The Nexus Necessity: Disciplining Physicians for Non-Clinical Misconduct

The Nexus Necessity: Disciplining Physicians for Non-Clinical Misconduct

The aphorism “primum non nocere,” first I will do no harm,1 is well known. But Hippocrates recognized there was more to practicing medicine than not harming the patient. In the Hippocratic Oath, Hippocrates admonishes physicians to preserve the purity of their life and their arts. Hippocrates realized that beyond competence the physician must be a good person and professional.2 His admonishment has not faded or lost relevance over the ensuing 25 centuries.

In the 21st century we find that “in the practice of medicine, the application of knowledge is principally judgmental rather than mechanical. A personal relationship of trust and confidence must exist between a physician and his patient if the patient is to have confidence in the physician's professional judgment. We believe ‘the public has the right to expect the highest degree of integrity from members of the medical profession.’”3 The reason for a high level of trust is that “there is no other profession in which one passes so completely within the power and control of another as does the medical patient.”4 In Lawrence v. Board of Registration in Medicine, the court concluded that “mere intellectual power and scientific achievement without up- rightness of character may be more harmful than ignorance. Highly trained intelligence combined with disregard of the fundamental virtues is a menace.”5

Regulating this dual standard—quality care and good character—creates a challenge for state medical boards. When disciplining a physician, the state medical boards find it easier to impose discipline when the unprofessional6 behavior results in patient harm, such as wrong patient/wrong site surgery. But it becomes much more difficult when the unprofessional conduct has no affect on patient care, such as billing fraud. Setting aside the practical consideration in investigating claims of unprofessional conduct, this article focuses on legalities of applying the Medical Practice Act to conduct that does not affect patient care.

The Nexus Necessity

When turning to non-clinical misconduct, state legislatures and state medical boards should tread carefully. As demonstrated below, there is no doubt state medical boards can discipline physicians for non-clinical unprofessional conduct, but there are limitations. The initial and most difficult limitation state medical boards encounter in enforcing the Medical Practice Act for non-clinical unprofessional conduct is the constitutionality of the laws authorizing state medical boards' actions. The courts are clear that the substantive due process clause and the equal protection clause in the 14th amendment to the U.S. Constitution require state laws and actions to be clear so the physician knows what conduct is proscribed. “[T]he due process and equal protection clauses of the United States Constitution apply to disciplinary proceedings, and that no person may be prevented from practicing a profession except for valid reasons.”7 Indeed, constitutional considerations require that a statute “bar a person from practicing a lawful profession only for reasons related to his fitness or competence to practice that profession.”8 To do this, “there must be a sufficient ‘nexus’ between the asserted grounds for dismissal and the fitness to carry out the responsibilities of employment.”9 Therefore, it is necessary for the legislature, state medical boards or the courts to draw the nexus between the conduct and the profession.

The courts are nearly unanimous that “a professional license may be revoked only if the conduct upon which the revocation is based relates to the practice of the particular profession and thereby demonstrates an unfitness to practice such profession.”10 “[A] statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession.”11 One court held that “there must be a logical connection of licensees' conduct to their fitness or competence to practice the profession or to the qualifications, functions, or duties of the profession in question.”12 Thus the state can impose discipline on a professional license only if the conduct upon which the discipline is based relates to the practice of the particular profession and thereby demonstrates an unfitness to practice such profession.

Identifying the Nexus

It is the state medical board's responsibility to identify the nexus between conduct and the profession. The Matanky court held that “with regard to actions that do not directly affect patient care, the state medical board must demonstrate a nexus between the proscribed conduct and the practice of medicine. For a nexus to exist between the unprofessional conduct and the fitness or competence to practice medicine, it is not necessary for the misconduct forming the basis for discipline to have occurred in the actual practice of medicine. “[The medical board] is authorized to discipline physicians who have been convicted of criminal offenses not related to the quality of health care.”13 This decision makes it clear that the state medical board can identify the nexus in situations where there is no patient care.

