federal appellate
court for Illinois ruled. At the time the Board allowed
the internship to be performed abroad. The
psychiatrist wrote the Board requesting credit for his
136
Indian internship and included documents showing it
had been completed by May 1979; he had received his
medical degree in December. The Board wrote him
back his Indian internship would satisfy the requireinent for certification by the Board. He later obtained
a residency in the U.S. During his third year of
residency, he wrote to the Board for confirmation his
Indian internship qualified. The Board replied in the
Boaxrd's statement to the psychiasrist was
not a corstrrsct
negative, so he was compelled to do a onc-year internship after completing his three-year residency. The
Board then certified him. The psychiatrist filed suit
against the I3oard for breach ofzontract. The appellate
court affirmed dismissal of the complaint. The Board's
statement to the psychiatrist was not a contract. The
psychiatrist gave no consideration that would support
a finding of a valid contract. The Board did not ask
him to do anything or refrain from doing anything.
The Board misled him, hut that was not a breach of
contract, the court said.-Patel v. American Board of
Psyihiect^-y and Neaarology, 975 F.2d 1312 (C.A. 7, I11.,
Aug. 5, 1992)
Pharmacy Guilty in Comparative Negligence
Case. ... A pharmacy that dispensed steroids to a
woman over a twenty-eight month period without
speciFc authorization from a physician was 50%
responsible, along with the woman herself, for the
woman's injuries, the Arkansas Supreme Court nrled.
Also affirmed was a$27,00q punitive damage award
for recklessness and a denial of compensatory
damages.
The «•oman argued on appeal that by continuing to
refill her Prednisone prescription for twenry-eight
months without a physician's order, the pharmacy was
negligent. The pharmacy should have known the drug
would have adverse effects on her health. She pointed
out the pharmacy had not only refilled the prescription
without authorization, but also had added on its own
initiative the code rPRN> to the prescription, indicating it could be refilled without further physician's
orders. She clairned this action constituted intentional
and willful negligence.
The court rejected the woman's contention the jury
had awarded her punitive damages for the pharmacy's
recklessness, and her responsibility for damages could
not be considered equal to the pharmacy's recklessness, due to a higher standard than negligence. The
court asserted it was possible the jury found the
woman also had been reckless. The jury had not been
asked to ru le on the matter of her recklessness, but
only on her negligence. A determination of negligence
does not preclude a finding of recklessness.
The court also upheld denial of compensatory
FEDERATION BULLETIN
damages by pointin^ out in a case «•here fault was
apportioned equally, no compensatory damages may
Wbiere fiaaclt is apportioned equally, no compensatory dccmrages may begrccnted
be granted. Though the woman claimed to have pu t
before the jury `uncontrovertcd, unthaillengea, and
unref'uted' evidence as to the daFnages she suffered as
a result of extended steroid use, her physician testified
many of her complaints could have occurred even in
the absence of such use. There also was evidence to
suggest the woman had self-mcdicated even though
her physician had warned against it. The effects of the
drug had been explained to her when a physician
initially prescribed for fourteen days without refill. She
saw her primary care physician frequently for two ycars
without informing him she was taking the drug every
day. In light of such evidence, said the court, the jury
was justified in assigning 50% responsibility to each
party in the suit.-Olmstead v. Moody, 842 S.W.2d 26
(Ark. Sup. Ct., Nov. 23, 1992)
No Negligence in Supmising Nurse.... An action
by a patient alleging that a hospital and physicians were
negligent in allowing a nurse to perform medical
procedures she was not licensed to perform was dismissed properly, the Nebraska Supreme Court ruled.
