Risk Management

Topics Covered on This Page
How To Minimize Risk
Appendix A: Bill Of Rights For Hospital Patients
Appendix B: Unprofessional Conduct Statute
Disclaimer
About the Author
Footnotes

By Jo Ann Hertford, MD, FAAFP


The rising cost of medical malpractice insurance premiums in many states has influenced some physicians to move or close practices, reduce high-risk services, or alter their practices to preclude potential lawsuits. The pervasive fear of liability has made risk management a “hot topic.” 

For those providers who wish to maintain their medical practice and minimize their risk, the literature is filled with hundreds of suggestions, none of which are “fail proof” regardless of the source. Below is a summary of some practical points for the practicing health care provider. Although written specifically with the physician in mind, any health care professional may find them beneficial. The more familiar you are with these suggestions, the more natural they will become. Hopefully they will decrease the risks both of an adverse outcome and medical liability.

How To Minimize Risk

What can I do to minimize my risk in the office?

Documentation:

• Document all encounters with patients, including office visits and phone calls.

• Document in detail discussions with patients about their concerns and your impressions, suggestions, and follow-up plans.

• Document discussions on consent for surgical procedures, including the patient’s understanding of the risks involved. Also document the understanding of concerned individuals who accompany the patient. 

• Document the patient’s failure to follow directions or recommendations.

• Document all “no-shows” in the patient’s record.

• Document the presence of an office chaperone during an exam.

• Document the patient’s understanding of medications prescribed including proper use and side effects.

• If a concerned individual accompanies the patient, be sure to document your discussion with them regarding the patient.

Charting Guidelines:

• Develop office flow charts and checklists to standardize care delivery.

• Flag charts for drug allergies.

• Flag charts of patients with the same or similar names.

• Keep records legible. If practical, invest in an electronic medical record system.

• Date, time and sign all entries.

• Establish patient tracking/follow up systems for all lab results, missed appointments, specialist referrals and periodic screenings.

• Maintain an updated medication list, and always check the chart before approving refills.

Office staff:

• Carefully delegate duties based on the individual’s training and expertise. 

• Establish triage guidelines.

• Meticulously educate your staff and train them in areas of confidentiality, proper documentation and patient relations.

• Have strict office policies on handling and properly disposing of sharps.

• Develop emergency protocols and post for easy reference.

Practical pointers:

• Do not hesitate to consult.

• Do not let pride, politics, or economics stand in the way of the provision of thoughtful patient care. Do not overbook your schedule so that you cannot spend time addressing your patients’ concerns. As frustrating as it is, it is usually the issue they bring up when your hand is on the door to exit, that is the most important to them.

• Close your practice to new patients if it seems like you are on an endless treadmill

• Follow evidence based medicine.

• Do not be in a rush to use a new medication when the current medication  has been working fine.

• Be cautious about dispensing medication from your sample closet to patients when a cheaper and equally effective version is available.

Patient relations:

• Be courteous and respectful to your patients.

• Be ethical and honest in all of your interactions, including your interactions with  patients, their family members, your colleagues, and insurance companies.

• Treat each patient as a partner in their health care, not a passive recipient of information and instructions. Make every effort to promote continuity of care.

• Make reasonable efforts to safeguard the security and integrity of your medical records.

• Avoid discussing sensitive issues in a chaperone’s presence.

Communication:

• Listen to patients -- do not allow distractions, listen for more than facts, avoid excessive note taking, do not be dismissive, do not allow emotional words which can arouse antagonism from the patient or companion.

• Return patient phone calls promptly.

• If a patient asks to speak with a doctor, rather than a triage nurse, do your best to honor this request.

• Report all test results to your patients. Make it an office policy that the patient call the office if he or she has not received notification of his or her results within a given period of time.

• Apologize to patients for making them wait.

• If your patient disagrees with your suggestions, offer the patient a referral for a second opinion.

Protect confidentiality:

• Maintain patient confidentiality in the office, hospital and community.

• Follow HIPPA standards.

What can I do in addition to minimize my risk in the hospital?

It does not pay to be a loner on a medical staff. Participate in the hospital committees, and most importantly let your colleagues know who you are, personally and professionally. Although this does not replace quality patient care, it may come in handy someday.

• Respect patients, family, peers and staff.

