Medical Board Exposure to Threats of Violence

Transcription

JMR
Jo urn a l
of
me dic a l
r e gu l at ion
CRITICAL THINKING ON ISSUES
OF MEDICAL LICENSURE AND DISCIPLINE
VOLUME 99
NUMBER 3
2013
Medical Board Exposure
to Threats of Violence
What Boards Are Doing
to Ensure Security
C E L✺
E B✺
R A T✺
I N G✺100
YEARS
✺✺ ✺
✺✺
✺ ✺O F
CONTINUOUS PUBLICATION ✺
ALSO IN THIS ISSUE
Maine Launches
Informed Consent
Guidelines
Legal Briefs:
Analysis of FTC’s
Court Victory in
North Carolina
THE JOURNAL OF MEDICAL REGULATION BEGAN
CONTINUOUS PUBLICATION AS THE QUARTERLY OF THE
FEDERATION OF STATE MEDICAL BOARDS IN 1913. OVER THE
YEARS IT HAS BEEN PUBLISHED IN VARIOUS FORMATS AND
WITH DIFFERENT NAMES — ALWAYS OFFERING INSIGHTFUL
COMMENTARY AND IMPORTANT NEWS AND STUDIES OF
INTEREST TO MEDICAL REGULATORS. TODAY THE JOURNAL
REACHES THOUSANDS OF POLICY MAKERS, ACADEMICS
AND LEADERS IN THE REGULATORY COMMUNITY.
JMR
Submit a manuscript to the Journal of Medical Regulation
For more information about how to submit a manuscript,
please see Information for Authors on page 31.
me dic al
re gul ation
Journal of
VO L U M E 9 9 , N U M B E R 3 , 2 0 1 3
2
Publisher’s Information
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3
Quoted | Note from the Editor
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4
News & Notes
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5
Message from the Chair
....................................
8
Past and Present
....................................
I N T H E FAC E O F
T H R E AT S , w hat steps
do boards take
to ensure safet y ?
11 State Medical Board Exposure to Threats of
Violence: A Survey by the FSMB Foundation
Kelly C. Alfred, MS
Timothy Turner, BBA
Aaron Young, PhD
....................................
18 Obtaining Meaningful Informed Consent:
Guidelines from the Maine Board
of Licensure in Medicine
David Nyberg, PhD
22
Legal Briefs
25
State Member Board Briefs
30
International Briefs
31
Information for Authors
“…less than half of the respondents are satisfied with
their present security level…”
From the article “State Medical Board Exposure to Threats of Violence:
A Survey by the FSMB Foundation,” page 11.
JMR
Journal
of
medical
reg ul ation
Published Since 1913 | VOLUME 99, Number 3, 2013
All articles published, including editorials, letters and book reviews, represent the opinions of the authors and do
not necessarily reflect the official policy of the Federation of State Medical Boards (FSMB) of the United States
Inc. or the institutions or organizations with which the authors are affiliated unless clearly specified.
Editor-in-Chief
Ruth Horowitz, PhD
Editorial Committee
Carl F. Ameringer, PhD, JD
Mohammed Arsiwala, MD
Larry J. Berg, JD
Mark Bowden
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Rebecca J. Hafner-Fogarty,
MD, MBA
FSMB Board of Directors
Michael K. Helmer
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Linda Gage-White, MD, PhD, MBA
Sindy M. Paul, MD, MPH
J. Daniel Gifford, MD
Wayne Reynolds, DO
Arthur S. Hengerer, MD
Leticia J. San Diego, PhD
Stephen E. Heretick, JD
E. Scott Sills, MD, PhD
Lyle R. Kelsey, MBA
Cheryl Graham Solomon, MA
Editor Emeritus
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© Copyright 2013
The Federation of
State Medical Boards
of the United States Inc.
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President/Chief Executive Officer:
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Sympathy comes, in the human form,
in the arousing in one’s self of the attitude
of the individual whom one is assisting.1
— George Herbert Mead
George Herbert Mead, a social philosopher at the University
of Chicago (1863–1931) and father and grandfather of physicians, saw the need
for each person to place him or herself “in the attitude” of the individual with whom
he or she seeks cooperation. For medical board staff and members this means
thinking hard about each other’s perspectives, and especially about taking
into account the patients’ interests in the decision-making process. How will
board actions be understood and affect diverse groups of patients? The articles
assembled in this issue explore several contentious problems highlighting
patients’ needs. One recent legal case discussed here involves a dental board
controversy over scope of practice (page 22). This case underscores the need
to balance two goals that can work at cross-purposes: patient safety and access
to care. The problem is familiar and is certain to affect practitioners in every
field. Federal licensure is another controversial matter raised in this issue (page 8).
It concerns the diversity of standards of entry and practice across the states.
A third selection focuses on Maine’s efforts to ensure that patients fully understand
the provisions of informed consent (page 18). Such efforts require physicians
speaking with, rather than to, the patient, “taking the attitude of the other” before
the signature on the consent form is obtained. We are also reminded that we
must look at the fears of boards and staff as they go about their work in the sometimes
contentious world of board work in our fourth contribution — an article about
threats of violence against state medical boards (page 11). In all of these examples,
we see illustrated the imperative to learn from all sides, especially the
viewpoint of patients, and to promote cooperation between the stakeholders
in decision making. As I begin my tenure as JMR’s new editor-in-chief, you can
be assured this imperative will continue to be at the forefront of our journal.
Ruth Horowitz, PhD
Editor-in-Chief
1
Mead, G. H. (1934/1962) Mind, Self and Society edited by C.H. Morris. Chicago, University of Chicago Press (p.299)
J O U R N A L of M E D I C A L R E G U L AT I O N VO L 9 9 , N O 3 | 3
N E W S & N OT E S
FSMB and Several Partners Launch
Data Commons, LLC
Safe and Competent Opioid Prescribing
Program Established
The FSMB and several other leading national
physician education and assessment organizations
have launched Data Commons, LLC. Data
Commons is an information-sharing company that
is developing a system to improve the accessibility
and use of data about physicians and other health
care professionals.
The Boston University School of Medicine, the Council
of Medical Specialty Societies and the FSMB have
collaborated to create the SCOPE of Pain program,
intended to provide free, online education to help
educate prescribers in the safe use of opioids.
The core of the new system is a secure data hub
that allows multiple organizations to make available
selected information from their individual databases. The system makes it possible for researchers,
analysts and other data users to acquire information
from multiple databases in a single transaction
and at lowered cost. Data Commons LLC partners
include the American Board of Family Medicine,
American Board of Pediatrics, Association of American
Medical Colleges®, Educational Commission
for Foreign Medical Graduates, Federation of
State Medical Boards and National Board of
Medical Examiners®. For more information, visit
www.mydatacommons.com.
Board Attorneys Workshop Scheduled
for November
A special educational workshop for state medical
board attorneys and legal staff will be hosted by
the FSMB on November 7–8 in Portland, Oregon.
The two-day conference will be held at the Hilton
Portland & Executive Tower, situated in the heart
of downtown Portland.
Participants at the annual Board Attorneys
Workshop will have the opportunity to share and
exchange information on case experiences, best
practices and current issues pertinent to boards
attorneys. Among other topics, the workshop
will help participants identify and discuss dynamics
and legal issues that may influence how medical
boards discipline physicians, develop strategies
used by boards to help protect the public and
investigate options for improving state board
performance and effectiveness.
To learn more, visit www.fsmb.org or call 817-868-4007.
4 | J O U R N A L of M E D I C A L R E G U L AT I O N
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The SCOPE (Safe and Competent Opioid Prescribing
Education) program addresses many key elements
of the physician component of the Obama Administration’s prescription drug abuse prevention plan on
prescriber education.
The first phase of the SCOPE program includes a free
series of three educational modules that have been
accredited for a maximum of 3.0 AMA PRA Category 1
Credits. The program may satisfy risk management
and opioid education CME requirements in many
states. To learn more, visit www.scopeofpain.com.
Summary of First Tri-Regulator
Symposium Available Online
“Protecting Patients and the Public: A Heritage
of Excellence,” a summary of the First Tri-Regulator
Symposium, hosted late last year in Washington,
D.C., is now available to the public online at the
FSMB website.
The publication summarizes the proceedings of
discussions between the FSMB, the National Association of Boards of Pharmacy (NABP) and the
National Council of State Boards of Nursing
(NCSBN), during the first formal meeting of the three
groups, known as the Tri-Regulator Collaborative.
During the two-day symposium, a diverse group of
speakers and panelists discussed topics ranging
from the U.S. opioid crisis to the growing use of
social media by physicians and nurses. Additional
sessions focused on new trends in assessing the
competency of physicians, nurses and pharmacists,
and projections of U.S. health care workforce
needs for the future.
“Protecting Patients and the Public: A Heritage
of Excellence” is available at www.fsmb.org/pub_
publications.html. n
Message from the Chair
In the Midst of Great Challenge in Health Care,
State Regulators Can Make a Difference
Jon V. Thomas, MD, MBA
Chair, Board of Directors
I N B R I E F Dr. Thomas highlights three areas
in the challenging U.S. health care environment in
which the leadership of state regulators is needed
As I begin my year as the Chair of the FSMB,
I find myself reflecting on both the challenges and
worrisome trends in health care — and at the same
time, the many opportunities we find before us.
This is a time for leadership, and I believe the
medical regulatory community can help the nation
address its challenges in several key areas — which I will describe in a moment.
Simply put, the nation needs us. We’ve never
experienced an era of health care quite so fraught
with difficulties and emerging problems.
Of the 14 member countries of the Organisation
for Economic Co-operation and Development,
the United States spends the most for its health
care system. In fact, some experts cite a figure
10 times greater than the expenditures of other
developed countries.
Many lament our World Health Organization (WHO)
ranking with regards to life expectancy and infant
mortality. When compared to other economically
developed nations, we are ranked last. In almost
every talk I have heard over the last year on the
Simply put, the nation needs us.
We ’ ve never e x perienced an era of
health care q uite so fraught w ith
difficulties and emerging problems.
economics of health care, every speaker juxtaposed
the cost of the U.S. health care system with our
WHO ranking and implied that the United States
has the worst and most expensive health care
system in the world.
In fairness, the picture isn’t quite so black and
white — there are many other reasons for our poor
showing in global comparisons.
For example, recent studies have found that the major
cause of death below the age of 50 in the United
States is unintentional injuries, including drug overdose.
This distorts life expectancy. As state regulators well
know, we have experienced a rise in deaths due to
opiate overdose. In a similar vein, in vitro fertilization
and aggressive intervention in early pre-term preg
nancies negatively influences our infant mortality data.
