—Dr. Saul Milles, former Corporate Medical Director, General Electric Corp. (1988)
By Karen O’Hara
The absence of an implied physician-patient relationship has been “the central ethical issue in occupational medicine for the past 100 years,” according to Mark Rothstein, J.D., a leading authority on health policy and employment law.
To help address this long-standing dilemma, Mr. Rothstein is encouraging the American College of Occupational and Environmental Medicine (ACOEM) to incorporate a Bill of Rights of Examinees in its Code of Ethics.
“I am going to try to push ACOEM gently in this direction,” Mr. Rothstein said during a lecture on Ethical Challenges of Occupational and Environmental Medicine at the college’s 2011 national conference in Washington, D.C.
Mr. Rothstein, who holds the Herbert F. Boehl Chair of Law and Medicine and is the director of the Institute for Bioethics, Health Policy and Law at the University of Louisville, Ky., recommends revising the ACOEM code “to recognize the evolving ethical obligations of industry-employed and industry retained physicians” by explicitly noting the existence of a limited physician-patient relationship.”
After he developed and published the examinee bill of rights in 1996, Mr. Rothstein said it was embraced by a number of large corporations. Three years later when the American Medical Association (AMA) updated its widely applied and extensive Code of Ethics, it incorporated a number of similar provisions.
While leading occupational physicians have “long advocated the notion that industry-employed physicians should more closely align their relationships and policies with physicians in private practice,” he said the existence of a limited physician-patient relationship is a position that ACOEM has never adopted.
“The theory is that if no physician-patient relationship exists, there is no duty, and if there is no duty, there is no liability,” he explained. “But the fact of the matter is the courts don’t really care about that anymore, and they are going to apply what they consider to be a reasonable legal relationship” in relevant cases. For ACOEM, “there are potential harms in not being able to go where the AMA went” with this issue.
In his opinion, one of the most significant provisions in the AMA code is Section 10.03, Patient-Physician Relationship in the Context of Work-Related and Independent Medical Examinations, which states:
“When a physician is responsible for performing an isolated assessment of an individual’s health or disability for an employer, business, or insurer, a limited patient-physician relationship should be considered to exist…Despite their ties to a third party, the responsibilities of industry-employed physicians and independent medical examiners are in some basic respects very similar to those of other physicians…”
International Code
Another useful resource is the International Commission on Occupational Health’s Code of Ethics, which is applicable to all occupational health professionals, former ACOEM President Tee Guidotti, M.D., mentioned at the conclusion of Mr. Rothstein’s presentation. He suggested that such codification helps discourage employers from manipulating the system.
“We reminded people of (the international code) during revisions of the ACOEM code,” said Dr. Guidotti, an occupational and environmental medicine consultant and professor who contributed his views when the ACOEM code was last updated in 2009.
In conducting research on the issue, Mr. Rothstein said he compared ACOEM’s code to the international commission’s as well as those of other medical groups. “Taking a look at international codes and those of comparable organizations can be very helpful,” he said.
In a follow-up interview, Dr. Guidotti noted that it is not as if ACOEM has ignored the physician-patient relationship dilemma over the years; to the contrary. “The latest code revisions were initiated at least 10 years ago and there has been continuous discussion within the college on these issues,” he said.
He explained that he supports further refinement of the ACOEM code, not because it is deficient in some way but rather in the context of “continuous improvement, and perhaps the development of an ancillary set of guidelines for independent medical examiners (IMEs) not unlike what we have for medical review officers (MROs) and expert witnesses.
“I read it as an ongoing dialogue in which ACOEM evolves and is open to discussion and change in a changing ethical and legal context as society becomes clearer on what it expects from us. I did not read it as Mark correcting us in an error or calling the college’s efforts unworthy. We all want to do better.”
Conflict of Interest
Invited by VISIONS to comment on Mr. Rothstein’s presentation, Robert McLellan, M.D., another former ACOEM president who has been involved in updates to the ACOEM code in recent years, said he would particularly like to draw attention to ACOEM’s Ethical Principle VII: An Obligation to Address Conflict of Interest:
“When competing interests interfere with clinical or scientific judgments, patients and public health may be harmed as a result. In order to prevent harm, occupational health practitioners have a duty to ensure ethical conduct regarding conflicts of interest by recognizing, acknowledging, and appropriately addressing any secondary interests that might in reality distort the integrity of judgments or be perceived to do so. As such, a conflict of interest is a prevalent condition, not a behavior – being determined by circumstances, not necessarily actions or outcomes. Conflicts of interest are common. A conflict exists not only when judgment has been clearly influenced, but it also exists when judgment might be influenced or might be perceived to be influenced. That is, a conflict exists before any actual breach of trust, irrespective of whether a breach of trust actually occurs.
“Ethical practice must ensure that harm does not accrue as a result of such conflicts. Conflicts of interest may be addressed in multiple, case-specific manners, including, but not limited to, disclosure, informed waiver, or disengagement from potentially conflicted interaction.”
