KENTUCKY
STANDARDS OF ACCEPTABLE AND PREVAILING MEDICAL PRACTICE RELATING TO PHYSICAL EXAMINATIONS BY PHYSICIANS
The Board has determined that the following principles constitute the standards of acceptable and prevailing medical practice relating to physical examinations by physicians.
Patient complaints of sexual misconduct by physicians are the most sensitive and difficult the Board investigates. The incidents are rarely witnessed. Allegations of sexual misconduct are particularly difficult to prove and can lead to public humiliation for both the patient and the physician involved.
Physicians will, of course, continue to routinely perform physical examinations in the course of patient care out of medical necessity and professional responsibility. In order to prevent misunderstandings and protect physicians and their patients from allegations of sexual misconduct, the Board offers the following opinion regarding physical examinations by physicians:
Maintaining patient dignity should be foremost in the physician's mind when undertaking a physical examination. The patient should be assured of adequate auditory and visual privacy and should never be asked to disrobe in the physician's immediate presence. Examining rooms should be safe, clean and well-maintained, and should be equipped with appropriate furniture for the examination and treatment (examining table, chairs, etc.). Gowns, sheets and/or other appropriate apparel should be made available to protect patient dignity and decrease embarrassment to the patient while promoting a thorough and professional examination.
A third party should be readily available at all times during a physical examination, and it is suggested that the third party be actually present when the physician performs an examination of the sexual and reproductive organs or rectum. It is incumbent upon the physician to inform the patient of the option to have a third party present. This precaution is essential regardless of physician/patient gender.
The physician should individualize his/her approach to physical examinations so that the patient's apprehension, fear and embarrassment are diminished as much as possible. An explanation of the necessity of a complete physical examination, the components of that examination and the purpose of disrobing may be necessary in order to minimize the patient's apprehension and possible misunderstanding.
The physician and his/her staff should exercise the same degree of professionalism and caution when performing diagnostic procedures (i.e., electrocardiograms, electromyograms, endoscopic procedures and radiological studies, etc.) as well as surgical procedures and post-surgical follow-up examinations when the patient is in varying stages of consciousness.
The physician should be alert to suggestive or flirtatious behavior or mannerisms on the part of the patient and should not put him or herself in a compromising position.
The physician shall not exploit the physician/patient relationship for sexual or any other purposes. Moreover, such an allegation against a physician constitutes grounds for investigation on the basis of alleged unethical behavior. Physicians should also be aware that any failure to conform to the principles of medical ethics of the American Medical Association constitutes unprofessional conduct, in violation of Board statutes.
Reprinted from the Kentucky Board of Medical Licensure Newsletter, Summer 2009
NORTH CAROLINA
POLICY COMMITTEE OFFERS NEW POSITION STATEMENT ON TELEMEDICINE
The Policy Committee of the North Carolina Medical Board has drafted a proposed position statement on telemedicine for consideration and possible adoption by the full Board. The Policy Committee discusses position statements in public sessions during regularly scheduled Board meetings. In addition, proposed statements are published on the Board's website and in the Forum before they are considered by the full Board. This allows licensees and other interested parties the opportunity to provide written comments that may influence the final version presented for Board action. The full text of the proposed position statement on telemedicine appears below.
TELEMEDICINE
“Telemedicine” is the practice of medicine using electronic communication, information technology or other means between a physician in one location and a patient in another location with or without an intervening health care provider.
The Board recognizes that technological advances have made it possible for physicians to provide medical care to patients who are separated by some geographical distance. As a result, telemedicine is a potentially useful tool that, if employed appropriately, can provide important benefits to patients, including: increased access to health care, expanded utilization of specialty expertise, rapid availability of patient records, and the reduced cost of patient care.
The Board cautions, however, that physicians practicing via telemedicine will be held to the same standard of care as physicians employing more traditional in-person medical care. A failure to conform to the appropriate standard of care, whether that care is rendered in-person or via tele-medicine, may subject the physician to potential discipline by this Board.
The Board provides the following considerations to its licensees as guidance in providing medical services via telemedicine:
Training of Staff: Staff involved in the telemedicine visit should be trained in the use of the telemedicine equipment and competent in its operation.