The first place to look for the necessary nexus is the Medical Practice Act and associated rules. The legislature and subsequently the state medical board can establish a nexus through statutory process and rule making. One court concluded that by defining “more than one misdemeanor conviction involving alcohol consumption as unprofessional conduct … the Legislature has determined that a nexus exists between those convictions and a physician's fitness or competence to practice medicine. The issue is whether such convictions have a “logical connection” to a physician's fitness or competence to practice medicine.”14 Likewise, the Griffiths court found that by defining convictions for use, consumption, or self-administration of alcoholic beverages as unprofessional conduct, the statute satisfies the constitutional requirement that a nexus exist between the disciplined conduct and the physician's fitness and competence to practice medicine without any additional showing that the convictions or the alcohol consumption impaired Griffiths' practice of medicine.15

A California statute provides an example of a statutorily created nexus. In 16 § 1360, the California legislature provides that:

For the purposes of denial, suspension or revocation of a license, certificate or permit pursuant to Division 1.5 (commencing with Section 475) of the code, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a person holding a license, certificate or permit under the Medical Practice Act if to a substantial degree it evidences present or potential unfitness of a person holding a license, cer-tificate or permit to perform the functions authorized by the license, certificate or permit in a manner consistent with the public health, safety or welfare. Such crimes or acts shall include but not be limited to the following: Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision of the Medical Practice Act.

Most statutes are not as explicit as California's, but they can still create the nexus. A good example is Kentucky's statute KRS 311.597(4), in which the legislature provides that “it is unprofessional for a physician to take any action calculated to or has the effect of bringing the medical profession in disrepute including, but not limited to, violations of AMA/AOA ethics.”16

The courts are willing to allow the legislature to connect the disconnected. “The Legislature which presumptively legislated in a constitutional fashion . . . has determined that conviction of a doctor for a violation of the laws regulating narcotics and dangerous drugs or a doctor's personal non- prescribed use of such substances evidences a sufficient danger to the public that sanctions should be imposed regardless of the availability of evidence that such conduct in fact impaired the doctor's professional skill.”17 This similarly reflects the Federation of State Medical Boards' policy stating it is unprofessional to engage in conduct calculated to or having the effect of bringing the medical profession into disrepute, including but not limited to, violation of any provision of a national code of ethics acknowledged by the board.18

The Unconnected Connection

Sometimes statutes or rules do not establish the nexus between the prohibited act and the practice of medicine. In these instances, the courts have read into law a nexus where one does not explicitly exist. So, “where a licensing statute does not require a showing of a nexus between the licensee's conduct and the licensee's fitness or competence to practice, the statute must be read to include this “nexus” requirement to ensure its constitutionality.19 Further, “[a] presumption exists that in enacting a statute, the Legislature did not intend it to violate the Constitution, but instead intended to enact a valid statute within the scope of its constitutional powers. Therefore, we frequently have observed that a statute must be interpreted in a manner, consistent with the statute's language and purpose, which eliminates doubts as to the statute's constitutionality.”20 The act of dishonesty need not arise out of the practice of medicine to establish the required nexus. “For a nexus to exist between the misconduct and the fitness or competence to practice medicine, it is not necessary for the misconduct forming the basis for discipline to have occurred in the actual practice of medicine. The Medical Board is authorized to discipline physicians who have been convicted of criminal offenses not related to the quality of health care.”21

Not all courts agree that deriving a nexus is necessary. Two courts have held it is unnecessary to establish a nexus. The Weissbuch court held “there is no basis, constitutional or otherwise, for the courts to override that legislative determination by imposing a special requirement of ‘nexus’ between the proscribed conduct and professional conduct.”22 Likewise, the Wilson court concluded that no basis appears for creating a special requirement of ‘nexus’ where conviction of a crime is considered as a ground for discipline.23