“This point is meant to address in a broad way the issue that Mr. Rothstein has raised,” said Dr. McLellan, section chief, of Occupational and Environmental Medicine, Dartmouth-Hitchcock Medical Center, Lebanon, NH. “Much discussion occurred in the group that generated the draft of the new code for adoption by the organization about how prescriptive to be with the final decision (in order) to be less granular. That said, I concur that his bill of rights more specifically and with more granularity lists a series of steps that a provider could take to address conflicts of interest.”
Dr. McLellan also observed that conflict of interest is not the sole province of occupational medicine: “Many physicians are in similarly conflicted relationships that would benefit from the same kind of sunshine that Mr. Rothstein recommends for occupational medicine and are addressed in our code.”
Examples include physician researchers who have a financial interest in devices they help design, doctors who may be paid and/or influenced by drug companies, and practitioners in managed care environments in which incentives and penalties are tied to the type and cost of care provided.
“One of the reasons that ACOEM asked Mr. Rothstein to speak at a national conference is that we want the code to be a dynamic document that generates an ongoing discussion about how best to practice with the highest ethical standards,” he said. “Mr. Rothstein’s bill of rights provides an example of a practice that occupational health providers could choose to use to address conflict of interest.”
Legal Distinctions
Asked to clarify the distinction between legal precedent and legal philosophy when referring to trends in the interpretation of physician-patient relationships, Mr. Rothstein said there are no specific U.S. statutes regulating the occupational medicine context of the physician-patient relationship. Instead, common law has developed over time, with “contours of the legal relationship” established in five types of personal injury cases:
- Injury in the course of an examination.
- Negligent failure to diagnose or inform of diagnosis.
- Negligent job placement caused harm to the employee.
- Negligent job placement caused harm to a third party.
- Negligent treatment.
For instance, the lack of a physician-patient relationship, or duty, can result in allegations such as failure to notify an injured worker about an unrelated medical condition that, if detected and treated sooner, would likely have resulted in a better health outcome. In the past, claims for failure to diagnose by occupational physicians were rejected by the courts because a physician-patient relationship was not acknowledged. Instead, the courts applied either a treatment rule or a benefit rule. But the trend now is toward finding at least a limited legal duty, Mr. Rothstein said.
“I would argue that even if the law does not create it, medical ethics create an affirmative duty to disclose information to an individual about the limited scope of an exam in the occupational setting,” he added.
Patient-Patient Relationship
The physician-patient relationship is an implied agreement in which the patient expects to be treated in a professional, confidential manner by a physician who is acting in their best interest, i.e., first do no harm. In the modern-day version of this relationship, four key elements apply:
- The physician is selected by the patient.
- The physician is paid by the patient (or another party acting on behalf of the patient).
- The physician acts for the benefit of the patient (not a third party).
- Treatment may result.
“The absence of these key elements has given rise to the ethical challenge of real or perceived conflict of interest of the physician,” Mr. Rothstein said. “The hybrid or third-party relationship arises whenever a physician assesses the health of the individual or otherwise acts primarily for the benefit of the other party.”
Third-party examples include workers’ compensation; medical examinations performed in order for an examinee to qualify for life, disability, or long-term care insurance; claims investigations; assessment for Social Security disability or veterans’ benefits; military and prison health care services; and litigation.
The physician-patient relationship typically is viewed by the patient on a continuum of trust ranging from adversarial to fiduciary. In other words, a patient may be suspicious of a “company’s doctor’s” motives and discredit his or her findings, or conversely, misinterpret a work injury treatment encounter as a comprehensive assessment when it is actually limited in scope.
“The non-traditional nature of the relationship is poorly understood by most applicants and employees,” Mr. Rothstein said. “Harms frequently result from the failure to disclose the nature of this relationship.” The Bill of Rights of Examinees addresses this concern.
He concluded: “I want to encourage you to push the ball forward, raise the bar in ethics, and look beyond what the law minimally asks us to do. As in other areas of medical practice, ethical principles serve as guidelines and aspirations, thereby improving medical encounters and instilling a rewarding degree of professionalism.”
Related Case Citations
- Medical Center of Central Georgia, Inc. v. Landers, 616 S.E.2nd 808 (Ga. Ct. App. 2005)
- Coffee v. McDonnell-Douglas Corp., 503 P.2nd 1366 (Cal. 1972)
- Green v. Walker, 910 F2d 291 (5th Cir. 1990) (Louisiana law)
- Daly v. United States, 946 F.2d 1467 (9th Cir. 1991) (Washington law)
- Reed v. Bojarski, 764 A.2d 433 (N.J. 2001)
- Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004)
Other Citations and Resources:
- ACOEM Code of Ethics: www.acoem.org/codeofconduct.aspx
- American Medical Association Code of Ethics: www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page
- Ethics Self-Assessment; American College of Healthcare Executives; Healthcare Executive, Vol. 26, No. 4, July/Aug. 2011.