But the bottom line is that the cost of our system
is too high and the relationship between cost and
health outcomes has become imbalanced.
Beyond this, the U.S. health care system is undergoing
other challenges that are unsustainable. The demographic bulge of baby boomers hitting the Medicare rolls
has already begun to burden our system. For every dollar
that is contributed to Medicare, the enrollee receives
many more dollars of Medicare services in return. This is
unsustainable. Soon, as a result of the Affordable Care
Act, millions of new patients will be added to a health
care system that on many levels is not wholly prepared
to absorb them. This, coupled with reduced funding for
residency programs, has the potential to exacerbate
what many believe are real shortages in key specialties.
While all of this is happening, we’re also in the midst
of fast-moving technological change. As we progress
through what many are calling the third Industrial
Revolution, digital technologies have disrupted many
industries and will continue to do so.
With the advent of networking, we are starting to
see the true impact of the technological revolution.
Networking is the ability of individuals to come
together and exchange information. The network is
the key. The ability to connect is where power lies.
The impact of networking on health care is just beginning,
as motivated patients want immediate answers to their
medical problems. They want it faster, cheaper and
better. Increasingly, patients are becoming more adept
at diagnosing themselves: As an example, two young
patients of mine recently correctly diagnosed their
medical problems using technology.
In the modern era we have defined health care
effectiveness as delivering the right care, at the
right time and in the right place. For patients, the
right place is where they are at the moment, and
the right time is now. Increasingly, motivated
patients with networked computers have access
to sources of information and expertise that were
unheard of 10 years ago and they will seek out
access to a specialist regardless of location.
These two factors — enormous challenge in health
care and a fast-evolving technology environment — are
setting the stage, I believe, for our work as regulators.
We have the opportunity to sort out the many
questions we are faced with — through leadership.
If society is becoming increasingly networked, then
it is incumbent upon state medical boards to do the
same. We must facilitate and expedite the transfer
of information to make expeditious licensing and
…having a minimum data set would give
policy makers, the public and market
participants the information the y need
to make informed decisions .
disciplinary decisions. Where we can, we need to
develop common language and processes. Our
challenge will be to create a truly modern medical
licensing system by the states and territories, for
the states and territories. By doing so, we will
be effectively positioned to help the nation respond
to its overall health care challenges.
where and how he or she is practicing. Working with
state medical boards and the U.S. Health Resources
and Services Administration, we have developed a
minimum data set (MDS) to help us expand our
knowledge and understanding of the physician workforce. The MDS would include several key pieces of
information, ranging from practice location to
specialty training, which every physician would
provide during the license renewal process. As we
anticipate expanding Medicare rolls and a significant
increase of those with insurance as a result of the
Affordable Care Act, we will need better information
to inform our decisions around workforce needs.
Reduced Graduate Medical Education (GME) funding
and the potential for reduced residency positions
may further complicate our national physician
workforce picture. We recognize that having a
minimum data set would give policy makers, the
public and market participants the information
they need to make informed decisions.
My hope is that the minimum data set, provided by
our member state medical boards and residing in
the FSMB’s Physician Data Center, will lead to
better forecasting.
Maintenance of Licensure (MOL). One of the
most pressing concerns in our current health care
environment is the need to focus on patient outcomes
and improved quality of care.
Continuous professional development has come to be
accepted as an integral part of the continuum of medical
education, from medical school to the end of a
career. MOL is a process of continuous professional
development and life-long learning that we believe
will help us move more quickly on the road toward
continuous quality improvement in health care.
Let me discuss each briefly.
The FSMB is working with sister organizations
and several state medical boards to develop the
concept of MOL, including exploring the key question
of what activities would count towards successful
MOL fulfillment, and we are making great
progress. One of our key concepts is that physicians
shouldn’t be required to take a high-stakes exam to
fulfill MOL, but should be able to choose from the
variety of professional development activities they
may already be engaged in.
Physician Workforce. The FSMB recently published
its second census of U.S. physicians. We now know
that we have more than 870,000 licensed physicians
in the United States. While this is useful information, it
is incomplete and doesn’t tell the complete picture. We
don’t know if a licensee is practicing, for example, or
My own story is a great example of how the MOL concept could work. I am a busy physician in a large private
single specialty group practice and not particularly
interested in taking a high-stakes exam. I am boardcertified, but with a time-unlimited certificate. What
I would personally like to have is a practice-specific
I’d like to suggest three areas where I believe we
can make a real difference — and which I’ll focus
on during my year as FSMB Chair. They are:
physician workforce, Maintenance of Licensure, and
eHealth. I believe by concentrating our efforts in
these three areas, we will have the broadest impact
on medical boards, physicians and patients.
VO L 9 9 , N O 3
assessment, informed by data in my Electronic Health
Record system, and produced by organizations with
expertise in assessment. Reviewing the results of my
assessment — which would examine my patient outcomes and practice patterns — would then determine
my practice gaps, or areas I need to improve upon. My
practice gaps would then determine the Continuing
Medical Education (CME) activities I would pursue.
Successful completion of appropriately accredited
CME activities would help me reach a standard of
competence and/or excellence set by organizations
with expertise in standards. This kind of targeted
approach would ensure that my continuing
professional development activities are truly
helping me improve as a physician.
The scenario I described is just one example of the
myriad ways in which participation in MOL could
occur, and it demonstrates the general approach to
targeted MOL that should be explored. To help
move the process along, I have formed a workgroup
that is helping identify the types of activities that
could satisfy MOL.
eHealth. As the Affordable Care Act is implemented,
as demographic changes occur in the United States
and as technology continues to evolve, the concept
of eHealth will be increasingly on the radar of state
medical boards. Our health care system is naturally
moving towards new uses of technology — which
must be carefully monitored to ensure they maintain
patient safety as they improve our efficiency.
Since its existence, the FSMB has always been a
champion of license portability — that is, ensuring that
the process of obtaining a license is not cumbersome
as a physician moves through his or her career,
sometimes moving from state to state.
The widespread use of technology by both patients
and physicians has created a new context for the
concept of portability — as has the anticipated
influx of millions of new patients into the system as
a result of the Affordable Care Act. Access to care
will be critically important in coming years, especially
in rural and underserved areas. And all of this
means licenses must be increasingly portable.
The FSMB has taken its historical efforts to improve
portability to a new level with its recent decision to
explore creation of an interstate compact for medical
licensure — which would increase efficiency in the
licensing of physicians who practice in multiple states.
In April, the FSMB House of Delegates formally
commissioned this initiative, and the FSMB has
hosted two meetings to move the process forward.
Our effort is the latest in a series of initiatives by
the FSMB License Portability Project, which is
funded by a grant from the U.S. Health Resources
and Services Administration.
Interstate compacts are contracts between two or
more states that allow them to maintain their sovereignty while acting collectively outside the confines
of federal legislation or regulation. States have
used interstate compacts historically to address
a variety of issues — an example is the compact
created to allow drivers with licenses issued by
individual states to use all of the nation’s freeways.
Fundamental to our approach is creating a system
that enables multi-state practice by physicians while
preserving the current state-based regulatory system. This includes ensuring that state boards would
retain their individual authority for discipline and
oversight within a new interstate compact system.
Many details remain ahead as we tackle this
historic effort, but we are making good progress in
defining key foundational principles and guidelines.
The interstate compact has obvious ramifications
for the growth of eHealth. Ultimately it will help
streamline the process of multi-state licensure and
thus aid those involved in eHealth. To ensure our
Fundamental to our approach is
creating a system that enables multistate practice by physicians w hile
preserving the current state- based
regulatory system.
efforts at portability are aligned with the need for
new policies related to the growth of eHealth,
I have formed a workgroup specifically tasked with
reviewing the FSMB’s telemedicine policy.
The work of these two FSMB groups — one developing
the interstate compact model and the other
reviewing the FSMB’s telemedicine policies — will help us achieve a well integrated and carefully
thought-out approach to the twin challenges of
portability and the rise of eHealth.
By focusing on these three priorities — the physician
workforce, MOL and eHealth — I believe the regulatory
community can make significant contributions to the
nation’s efforts as we confront our health care challenges. I look forward to a very busy and productive
year in service to you as we pursue these tasks. n
PA S T A N D P R E S E N T
“Past and Present” couples an excerpt from an article that appeared previously in the pages of the Journal
or its predecessor, the Federation Bulletin, with a companion essay authored by an invited commentator.
Here, Mari Robinson and Leigh Hopper, executive director and former public information officer respectively
for the Texas Medical Board, respond to the legal and practical issues raised by an editorial on the topic
of national medical licensing that was published by the FSMB nearly a century ago. The editorial, written
by Manford M. Clapper on a “Federal Licensing Board,” originally appeared in the April 1914 issue of
the Quarterly of the Federation of State Medical Boards.
Federal Licensure: 100 Years Later,
the Central Questions Haven’t
Changed Much
By Mari Robinson, JD, and Leigh Hopper
Medical regulators are familiar with the concept of
national licensure for physicians, which has been
proposed at various times over the last century.
An editorial from the Quarterly of the Federation of
State Medical Boards, for example, made the legal
case for national licensure in 1914:
“There is a great weight of legal opinion which
has been expressed in favor of the theory that
there is no provision in the federal Constitution
for the control of medical education, licentiation
and practice – that this authority is vested in
the states by virtue of their police powers.
I take issue with the opinion that the Congress
has no right to encroach upon the ‘police
powers’ of the individual states. I base my
opinion that the Congress has power to provide
for the general welfare on a clause in the
Constitution, and that it has power by virtue of
this to control the practice of medicine, on a
leading decision of the Supreme Court (Dent
vs. West Virginia) wherein it was declared that
a state had authority to regulate the practice of
medicine as part of its power to provide for the
general welfare; it is on this secure foundation
that I find proof that the Congress has power to
authorize a federal licensing board or to enact
a national medical registration law.
The Supreme Court and the federal Consti
tution…respectively grant to the states and
to the federal Congress the concurrent power
to provide for the general welfare….But
should the state laws and the laws of Con8 | J O U R N A L of M E D I C A L R E G U L AT I O N
VO L 9 9 , N O 3
gress conflict, the state law must give way to
the federal law, for, according to Paragraph 2
of Article VI of the federal Constitution,
‘This constitution, and the laws of the United
States which shall be made in pursuance
thereof, and all treaties made, or which shall
be made, under the authority of the United
States, shall be the supreme law of the land;
and the judges in every state shall be bound
thereby, anything in the constitution or laws of
any state to the contrary notwithstanding.’
The recent trend of Congressional action in
the passage of the pure food and drug law…
is away from the strict construction which
curtailed the powers of the Congress and
exalted the powers of the states. This strict
construction of the Constitution was assailed
by Chief Justice John Marshall, who pointed
out…the attempt to belittle the Union in order
that the original powers of the states might be
retained. He said (Gibbons vs. Ogden, 22 U.S.