• Convey concern and empathy.

• Meticulously document everything

• Print orders and do not use abbreviations.

• Have the nurse read back your telephone order, and sign the order as soon as possible.

• If you receive a call about your patient, and there is any doubt about his or her condition, go in and see the patient yourself.

• Be sure to read and understand your hospital’s medical staff bylaws, particularly as they apply to clinical privileges and disciplinary action.

What can I do to minimize my risk in performing surgical procedures?

• For surgical procedures, the preoperative consent form should describe the procedure, reason for the procedure, most common adverse outcomes, and other potential outcomes.

• Fully document the above in the chart along with the patient’s understanding of the discussion.

• Have a witness sign the consent form. Give the patient a copy of the consent, and be sure all of his or her questions were answered.

• Post-operatively, fully document that the patient understands the instructions, and has a copy to bring with him or her. The more thorough you are, the better.

• Personalize preprinted consent and post-op instruction sheets.

• Be sure that patient has a post-operative office visit scheduled before discharge.

At what time should I use in the medical record? When I saw the patient, or when I am writing the note?
Both times may come in handy and should be used routinely. Write the time that you are writing the note under the date, and the time span over which the patient was seen in the body or end of the note. For billing purposes, often the time spent with the patient is only valid if it is documented. Be sure to write the date and time of all written orders.

What if I make a charting mistake?
The medical record can be considered a legal document. Any mistakes should be crossed out with a single line, or “X” if the mistake is a paragraph or more, and initialed. Be sure not to alter the legibility of the mistaken entry. If the patient requests his or her records, and the mistaken entry contains the name of another patient, the name should be blackened out on the copied record prior to releasing it. 

A signed note in the electronic chart is a permanent part of the record. If the note contains a mistaken entry, make a separate entry for the same date and title it “corrected note,” listing the mistaken entry, or rewrite the note correctly by copy, paste and alter. Upon releasing copies of an electronic record, if the note is that of another patient, do not include that in the copies released to the patient.

What do I do if I receive legal correspondence?

• Always notify your malpractice liability carrier if you receive notice that you have been named in a lawsuit or you receive correspondence putting you on notice that a suit is being prepared.

• If you are served with a subpoena for medical records, contact your legal counsel if you have any questions as to the validity of the subpoena.

• If you receive a letter of complaint from the Board of Medical Practice, do not answer it yourself. Notify your malpractice insurance carrier. The company can provide you with advice/guidance or refer you to an attorney who can assist you in drafting a response.  

• If you are requested to appear for a deposition (out-of-court testimony) your attorney will help you prepare in advance.

What should I do if I witness a serious event or occurrence at my hospital?
Medical errors continue to be a significant source of patient morbidity and mortality. Hospitals across the country have implemented strategies for patient safety including reporting medical error. If you become aware of a serious event, your first priority should be ensuring that the patient has received appropriate follow-up care. You should then immediately notify the hospital’s risk manager or quality assurance director of the event.    

What can I do if I believe that a peer review proceeding has not been managed appropriately?
If you have been subject to a peer review proceeding and disagree with the process or outcome, you should consult an attorney. The Vermont Medical Society can refer you to an attorney who can assist you in ensuring that the due process protections outlined in your hospital’s medical staff bylaws have been followed.  

How do I pay for lawyer services?
Many professional liability insurance companies provide some coverage to pay legal fees related to legal/disciplinary actions (e.g., disciplinary hearings before a state medical board). You should speak to your insurance agent/broker or claims representative before seeking legal counsel to determine if coverage is available.

What do I do in the case of an unexpected outcome?

• If a patient’s expectations were not met, or the patient had a bad outcome, communicate with the patient in an understanding and prudent manner, and do what you can to rectify the situation.

• Maintain a relationship with the patient/family and communicate sympathy and understanding.

• In the event of an adverse outcome, notify your risk manager, if applicable, and/or your malpractice liability carrier.

• Make appropriate referrals.

• Always document the facts of the case, including your thought process.

• Do not express anger, and do not cast the blame on others.

• Assure the patient and family that an appropriate investigation will ensue, if appropriate.

• Recognize the patient’s financial burdens associated with the event and consider making financial adjustments in regard to your fees. 

• Speak with your malpractice insurance carrier before deciding how you will approach a patient who refuses to pay as a result of the unexpected outcome.