The 12-ycar-oid patient was admitted to the burn
treatment unit of the hospital on October 26, 1978,
with second and third degree burns over 58 to 68
percent of his body. He claimed a nurse pcrformcd
procedures on him that were beyond the scope of her
training and authority as a registered nurse. Those
procedures included insertion of a catheter into his
subclavian artery, administration of an anesthetic, and
use of a dermatome to perform skin gralting. Although he did not allege dircctly that he was injured
as a result of the procedures the nurse performed, he
claimed that when he discovered she was unlicensed
to perform the procedure, he became upset that his
treatment time could have been extended and his life
endangered, and he suffered headaches, vomiting,
sleeplessness, fear, severe emotional distress, and.vill
That the nurse was not licensed or trained to
perform surgical procedures moalrl not aloae
prove rieqligence
be required to seek psychiatric care. Affirming dismissal of the patient's complaint, the supreme court said
the fact the nurse was not licensed or trained to
perform surgical procedures would not alone prove
negligence. Any cornpensable ernotional distress suffered by the patient was caused by dissatisfaction with
the state's investigation of the hospital and nurses, not
by the hospitai and nurses themselves.-- Tu rLk P. Sa int
Fliza+ieth Curnmainitv Healtb Crfttr.:: 488 N.LL`.2d
S[]'MN[EA 1993
567 (Neb_ Sup. Ct., Sept. 11, 1992)
Hospital Incident Report Not Discoverable. ...
A hospital incident report was confidential and not
subject to disclosure, an Ohio appellate court ruled. A
trial court ruled the incident report should be disclosed
but the appellate court reversed. The court said the
report was subject to the attorney-client privilege. The
fact the report contained information on a patient's
treatment and care that should have been included in
Report protected under
rattorney-client privilege
the patient's medical records did not remove the
report from protection under the attorney-client
privilege. The hospital's attorney submitted an affidavit that incident reports were prepared for review
by counsel and for submission to the quality assurance
committee of the hospital for review. The appellate
court reversed the order to disclose the report.- Ware
v. Miami Valley Hospital, 604 N.1;.2d 791 (Ohio Ct.
of App., Feb. 13, 1992 )
Pharmacist Not Required to Warn Patient.... A
pharmacist was not required to warn a patient of the
effects ofa drug, but once she undertook to warn the
Once the phrarmacist undertook to ivarn the
pRtient, she i vcas liable ifshe did so raegligeretly
patient, the pharmacist would be liable for negligent
warnings, an IIllinois appellate court ruled. The pharmacist filled a prescription for a patient who had
arthroscopic surgery on his knee. The prescription was
for Fiorinal, an analgesic that contained codeine. The
pharmacist put a label stating "lbiay Cause DROWSINESS" on the bottle but chose not to put a warning
to the effect that alcohol may potentiate the effects of
the drug. The patient died as a result of consuming
alcohol and Fiorinal. A trial court dismissed a claim
against the pharmacist, and the patient's estate appealed. Reversing the decision, the court said under
the learned intermediary nrl.e, the pharmacist had no
dttty to place any warning on the label. However, the
court said once the pharmacist voluntarily undertook
to warn the patient about the dangers of the drug,
she was liable if she did so negligently. The
courtremanded the claim against the pharmacist and
pharmacy for trial.-.Frye v. Nedicare-Glaser Corporation, 579 N.E.2d 1255 (Ill. Ct. of App., Oct. 8, 1991;
rehearing denied Oct. 30, 1991)
The Citation is a medicolegal digest published by
Citation Puhlishing Corporation, Long Grove, I!linois.
137
REVIEW
The Effective Use of Nonphysician
Health Care Providers
DOROTHY G. HARWOOD, jD
he Office of Inspector General has published a
report in two parts exploring the use of zionphysician health care providers in a variety of practice
settings: Enhancing the Utilization of Nonplaysicicrn
Health Care Providers and its companion, Three Cose
Studies. The first part's stated purpose is "to stress the
potential for utilizing nonphysician health care
providers in more productive ways" and the companion looks in more detail at three examples as
models for this increased productivity. The report
challenges health care providers, administrators, and
government officials, including state licensing boards,
to "facilitate experimentation and progress in this
important area." Alongwith the cha.llenges, the report
focuses on barriers to nontraditional health care staffing approaches and how to overcome those barriers.
T
Enhancing the Utilization of Nonphysician
Health Care Providers. Deparrrrsent of Health
and Human Services, Office of Inspector
Geraeral, May 1993 (Of1-01-90-02070).
Enhancing the Utilization of Ncnplxysician
Health Care Providers: Three Case Studies.