219): ‘Powerful and ingenious minds, taking
as postulates, that the powers expressly
granted to the Union are to be contracted by
construction into the narrowest possible
compass…and leave it [the Constitution] totally
unfit for use.’ In the future, when the Supreme
Court renders its decision on the constitution
ality of a Congressional act establishing a
federal licensing board, its decision…will uphold
the plenary powers of the federal Constitution.”
Manford M. Clapper
Quarterly of the Federation of State Medical
Boards, April 1914
In reading the commentary by Mr. Clapper, we have
to admit that it is an intriguing vision. The idea of
national licensure is tempting in its simplicity. Imagine
one centralized agency where all applicants would
send standardized forms and checks for any money
that is owed, and where uniform laws would be
applied to everyone. You know, just like the Internal
Revenue Service. And don’t we all love the IRS?
In all seriousness, though, as governmental
employees, we sincerely believe that the government
exists to benefit its citizens and its goal is to
ensure their “general welfare.” As noted by Manford
Clapper in his editorial, this idea is the bedrock
of our political system, and that cannot be disputed.
However, what Mr. Clapper failed to recognize is
that because this responsibility is so great, it was
actually divided up by our founding fathers between
the federal and state governments. The 10th
Amendment to the Constitution outlines this very
clearly in stating that all powers not expressly granted
to federal government are reserved for the states.
Mr. Clapper reasons that federal medical licensure
is constitutional on the grounds that Congress
has authority to oversee the welfare of its citizens.
However, if this were the litmus test as to the
authority of the federal government, there would be
very little, if anything at all, that would not fall within
its jurisdiction. Despite the author’s postulation that
the Supreme Court would uphold a national licensing
board in a future case, the intervening century has
seen nothing from the U.S. Supreme Court that
fundamentally changes states’ oversight of medical
licensing and discipline.
All that said, let us explore for a moment, rather
than contest, the federal oversight Mr. Clapper
endorses. Indeed, the notion of a national medical
license is back on the table, but for reasons
unimagined a century ago — namely, the rise
of telemedicine.
Consider the following: Prospective physicians
take a nationally available licensing exam, so why
not issue a national license — especially when
telemedicine offers a future where doctor and
patient meet in virtual exam rooms? Sounds
reasonable. But a closer look at how state
medical boards protect the public reveals that the
regulation of medicine — and the due process
afforded to licensees—is a complex, personnelintensive process.
For starters, physician applicants undergo a thorough
review as part of the licensure process. The first
hurdle to national licensure would be stakeholders
coming together and agreeing upon a single set of
qualifying standards for licensure. As the saying goes,
if you’ve seen one medical board’s standards,
you’ve seen one medical board’s standards. Each
board is unique, for reasons that developed to
meet the needs of its home state. This is not to
suggest that a single set of qualifying standards
would be impossible; but rather to point out the
complexity of such an undertaking. Secondly,
national licensure would not eliminate the need for
…national licensure would not
eliminate the need for a trained
workforce to analy ze application
materials from thousands of
prospective licensees annually.
a trained workforce to analyze application materials
from thousands of prospective licensees annually.
These needs and costs would still exist, but would
likely be funneled to one office rather than be
distributed widely as they are now, and thus the
benefits to sharing the workload would be lost.
While there would be many challenges in setting
up the licensing component, these would pale
in comparison to the disciplinary aspects of the
system, such as the need for investigation of
complaints. Most state medical boards currently
expend the vast majority of their resources on
this function. Some investigations, such as those
involving pill mills, require physical inspections.
Here, too, national guidelines would have to be
set in order to govern the process for complaint
handling, investigation and resolution.
Some might argue that one way to solve this issue
would be the creation of a federal license, leaving
enforcement activities related to licensing to the
states. But this solution creates as many problems
as it solves.
For example, consider this scenario: A Texas doctor,
already licensed in the state, obtains the new
“federal” license. One aspect of his practice
includes telemedicine: Though he lives in Dallas,
he treats patients located in Santa Fe, New Mexico,
which is about 650 miles away. This should work
perfectly…until something goes wrong. The patient
is left without any immediate assistance from his or
her original provider. New Mexico, which has no
authority over the provider, can do nothing to
protect its own citizens. Texas can try to investigate,
While there would be many
challenges in setting up the licensing
component, these would pale in
comparison to the disciplinary aspects
of the s ystem, such as the need
for investigation of complaints .
but it is limited by its own subpoena power to
evidence located within its own state, and if any
of the evidence is located in New Mexico it will
not be available in Texas.
But what if a law passes stipulating that with a
federal license, the state in which the physician
received his originating license is granted subpoena
power in another state? Even if the Texas board
can extract information and/or testimony located
in New Mexico and takes action against the Texas
physician, this doesn’t impact his federal license.
To resolve this issue, the federal agency would
need authority so that measures taken by a state
board could be applied to the federal license.
But even more issues now appear: What happens
should the hypothetical physician presented here
contest the action against the federal license?
In this mix of state and federal jurisdiction, who
prosecutes the case? Who hears the case? One
of the already heavily burdened federal courts?
VO L 9 9 , N O 3
Funding is another matter that would have to be
addressed in a federal system. Every state has a
licensure fee that allows for a throrough evaluation
of licensing applications, competent investigation
of complaints and educational efforts to inform
licensees of medical regulations. These costs would
still continue to exist, though the overall amount of
funding would decrease since physicians would only
have one license rather than multiple licenses. The
charge for a federal license could be increased in
an attempt to cover these costs. It is likely, though,
that the cost would have to be several times
the current licensure fees in order to approach
the current levels of funding. Moreover, political
pressure would certainly be exerted to keep fees
low. With all of this in mind, when does the creation
of a federal license begin to undercut the funding of
individual state medical boards?
Interestingly, the debate about whether a national
licensing system could be imposed by the federal
government is likely moot. It has been established
that the federal government can gain compliance
from the states by making their participation in
national programs or guidelines optional, but at the
same time tying their participation to national funding for other programs. A national medical licensing
system of some kind may be in the future of medical
regulation, but it would require a sea change in
philosophy, process and funding that would take
time to implement. It is unlikely that a sweeping
mandate, quickly issued, would be successful.
Much more innovative thinking on the complex
issue of federal licensure will be required before
it is likely to move forward in the United States.
The topic is just as relevant in 2013 as it was in
Manford Clapper’s day, and the conclusions that
can be drawn haven’t changed much: Achieving the
efficiency benefits of federal licensure may bring
additional costs that are simply too high to pay. n
About the Authors
Mari Robinson, JD, is executive director of the Texas Medical Board.
Leigh Hopper is a former public information officer of the Texas
Medical Board.
State Medical Board Exposure to Threats of Violence
Analysis of data from a national survey to determine the extent of threats of violence aimed
at U.S. state medical boards and steps they take in response to the issue
...........................................
By Kelly C. Alfred, MS; Timothy Turner, BBA; and Aaron Young, PhD
ABSTRACT: Between 2010 and 2012, the Federation of State Medical Boards Research and Education
Foundation (FSMB Foundation) conducted a survey of state medical boards in an effort to ascertain the
extent to which state medical board members and staff have experienced threats of violence and the
actions taken by state boards in response to such threats. The survey also assessed current and anticipated
levels of security being provided by state boards. Of the 70 boards queried, 37 responded, with 73%
(n=27) of these boards reporting that their board members and/or staff had experienced either explicit or
implied threats of violence. These threats targeted board members (85%), board staff (78%) and others
(15%). Many of the threats directed at board members occurred after board meetings and/or hearings and
were made by either a physician or a family member of a physician. Most of the threats directed at board
members, staff and others were verbal, including threats of death. Most boards provide a security presence
at board meetings, ranging from local law enforcement agencies to private security firms, but less than
half of the respondents in the survey expressed satisfaction with their present security level. The results
of the survey suggest that the state medical board community should be aware of the potential for
violence against board members and staff, and should formulate prevention and threat-assessment policies
as a precaution. Educational and training resources may be needed at the state board level. This could
include the development of educational modules to train state public officials in conflict management, the
prevention and handling of acts of violence, and how to identify and assess the seriousness of a potentially
violent or stressful situation.
Introduction
Violence and threats of violence in the workplace,
topics that have been increasingly featured in the
news, are serious public health problems. According
to the Centers for Disease Control and Prevention’s
National Institute for Occupational Safety and Health,
an estimated 1.7 million injuries per year are due to
workplace assaults, with simple assault the most
common type of violence.1 In addition, the Bureau
of Labor Statistics has reported homicide as the
fourth-leading cause of fatal occupational injury
in the United States. Of 4,349 fatal work injuries
reported, 521 were related to workplace homicides
in the preliminary count for 2009.2
Certain occupations experience higher rates of
violence directed at those who work in those professions (e.g., police officers, security guards, taxi
drivers, and gas station workers). While the health
care community has not experienced high rates of
violence compared to these other settings, verbal
and physical violence against physicians, other
health care workers and staff is not uncommon.
From 1997–2009, 8,127 occupational homicides
occurred.3 Of the 73 homicides reported to
have occurred in the health services industry,
20 occurred in hospitals and 17 in offices and
clinics of medical doctors.3
The stressful environment in some health care
settings, the prevalence of weapons among
patients, their families and friends, and the
increasing number of acute and chronic mentally ill
patients seeking health care related services all
contribute as risk factors in violent attacks against
physicians and health care workers.4 Numerous
cases of violence against physicians have been
reported in the last few years, putting a national
spotlight on violence and security issues in health
care settings.
As an integral part of the U.S. health care system,
the state medical board community has cause to
view these trends with concern. Moreover, the
stressful conditions that often accompany state
medical board investigations and disciplinary
actions can create highly contentious and
emotionally charged environments — which could
be considered potential precursors to violence or
violent threats.
Perhaps the most visible illustration of this possibility
can be found in the case of Trent Pierce, MD,
a practicing family physician and board chair of the
Arkansas State Medical Board.
On the morning of February 4, 2009, Dr. Pierce
was critically injured when a bomb exploded in his
car as he prepared to travel to a board meeting,
a calculated attack leaving him severely burned
and without his left eye.5 Soon after the bombing,
federal agents arrested an Arkansas physician on
charges of illegally owning high-explosive grenades.