An apology may avert a lawsuit, and is not an admission of wrongdoing. The Vermont “Sorry Works and Medical Safety Act” enacted in 2006 provides that an expression of regret or apology by a health care provider made in writing, orally, or by conduct, that is provided within 14 days of when the provider knew or should have known of the consequences of the error, does not constitute admission of liability for any purpose and is inadmissible in any civil or administrative proceeding. The expression of regret should not include blaming others or making excuses and should sincerely express concern for the patient.

How do courts/juries determine the “Standard of Care” when assessing whether or not a physician has been negligent? 
Traditionally, the applicable standard of care was defined by the “locality rule.” Physicians were held to the standards of their community peers. This has been replaced by the “national standards test” in which physicians are held to national standards. 

The “national standards test” is tempered by the “resource component” which allows the court/jury to consider factors such as the facilities, staff, and other equipment available to the practitioner.¹

Recommendations: Stay as current as possible. Utilize the Internet and telemedicine if available. The National Guideline Clearinghouse, http://www.guideline.gov, offers free access to the current clinical practice guidelines. Other commercial sites are MDConsult, Medscape, and UptoDate. 

What about  “clinical practice guidelines?”
Clinical practice guidelines/clinical pathways are designed to reduce variation in practice, and are being created by specialty societies, the federal government, and hospitals. Medicare is linking “pay for performance” to incentive payments under the Medicare payment system.  

The American Medical Association, recognizing a large sphere of physician discretion, has recommended that all guidelines include a disclaimer, to prevent them from being treated as conclusive evidence as to the standard of care. Clinical practice guidelines may be used as a defense by physicians to show compliance with accepted practice, but courts are careful in evaluating the use of clinical practice guidelines as evidence of substandard medical care.²

Recommendation: If your hospital is formulating its own guidelines, be involved in the drafting process. If guidelines are available, adherence to them is the rule; your rationale for any exception should be well documented in the record.

Can peer review proceedings find their way into the courtroom?
The records of peer review committees are confidential, privileged and protected from discovery, subpoena, or admission into evidence in court. However, in order to claim the privilege, it must be demonstrated that the records in question are linked to a specific peer review committee. Peer review or quality assurance documents that have been produced outside of the organized peer review structure are not entitled to the same legal protection afforded to similar documents that have been prepared for a peer review committee.

Recommendation: Upon receiving a subpoena for information regarding peer review process, consult your risk manager or malpractice carrier immediately. You should not proceed to answer any questions without advice from a lawyer.³

Are providers increasing their liability by trying innovative techniques, and being one of the first to prescribe new drugs?
Courts may accept experiments with potentially useful treatments in experienced hands when conventional treatments fail or in the case of a terminally ill patient. However, clinicians should avoid using new techniques or drugs when older ones are generally efficacious and available.

Laws traditionally protect the pharmaceutical companies from having a duty to warn consumers of a drug’s potential ill effects, as long as the prescriber was notified. However, in light of the trend in direct consumer advertising by the drug companies, courts are also considering the liability of the company in the event of a bad outcome.⁴

If a patient is noncompliant, does this relieve the provider’s liability in the case of a bad outcome?
Providers are expected to consider the needs and limitations of their patients. Documented effort, encouraging patient adherence to instructions, follow-up, referral recommendations, as well as risks of noncompliance, is critical. While courts are willing to allow evidence of the patient’s contributions to their injuries, this evidence may not absolve the practitioner of responsibility.⁵  

Recommendation: It may be appropriate to discharge from your practice patients who are routinely noncompliant. 

Does the Good Samaritan defense apply to emergency assistance by a physician who acts as a volunteer in a hospital emergency setting?
No. Hospital emergencies do not fall within the protection of the Good Samaritan statutes. 

Outside of the hospital, on the street, the Good Samaritan rule applies. It is expected that doctors provide emergency assistance. In fact, Vermont is unique in that it is the only state that imposes an affirmative obligation on individuals to come to the aid of other individuals. Fines may be imposed for failure to render aid under some circumstances.⁶ Physicians who render voluntary care under the Good Samaritan Statute are immune from civil liability unless it can be proved that the care they rendered was grossly negligent. 