Department of Health and Human Services,
Office of Irupector General, Afay 1993
(OE1-0I -90-a?o71 ).
The report reviews three practice settings, ambulatory care, acute care, and long term care, where
nontraditional staffing plans are in use. Patient care is
rendered by teams of physician and nonphysician personnel. The plans described bring to mind a one step
shopping model rather than an assernbly Eine approac.h; a greater variety ot services are pro v ided to the
patient by fewer individuals, rather than by a bevy of
specialists, each carrying out a discrete function. One
physician interviewed remarked, "This is a change back
to where medicine was 20 years ago-I'm not sure ^,vizy
138
we ever moved from that model in the first place, since
it was more efficient."
St. Joseph's Hospital in Atlanta forms units of staff
from varied disciplines to provide a wider range of
services ciirectlv at a patient's bedside. St. Joseph's has
created a"senice associate" position, training aides,
housekeepers, and food service workers in many technical aspects of basic patient care. Nurses supervise the
members of these units, but are freed to coordinate
the patient's care and to do necessary quality assessments. The training program creates a career ladder
with three distinct levels; those achieving the highest
level are trained in phlebotomy, pharmacy technical
services, EKG monitoring, and respiratory care
monitoring.
Another St. Joseph's program created the "clinical
associate" position. As originally designed, professional staff from various licensed disciplines
(respiratory therapists, pharmacists and registered nurses) were to be cross-trained in certain technical
aspects of each field, producing a group of unit based,
rnufti-skilled professionals. For example, patient care
pharmacists would learn to administer medication,
traditionally a nurse's duty, and nurses would monitor
ventilator-ciependent patients, usually the province of
a respiratory therapist. Staff resisted this plan, fearing
loss of protessional identity and the possibility of
overstepping licensing boundaries. Recognizing these
problems, the hospital modified its approach, creating
unit based positions for RTs and PCPs; these technicians continue to be part ofcentral departments, but
are assigned to a specific unit, working closely with
physiciaz-is and other health care providers to give more
direct, efficient patient care.
Chicago's Mercy Hospital has initiated the Clinical
Partners Program, training staff from central lab,
housekeeping, and food service departments to work
in teams with registered nurses. As in St. Joseph's
program, these workers are trained to perform nursing
assistant and technical tasks, such as drawing blood,
performing basic respiratory therapy, and taking
EKGs. This plan differs from St. Joseph's in that each
FEDERATION BULLETIN
clinical partner is teamed directly With a registered
nurse, and works exclusively with that nurse.
Costs and quality are clearly inzportant to each hospitai. Both groups report that, although the costs of the
training programs are high, and despite the presence
of implementation barriers,,each remains committed
to its redesigned staffing efforts. ResUlts are not yet
quantifiable, but administrators are convinced the
plans will eventually produce cost savings for the
hospital, and better, more efficient care for patients.
Although quality assurance processes have been
modified to accommodate the new programs, quality
of care has not suffered. Patient satisfaction has increased, as waiting time for tests and other services has
decreased. Patients "get to know" all staff who assist
them.
The third setting studied is Minneapolis' Evercare, a
managed care delivery system that uses geriatric nurse
practitioners (GNPs) and physicians to provide acutc
care services for residents of several area nursing
homes. Several aspects, such as nurse practitioner
prescribing privileges, allowed under state law, and
Evercare's carefully devised GNP practice protocol,
allow GNPs to function coliaboratively with the
physician to manage medical care. The protoco] allows
GNPs to undertake certain tasks without prior consultation with the physician, including prescribing
medication, ordering tests, admitting patients to a
hospital, performing physical examinations for nursing home admission, and making resident visits required by state and federal regulation.
Echoing the hospital administrators, Evercarc officials believe the quality of care provided is enhanced
through its use of nonphysician providers, citing
greater responsiveness to patient needs and increased
direct contact with patients and nursing home staff.
Evercare believes its costs ofservice have been reduced
due to the reduction of hospitalizations, attributable
to preventive, ongoing acute care rendered at the
nursing home whenever possible. Physician visits to
residents, although compensated at a reasonable rate,
have decreased since the advent of the program.