The physician had become a “person of interest”
in the attack against Dr. Pierce. According to
prosecutors, the attack against Dr. Pierce was
planned in retaliation after he and the Arkansas
State Medical Board revoked the physician’s
prescription writing privileges.6
After hearing a month’s worth of evidence,
including testimony from Dr. Pierce, a federal jury
convicted the physician on August 9, 2010, on
charges of using a weapon of mass destruction
against a person and destroying a vehicle with an
explosive device. On February 28, 2011, he was
sentenced to life in prison for orchestrating the
attack against Dr. Pierce. On June 13, 2013, the
physician petitioned the U.S. Supreme Court to
review his case.7
While the violent attack against Dr. Pierce
represents an extreme case — one that resulted
in extensive national media coverage — the
general topic of violence or threats of violence
Methodology
Purposes
To better understand the extent of violent threats
experienced by the board members and staff
of the nation’s 70 state and territorial medical
boards, and to generate useful knowledge for the
boards, the FSMB Foundation developed an online
survey. While the primary objective of the survey
was to estimate the extent of violent threats
against state board members and staff, the survey
was also established as a way to determine the
actions taken by state boards in response to the
threats of violence, and the security measures
boards currently have in place.
Design
The survey was designed to be simple to complete
to ensure that a substantial portion of the target
population would respond. The survey did not
attempt to gauge the frequency of threats or to
analyze the root cause(s) of violence against state
board members and staff, but to explore the risk
of exposure to violence. The survey consisted of
four distinct sections:
1. T he occurrence of explicit or perceived threats
against board leadership and staff.
2. T he actions boards took in response to the threats
of violence.
3. T he boards’ current and future security measures for board leadership and staff.
4. Q
uestions about state legislation regarding the
consequences of threatening a public official.
Most of the threats directed at board
members, staff and others were verbal,
includING threats of death.
aimed at state medical board members or staff
has not received attention in academic literature
or been closely studied. Despite the recent
high profile of incidents of violence in health
care settings, the nature and extent of how the
problem might impact state medical boards remain
largely unknown.
The dearth of data prompted the FSMB Foundation
to develop and distribute an online survey designed
to determine the extent of violent threats against
state medical board members and staff, and how
state boards respond to the issue.
VO L 9 9 , N O 3
Data Collection
The online surveys were generated by the FSMB
Foundation and were administered using the webbased survey tool, Survey Monkey. The online
surveys were initially distributed via email to all
70 state medical boards in October 2010. The
invitation to participate in the study was emailed
to all state board executive directors and included
a link to the online survey. State boards were
asked to complete the online survey six weeks after
receiving the invitation.
Initial data was shared with representatives of state
boards at the FSMB’s 2011 Annual Meeting, who
suggested that the survey be distributed a second
time to generate additional responses. The FSMB
Foundation redistributed the violence survey via
Survey Monkey in January 2012 to the executive
directors of those boards who had not responded
to the initial survey. The questions asked on the
redistributed survey were identical to those of
the original survey. Boards were asked to complete
the online survey within 30 days after receiving the
subsequent invitation.
In both rounds of data collection, respondents were
asked to identify their board affiliation but were not
required to respond.
Fifteen fundamental questions were developed for
this study:
1.In the history of your board, have there ever
been any threats of violence (either overt
threats or covert perceived threats) against
board members or board staff?
2.If there were threats, were they against board
members, board staff or others?
3.If there were threats of violence, what type of
action(s) did the board take?
4.If your board is appointed by the governor
and there was a threat, did you notify the
governor’s office?
Results
Of the 70 state medical and osteopathic board
executives receiving the initial survey, 22 were
returned (31.4%). Of the 22 responding boards,
16 (73%) noted their board affiliation: Colorado,
Washington, D.C., Georgia, Montana, North
the state medical board communit y
should be aware of the potential for
violence against board members and
staff, and should formulate prevention
and threat- assessment policies...
Carolina, Nevada-Medical, Nevada-Osteopathic,
Ohio, Oklahoma-Medical, Oklahoma-Osteopathic,
Tennessee-Medical, Texas, Washington-Medical,
Washington-Osteopathic, Virginia and the U.S.
Virgin Islands.
7.What type of security does your board provide?
Subsequently, when the survey was redistributed
in January 2012 to the 48 remaining boards,
15 additional surveys were returned (response
rate, 31.3%). Boards participating in this second
round of data collection included Connecticut,
Florida-Medical, Hawaii, Idaho, Indiana, Kentucky,
Maryland, Maine-Medical, Maine-Osteopathic,
Mississippi, Nebraska, New Hampshire, West
Virginia-Medical and West Virginia-Osteopathic.
8.If your board routinely provides security for
specific individuals, which individuals do
you cover?
Combining the results from the first and second
rounds of data collection produced an overall survey
response rate of 52.9% with 37 returned surveys.
5.If you notified the governor’s office, what was
their response?
6.For whom does your board routinely provide
security?
9.If your board routinely provides security, where
do you provide it?
10.Please comment on your future plans for
security.
11.If you are planning to change your level of
security, what are you planning to do?
12.What barriers do you face in providing the level
of security you would like?
13.Does your state have legislation regarding
consequences of threatening a public official?
14.Would you be interested in pursuing
legislation in your state if a draft were
provided to you?
15.What other comments do you have?
Board Experiences with Threats of Violence
Based on the pooled data, of the 37 state boards
that responded to the question of whether their
board members or staff have ever experienced
threats of violence at the board level, 73% (n=27)
reported that in the history of their board, there
had been threats of violence (either overt or covert
[explicit or perceived]) against board members or
board staff (see Figure 1).
Of the responding states, 85% indicated that board
members had been the target of violent threats,
followed by board staff (78%) and others (15%).
Threats directed at “others” included individuals who
are associated with a state board, but not employed
by a board, such as an assistant attorney general, a
hearing officer, a district judge, and, in one case, the
state’s governor.
Many of the threats directed at board members
occurred after board meetings. Most of the threats
were made by either a physician or a family member of
a physician, and were verbal, including threats of death.
Actions Taken by State Boards in Response to
Threats of Violence
When asked what actions were taken as a result
of threats of violence, the responding boards
indicated the vast majority of actions taken revolved
around ensuring a security presence at board
meetings, whether that was through local law
enforcement agencies or the hiring of private security.
Most state boards that experienced threats of
certain occupations experience higher
rates of violence directed at those
who work in those professions...
violence tended to notify law enforcement (62%) or
seek private security (38%). For 48% of boards, the
threat(s) resulted in law enforcement investigations
(see Figure 2).
Boards seldom notified the governor’s office of a
threat (25%). When they did, the governor’s office
would take note of the information and then
instruct them to contact and coordinate with capitol
police or proper law enforcement to ensure the
issue(s) was addressed properly.
Current Security
Approximately 76% of the respondents indicated that
their board provides some type of routine security. For
these boards, security is typically provided at board
offices (69%) and board meeting locations (62%).
The type of security varies, but locking office doors
(47%) or having offices in buildings that require
identification for access (42%) are the most widely
used security types. Private security (33%), local
law enforcement (28%), and panic alarm systems
(19%) are also utilized. Seventeen percent of the
respondents reported their board did not provide
any kind of security (see Figure 3).
Satisfaction and Future Plans for Security
As indicated in Figure 4, less than half of the respondents (49%) are satisfied with their security but
only 26% are planning to increase it. However, if
finances were no object, 72% would choose to
increase their security.
VO L 9 9 , N O 3
For the eight boards planning to change their level of
security, four are considering a security presence at
board meetings, one is taking steps to better secure
its office building by installing video cameras, one is
having security use handheld metal detectors at
meetings, one is adding a panic button at the receptionist desk and another is moving to a new building
with security officers, bag checks and scanners — although the move was not related to security.
For the boards that are not planning to make any
security changes, funding to pay for added security
(both initial and ongoing) is the primary barrier.
Building factors are a distant second (i.e., a building
houses other entities or must allow for public
access when open).
Legislation
Approximately 64% of the responding boards
indicated that their state has legislation regarding
consequences for threatening a public official.
However, only 39% indicated they would be interested in pursuing legislation in their state if a draft
were provided (see Figure 5).
Among those responding to this question, a handful
provided additional comments:
“Members of the board and board staff do not have
the ability to lobby the legislature.”
Figure 1
Any threats (ever) of violence against
board members or staff?
Uncertain
5%
No
22%
Yes
73%
Figure 2
Type of action(s) taken by boards due to threats of violence
Law enforcement
at board meetings
or offices
62%
Law enforcement
investigation
48%
Private security
at board meetings
or offices
38%
Law enforcement
protection of individual
members or staff
17%
Legal action
(e.g. restraining
order)
14%
Private security
protection of individual
members or staff
10%
Other
24%
0%
10%
20%
“Yes, if it (the legislation) is reasonable in the
expectation and fiscal impact.”
“Board members are employees of the state
and have the same protective rights as
state workers.”
“Don’t know if there is current law on this subject.
At this time, don’t feel the security threats we have
experienced to date warrant such legislation.”
Discussion
The results from this study indicate that threats of
violence against state medical board members and
staff are not uncommon. The finding that nearly
three-fourths of the state boards that responded to
the survey had experienced some form of violent
threat is remarkable and suggests that the issue
occurs in a wide range of jurisdictions.
Executive directors reported a variety of threats
anecdotally, including both explicit and perceived
forms, and including threats of death. In one
reported incident, the threat was so credible that
a board staff member wore a Kevlar vest during
a hearing for his own protection. In another, a
physician under investigation by a board threatened
to bring a bomb to a board meeting.
30%
40%
50%
60%
70%
Survey results show that state boards have
taken steps to respond to such threats of
violence. However, while less than half of the
respondents are satisfied with their present
security level, only 26% are planning to increase
security. The initial and ongoing costs for additional
or new security are the primary barrier, as 72%
indicated they would increase security if finances
were no object.
It is important to note that this survey was limited in
scope and should be considered only the beginning
of an effort to better understand the issue of
...the stressful conditions that
often accompany state medical
board investigations and
disciplinary actions can create
highly contentious and emotionally
charged environments.
violence aimed at state medical boards. For
example, respondents were asked if there have
“ever” been threats of violence against their
Figure 3
Types of security provided by boards
Law enforcement
presence
47%
Locked building
requiring ID for access
42%
Private security
presence
33%
Law enforcement
presence
28%
Panic alarms
19%
Monitored
alarm system
17%
None
17%
Video or audio/
video monitoring
14%
Metal detectors
8%
Bag searches
8%
Other
14%
0%
10%
20%
boards, without a specific timeframe, raising the
possibility of recall bias. More research
examining specific time periods could yield a better
Many of the threats directed at
board members occurred after board
meetings. Most of the threats were
made by either a physician or a family
member of a physician...
understanding of the scope of the problem and the
direction of any trend lines in the incidence of
violent threats.