May I prescribe controlled substances to myself or a family member?
It is unacceptable medical practice, unprofessional conduct, and a violation of Vermont law for a licensee to prescribe controlled substances listed in DEA Schedules II, III, and IV for his or her own use or that of his or her immediate family member. This includes a spouse and spousal equivalent, parent, grandparent, child sibling, in-laws (including son/daughter/brother and sister-in-law), step-parent, child, sibling, or any other person who is permanently residing in the residence of the licensee. The only exception applies  in a bona fide emergency of short term and unforeseeable character.⁷

What is the process if a complaint is made against me by a patient or family member?

• Be a good listener.

• Make every effort to establish the patient’s perception of the event.

• Discuss this matter with sensitivity, empathy and a caring attitude.

• Do not become defensive. Assure the patient that an investigation will ensue, if appropriate.

• Remember that complaints are generally motivated by a good faith effort by the patient to correct a perceived wrong. Most patients are not seeking a legal battle. Make sure that the patient knows that you value his or her comments and will strive to review the event and implement change as needed.

• Consult with risk manager, malpractice carrier, or defense attorney, as appropriate. 

How does Vermont  law define unprofessional conduct?
Under Vermont law, 30 actions are defined as unprofessional conduct, which evidences unfitness to practice medicine.⁸ The statutes may be found at the end of this section, as well as at http://www.healthyvermonters.info/bmp/legal/26sec1354.shtml.

How do I decrease risk when a consultation is requested?

• Communicate effectively with the patient about the need for a consult, respecting the patient’s preference.

• Although it is not a common practice, it is best for the requesting physician to notify the consultant directly, rather than leaving it to the nurse or unit clerk/secretary. Direct communication will allow you to provide the specialist with the information he or she needs.

• Discuss and document the reason for consultation and expectations for consultation including whether or not you wish the consultant to take over the management of the patient in this area, or just seek the consultant’s advice.

If you are asked to supply a consultation:

• Be sure to talk directly to the provider requesting the consult. 

• Discuss and document expectations of the requesting provider, including whether or not you are to take over the management of the patient, or if the request is just for your advice. Discuss and document your findings with the patient/family, and referring provider as soon as possible.

What about the “curbside consult?”
Curbside consultations should be avoided whenever possible. One obvious danger associated with this practice is liability for the requesting and consulting parties. There are also quality of care issues, as the consultant is not afforded the chance to evaluate the patient to the extent possible with a formal consultation. Regardless of the countless reasons where such consultations are desired, resist the temptation, except in the event of an urgent situation, where a formal consult would be impractical.

Only document the consultant’s name in the record if permitted by the consultant. If the consultant’s name is in the record, be sure to pursue a formal consultation to follow. Be aware that even if the name of the consulting physician is not in the record, curbside consults are not peer protected, and are discoverable in the event of a lawsuit.⁹

How can I minimize my risk in triage?
By answering your own phones and triaging your own patients, your risk is minimal. This is seldom practical, however, and many practices have assigned triage personnel. Here are some suggestions to avoid the risks inherent in this practice.

• Have the triage personnel use a written clinical protocol, developed either by your practice or one which is commercially available.

• The triage note should include as much information as practical, including the date, time, and person calling. 

• The provider should sign off on these notes daily.

• Patients who call more than once about a related issue should be scheduled for an appointment with the provider as soon as possible.

• Provide time in the provider’s schedule for acute care visits.

• Never turn away patients who wish to be seen. Document referral to the local urgent care center or emergency department if necessary.

• Make sure the patient is aware that a call is not a substitute for an office visit, and have a low threshold for offering the patient an appointment.

• The provider should speak directly with patients who call with significant  concerns.

• The triage personnel should always request that the patient call back if the situation does not improve, or go to an urgent care facility/ emergency department if the condition worsens.

• Provide impeccable documentation.

Are all liability insurance policies the same?
No, there are two different types of liability policies -- “claims made” and “occurrence” policies.¹⁰  

• “Occurrence” policies provide coverage for malpractice claims for incidents that occurred while the insurance was in force, even if the incident is reported after the policy is no longer in effect.

• “Claims-made” policies provide coverage for malpractice claims made and reported to the insurance company only when the plan was in place.

• “Tail Coverage” may be purchased when a practitioner changes insurance companies, or retires from practice altogether. The coverage lasts for the practitioner’s life for claims made from patients seen when the policy was in effect.