The report identifies five significant barriers to
broader use of nonphysician providers, suggesting
possible solutions to these barriers.
1. Professional Territorialism
Boundaries in the practices of the various nonphysician health care providers (eg, nurses, nurse
practitioners, pharmacists, physical therapists)
can inhibit cross-discipline exchange of
knowledge. To counter this effect, innovative
health care organizations should be cognizant of
the role of each profession and emphasize the role
of each in the overall team, while using staff
professionals as in-house "teachers" and "students."
svMMEx 1993
2. Educational Isolation
Because education in health professions rarely
includes interdisciplinary training, professionals
are isolated rather than encouraged in cooperative, team oriented practice styles. Health care
professionals should receive training in management, supervision, and task delegating, and more
in-service education should be provided to expand knowledge across professions.
3. Physician Resistance
Concerns for quality of care, unfamiliarit. 4. ith
how to use nonphysician providers, and possible
self=interest are cited as reasons physicians tend to
resist expandcd use of these providers. Health
care organizations should acknowledge these
physician concerns while involving doctors in
development of new staffing approaches. Nonphysician providers must be integrated into the
organization's standards and quality assurance
processes, including service on medical standards
committees. Establishment of clear protocols to
make explicit the lines of approved delegation is
essential.
4. Institutional Inertia
Resistance to change e:^ists in health care organizations, as in any bureaucracy. Openly
demonstrateci commitment by senior management, employez involvement, and clear objectives, especially those involving better patient
care, are essenrial to overcome this inertia.
5. Licensure Restrictions
Licensing laws, designed to protect the public's
health by restricting entry into occupations to
those who are properly credentialled, can inhibit
tlcYibiliry in the use of nonphysician providers.
Health care organizations should carefuldy determine what practice restrictions exist for a particular type of practitioner, including a
determination of what tasks cannot be delegated
outside a given profession. Staff should be organized accordingly, clearly addressing liability
concerns.
The report does not present a formal evaluation of
the success or failure of the efforts of the three entities
reviewed. It indicates, however, early positive signs
that these initiatives will serve the ultimate goal of
enhancing the effective use ofnonphysiciazz providers.
The OIG concludes its report with a discussion of how
the Public Health Service, under the authority of the
Health Professions Education Act, can exercise leadership in the more productive use of personnel, and
offers several ways in which the PHS can take advantage of this opportunity.
1. Health care funding for educational institutions could increase emphasis on cross-curricula
training, to teach management and supervisory
139
skills, as well as technical skills.
2. Educational institutions could focus on
programs for development of cooperative practice models among different healthcare professions.
140
3. PHS could c:onvcne a national symposium to
look at ways of using health care personnel more
effectively, focusing particularly on implementation barriers in the context of primary care services.
FEDERATION SULLETIN
LETTERS TO THE EDITOR
Residency Programs Do Not Measure
Cognitive Ability
To the Fditor--- I read with considerable interest the
letter from Ms Smith [Spri«g 1993] concerning applications to the Oklahoma board by foreign medical
graduates. She, her committee of foreign graduates
and the Oklahoma board are to be commended for a
serious approach to a diffFcult problem.
I disagree with only one of the statements in the
letter. One of her committee members said: "Training
supervisors are the best judges of an applicant's
competency in practice; if a doctor can stay in a training
program for two years, he is prohably qualified to
practice."
I have been on both sides of this equation for many
years. I have been responsible for a top flight surgical
training program on the one hand. I have been intimately involved with FLEX, the National Board
examinations and the USMLE on the other.
A training program can and should provide the board
with information about character and work habits of
all its residents, be they graduates of American or of
foreign medical schools. The program can certainly
judge a resident's reliabiliry and ability to interact with
others. However, the residency program is nor well
designed to measure an individual's cognitive ability,
except in very gross terms.
When the state board issues a license, it grants the
authority to practice medicine in broad terms, not
with restriction to some narrow medical specialty.
For this reason, the board must attempt to evaluate
the general medical knowledge of anyone it is wilfing to license.
