Clinical Ethics in Anesthesiology. A Case-Based Textbook

5. Practice issues

38. Ethical considerations regarding the disabled anesthesiologist

Jonathan D. Katz

The Case

Dr. X is a 63-year-old right-handed, previously healthy, male anesthesiologist who suffered a stroke, resulting in a mild speech deficit and right-sided weakness. He underwent intensive rehabilitation with 90% recovery of his speech and other motor functions. However, as his physical status improved, a personality change became apparent, marked by uncharacteristic emotional swings and subtle errors in cognition and judgment. He was placed on a course of anti-depressants, which narrowed the mood swings and further improved his cognitive function sufficiently so that his physician declared him fully recovered. Family members and close friends, however, remained aware of cognitive deficits that manifested as forgetfulness and faulty decision making.

Dr. X claimed that he was “100%” back to his pre- stroke status. His close friends and family believed otherwise. Three months after his stroke he notified his partners of his intention to return to the full time practice of anesthesiology.

All individuals, if they live long enough, will suffer a disability for some period during their life. Physicians are no exception. At least one-third of all physicians will experience a disabling illness or injury during their professional careers.1 At any given time, 2%–10% of practicing physicians are suffering from some degree of disability.2

Identifying an individual as “disabled” is a complex diagnosis with profound personal, professional, and societal ramifications. Similar degrees of impairment can result in significant disability to one individual or a mere inconvenience to another or even to the same individual in different circumstances. For example, many wheel-chair users do not consider themselves disabled. And many deaf individuals consider themselves advantaged by possessing unique communication skills. It can require a ruling by the Supreme Court to determine ultimately whether or not an individual is “disabled.”

Definitions

Impairment is “any loss, loss of use, or derangement of any body part, organ system, or organ function.” The degree of impairment is an objective determination that is based upon both physical and psychological loss.3

Disability is “an alteration of an individual’s capacity to meet personal, social, or occupational demands, because of impairment.” Disabling conditions result from physical, mental, emotional, sensory, or developmental etiologies. Disabilities can have an acute onset, as occurs with injury or acute illness, or a more progressive onset, as occurs with many chronic diseases.3

Work disability is a subgroup in which an individual’s ability to perform his/ her expected work role is compromised as a result of impairment. Work disability is the result of a complex interaction between individual characteristics and behavior and the work environment.

An impaired physician is one who is unable to practice medicine with reasonable skill and safety because of mental illness, physical illness or condition, or the habitual or excessive use or abuse of alcohol or other substances that would adversely affect cognitive, motor, or perceptive skills.4

An incompetent physician is one who lacks the minimally acceptable levels of knowledge and skills needed to practice medicine. One can be incompetent without being impaired or impaired without being incompetent.

Legal considerations

There are several, often conflicting, principles that frame the legal environment in which an impaired physician finds him/herself.

A physician who accepts the privileges afforded by a state license to practice medicine also accepts many legal responsibilities. Paramount among these is the responsibility to remain physically, mentally and emotionally competent in his/her profession. The medical practice acts in most states include a requirement that physicians self-report if they become aware that their professional skills may be compromised. Most states also include a provision that provides certain protections to physician–patients who voluntarily enter into an appropriate program of rehabilitation. If a physician-patient successfully completes the prescribed rehabilitation program all information surrounding the episode of impairment remains confidential and protected from public disclosure.

The treating physician of an impaired physician-patient also has potentially conflicting legal obligations. To the extent that the disabled physician is a patient, he or she is entitled to the same rights and protections of privacy that are provided to non-physician patients. The confidentiality of the physician-patient’s medical history is recognized by federal and most state laws. The sanctity of medical records is also recognized by the American Medical Association (AMA) and most state medical societies.

On the other hand, considerations of patient confidentiality are superseded in situations where a patient poses a threat to him/herself, or to others. In many states there is an affirmative “duty to report” that would require a treating physician to report to the state licensing board any physician who is considered impaired for any reason. In many cases failure to report is potentially grounds for disciplinary action.

Disability law can impact the future practice decisions of an anesthesiologist who has suffered a disabling illness. Disability is one of the protected classes under United States federal nondiscrimination law. The most important of these statutes that directly bear on disabled anesthesiologists are the Rehabilitation Act of 1973,5 the Americans with Disabilities Act of 1990 (ADA),6 and the Family and Medical Leave Act.7 These laws prohibit covered employers from discriminating against applicants and employees solely because of disability. All aspects of employment are encompassed, including hiring and firing, training, advancement, compensation, and benefits. The laws go further by requiring that employers proactively offer equal opportunity to disabled employees by providing reasonable accommodations that do not cause them “undue hardship.”

Title II of the ADA pertains specifically to medical licensure. It prohibits state and local governments and their agencies from excluding a disabled individual from any government program, such as medical licensure or renewal. Title III of the ADA further extends the law to protect applicants to both public and private institutions, for example, medical schools.

There are notable exceptions to protections afforded by the ADA. Most important for this discussion is that an individual who poses a direct threat to the health and safety of others is not considered a “qualified person” with a disability.