Examinations: Physicians using telemedicine technologies to provide care to patients located in North Carolina must provide an appropriate examination prior to diagnosing and/or treating the patient. However, this examination need not be in-person if the technology is sufficient to provide the same information to the physician as if the exam had been performed face-to-face. Other examinations may also be considered appropriate if the physician is at a distance from the patient, but a licensed health care professional is able to provide various physical findings that the physician needs to complete an adequate assessment. On the other hand, a simple questionnaire without an appropriate examination may be a violation of law and/or subject the physician to discipline by the Board.
Informed Consent: The physician using telemedicine should obtain the patient's informed consent before providing care via telemedicine services. In addition to information relative to treatment, the patient should be informed of the risks and benefits of being treated via telemedicine, including how to receive follow-up care or assistance in the event of an adverse reaction to the treatment or in the event of an inability to communicate as a result of a technological or equipment failure. The patient retains the right to withdraw his or her consent at any time.
Physician-Patient Relationship: The physician using telemedicine should have some means of verifying that the person seeking treatment is in fact who he or she claims to be. A diagnosis should be established through the use of accepted medical practices, i.e., a patient history, mental status examination, physical examination and appropriate diagnostic and laboratory testing. Physicians using telemedicine should also ensure the availability for appropriate follow-up care and maintain a complete medical record that is available to the patient and other treating health care providers.
Medical Records: The physician treating a patient via telemedicine must maintain a complete record of the telemedicine patient's care according to prevailing medical record standards. The medical record serves to document the analysis and plan of an episode of care for future reference. It must reflect an appropriate evaluation of the patient's presenting symptoms, and relevant components of the electronic professional interaction must be documented as with any other encounter. The physician must maintain the record's confidentiality and disclose the records to the patient consistent with state and federal law. If the patient has a primary physician and a telemedicine physician for the same ailment, then the primary physician's medical record and the telemedicine physician's record constitute one complete patient record.
Licensure: The practice of medicine is deemed to occur in the state in which the patient is located. Therefore, any physician using telemedicine to regularly provide medical services to patients located in North Carolina should be licensed to practice medicine in North Carolina. Physicians need not reside in North Carolina, as long as they have a valid, current North Carolina license. North Carolina physicians intending to practice medicine via telemedicine technology to treat or diagnose patients outside of North Carolina should check with other state licensing boards. Most states require physicians to be licensed, and some have enacted limitations to telemedicine practice or require or offer a special registration. A directory of all U.S. medical boards may be accessed at the Federation of State Medical Boards website: www.fsmb.org/directory_smb.html.
Fees: The Board's licensees should be aware that third-party payors may have differing requirements and definitions of telemedicine for the purpose of reimbursement.
1) See also the Board's Position Statement entitled “Contact with Patients before Prescribing.”
2) N.C. Gen. Stat. 90-18(c)(11) exempts from the requirement for licensure: “The practice of medicine or surgery by any nonregistered reputable physician or surgeon who comes into this State, either in person or by use of any electronic or other mediums, on an irregular basis, to consult with a resident registered physician or to consult with personnel at a medical school about educational or medical training. This proviso shall not apply to physicians resident in a neighboring state and regularly practicing in this State.”
The Board also notes that the North Carolina General Statutes define the practice of medicine as including, “The performance of any act, within or without this State, described in this subdivision by use of any electronic or other means, including the Internet or telephone.” N.C. Gen. Stat.90-1.1(5)f.
NCMB IMPLEMENTS CHANGES TO INVESTIGATIVE AND DISCIPLINARY PROCESSES
A new law that modifies the North Carolina Medical Board's investigative and disciplinary processes took effect October 1. Many of the provisions codify existing policy or interpretation of the Medical Practice Act, while other provisions create entirely new practices.
The brief article below summarizes two significant changes that affect licensees who are under investigation by the Board or who face an imminent public charge of misconduct by the Board.
WRITTEN NOTICE OF RIGHTS, RESPONSIBILITIES
Historically, when the Board received a complaint against a licensee, it provided the licensee with a copy and gave oral answers to any questions about the Board's review process. For investigations initiated on or after October 1, the Board will now mail or deliver in person written notices to licensees under investigation. The notices address the licensee's duty to cooperate with the Board, how the Board will communicate with the licensee and any legal counsel, the amount of time the investigation is expected to take and the licensee's rights should the Board vote to take public disciplinary action.