VO L 9 9 , N O 3
30%
40%
50%
Additionally, more analysis should be conducted on
the demographics of state boards and whether there
are any correlations between board composition,
geographic location and the incidence and nature
of violent threats. Further study could also examine
the role of other agencies, such as the Occupational
Safety and Health Administration (OSHA), in helping
state boards address the potential for violence
against state board members and staff as a unique
workplace issue.
A comprehensive study of the incidence of actual
acts of violence throughout the medical regulatory
community could also yield important data. In
responding to this survey, board executive directors
provided a description of physical violence in
Figure 4
Percentage of boards answering "yes"
to the following
80%
60%
40%
72%
49%
20%
26%
0%
Satisfied with
your present
level of
security?
Planning to
increase your
security?
If finances
were no object,
would you
increase your
security?
Figure 5
Interested in pursuing legislation in your state
if a draft were provided to you?
addition to violent threats, ranging from an incident
in which a physician whose license had been
suspended fire-bombed the house of a witness
to an altercation in a parking lot in which board
members were accosted following a hearing.
These survey findings suggest that the state
medical board community should be aware of the
possibility of violent threats. Since it is impossible
to know if and when a violent threat might be
carried out, understanding the risk factors and
formulating prevention and threat assessment
policies may be the most effective approach
to addressing the issue.
Additionally, educational and training resources may
be needed at the state board level. This could
include the development of educational modules to
train state public officials in conflict management,
the prevention and handling of acts of violence, and
how to identify and assess the seriousness of a
potentially violent or stressful situation. n
About the Authors
Kelly C. Alfred, MS, is Director of Education for the FSMB
Timothy Turner, BBA, is a member of the Texas Medical Board and
the FSMB Foundation
Aaron Young, PhD, is Senior Director of Research and Data
Integration for the FSMB
References:
1.Centers for Disease Control and Prevention/National Institute
for Occupational Safety and Health. US government occupational violence links. http://www.cdc.gov/niosh/topics/
violence/. Retrieved September 12, 2013.
2.Bureau of Labor Statistics. 2010. National Census of Fatal
Occupational Injuries Summary, 2009. Washington, DC:
U.S. Department of Labor.
Not applicable
32%
Yes
39%
3.Bureau of Labor Statistics. Occupational homicides by
selected characteristics, 1997-2009. http://www.bls.gov/iif/
oshwc/cfoi/work_hom.pdf. Retrieved September 12, 2013.
4.Bureau of Labor Statistics. 2004. Guidelines for Preventing
Workplace Violence for Health Care and Social Service
Workers. http://www.osha.gov/Publications/OSHA3148/
osha3148.html. Retrieved September 12, 2013.
5.Robbins, Liz. “Bomb Injures Arkansas Doctor.” The New York
Times. 4 February 2009. http://www.nytimes.com/2009/02/
05/us/05explode.html?_r=0. Retrieved September 12, 2013.
No
29%
6.Federation of State Medical Boards’ Board Action Database.
Summary of Reported Actions. Accessed September 12, 2013.
7.“Randeep Mann Petitions High Court to Hear Bombing Case.”
30 June 2013. http://arkansasnews.com/sections/news/
arkansas/randeep-mann-petitions-high-court-hear-bombingcase.html. Retrieved August 8, 2013.
Obtaining Meaningful Informed Consent:
Guidelines from the Maine Board of
Licensure in Medicine
...............................................................
David Nyberg, PhD
A B S T R A C T : Each year the Maine Board of Licensure in Medicine deals with a large number of complaints
from patients and their families about various degrees of physicians’ failure to obtain informed consent
in a meaningful and useful way. Physicians typically respond that they (or someone on staff) went through
their usual procedure and they often — but not always — produce a signed consent form to prove that
consent was in fact obtained. They often express surprise that a complaint had been filed after the fact.
There is a communications gap between what the physician offers and what the patient formally affirms
with a signature in terms of information, comprehension and meaningful consent. The Maine Board
of Licensure took on the task of exploring this gap with the purpose of developing a set of guidelines to
help physicians prevent these complaints by achieving a higher quality of shared decision making.
Keywords: Maine Board of Licensure in Medicine, informed consent, shared decision making
Approximately one-third of cases the Maine Board
investigates each year include allegations of failure
to obtain adequate and meaningful informed
consent, sometimes as a major issue but more often
as a contributing factor to some other issue(s).
Recognition of this fact motivated the board to conceive and disseminate guidelines for Maine physicians with the purpose of reducing the number of
complaints of this kind, at least those that are reasonably within the physician’s control to prevent.
Anticipating the question of how a board might
proceed in light of this conflicting legal environment,
Miller recommended the following:
These guidelines are included with the board’s
response to each new application and renewal
submitted to the board. Various board members
have presented these guidelines to the primary
residency training programs in Maine and we expect
to do this annually. The board also includes a copy
of the guidelines with letters of guidance when
appropriate. The guidelines do not carry statutory
weight but they do serve to inform the profession of
what the board considers best practice with regard
to obtaining meaningful informed consent.
A pproximately one - third of cases
Readers of JMR will be familiar with the subtle and
useful summary of legal findings on informed consent
in several states by Tim Miller, JD, published in
a previous issue under the title “Informed Consent:
A Medical Board Analysis.”1 In his article, Miller
showed convincingly that “courts are divided on how
to proceed with informed consent cases…and have
used three different standards — prudent physician,
prudent patient and subjective patient — to determine
if the physician adequately informed the patient.”2
VO L 9 9 , N O 3
“The board can first ask, ‘What would a prudent
patient want to know?’ This question can be
followed with, ‘What is the community standard
for disclosing sufficient information to meet the
disclosure requirements for the reasonably prudent
the Maine Board investigates
each y ear include allegations of
failure to obtain adeq uate and
meaningful informed consent …
patient?’ Finally, the board can ask, ‘Did the
disclosed information take into account the specific
subjective needs and concerns of the patient and
did the patient place any restriction or conditions
on the care provided by the physician?’”3
State boards of medicine can be grateful for Miller’s
provision of the legal motivation for obtaining
informed consent in a thorough manner, which is in
itself compelling, but there is another slant on why
doing so makes sense for physicians. In addition to
providing legal protection, obtaining meaningful
informed consent is the right thing to do from an
ethical perspective that includes, but also exceeds,
legal considerations. Even if no laws against
battery or medical negligence or violations of selfdetermination were on the books, it would still
be the physician’s obligation to respect in practice
a patient’s right to self-determination or, as some
call it, autonomy.
There are legitimate exceptions, of course. Providing
emergency medical care to incapacitated patients
is a familiar example, as would be providing routine
care for minor medical problems. But when major
diagnostic, invasive or therapeutic procedures are
involved in a medical decision, the patient has a
right to full participation.
It is in this spirit that the Maine Board of Licensure
in Medicine offers its best effort in guiding physicians
along this difficult and sometimes tricky path
toward genuine shared decision making.4 The
Board hopes that its guidelines, published here,
will provide useful information for other states
grappling with issues related to informed consent.
Informed consent
Guidelines from the Maine Board of Licensure
in Medicine*
Obtaining and recording informed consent before
major diagnostic, therapeutic, and invasive
procedures is a physician’s professional and legal
obligation. Patients have the legal right to grant
or withhold informed consent, either personally or
through lawful representatives.
The term “informed consent” first appeared in an
amicus curiae brief filed by the American College of
Surgeons in the case of Salgo v. Leland Stanford
University in 1957.** While not all physicians and
not all patients desire to be involved in a shared
decision-making process, prevailing negligence law
and the legal right to self-determination now require
some documentation of informed consent for
most major treatments and procedures. Physicians
therefore have a legal motivation for obtaining and
recording informed consent for major treatments
and procedures, subject to recognized legal exceptions, such as in providing emergency medical care
to incapacitated patients. In addition to this legal
*Title 32 M.R.S.A. § 3269(3) authorizes the board to “license
and set standards of practice for physicians and surgeons
practicing medicine in Maine.” However, nothing in this document is intended to affect the definition of “informed consent”
for civil medical malpractice actions as defined by Title 24
M.R.S.A. § 2905.
**154 Cal.App.2d 564.
motivation, the board believes physicians ought to
be motivated by a commitment to the ethical value
of patient self-determination, or personal autonomy.
Therefore, the board offers these guidelines for
physicians practicing in Maine.
The Goal
The goal of offering these guidelines is to help
physicians move beyond a limited consent model
that emphasizes primarily the physician’s legal
obligation to disclose information and the patient’s
legal right to make independent decisions. The
board advocates a different model that emphasizes
communication and encourages a certain kind of
transaction between patient and physician. The
norms that govern such transactions are clarity,
relevance, accuracy, and sincerity. There is no
standard form, nor any uniform procedure that will
fit all cases calling for informed consent in this
model, but there is an underlying ethical obligation
to make it possible for the patient and the physician
to participate together in a transaction that takes
into account the norms of clarity, relevance, accuracy, and sincerity.
The board is concerned here with major diagnostic,
therapeutic, and invasive procedures, and not so
much with routine decisions about minor medical
problems. In certain cases, physicians may simply
explain that they see many people with a particular
problem and regularly with success treat the
In addition to providing legal
protection , obtaining meaningful
informed consent is the right thing
to do from an ethical perspective…
problem in a particular way, then ask if the
patient has any questions about the problem or the
treatment. In these cases, if the patient makes
statements or asks questions indicating discomfort,
lack of understanding, or continuing uncertainty,
then the following guidelines apply.
Shared Decision Making
The primary value of documented informed consent
is that it represents the existence of a relationship
between physician and patient that is based upon,
or at least includes, an element of shared decision
making. Shared decision making for the patient is
not the same as mere acquiescence, or compliance
based on partial or slanted information, or indifference
due to habit or apathy, nor is it the same as conformity to custom — such as the custom of “following
doctor’s orders.”
Shared decision making is a process for reaching
a shared conclusion through informed judgment.
be free of personal self-interest, and religious,
political, racial, and gender bias.
The board encourages physicians to remind patients
of their right to have someone with them (an advocate
of some kind) during these discussions, as patients
can be overwhelmed, frightened, and confused when
confronting an important medical decision.
…when maj or diagnostic , invasive ,
or therapeutic procedures are involved
in a medical decision , the patient has
a right to full participation.
Such a process is an educational ideal in the field of
medical care, as it is throughout most institutions in
a democratic society. The heart of the matter is the
control of information: to the extent information
about a problem can be shared, decisions about
potential solutions can be shared. Physicians have
privileged access to medical information through
their education, experience, and expertise. This
privilege carries with it the duty to disclose clearly
such information as is relevant and is supported by
accurate scientific information in a sincere manner
for consideration by the patient. Furthermore, this
duty is itself governed by the physician’s fiduciary
obligation to protect the patient’s best interests.
