Am I My Brother's Warden? Responding to the Unethical or Incompetent Colleague

Morreim, E. Haavi, The Hastings Center Report

Responding to the failings of peers can be difficult, but as professionals physicians should not leave the moral management of errant colleagues to chance. Distinguishing levels of adverse outcomes helps physicians more clearly assess each others' conduct and respond appropriately to those who threaten the integrity of profession.

A physician should expose, without fear or favor, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession."[1] It is a commandment easier issued than followed. Although a rising interest in quality assessment has led to increased disciplinary actions by state boards and to treatment programs for impaired physicians,[2] strong social norms reject spying and "snitching" on colleagues in favor of respecting professional privacy and individual responsibility.

Professional self-policing is particularly challenging with respect to physicians who are incompetent or unethical, as distinct from impaired. An impaired physician is unable to practice medicine with reasonable skill and safety by reason of physical or mental illness. He or she may be hindered by waning eyesight, dementia, or substance abuse. The incompetent physician, on the other hand, is not ill, but ignorant or unskillful, while the unethical physician knowingly and willingly violates fundamental norms of conduct toward others, especially his or her own patients.

Impairment commonly elicits sympathy and a wish to help. Even a drastic intervention, such as to remove an aging surgeon from the operating room, can be done with charity toward the physician. And in the process one may help that physician. Many states have confidential programs to treat substance abusers and return them to practice, benefiting both them and their patients.[3] In contrast, one feels less charitable toward the incompetent, and not at all benevolent toward the unethical physician.

Furthermore, the standards by which we define impairment are considerably clearer than those by which we identify incompetence or poor ethics. Though there are borderline cases, usually we know what it is to be going blind or to be an adict. In contrast, it is not always clear what constitutes "standard" medical knowledge and skill. Practice parameters can suggest routine management of common problems, but cannot define competent care. Patients and their illnesses vary widely, and it can be difficult to distinguish between poor management of an ordinary situation and good management of an unusually complex situation.[4]

Ethical standards are at least as difficult. Some things, of course, are clear. It is plainly wrong to demand sexual intercourse from a fourteen-year-old girl while holding a gun to her head,[5] or to trade forty-four prescription pain pills for a pair of machine guns.[6] But elsewhere standards are not so clear. We may never agree whether euthanasia or even assisted suicide is morally acceptable.

If identifying standards is particularly difficult in the case of competence and ethics, the same is true for gathering evidence. On the one hand, indications of impairment can be relatively straightforward. Blood tests can reveal alcohol, and medical evaluation can diagnose dementia. In contrast, incompetence is seldom easy to detect, partly because the competence of care depends on the clinical context. the patient may have looked very different when he first presented to his primary care physician, for example, than he did hours later for a consulting physician. Furthermore, imcompetence typically requires not just one error, even a serious one, but a pattern of them. Not often does any one colleague have the opportunity to observe such a pattern. Unethical conduct is commonly even more difficult to detect, as a devious doctor takes great care to conceal his misdeeds.

Although we must distinguish impaired, incompetent, and unethical physicians, these categories can of course overlap. The demented physician is also incompetent. A surgeon who continues to operate despite failing eyesight commits moral as well as medical wrongs. Still, the concepts are distinct. And while impairment has received considerable scholarly attention, incompetent and unethical physicians have not. In this article I will therefore focus on the latter two, and will begin the analysis by looking more closely at why professional self-policing is so difficult.

Policing One's Own

It is difficult for physicians to monitor each other for many reasons. As noted, judgments about competence and ethics require standards and facts that are often neither clear nor readily available. The practice of medicine is permeated by uncertainty, and the best physician is bound to make errors, including some serious ones. To condemn someone else is to invite scrutiny of oneself.

Beyond this, careless or unjust allegations can harm the accused economically, professionally, and personally, as they may drive away patients, reduce collegial esteem, and leave the physician feeling betrayed by those he trusted. Patients, too, can be harmed if a good medical relationship is destroyed or if a capable physician is removed from practice. Even a raised-eyebrow innuendo about a physician's qualifications can raise troubling uncertainties that the patient is in no position to resolve. Neither is the profession as a whole enhanced by widespread mud-slinging or an accusatory, punitive atmosphere. In current times of increasing economic competition among physicians, the danger of such an atmosphere is real.

Finally, the physician who challenges a colleague may himself be harmed, even if her accusations are correct. Whistle-blowers can suffer retribution[7] or be sued for slander, libel, or discrimination.[8] More recently, they can face antitrust allegations. Those who sit on peer review committees and other disciplinary bodies are sometimes sued on the ground that they are attempting, not to police the profession, but merely to stifle competition.[9] Losers in such suits pay treble damages.

To sue, of course, is not necessarily to win. Peer review that satisfies the requirements set forth by the Health Care Quality Improvement Act (HCQIA) of 1986--good faith, good facts, good procedures, and good reasoning--enjoys antitrust immunity.[10] Still, even a small prospect of legal wrangling can inhibit physicians from pointing accusatory fingers at colleagues.

The individual physician not only has reasons to be cautious, but also some reassurance that the profession already monitors its own. Physicians have a number of avenues, such as weekly morbidity/mortality conferences, by which to critique and improve each other's performance. Most medical specialty boards now plan or require periodic recertification as a regular means of improving quality of care. Hospitals have assorted forums, from credentials review to tissue committees, to monitor staff physicians' performance. The HCQIA of 1986 established a National Practitioner Data Bank that requires reports ranging from malpractice awards and state licensure actions, to adverse judgments rendered by hospitals and medical societies. Hospitals are required to check this data bank before granting or biennially renewing staff physicians' credentials.[11] State medical boards can revoke or suspend licenses and impose other discipline, actions also requiring reports to the data bank.

The legal system also monitors physicians. Tort law …

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Publication information: Article title: Am I My Brother's Warden? Responding to the Unethical or Incompetent Colleague. Contributors: Morreim, E. Haavi - Author. Journal title: The Hastings Center Report. Volume: 23. Issue: 3 Publication date: May-June 1993. Page number: 19+. © 1999 Hastings Center. COPYRIGHT 1993 Gale Group.

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