PRE-CHARGE CONFERENCE FOR LICENSEES PENDING CHARGES
Traditionally, the Board conducted informal conferences with some licensees prior to voting to initiate a public disciplinary proceeding. The new law requires the Board to provide, upon request, the licensee with the opportunity to meet with a designated Board member. Such meetings would occur after the Board votes to charge but before charges are issued and a hearing is scheduled. If a meeting is requested, it will be scheduled soon after the decision to take public action. Prior to the meeting, which may be telephonic or in person, the Board will provide the licensee and/or his or her legal counsel, with information gathered in the investigation. The purpose of the meeting will be to inform the licensee of the basis for the Board's decision to charge and explain the process going forward.
Reprinted from the North Carolina Medical Board The Forum Newsletter, Fall 2009
OKLAHOMA
MEDICAL SPA AND AESTHETIC PROCEDURE GUIDELINES
After much discussion and input, the Medical Board has adopted guidelines to give physicians (M.D.s) some direction when practicing in or considering this medical area. These are very broad guidelines as there is no way to keep up with every type of laser or new procedure that comes on the market. The main issue is still the involvement of the physician with the patient in the delivery of care whether personally done or through the supervision of another health professional. Do your research before entering into any practice that may have negative consequences on your license.
BOARD OF MEDICAL LICENSURE AND SUPERVISION POLICY AND GUIDELINES FOR MEDICAL SPAS AND AESTHETIC PROCEDURES
DEFINITIONS (OKLAHOMA LAW AND RULES)
Practice of Medicine – Every person shall be regarded as practicing allopathic medicine within the meaning and provisions of this act, who shall append to his or her name the letters “M.D.”, “Physician” or any other title, letters or designation which represent that such person is a physician, or who shall for a fee or any form of compensation diagnose and/or treat disease, injury or deformity of persons in this state by any allopathic legend drugs, surgery, manual, or mechanical treatment unless otherwise authorized by law.
Doctor/Patient Relationship – Means a person has a medical complaint/issue, which has been addressed by the doctor and there is a correlation between the complaint/issue and the treatment/procedure performed or drug given/prescribed/dispensed.
Surgery – The ablation or alteration of any human tissue by any means including but not limited to the use of sharp surgery, heat, cold, abrasion, laser, chemicals, injection/ placement of substances subcutaneous, or the use of FDA approved devices that can only be initially purchased by physicians is the practice of medicine as defined in Title 59 O.S. Section 492. Lasers are instruments of surgery. No matter what type of laser is being utilized, a physician involved in the process should follow these guidelines.
GUIDELINES
The practice of medicine and surgery as defined above is grounded upon the doctor/patient relationship which at a minimum requires a face-to-face evaluation of the patient by the physician or a physician assistant under a physician's supervision, prior to the determined treatment or procedure, development of a patient chart, providing patient informed consent and the process for the patient's follow-up care.
There are several important guidelines to follow when supervising other practitioners.
If the physician is utilizing unlicensed, trained assistants under their control and supervision, the physician must be on-site (premise) before, during and after the medical treatment or procedure.
If the physician is utilizing an Oklahoma licensed physician assistant (PA), the physician can delegate any of the defined medical services to that licensed PA under general supervision, which does not require the physician to necessarily be on-site.
If the physician is utilizing an Oklahoma licensed nurse, [RN, LPN, APN (advance practice nurse) or APN with prescriptive authority] and IF they are functioning within the scope of their practice act, then the physician may delegate any of the defined medical services to that licensed nurse under general supervision, which may not require the physician to be on-site. It is imperative that the physician contact the Oklahoma Board of Nursing (405-962-1800) to find out the nurse's scope of practice and level of physician supervision required.
If the physician is utilizing any other Oklahoma recognized practitioner such as a certified micropigmentologist or licensed aesthetist, the physician must contact the Oklahoma Department of Health (405-271-6576) or the Board of Cosmetology (405-521-2441) respectively and find out the scope of their practice act and level of medical supervision required.
In no instance may a physician allow one of the aforementioned practitioners to further delegate the medical service to another practitioner.
Physicians who are medical directors for one or multiple medical spa and aesthetic facilities are subject to these guidelines.
When in doubt of a specific medical procedure/treatment and the corresponding level of supervision, the physician should contact the Oklahoma Board of Medical Licensure and Supervision or appropriate regulatory agency before potentially placing their medical license in jeopardy.
Reprinted from the Oklahoma State Board of Medical Licensure and Supervision Issues and Answers, Spring 2009