Generally, physicians control the medically relevant
information patients need in order to ask the
questions they may want to ask but might not be
able to formulate on their own. Successfully sharing
that information is a matter of 1) the physician’s
willingness to do so, and 2) the physician’s ability
to apply the skills of communication required to do
so. It is also a matter of 3) the patient’s willingness
to participate in the process, and 4) the patient’s
ability to understand the information, apply it to
his or her situation, and then express a reasoned
judgment based on the relevant medical information as well as on personal values, wishes,
and goals. If there is any doubt about the patient’s
ability in this regard, the physician should
arrange an evaluation of the patient’s capacity
by a qualified colleague.
The physician personally initiates the process of
informing the patient by presenting the medically
reasonable options relevant to the patient’s condition. The medical reasonableness of these options
is tied to the available and reliable evidence base
of expected benefit and risk for each alternative.
The physician’s judgment about these options should
VO L 9 9 , N O 3
Skills for Eliciting Informed Consent
By far the most important skill is empathetic
listening, which is the capacity for acquiring
objective knowledge about the perspective taken
by another person. It is a way of listening that
requires temporary suspension of one’s personal
point of view while trying to assume another’s
point of view. It is a means for gathering data.
It is not synonymous with being compassionate or
sympathetic, even though its mere presence can
have a beneficial effect. The primary purpose of
empathy in this sense is to become well informed
about the patient’s point of view. It is important for
the physician to find out what and how much the
patient already knows and what more the patient
wishes or needs to know, and to what extent the
patient desires to participate in the decision
making process. In disclosing medical information
the physician can err in two ways — excess
and deficiency. Empathetic understanding can
help guard against going wrong in either of
these ways.
Next is skill in disclosing and explaining. In trying
to establish the basis for shared decision making,
the physician discloses medical information
relevant to the case at hand, and provides explanations of what that information means, in language
that is intelligible to the patient.
It is important to distinguish between two useful
but distinct kinds of explanation. The first is
scientific explanation, which is making a case for
T he board advocates a different model
that emphasizes communication and encourages a certain kind of transaction
betw een patient and physician.
why certain events are the way they are and for
predicting future events. The second is semantic
explanation, which by contrast is making the meaning
of something clear to the listener. Semantic
explanation is like translation or paraphrase, using
different words and terms until the intended
meaning is revealed and understood.
An explanation can be satisfactory from a formal
(scientific) point of view, while at the same time
failing to be satisfying from the patient’s point of
view. Another way to put this point is that while a
medical explanation of risks and benefits associated
with treatment options can be scientifically sound,
the listener may find it to be unintelligible, and
therefore not useful as information upon which to
grant or withhold consent. Informed consent
depends on the physician’s success in providing
both kinds of explanation.
Third is framing. Anything that can be said, can
be said another way. Decisions are often influenced
by the way alternatives are presented. For example,
the outcome statistics for 100 middle-aged men
undergoing surgery for lung cancer can be described
as “90 survive the surgery…and of those 90,
34 are alive at the end of 5 years.” An alternative
way of expressing (framing) the same results might
be: “10 die from surgery…and 66 more die within
5 years.” Typically, for a patient choosing between
surgery and radiation, surgery appears much less
attractive when described using mortality rather than
survival statistics. The difference between 10%
mortality (for surgery) and 0% mortality (for radiation)
is more impressive than the difference between
90% survival (for surgery) and 100% survival (for
radiation). A physician may knowingly or unwittingly
nudge a patient toward one option simply by the
way the range of options is described, or framed.
(Note that 5-year mortality statistics for radiation
only have not been mentioned.)
vention(s), to the extent the patient wishes, all questions
then having been answered to the patient’s satisfaction.
3) The patient gives consent in writing to major
intervention(s) agreed to jointly with the physician.
Nota Bene:
Obtaining informed consent is the physician’s
personal responsibility. This responsibility cannot be
wholly delegated. Other medical staff (PAs, NPs,
physicians-in-training and others) may usefully
participate in the process, but no amount of shared
videos, questionnaires, and pamphlets can substitute
entirely for personal communicative transaction with
the responsible physician. Finally, proof of informed
By far the most important skill
is empathetic listening, w hich is the
capacity for ac q uiring objective
knowledge about the perspective taken
by another person.
consent cannot be reduced merely to a signature on a
form. A note from the physician about the process of
gaining that signature should be attached to the form.
When a physician assistant, with proper delegation,
performs a diagnostic, therapeutic, or invasive
procedure for which the standard of care indicates
informed consent is required, the board expects the
physician assistant to take the same actions as are
described in this document for the physician. n
About the Author
Definition of Informed Consent
In conclusion, the board recommends the following
definition of informed consent be adopted and
applied by Maine physicians.
David Nyberg, PhD, is a Clinical Professor of Psychiatry at Tufts
University School of Medicine and Maine Medical Center. He is
also a member of the Maine Board of Licensure in Medicine.
Informed consent for treatment has been
obtained when:
1. Miller T. Informed consent: a medical board analysis.
J Med Reg. 2010/2011;96(3): 16-22.
1) The physician has disclosed and explained to
the patient’s satisfaction the process used to arrive
at the medically reasonable and recommended
intervention(s), which is based on reliable evidence
of expected benefit and risk of each alternative,
and which is free of any impermissible bias.
2) The patient, who has demonstrated capacity,
has been given ample opportunity to ask questions
about the process and the recommended inter
Endnotes
2. Ibid., p. 20.
3. Loc. cit.
4.Readers are encouraged to consult these excellent papers on
shared medical decision making: Jaime Staples King and
Benjamin Moulton, “Rethinking Informed Consent: The Case
for Shared Medical Decision-Making,” American Journal of
Law & Medicine, 32 (2006): 429-501; Benjamin Moulton and
Jaime S. King, “Aligning Ethics with Medical Decision-Making:
The Quest for Informed Patient Choice,” Journal of Law,
Medicine & Ethics (Spring 2010): 85-97; Jaime S. King, Mark
H. Eckman, and Benjamin W. Moulton, “The Potential of
Shared Decision Making to Reduce Health Disparities,”
Journal of Law, Medicine & Ethics (Spring 2011): 30-33.
LEGAL BRIEFS
By Eric M. Fish, JD
Senior Director, Legal Services
...............................
Antitrust Court Battles in North
Carolina Have Significant Implications
for State Medical Boards
On May 31, 2013, the United States Court of
Appeals for the Fourth Circuit rejected the North
Carolina State Board of Dental Examiners claim
that actions taken against non-dentist providers of
teeth whitening services were exempt from antitrust laws. The board relied on the state action
doctrine, which provides state and municipal
actors immunity from federal antitrust lawsuits
for actions taken pursuant to expressed policies
with foreseeable anticompetitive effects as the
basis for the exemption. The Court further held
that the board’s conduct violated Section 1 of
the Sherman Act, dismissing the board’s argument
that it was both incapable of conspiring with
itself to enact an anticompetitive scheme that
restricted trade and that the conspiracy imposed
an unreasonable restraint of trade. The Court’s
decision to revisit the scope of the state action
doctrine is a significant development that has
the potential to impact state medical boards
in the future.
At issue in this case was a board action directed
at providers of teeth whitening services that were
not licensed dentists. Starting in 2003, the
board issued 47 cease-and-desist letters to 29
non-dentists that provided teeth whitening services.
The board issued the letters after an investigation
by a panel chaired by a board member and board
The C ourt ’s decision to revisit
the scope of the state action doctrine
is a significant development that
has the potential to impact state
medical boards …
staff. The board relied on the state’s Dental
Practice Act in order to empower it to restrict all
but state-licensed dentists from offering teeth
whitening services in North Carolina. The board
VO L 9 9 , N O 3
also contacted malls where teeth whitening
kiosks were operating and requested that the
malls refrain from leasing space to providers
of such services.
In June 2010, the Federal Trade Commission
filed an administrative complaint against the board
for its actions. The board sought to dismiss the
complaint on the grounds that the board and its
actions were immune from antitrust scrutiny
Particularly relevant to the Court
in making this decision was the
role that dentists play ed in the
governance of the board.
under the state action doctrine. This attempt
was denied, and at trial the board was found
in violation of the FTC Act for unilaterally issuing
extrajudicial orders to non-dentists that provided
teeth whitening services. The board appealed,
reasserting the applicability of the state action
doctrine and further arguing that it did not violate
Section 1 of the Sherman Act or unreasonably
restrain trade.
The Fourth Circuit dismissed the board’s contention
that its actions were immune under the state action
doctrine solely because it was categorized as a
state agency. The recent FTC v. Phoebe Putney
decision colored the opinion of the Fourth Circuit.
The board’s attempt to avail itself of the state
action doctrine received enhanced scrutiny and led
the Court, citing the Supreme Court’s decision in
Phoebe Putney, to state that reliance on the state
action doctrine is disfavored and that the doctrine
should only be applied “to anticompetitive conduct
that is undertaken to a regulatory scheme that is
the state’s own.” Finding the board to be a private
actor availing itself of the protection of the state
action doctrine, the board’s action must be
grounded in a clearly articulated state policy and
must be actively supervised by the state for the
state action doctrine to apply.
Crucial to this determination was the composition
of the board and its procedure in issuing the
cease-and-desist orders. Particularly relevant to
the Court in making this decision was the role that
dentists played in the governance of the board.
The overwhelming majority of board members were
chosen by a vote of licensed dentists and not by a
state actor. The lone public member on the board
appointed by the governor was not involved in any
substantive decisions of the board.
Upon review of the circumstances surrounding
the issuance of the cease-and-desist letters, the
Court found the necessary state supervision
The board’s reliance on theoretical
harms that could befall consumers
did not s way the C ourt.
provision wanting. The Court stated “here the
cease and desist letters were sent without state
oversight and without the required judicial authori
zation.” Further, the Court refused to accept the
board’s assertion that compliance with North
Carolina’s basic reporting requirements amounted
to state supervision.
Addressing the anticompetitive effect of the
board’s actions under the Sherman Act, the Court
agreed with the FTC that the board’s issuance
of cease-and-desist letters resulted from a
“combination or conspiracy” intended to decrease
competition. Although the board claimed its
motivation was to protect the public from harm, the
Court determined that the board did not present
adequate facts to show that the public was being
harmed by non-licensed physicians providing
services. The board’s reliance on theoretical
harms that could befall consumers did not sway
the Court.