In terms of L'SMLE results, the board should set
the same passing standard for all candidates, no
matter where they graduated or where they did
postgraduate training. If the argument advanced
by Ms Smith's committee member were carried to
its logical conclusion, the state board would not
require successful completion of an examination
by any candidate with two years ofresidencv trainSUMMER 1993
ing. Adopting this approach would be a serious
abrogation of the unique responsibilities delegated to
the state medical board.
John H. Morton, MD
Consultant, Federation Examination Board
Rochester, NY
Health Reform and Quality of Care
To the Editor-I read your thoughtful editorial ["The
Next Seven Generations"] in the spring issue of the
Federation Bulletin and said to mvself: "Finally,
someone has put his finger on one of the glaring
shortcomings of.health care reform plans put forward
to date, namely, their failure to idcntifv a role for
inedical and other health professional licensing
boards in helping to assure quality of care." Whether
this oversight is deliberate or the product of ignorance
or shortsightedness, the result is the same. Why have
so few spoken out in protest?
Many observers believe that quality assurance itself
has been aiven second class consideration in many
of the propcased health care reform programs. In the
Ju1y 21, 1993, issue of the Journal of the Arraerican
Merlica l Association (J'AMA), Dr Mark Chassin entitles his editorial, "The Missing Ingredient in
Health Reform ---- Quality of Care." Dr Chassir)
writcs:
The current public debate over health reform has
focused on issues of access and cost, on what
benefits will be in or out, and on how competition
will be `managed.' Very little attention has been
paid to how quality of care will be assured and
improved, to how the health of the public will be
protected in the headlong rush to control costs.
Earlier this year, a coalition of membership organi7ations representing he:alnc care cc, nsumers wrote
a letter to Hillary Rodham Clinton, expressing a deep
conviction that quality of care must be made a front141
burner concern. "High quality health care does not
just happen," wrote the cc^alition. "Systems are needed
to license and accredit proNqclers as well as plans, and to
monitorand improve the qualitv of ilealth care services
to the consumer."
How to assure quality of care and who to rely on to
be an effective monitor, are not easy questions to
answer. Many players will be involved in whatever new
system emerges, so simpiisric formulas will not sutficc.
But whatever the mix, state licensing boards most
certainly arc well positioned to be prominent among
the players. This idea seems so obvious to those of us
who work in the licensure field that it is hard to
understand why so man}; of the architects of health
care reform ignore licensing boards in their plans.
It is not enough for those who understand the
important contribution medical and other health
licensing boards could play in assuring quality of care
to privately express their frustration at this situation.
Simply griping about it won't resolve the problem.
It's time for the licensing community to speak out
and explain how licensing boards are positioned to
make an important contribution to quality assurance.
But how do we respond to the critics who say,
"licensing boards can't be trusted with qualiry assurance responsibilities, because their track recnrd is
poor." As you know, I am one of those in the public
interest community who has often criticized boards
for failing to give quality of care cases at least as high
a priority as drug diversion, chemical dependency,
and sexual abuse cases. Important as these cases arc,
nothing is moreimportant than pursuing substandard
quality of care cases. The primary function of the state
licensing boards is to assure that practitioners meet
minimum levels of competence to assure public heal th
and safety. Many licensing board members and their
staffs candidly admit that the percentage of quality of
care cases in the case load mix is smaller than it should
be. They explain that it is time-consuming and cnstly
to take on quality of care cases. They are difficult to
investigate and to win.
In many states, licensing boards, and in some cases
the umbrella agencies that conduct the investigations and prosecute the cases for the boards, acknowledge that they shy away from quality of care
cases. For example, in one state the umbrella agency's
guidelines on how cases are prioritized contain the
following language:
In addition to considering the health and safen•
risk of the complained about behavior, an attempt is made to process some complaints for
each of the professions over which the Department has jurisdiction. Also when faced with
the choice, for example, of processing three
142
drug diversion cases which are relatively simply to process (and thereby removing three
drug dependent persons from patient care
situations) or processing one professional incompetence case (which is difficult to settle,
difficult to prove, and often prolonged), the
choice is often made to do the former. (emphasis added)
Policies such as that one must be changed. Boards
will have to pay more attention to quality of care cases
if they want to be taken serious[y when they ask for a
major quality assurance role in the future health care
reform.