What is the statute of limitations in Vermont?
The Vermont statute of limitations for medical malpractice is:

• three years of the incident date; or

• two years from the date the injury attributed to the physician was discovered, but not more than seven years from the injury (except in the case of fraud or foreign body discovery);¹¹

• Two years for wrongful death;¹²

• If a birth injury is claimed, the injured party may sue upon turning 18 years old when the statute of limitations begins to run.¹³

Is data from Physician Clinical Performance Assessment (PCPA) admissible in medical malpractice suits?
Quality measurement of physician performance has become a tool used by health insurers, hospitals, and payers. A recent study published in JAMA suggests that the measures that “rank physicians and track clinical outcomes have the highest likelihood of admissibility.”¹⁴ Although it is unlikely that such data will be successfully admitted in malpractice litigation, this is not the case for “proceedings by state licensing boards, hospital review committees, and other adjudicatory bodies with more relaxed rules of evidence.”

Disclaimer
This information has been compiled from a number of sources, including my own personal experience and observations. It is not meant to serve as legal advice, just suggestions on how to minimize your liability and ensure quality care.

APPENDIX A

Title 18: Health

Chapter 42: BILL OF RIGHTS FOR HOSPITAL PATIENTS

18 V.S.A. § 1852. Patients' bill of rights; adoption

§ 1852. Patients' bill of rights; adoption

(a) The general assembly hereby adopts the "Bill of Rights for Hospital Patients" as follows:

(1) The patient has the right to considerate and respectful care at all times and under all circumstances with recognition of his or her personal dignity.

(2) The patient shall have an attending physician who is responsible for coordinating a patient's care.

(3) The patient has the right to obtain, from the physician coordinating his or her care, complete and current information concerning diagnosis, treatment, and any known prognosis in terms the patient can reasonably be expected to understand. If the patient consents or if the patient is incompetent or unable to understand, immediate family members, a reciprocal beneficiary or a guardian may also obtain this information. When it is not medically advisable to give such information to the patient, the information shall be made available to immediate family members, a reciprocal beneficiary or a guardian. The patient has the right to know by name the attending physician primarily responsible for coordinating his or her care.

(4) Except in emergencies, the patient has the right to receive from the patient's physician information necessary to give informed consent prior to the start of any procedure or treatment, or both. Such information for informed consent should include but not necessarily be limited to the specific procedure or treatment, or both, the medically significant risks involved, and the probable duration of incapacitation. Where medically significant alternatives for care or treatment exist, or when the patient requests information concerning medical alternatives, the patient has the right to such information. The patient also has the right to know the name of the person responsible for the procedures or treatment, or both.

(5) The patient has the right to refuse treatment to the extent permitted by law. In the event the patient refuses treatment, the patient shall be informed of the medical consequences of that action and the hospital shall be relieved of any further responsibility for that refusal.

(6) The patient has the right to every consideration of privacy concerning the patient's own medical care program. Case discussion, consultation, examination, and treatment are confidential and shall be conducted discreetly. Those not directly involved in the patient's care must have the permission of the patient to be present. This right includes the right, upon request, to have a person of one's own sex present during certain parts of a physical examination, treatment or procedure performed by a health care professional of the opposite sex; and the right not to remain disrobed any longer than is required for accomplishing the medical purpose for which the patient was asked to disrobe. The patient has the right to wear appropriate personal clothing and religious or other symbolic items so long as they do not interfere with diagnostic procedures or treatment.

(7) The patient has the right to expect that all communications and records pertaining to his or her care shall be treated as confidential. Only medical personnel, or individuals under the supervision of medical personnel, directly treating the patient, or those persons monitoring the quality of that treatment, or researching the effectiveness of that treatment, shall have access to the patient's medical records. Others may have access to those records only with the patient's written authorization.

(8) The patient has the right to expect that within its capacity a hospital shall respond reasonably to the request of a patient for services. The right shall include if physically possible a transfer to another room or place if another person in that room or place is disturbing the patient by smoking or other unreasonable actions. When medically permissible a patient may be transferred to another facility only after receiving complete information and explanation concerning the needs for and alternatives to such a transfer. The institution to which the patient is to be transferred must first have accepted the patient for transfer.