Although the decision found the board in violation
of antitrust law, the Court stressed the narrow
application of its holding. The Court emphasized
that the composition of the board and the lack of
supervision by the state resulted in a “state board
run by private actors in the marketplace taking
action outside the procedures mandated by state
law to expel a competitor from the market.” According
to the Court, actions of similarly situated boards
composed of members selected by politically
accountable actors, such as a governor or legislature,
and boards more actively supervised by the state
may survive antitrust scrutiny.
Comparison of the North Carolina State Board of
Dental Examiners and the North Carolina Medical
Board illustrates how the decision may paralyze
activities of licensing boards. The board of Dental
Examiners consists of six dentists who are licensed
to practice dentistry in North Carolina, one dental
hygienist who is licensed to practice dental hygiene
in North Carolina and a public member. The Medical
Board consists of seven members recommended
by a review panel (members of medical society,
osteopathic association, physician-assistants
academy and nurses association) who are subsequently appointed by the governor. The other five
members are appointed directly by the governor and
three of them must be members of the general
public, with no financial interests in a health profession. The Court’s decision does not delineate the
extent to which a board, consisting of members
of the regulated profession, is to be considered
actively supervised for purposes of applying
the state action doctrine. With this uncertainty,
…the Court determined that the
Board did not present adeq uate facts
to show that the public was being
harmed by non- licensed physicians
providing services .
regulatory boards may be reluctant to act in
a manner that protects the public, and board
members may be left to wonder if their actions
are sufficiently supervised by a politically accountable actor.
L E G A L B R I E F S continued
With such questions left unresolved, the Board
of Dental Examiners filed a petition requesting
that the Fourth Circuit Court of Appeals reconsider
the opinion en banc (“en banc” refers to the
hearing of a legal case where all judges of a court
will hear the case rather than a panel of them).
The circuit will grant a hearing if the original decision
sets forth an extraordinary precedent or is of
exceptional importance.
entity yet one that acts pursuant to government
authority is an illogical interpretation of antitrust law.
The board is arguing that the ruling conflicts with
previous Supreme Court rulings, which articulate
a standard that exempts state agencies from
proving they are actively supervised for purposes
of the state action doctrine. This position is also
supported by the application of this exemption in
other circuits, and is analogized to decisions where
regulatory bodies of other professions, consisting
of licensed members of that profession, were
upheld. The board also relies on the principles
panel’s ruling sets forth a vague and
The North C arolina B ar A ssociation
also has filed a new amicus brief
as a result of the panel decision .
of federalism, claiming that regulation of professions
is a recognized police power of the state that will
be diminished if the decision is upheld.
The board also maintains that the panel’s ruling
sets forth a vague and unpredictable standard that
will undermine the ability of regulatory bodies to
function. The petition explains that the decision
leaves open the question of how a state board can
be independent if composed in part of licensed
members. Application of the decision to future
conduct within the circuit, the board reasons, will
open the door for any license holder (140,000
individuals residing in the circuit hold a license of
some sort) to challenge any refusal to issue a
license or further regulation of a license issued by
a regulatory board with a member that holds the
license. The board also indicates in its appeal that
the decision to consider it as a nongovernmental
VO L 9 9 , N O 3
The North Carolina Bar Association also has filed a
new amicus brief as a result of the panel decision.
In its brief, the Bar Association deduces that the
decision will interfere with the legislative choice
T he board also maintains that the
unpredictable standard that w ill
undermine the ability of regulatory
bodies to function .
to delegate the state’s regulatory authority to
boards composed of individuals with the expertise
necessary to properly regulate the use of the
license. The State Bar specifically lists the North
Carolina Board of Medicine as one of the agencies
whose purposes will be frustrated if the state
action defense is lost.
The FSMB and its staff will continue to monitor
developments and the implications for state
medical boards. n
S TAT E M E M B E R B O A R D B R I E F S
...............................
...............................
Alabama
California
New Laws in Alabama Crack Down
on Prescription Drug Abuse
California Board to Suspend Licenses
of Physicians with Delinquent Taxes
Alabama has passed three new laws intended to curb
the state’s growing prescription drug abuse problem by
focusing on prescription monitoring, pain management
clinics and “doctor shopping.”
The Medical Board of California has notified
licensees that it will begin contacting those
who are delinquent in tax obligations, warning
them that their medical licenses may be suspended
if they do not pay or begin a payment plan within
90 days.
Included in the package of bills which became law on
August 1, 2013, a prescription drug monitoring program
The ‘doctor shopping’ bill strengthens
punishments for ly ing to physicians
about similar prescriptions in order
to get more drugs .
(PDMP) now allows physicians to give their staff members access to the state’s PDMP on their behalf. The
bill also allows the state Medicaid agency to access the
PDMP to check the controlled substance prescription
medication history of patients enrolled in Medicaid.
The pain management bill strengthens regulation of
pain management clinics where drugs are prescribed
for chronic, non-malignant pain. The new law stipulates
that pain management clinics must be registered with
the Alabama Board of Medical Examiners and must
have a medical director who is a physician licensed in
Alabama. Also included are provisions that allow the
board to issue subpoenas while investigating clinics.
The “doctor shopping” bill strengthens punishments
for lying to physicians about similar prescriptions in
order to get more drugs. Under the new law, lying to a
physician to get drugs is a Class A misdemeanor, with
convictions punishable with up to a year in jail. After
four convictions, the offense becomes a Class C felony,
which is punishable by a sentence of up to 10 years.
In 2011, the Centers for Disease Control and Prevention
identified Alabama as being among the top 20 states
nationally in the number of drug overdose deaths. n
State law authorizes the medical board to deny an
application for licensure and to suspend the license
of any licensee who has outstanding tax obligations
due to the Franchise Tax Board (FTB) or the State
Board of Equalization (BOE) and who appears on
either the FTB or BOE’s certified lists of top 500 tax
delinquencies over $100,000.
Physicians who fail to either pay their obligations
or begin a payment installment plan with taxing
agencies will have their licenses denied or
suspended until the board receives a release
Physicians who fail to either pay
their obligations or begin a payment
installment plan with taxing agencies
will have their licenses denied
or suspended until the board receives
a release.
from the FTB or BOE. The form for requesting a
release will be included with the preliminary notice
of suspension.
The law prohibits the Medical Board of California
from refunding any money paid for the issuance
or renewal of a license where the license is denied
or suspended. n
Source: Medical Board of California website, September 2013
Source: National Association of Boards of Pharmacy website,
August 2013
S TAT E M E M B E R B O A R D B R I E F S continued
...............................
Availability of Physicians Required
for Laser Procedures
New regulations announced recently in California
tighten safety precautions for cosmetic procedures
involving lasers or pulsing light.
Under rules implemented July 1, 2013, a
“properly trained physician” must be immediately
available whenever a licensed health care provider
engages in a cosmetic procedure using a laser
or an intense pulse light device. “Immediately
available” is defined by the Medical Board of
California as meaning that the physician may
be reached by electronic or telephonic means
without delay. n
Source: Medical Board of California website, September 2013
...............................
District of Columbia
District of Columbia Pharmacists Able
to Initiate or Modify Drug Therapy,
Working with Physicians
Legislation recently passed in the District of
Columbia will allow pharmacists, through a written
agreement with a physician, to initiate or modify
drug therapy for a patient. The boards of medicine
and pharmacy in the District of Columbia will
jointly develop and promulgate regulations to help
pharmacists and physicians understand and
implement the requirements of the “Collaborative
Care Expansion Act of 2012.”
Georgia
New Guidelines Tighten Oversight of
Pain Management Clinics in Georgia
The Georgia Composite Medical Board has
approved and released new guidelines for the
licensing of the state’s pain management
clinics, strengthening oversight in an effort to
reduce illicit clinics there.
The new guidelines were implemented in response
to a dramatic rise in pain management clinics
operating in the state between 2010 and 2012 — estimated by the Wall Street Journal to be an
increase of 1,300% — following a crackdown on
illicit pain clinics in neighboring Florida.
Application for a license to open a pain management clinic now includes a $500 application
fee, a criminal background check of each person
with an ownership interest in the clinic, affidavits
and other documentation.
Under new regulations in Georgia, all pain management clinics must be licensed by the board and
must renew their licenses periodically. The board
can deny, suspend and revoke licenses if it finds
that the licensee or a physician practicing at a
licensed pain management clinic has furnished
A ny person w ho operates a pain
management clinic w ithout a license
in the state is now guilty of a felony.
The boards of medicine and pharmacy in the
District of Columbia are already working on
regulations to allow expanded authority for
pharmacists to administer immunizations. n
false information on the application, has been
convicted of a crime relating to controlled substances,
has had their DEA registration suspended or
revoked, or has violated any provision of the state’s
new pain clinic regulations.
Source: District of Columbia Board of Medicine Newsletter,
Summer 2013
The new regulations also stipulate that clinics not
operating before July 1, 2013, must be owned
wholly by physicians. Clinics or practices owned or
operated by hospitals are exempt from licensing,
but must file annual notifications with the board.
VO L 9 9 , N O 3
In addition, all pain management clinics that
dispense controlled substances or dangerous
drugs must be registered with the Georgia State
The ne w guidelines w ere implemented
in response to a dramatic rise
in pain management clinics
operating in the state bet w een
2010 and 2 0 1 2 .
Board of Pharmacy. Any person who operates a
pain management clinic without a license in the
state is now guilty of a felony.
When it passed its new requirements, Georgia
became the ninth state in the nation to require
pain clinics to be licensed or registered and to be
owned by physicians. n
Source: Georgia Composite Medical Board Newsletter,
July 2013
...............................
Illinois
Illinois Board Files Complaint Against
Physician Who Named Former Patients
in Defamation Suit
The Illinois Department of Financial and Professional
Regulation has filed a complaint against a physician
The Illinois D epartment of F inancial
and Professional R egulation contends
that D r . Parikh violated the state ’ s
M edical Practice Act, which prohibits
breaching patient confidentialit y …
in Illinois for including the names of former patients
in a lawsuit.
The physician, Mahesh Parikh, MD, sued the
patients for defamation over their claims that he
engaged in sexual misconduct with them. As a
part of his suit, he requested an injunction against
the patients.
The Illinois Department of Financial and Professional
Regulation contends that Dr. Parikh violated
the state’s Medical Practice Act, which prohibits
breaching patient confidentiality and protects
those who contact regulators under the act from
civil liability.
Dr. Parikh is subject to indefinite suspension
of his license as a result of the sexual misconduct
claims. Possible penalties for violating the
Medical Practice Act include fines of $10,000
for each violation. n
Source: Council on Licensure, Enforcement and Regulation Blog,
July 2013; Chicago Tribune, August 12, 2013
...............................
Iowa
Appeals Court Upholds Discipline
of Surgeon for Unethical Conduct
The Iowa Court of Appeals recently affirmed the
Iowa Board of Medicine’s discipline of a University
of Iowa Hospitals and Clinics physician for engaging
in unethical conduct in the practice of medicine
more than a decade earlier.