Licensing boards have been neglected in another
developing area-practice protocols and
guidelines--an area which I think could be a bridge
to carrv boards from the present health care system
to a position of greater status in a reformed system.
A superb report entitled, Guidelines for Clinical
1'raetiee, ^Nationai Academy Press, 1992) recently
published by the Institute of Medicine's Division of
Health Care Services contains a section entitled,
"Who Uses Guidelines and For What?" (page 40). The
editors ide.ntify five major purposes for clinical practice
guide[ines.
1. Assisting clinical decision making by patients
and practitioners.
2. Educating individuals or groups.
3. Assessing and Assuring the Quality of
Care. (emphasis added)
4. Guiding allocation of resources for health care.
:7. Reducing the Risk of Legal Liability for
Iti'egligent Care. (emphasis added)
Points three and five acknowledge the relationship
between practice guidelines and quality care. But that's
where it stops. A short cfiscussion on pages 108-109
shows how Medicare Peer Review Organizations
(PROs) can utilize practice guidelines in quality review.
However, in over 400 pages of text, there is hardly a
rnenrion ofstate health licensing boards whose legislative
mandate is to protect public health, safety, and welfare.
In contrast, the relationship between medical
malpractice reform and practice guidelines is the subject ofvoliunes. The I OM study mentioned above pays
a lot of attention to that subject. One third of the
prex.eer.ii.ngs of the RAND Institute for Civil Justice's
June 1991 national conference on Hesrlth Care
Delivery and Tort: Systems on a Collision Course is
devoted to a discussion of the relationship between
practice guidelines and tort reform. A December 1992
issue of the Quality Review Bulletin (published by the
Joint Commission on Accreditation of Health Care
nrganizations, JCAHCO) entitled, "Making Good on
the Promise: llisseminating and Implementing Practice Guideiines," covers evcn• aspect of guideline use
FEDERATION BULLETIN
and implementation except the role of state health
licensing boards.
I have never had a conversation with a board
member, board executive, board attorney, or board
investigator who didn't believe that the availability
of good practice guidelines would make it much
easier to take on a quality of care case, and therefore
more likely that such cases would be undertalcen
more frequently. In 1990, the Office of the Inspector General (OIG) of the Department of Heaith and
Human Services (HHS) issued a report entitled,
State Medical Boards and Medical Discipline. The
report recommended that the PubIic Health Sen icc,
through its Agency for Health Care Policy and
Rescarch, fund demonstration programs using practice standards and guidelines to assist in licensing
board investigations of quality of care cases. Dr
Winn supported the idea. But it seems to have fallen
on deaf ears.
One of the reasons that medical and other licensing
boards are ignored in discussions of practice
guidelines and the broader topic of health care reform
is that they have not been present at the conference
tables. So far as I can determine from reviewing the
IOM report, neither the health care liaison panel ( 14
ctxembers) nor the public hearing roster (37 witnesses) included anyone connected to a state health
licensing board. Likewise, the 25 participants in
RAND's Dallas conference (down the road from
FSMB headquarters!) included people from
academia, law, medicine, insurance companies, and
hospitals-but not licensing boards.
Licensing boards need to publicly acknowledge
their responsibility to assign quality of care cases the
very highest priority, and to take immediate steps to
make certain quality of care cases are prominent in
their portfolios. Then the licensing board community, including those of us who monitor the performance of boards, will be able to speak out and
insist on a role for these state boards. In the meantime, we need to attend the meetings where practice
guidelines are being developed, discussed, and distributed, and make the case for the relevance of
licensing boards to quality assurance.
This is especially true since a number of other
components of what is often described as the "safery
net" may very well play a lesser role in assuring
minimuln competence of health practitioners. For
example, whether the Medicare Peer Review Organi.zations (PROs) remain in their current form or
are changed, it is apparent that their mission will be
redefined, with less attention paid to the review of
individual practitioner's records and more attention
paid to pattern analysis. This is not the place to argue
the merits of that redirection. Rather it is a statc ment
of fact, good or bad, that the primary role of PRC)s,
SUMMFIL 1993
or any successor organizations, will no longer be to
monitor individual performance, and certainly not to
act as the disciplinarian.