(9) The patient has the right to know the identity and professional status of individuals providing service to him or her, and to know which physician or other practitioner is primarily responsible for his or her care. This includes the patient's right to know of the existence of any professional relationship among individuals who are treating him or her, as well as the relationship to any other health care or educational institutions involved in his or her care.

(10) The patient has the right to be advised if the hospital proposes to engage in or perform human experimentation affecting the patient's care or treatment. Participation by patients in clinical training programs or in the gathering of data for research purposes shall be voluntary. The patient has the right to refuse to participate in such research projects.

(11) The patient has the right to expect reasonable continuity of care. The patient has the right to be informed by the attending physician of any continuing health care requirements following discharge.

(12) The patient has the right to receive an itemized, detailed and understandable explanation of charges regardless of the source of payment.

(13) The patient has the right to know what hospital rules and regulations apply to his or her conduct as a patient.

(14) Whenever possible, guardians or parents have the right to stay with their children 24 hours per day. Whenever possible, guardians, reciprocal beneficiaries or immediate family members have the right to stay with terminally ill patients 24 hours a day.

(15) A patient who does not speak or understand the predominant language of the community has a right to an interpreter if the language barrier presents a continuing problem to patient understanding of the care and treatment being provided. A patient who is hearing impaired has a right to an interpreter if the impairment presents a continuing problem to patient understanding of the care and treatments being provided.

(b) Failure to comply with any provision of this section may constitute a basis for disciplinary action against a physician under chapter 23 of Title 26. A complaint may be filed with the board of medical practice.

(c) A summary of the hospital's obligations under this section, written in clear language and in easily readable print, shall be distributed to patients upon admission and posted conspicuously at each nurse's station. Such notice shall also indicate that as an alternative or in addition to the hospital's complaint procedures, the patient may directly contact the licensing agency or the board of medical practice. The address and phone number of the licensing agency and board of medical practice shall be included in the notice. (Added 1985, No. 163 (Adj. Sess.), § 1; amended 1989, No. 219 (Adj. Sess.), § 4; 1999, No. 91 (Adj. Sess.), § 35.)

APPENDIX B

Title 26: Professions and Occupations

Chapter 23: MEDICINE AND SURGERY

26 V.S.A. § 1354. Unprofessional conduct

§ 1354. Unprofessional conduct

(a) The board shall find that any one of the following, or any combination of the following, whether or not the conduct at issue was committed within or outside the state, constitutes unprofessional conduct:

(1) fraudulent or deceptive procuring or use of a license;

(2) all advertising of medical business which is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons and so be harmful or injurious to public morals or safety;

(3) [Repealed.]

(4) abandonment of a patient;

(5) addiction to narcotics, habitual drunkenness or rendering professional services to a patient if the physician is intoxicated or under the influence of drugs;

(6) promotion by a physician of the sale of drugs, devices, appliances or goods provided for a patient in such a manner as to exploit the patient for financial gain of the physician or selling, prescribing, giving away or administering drugs for other than legal and legitimate therapeutic purposes;

(7) conduct which evidences unfitness to practice medicine;

(8) willfully making and filing false reports or records in his or her practice as a physician;

(9) willful omission to file or record, or willfully impeding or obstructing a filing or recording, or inducing another person to omit to file or record medical reports required by law;

(10) failure to make available promptly to a person using professional health care services, that person's representative, succeeding health care professionals or institutions, when given proper written request and direction of the person using professional health care services, copies of that person's records in the possession or under the control of the licensed practitioner;

(11) solicitation of professional patronage by agents or persons or profiting from the acts of those representing themselves to be agents of the licensed physician;

(12) division of fees or agreeing to split or divide the fees received for professional services for any person for bringing to or referring a patient;

(13) agreeing with clinical or bio-analytical laboratories to make payments to such laboratories for individual tests or test series for patients, unless the physician discloses on the bills to patients or third party payors the name of such laboratory, the amount or amounts to such laboratory for individual tests or test series and the amount of his or her processing charge or procurement, if any, for each specimen taken;

(14) willful misrepresentation in treatments;

(15) practicing medicine with a physician who is not legally practicing within the state, or aiding or abetting such physician in the practice of medicine; except that it shall be legal to practice in an accredited preceptorship or residency training program;