The ruling was made in a disciplinary action against
Adel S. Al-Jurf, MD, who was publicly reprimanded
by the board and placed on probation for three
years. The board charged him in 2009 with engaging
in a pattern of unprofessional conduct, for which
he had been terminated by the University of Iowa
Hospitals and Clinics.
Dr. Al-Jurf appealed the board’s decision, challenging
the board’s authority to prosecute him for unethical
conduct. He also contended that the board had
inappropriately issued a news release about the
disciplinary matter.
S TAT E M E M B E R B O A R D B R I E F S continued
The Appeals Court, in upholding a lower court
ruling, said the board’s “interpretation of ‘unethical
The A ppeals C ourt … said the board ’ s
‘interpretation of unethical
conduct was not illogical or
wholly unj ustified ’
conduct’ was not illogical or wholly unjustified”
and that the board had not exceeded its authority in
issuing a press release. n
Source: Iowa Board of Medicine news release, July 30, 2013
...............................
Physician Assistants: Legislators amended Kentucky
state law to give the supervising physician or the
credentialing facility oversight of the physician
assistant non-separate location practice. Legislators
also reduced the waiting period before a newly
graduated physician assistant may practice in a
separate location from 18 months to three months
and makes the three-month waiting period effective
until May 31, 2014. After that date, the three
continuous months of experience in a non-separate
location will no longer be required for a physician
assistant to practice at a separate location.
Athletic Trainers: Kentucky law has been amended
to require licensure rather than certification for
authorized practice by athletic trainers. Athletic
trainers in the state will receive wallet cards and
wall certificates from the board. n
Kentucky
General Assembly Passes Several Bills
Affecting Kentucky Physicians
The Kentucky General Assembly approved several
pieces of legislation during its 2013 session that
impact physicians and other health care providers
in the state. Among them:
Naloxone Prescribing: Under new statutory language,
physicians are not subject to disciplinary or any
other adverse action by the Kentucky Board of
Medical Licensure for their acts or omissions
prescribing Naloxone either directly or by standing
L egislators amended K entuck y state
law to give the supervising physician or
the credentialing facilit y oversight
of the ph ysician assistant non -separate
location practice. order if the physician acts in good faith and if,
in the physician’s judgment, the patient is capable
of administering the drug in emergency opioid
overdose situations.
VO L 9 9 , N O 3
Source: Kentucky Board of Medical Licensure Newsletter,
Summer 2013
...............................
Nevada
Legislation in Nevada Extends
Full Practice Authority to Advance
Practice Nurses
New legislation passed in Nevada significantly
changed the practice requirements of Advanced
Practitioners of Nursing (APNs) in Nevada. The new
laws became effective on July 1, 2013.
Assembly Bill (AB) 170 changed several aspects of
regulation for APNs in Nevada. The title of the APNs
in the state has been changed to Advanced Practice
Registered Nurse (APRN) and the certificate of
recognition that the Nevada State Board of Nursing
(NSBN) has in the past issued to APNs has been
changed to an APRN license.
The new legislation also deletes the regulatory
practice requirement for a formal, written
collaborative agreement between the APRN and a
physician, unless the ARPN has clinically practiced
less than two years or 2,000 hours and intends
...............................
to prescribe Schedule II Controlled Substances. In
this case, the APRN must have a written collaborative
agreement to prescribe those drugs until the
clinical practice requirement is met.
Virginia
The Nevada Advanced Practice Nurses Association,
whose members include more than 50% of
the licensed APRNs in Nevada, advocated for
Legislators in Virginia have passed new laws
impacting the administration of oxygen by nurses
and sexual boundary violations by physicians.
With the adoption of A B 1 7 0 , N evada
joined 2 4 other states in allow ing
ARP N s full practice authorit y.
the bill. With the adoption of AB 170, Nevada
joined 24 other states in allowing ARPNs full
practice authority. n
Source: Nevada State Board of Medical Examiners Newsletter,
August 2013
...............................
Ohio
State Medical Board of Ohio Names
Executive Director
Aaron E. Haslam, JD, has been named executive
director of the State Medical Board of Ohio.
Since February 2011, Haslam has worked with Ohio
Attorney General Mike DeWine as a senior assistant
attorney general and chief of the Attorney General’s
Prescription Drug Abuse Initiative. He has also served
as coordinator for the state’s Special Prosecutions–
Prescription Drug Unit. Halam served previously as
the Adams County Prosecuting Attorney.
Virginia Passes New Regulations
Impacting Physicians and Nurses
An amendment to the state’s Drug Control Act
will now allow a prescriber to make oxygen available
to registered and licensed practical nurses to
possess and administer in emergency medical
situations. Authorization is granted “pursuant to
an oral or written order or standing protocol issued
by the prescriber within the course of his professional practice.”
Virginia has also passed a bill into law that provides
for a five-year period of revocation when the Board
of Medicine revokes a practitioner’s license for a
sexual boundary violation.
The new law stipulates that when the practice
privileges of any person certified, registered or
licensed by one of the state’s health regulatory
boards have been revoked for a five-year period
based on sexual misconduct, the board “shall
conduct an investigation and review an application
for reinstatement after revocation to determine
whether there are causes for denial of the application.
The reinstatement of a certificate, registration or
license shall require the affirmative vote of threefourths of the members at a meeting. n
Source: Virginia Board of Medicine Newsletter, #72, accessed
September 2013.
He earned his law degree from Cleveland-Marshall
College of Law and is admitted to practice law in
Ohio and the United States District Courts of Ohio.
Haslam’s appointment was approved effective
July 1, 2013. n
Source: State Medical Board of Ohio news release, June 14, 2013
I N T E R N AT I O N A L B R I E F S
...............................
United Kingdom
UK Processes More Than 7,600
Applicants in First Six Months
of Revalidation
The United Kingdom’s General Medical Council (GMC)
reported recently that it had processed the applications
of 7,663 physicians during the first six months of its
new revalidation system. According to the GMC, at
least 30,000 will revalidate by the end of the year.
prepared by IAMRA’s Physician Exchange Working
Group as a follow-up to a resolution adopted by
IAMRA’s Members General Assembly during its
bi-annual meeting in 2012 in Ottawa, Canada.
The purpose of the guidance document, according
to IAMRA, is to protect patients and the public from
those physicians whose practice may put them at
risk, ensure a high level of quality in health care
around the world and ensure the public’s confidence
in medical professionals and their regulation.
The UK revalidation system requires physicians
to demonstrate their ongoing engagement in
efforts to keep their skills and knowledge up to
date. The system was adopted last year after many
years of development. All of the UK’s more than
230,000 physicians are impacted by the new
system. The GMC’s goal is to have the majority of
practicing physicians in the UK revalidated for the
first time by 2016.
The statement offers guidance for the
circumstances in which disciplinary information
about physicians should be exchanged — including situations involving criminal behavior,
Revalidation in the UK is based on an annual appraisal
in which physicians gather information about their
practice, including complaints from patients, for examination by review officers. The UK is the first country in
the world to introduce a system of ongoing physician
review across its entire health care system. Other
countries are developing similar systems, including the
United States, where a proposed maintenance of
licensure system would require physicians to demonstrate their engagement in continuous professional
development as a condition of license renewal. n
of information in multi- language
Source: Council on Licensure, Enforcement and Regulation Blog,
July 2013
...............................
International Organizations
IAMRA Adopts Standards for Sharing
of Information Worldwide
The International Association of Medical Regulatory
Authorities (IAMRA) has adopted the Statement of
Intent on Proactive Information Sharing, providing
guidance for the exchange of disciplinary information
about physicians worldwide. The statement was
VO L 9 9 , N O 3
T he Statement provides a framework
for protecting privacy and due
process for physicians, for transmission
settings and for timing of release
of information .
professional misconduct, professional incompetence
or poor performance — and the way information
should be exchanged. It also covers restrictions
imposed as a result of impaired fitness to practice
by reason of ill health.
The statement provides a framework for protecting
privacy and due process for physicians, for transmission of information in multi-language settings
and for timing of release of information. Among its
recommendations, the statement suggests that
medical regulatory authorities should not release
disciplinary information about physicians if no final
decision has been taken because the case is still
under investigation, a temporary sanction has been
imposed pending a final decision or the physician
has appealed the decision against him or her. n
Source: IAMRA website (www.iamra.com), August 2013
I N F O R M AT I O N F O R A U T H O R S
The Journal accepts original manuscripts for
consideration of publication in the Journal of
Medical Regulation. The Journal is a peer-reviewed
journal, and all manuscripts are reviewed by
Editorial Committee members prior to publication.
(The review process can take up to eight weeks.)
Manuscripts should focus on issues of medical
licensure and discipline or related topics of education, examination, postgraduate training, ethics,
peer review, quality assurance and public safety.
Queries and manuscripts should be sent
by email to [email protected] or by mail to:
Editor
Journal of Medical Regulation
Euless, TX 76039
Manuscripts should be prepared according
to the following guidelines:
1. An email or letter should introduce the manuscript, name a corresponding author and include
full address, phone, fax and email information.
The email or letter should disclose any financial
obligations or conflicts of interest related to the
information to be published.
5. Any table or figure from another source must
be referenced. Any photos should be marked by label
on the reverse side and “up” direction noted.
Tables and figures can be supplied in EPS, TIF,
Illustrator, Photoshop (300 dpi or better) or
Microsoft PowerPoint format.
6. The number of references should be appropriate
to the length of the text, and references should
appear as endnotes, rather than footnotes.
7. Commentary, letters to the editor and reviews
are accepted for publication. Such submissions and
references should be concise and conform to the
format of longer submissions.
8. If sent by mail, a PC- or Mac OS-compatible
CD-ROM should accompany a printed copy of the
manuscript. Microsoft Word format is the preferred
file format.
9. Manuscripts are reviewed in confidence.
Only major editorial changes will be submitted to the
corresponding author for approval. The original
manuscript and CD-ROM will be returned if the
submission is not accepted for publication only
if a SASE is supplied with sufficient postage.
2. The title page should contain only the title of the
manuscript. A separate list of all authors should
include full names, degrees, titles and affiliations.
3. The manuscript pages should be numbered, and
length should be between 2,750 and 5,000 words,
with references and tables attached. Please ensure
that references adhere to the AMA Manual of Style.
For more information, visit www.amamanualofstyle.com.
4. The manuscript should include an abstract of
200 words or less that describes the purpose of the
article, the main finding(s) and conclusion. Footnotes
or references should not be included in the abstract.
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Medical Board Exposure to Threats of Violence

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