The Board's Broad Authority

Some courts require boards to identify the nexus when one is not obvious. The Kvitka court noted that “the concerns with protecting the integrity of the profession and protecting the public are not unrelated. As an interest of the state, however, preserving professionalism is not an end in itself. Rather, it is an instrumental end pursued in order to serve the state's legitimate interest in promoting and protecting the public welfare. To perform their professional duties effectively, physicians must enjoy the trust and confidence of their patients. “Conduct that lowers the public's esteem for physicians erodes that trust and confidence, and so undermines a necessary condition for the profession's execution of its vital role in preserving public health through medical treatment and advice.”24 The board has broad authority to regulate the conduct of the medical profession,25 including the ability to sanction physicians for conduct which undermines public confi-dence in the integrity of the medical profession.26 Likewise, in Kindschi, a board had suspended a physician's license to practice medicine after he was convicted of tax fraud. The court upheld the board's action, and in doing so it took a broad view of the required relationship between the improper conduct and the practice of the profession. The court pointed out that a medical disciplinary proceeding is taken for two purposes: “to protect the public, and to protect the standing of the medical profession in the eyes of the public.”27

Not only may state medical boards draw the connection when necessary, they may draw the connection before there is an actual connection. “The protection of the public, the primary purpose of licensing statutes, does not require harm to a client before licensing discipline can take place. “[R]epeated criminal conduct, and the circumstances surrounding it, are indications of alcohol abuse that is adversely affecting petitioner's private life. We cannot and should not sit back and wait until petitioner's alcohol abuse problem begins to affect her practice of law.”28

Good Doctor/Bad Person Dilemma

Once the legislature, the state medical board or the court draws the nexus between the non- clinical conduct and the practice of medicine, the state medical board will encounter a “good doctor/bad person dilemma.” When searching to make a connection, boards may encounter a physician who is an excellent clinician or surgeon but has a lack of moral character. To discipline such a physician could result in the loss of a highly skilled, badly needed physician, but failure to discipline could bring the profession into disrepute. “A personal relationship of trust and confidence must exist between a physician and his patient if the patient is to have confidence in the physician's professional judgment.”29 “The public has the right to expect the highest degree of integrity from members of the medical profession.”30 “Mere intellectual power and scientific achievement without up-rightness of character may be more harmful than ignorance. Highly trained intelligence combined with disregard of the fundamental virtues is a menace.”31Matanky bluntly made the same point: “A physician can be subject to disciplinary action notwithstanding his technical competence or skill under circumstances where his moral character is in dispute. Intentional dishonesty, especially involving moral turpitude, demonstrates a lack of moral character and satisfies a finding of unfitness to practice medicine.”32

The Griffiths court held that “driving while under the influence of alcohol also shows an inability or unwillingness to obey the legal prohibition against drinking and driving and constitutes a serious breach of a duty owed to society. Knowledge of such repeated conduct by a physician, and particularly of its propensity to endanger members of the public, tends to undermine public confidence in and respect for the medical profession.”33

Likewise, the Burg court held that “convictions involving alcohol consumption reflect a lack of sound professional and personal judgment that is relevant to a physician's fitness and competence to practice medicine. Alcohol consumption quickly affects normal driving ability, and driving under the influence of alcohol threatens personal safety and places the safety of the public in jeopardy. It further shows a disregard of medical knowledge concerning the effects of alcohol on vision, reaction time, motor skills, judgment, coordination and memory, and the ability to judge speed, dimensions, and distance.”34

While the repeated excessive off duty use of alcohol demonstrates a clearer nexus, the courts and the state medical boards can identify a nexus in more nebulous situations. For example, the Windham court rejected the argument that personal income tax evasion did not reflect upon a doctor's professional qualifications.35 The Matanky court held that an intentional misdeed relating to third-party payors reflects adversely on a physician's fitness to practice medicine. It is irrelevant that it is a third party, and not a patient, who is being defrauded.36