(16) gross overcharging for professional services on repeated occasions, including filing of false statements for collection of fees for which services are not rendered;

(17) offering, undertaking or agreeing to cure or treat disease by a secret method, procedure, treatment or medicine;

(18) consistent improper utilization of services;

(19) consistent use of nonaccepted procedures which have a consistent detrimental effect upon patients;

(20) professional incompetence resulting from physical or mental impairment;

(21) permitting one's name or license to be used by a person, group, or corporation when not actually in charge of or responsible for the treatment given;

(22) in the course of practice, gross failure to use and exercise on a particular occasion or the failure to use and exercise on repeated occasions, that degree of care, skill and proficiency which is commonly exercised by the ordinary skillful, careful and prudent physician engaged in similar practice under the same or similar conditions, whether or not actual injury to a patient has occurred;

(23) revocation of a license to practice medicine or surgery in another jurisdiction on one or more of the grounds specified in subdivisions (1)-(25) of this section;

(24) failure to comply with the provisions of 18 V.S.A. § 1852;

(25) failure to comply with an order of the board or violation of any term or condition of a license which is restricted or conditioned by the board;

(26) any physician who, in the course of a collaborative agreement with a nurse practitioner allows the nurse practitioner to perform a medical act which is outside the usual scope of the physician's own practice or which the nurse practitioner is not qualified to perform by training or experience, or which the ordinary reasonable and prudent physician engaged in a similar practice would not agree should be written into the scope of the nurse practitioner's practice, shall be subject to disciplinary action by the board in accordance with chapter 23 of this title;

(27) failure to comply with provisions of federal or state statutes or rules governing the practice of medicine or surgery;

(28) practice of profession when medically or psychologically unfit to do so;

(29) delegation of professional responsibilities to a person whom the licensed professional knows, or has reason to know, is not qualified by training, experience, education or licensing credentials to perform them;

(30) conviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession;

(31) use of the services of an anesthesiologist assistant by an anesthesiologist in a manner that is inconsistent with the provisions of chapter 29 of this title.

(b) The board may also find that failure to practice competently by reason of any cause on a single occasion or on multiple occasions constitutes unprofessional conduct. Failure to practice competently includes, as determined by the board:

(1) performance of unsafe or unacceptable patient care; or

(2) failure to conform to the essential standards of acceptable and prevailing practice.

(c) The burden of proof in a disciplinary action shall be on the state to show by a preponderance of the evidence that the person has engaged in unprofessional conduct.

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About the Author

Jo Ann Beatrice Fiorito Hertford, MD, FAAFP, received her medical degree from UMDNJ- Rutgers Medical School, completed her family practice residency at The Medical Center, Beaver, Pa., and is currently attending Vermont Law School. Over the last 15 years, she had maintained an active family practice with obstetrics in Pennsylvania, where she also was a faculty member at The Medical Center, Beaver’s family practice residency program; in Maine; and most recently in Vermont. She has published “A Manual of Baby Care” and authored a medical review article for the American Family Physician. Dr. Hertford’s interest in physician liability and risk management topics led her to attend law school with the goal of becoming a legal representative and advocate for health care providers.

Footnotes

¹ Adapted from Furrow et al, Health Law, 5^th ed. West Publishing Co., 2004, Pg. 196
² Id at 252, 275
³ Id at 216, 217
⁴ Id at 252
⁵ Id at 263, 264
⁶ Id at 253
⁷ Self-prescribing and prescribing for family members, Section 4.3, Rules for the State of Vermont Board of Medical Practice, Feb. 16, 2001, Feb. 16, 2001; available upon request at medicalboard@vdh.state.vt.us.; 26 V.S.A. §1398
⁸ 26 V.S.A. §1354
⁹ JAMA, Vo 275, No. 6,1996, 145-147.
¹⁰ Burkman, Ronald, MD, Medical Liability- What Physicians Need to Know, The Forum, Vol.3, No. 1, April, 2005, 16-20.
¹¹ 12 V.S.A. §521
¹² 14 V.S.A. §1492(a)
¹³ 12 V.S.A. §551
¹⁴ Kesselheim, Aaron et al, Will Performance-Level Measures of Clinical Performance Be Used in Medical Malpractice Litigation? JAMA Vol. 295, No. 15, 1831-1834, April 19, 2006.