10 legal pitfalls every physician should avoid

By Naveed Saleh, MD, MS, for MDLinx
Published July 12, 2019

Key Takeaways

The federal government governs certain aspects of medial jurisprudence, including privacy and opioid prescription. However, the parameters of medical crimes do vary to some extent from state to state.

State-specific laws cover such topics as privacy and access to health information, patient medical records, disclosure of personal health information, and standards for health insurers including Medicaid. On a related note, the laws and rulings of medical boards vary by state, too.

In light of these regional variations, let’s look at 10 questionable practices that could land you in legal hot water in most US states.

1. Don’t pre-sign prescriptions

Pre-signing your prescriptions may save a few minutes during the day—but what happens when scripts, for whatever reason, go missing? Misuse of pre-signed prescriptions could lead to both employer and board disciplinary actions, including monetary penalties, termination, and license suspension. So, it’s best to sign scripts as you write them—in fact, it’s the law. According to the Code of Federal Regulations, prescribers are prohibited from pre-signing prescriptions. If you’re looking for a way to optimize your time, check out these simple, safer methods to boost your productivity.

2. Read the fine print

When renewing your license, read the fine print. Find out, for instance, whether the state board audits continuing medical education (CME) and financial responsibility requirements. It’s always a good idea to keep copies of your CME certificates on file for at least 2 years, just in case.

3. Keep charts on family, friends, and employees

Informal prescription comes with many risks and is generally not a good idea, as detailed in this article. But if you do decide to prescribe to friends, family, or employees, be sure to create the appropriate charts. A chart signifies the doctor-patient relationship, helps the patient’s designated healthcare providers keep track of medical history, and becomes necessary in case you’re sued, even by a close acquaintance.

4. Avoid sexual misconduct with patients

In Florida, the Board of Medicine exerts a “zero tolerance policy on physician/patient sexual misconduct.” Safe to say, this guidance is the shared purview of physician organizations everywhere.

Sounds like a no-brainer, but it’s definitely worth mentioning. It’s best to keep patients as “patients” and look for love elsewhere in the community. (Would you date another doctor, perhaps?)

5. Refuse kickbacks

Physicians are at special liability for kickback schemes. The anti-kickback statute is a criminal law that prohibits remuneration to induce or reward patient referrals or other business involving the federal government (eg, drugs, supplies, or health care services for Medicare or Medicaid patients). Such remuneration can take the form of money, gifts, hotel stays, fancy meals, and so forth.

6. Do a doublecheck

Before you make an incision on any patient, do everyone a solid and check. Pause and make sure that you are making an incision on the correct patient in the correct area. Surgical timeout is a universal precaution.

If you do make a mistake, inform the patient and document your mistake in their chart. If you don’t, you’re not only being dishonest, but penalties become steeper.

7. Don’t Rx over the internet

All kinds of bad things—including fines, reprimands, and revocation or suspension of license—can happen when you prescribe to a patient sight unseen and without performing a history and physical exam. Your best bet is to avoid internet prescription altogether.

According to the California Board:

“It’s illegal to prescribe without an appropriate examination. This requirement (Business and Professions Code section 2242) existed long before the Internet was created and is the cornerstone of why Internet prescribing is illegal when a legitimate physician-patient relationship does not exist.

“Some physicians have attempted to legitimize their Internet prescribing by engaging in the review of questionnaires, which Internet users will complete, although there is no way to confirm the patient is reporting accurate or truthful information.”

Additionally, the AMA has specific guidance about providing care or services through telemedicine:

“The AMA believes that a valid patient-physician relationship must be established before the provision of telemedicine services, through: (i) A face-to-face examination, if a face-to-face encounter would otherwise be required in the provision of the same service not delivered via telemedicine; or (ii) A consultation with another physician who has an ongoing patient-physician relationship with the patient. The physician who has established a valid physician-patient relationship must agree to supervise the patient’s care; or (iii) Meeting standards of establishing a patient-physician relationship included as part of evidence-based clinical practice guidelines on telemedicine developed by major medical specialty societies, such as those of radiology and pathology. Exceptions include on-call, cross coverage situations; emergency medical treatment; and other exceptions that become recognized as meeting or improving the standard of care.”

8. Intervene if you see impairment

If you or a healthcare provider you know has a problem with drugs or alcohol, there are confidential ways to get help without losing medical licensure. Although loyalty has its place, you are doing a disservice to the patient community by not reporting what you know. Moreover, you are doing no service to the offending physician by postponing the treatment they need. Many physicians who abuse or misuse drugs only go to treatment after someone files a report.

9. Report psychiatric issues

As with drugs, mental illness experienced by a physician can impair patient care and invite malpractice claims. Physicians who have mental illness that interferes with their practice of medicine should either self-report or be reported.

10. Don’t hold medical records hostage

Everybody likes to get paid. However, withholding the medical records of patients who haven’t paid for care is illegal in most states. You can, nevertheless, require the patient to pay copying fees to cover the cost of printing out the documents.

.

Practicing medicine can sometimes be precarious, and there are lots of other ways to run afoul of Uncle Sam. Many are obvious, but some are less so. For example, did you know that selling various types of durable medical equipment in your group practice violates the Stark law? When in doubt about legality, it’s a good idea to check with a lawyer. 

Share with emailShare to FacebookShare to LinkedInShare to Twitter
ADVERTISEMENT