Also, withoU« arguing the merits of tort reform,
every indication points to continuing efforts to enact
legislation making it more difficult to pursue malpractice law suits. This will lessen the pressure the tort
system exerts to improve professional performance.
And, whatever its merits, should new legislation impose no-fault systems to replace fault-based tort law,
that will all but eliminate the reliance on private law
as a significant aspect of the safety net. One need only
look at the workers' compensation system and its total
irrelevance to occupational safety to realize the truth
of that disconnect.
Some institutinn needs to monitor the health care
Wstem, practitioner by practitionLr, and assure the
public that minimum competcncL will be maintained. It may well be the job of other institutions,
public and private, to raise the general standards of
practice, to help promote best practice, and to
encourage and reward superior practicc. But it is
only the professional licensing boards that are positioned to assure that practice never falls below the
minimum standards embodied in practice acts.
When health licensing boards fail to carry out that
job, we who monitor them jump all over them. Our
purpose is to encourage them to do their job better,
not to throw them out, bypass them, or ignore
them.
David A. Swankin, JD
President,RA17C: *
*Regulatory Alternrctiues 1Jevedoprnent Corporcxrion is zsrtder
contract to the American Association of Retired Persons
(AARP) to provide staff service to the Citizen Advocacy
Center (CAC). The views expressed in this letter are the
personal vieivs of Mr Swankin.
On Promising Approcxches
TQ the Eiitor- The report of the Inspector General
of DHHS on State Mediccal Boards and Quality qf
Care Ccsses: Promising Approaches deserves the accolades given it by Deborah Rodecker, JD, in her
review [Spring 1993]. The stated purpose of the
report is "to help states address cases involving
physicians who provide poor quality medical care."
And it will, if it is used! Rodecker suggested that
this report be read by every medical board member,
exccutive, and board attorney. (Approximately 37
minutes reading time,) I strongly support this suggestion. Furthermore, I propose that a thorough review
of the report he an agenda item at a forthcoming
meeting of cven' board.
143
Mark Yessian, PhD, and his colleagues in the
GJG's office, in my opinion, have made substantial
contributions during the past few years to our understanding of the need to address effectively qualitv
of care issues. We should not only listen careiiiily to
the sage advice offcred, but also each board should
reevaluate its present pnlicies relating to Q-C cases.
This action may initiate a new era of accountability
144
and hclp boards get back into the "loop" to which Dr
Yessian referred in his address at the 1993 Federatiou
Annual l-Iceting.
Bryant L. Galusha, MD
Former Executive Vice President
Federation of5tate Medical Boards
Charlotte, NC
FEDERATION BULLETIN
Federation Publications
Any of the Federation publications listed below may be ordercd by wriring to the
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Federation Publications
Federation of State itiledical Boards of the US
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Bulletin or the FSMB NewsLine.]
Federation Bulletin: The]ournstl ofMedical Licensure and Ilisciplinz
{ ISSN 0014-9306)
The world's only journal devoted exclusively to medical licensure and discipline.
quarterly: $ 10 per issue/$35 annual subscription
annual bound volurne: $50
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A newsletter focused on current issues of interest to medical licensuzg and disciplinary
authorities.
monthly: 54 per issue/$35 annual subscription
FSMB Handbook (ISSN 0888-5656)
A compendium of information about the Federation, including its hlstory, purposes,
leadership, committees, membership, and bylaws.
annual: $15
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A set of basic recommendations for use in the devclopment, evaluation, or revision of
state statutes governing the practice of medicine.
trienniaE ^ 1991 edition): $10
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A detailed example of a booklet any state medical board could develop to assist its
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triennial (1992 edition): $8
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Detailed information on examination and licensing reyuirerncnts in all US jurisdictions,
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Section 1: FLEX and M.D. Licensing Requirements
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