In addition to the legal obligation to self-report if medical competence is compromised, the medical practice acts in many states also require that a physician report his or her colleague who they suspect of incompetent practice. The requirements and details of reporting vary from state to state and most states provide a framework to permit confidential reporting with immunity from civil lawsuits.

Ethical considerations

The medical profession is a moral community that is charged by society with the ethical duty to treat disease in such a manner as “to help, or at least to do no harm” (primum non nocere). Each of the individual components of the medical community must fulfill specific ethical duties in order to meet that public trust.

Ethical obligations of the physician

The ethical responsibility of each physician to maintain the highest standards of professional conduct is deeply ingrained in all ethical constructs for physicians. Thomas Percival articulated this obligation and the remedy that must be applied to those who do not meet it: “Let both the Physician and Surgeon never forget that their professions are public trusts, properly rendered lucrative whilst they fulfill them, but which they are bound by honor and probity to relinquish as soon as they find themselves unequal to their adequate and faithful execution.”8

The ethical codes of virtually all medical societies contain language that requires that members maintain mental and physical fitness in order to enable them to meet their ethical obligation of providing competent medical care. For example, the Code of Medical Ethics of the AMA specifies that physicians have an obligation to maintain their own health and wellness, by preventing and/or treating diseases including mental illness, disabilities, and occupational stress. The Code further explains that the effectiveness and safety of the medical care that is rendered is likely to be compromised if the health of the physician is in question. Finally, “[P]hysicians whose health or wellness is compromised should take measures to mitigate the problem, seek appropriate help as necessary, and engage in an honest self-assessment of their ability to continue practicing.” 9

The Ethics Manual of the American College of Physicians (ACP) makes a similar assertion that any impaired physician must refrain from assuming patient responsibilities. If there is any doubt of a physician’s capabilities he or she is required to seek assistance in caring for his or her patients.10

The Guidelines for the Ethical Practice of Anesthesiology of the American Society of Anesthesiologists (ASA) (Section IV.2) also specifically addresses this obligation to maintain physical and mental health and “special sensory capabilities” as a prerequisite to providing quality anesthesia care.11 The guideline continues by encouraging anesthesiologists to seek medical care if there is any doubt about their health. Moreover, during the period of medical evaluation and treatment, anesthesiologists are urged to modify or cease practice.

Ethical obligations to colleagues

Physicians have an ethical obligation beyond the legal requirement to intervene if they believe a colleague’s performance is impaired. This duty to report in part stems from each physician’s obligation to protect patients from harm – in this case at the hands of an impaired colleague. This requirement is also grounded in professionalism and the physician’s responsibility to self-regulate. This has been clearly articulated in the AMA’s written positions on physician impairment wherein all physicians are reminded of their ethical responsibility to “take cognizance of a colleague’s inability to practice medicine adequately” if that colleague is compromised by physical or mental illness.*12 The AMA’s Code of Ethics further reminds physicians of their ethical duty to report impaired, incompetent, and/or unethical colleagues and to ensure that these physicians cease practice and seek appropriate treatment.

Similarly, the code of ethics of the ACP states that it is the obligation of each physician to protect patients from any impaired colleague.10 There is a clear ethical imperative to report a physician who shows evidence of impairment to an appropriate authority.

The Guidelines for the Ethical Practice of Anesthesiology of the ASA (Section II.4) also requires of anesthesiologists that they advise impaired colleagues to modify or discontinue their practice/ Section III.2 declares that anesthesiologists have the ethical obligation to “observe and report to appropriate authorities any negligent practices or conditions which may present a hazard to patients or healthcare facility personnel.”11

Hand in hand with their duty to report, physicians also have a moral obligation to aid their colleagues in seeking help with disabling conditions. For example, the ASA guidelines include the additional ethical responsibility of assisting with the re-education or rehabilitation of a colleague who is returning to practice. This is an important moral duty that demonstrates respect and compassion for disabled colleagues and facilitates their ability to continue contributing to their profession and society. This duty was clearly articulated by Dr. Ulla Nielsen, of the Canadian Association of Physicians with Disabilities in a presentation to the Federation of Medical Licensing Authorities of Canada in June 2001:

It is easy to say “It’s (the problem of disability among physicians) not a big problem.” “It’s not my problem.” The problem is easy to ignore – out of sight, out of mind. But these are your colleagues. They deserve the respect you give to your other colleagues. They deserve to hear the questions, “What CAN you do? What can we do to help? How can we keep you involved? The worse disrespect of all is the ignoring, the dismissal, of the person. It could be you in those shoes tomorrow.”13

In practice, intervention with an impaired colleague can be a daunting task. Although it is widely recognized that competence and self- regulation are cornerstones of professionalism, little has been written on how to implement these lofty goals on a day-to-day basis. When a physician is treating a colleague, the ethical mandate to report can come into direct conflict with the treating physician’s obligation to protect the physician–patient’s confidentiality. On the one hand, the AMA Code of Medical Ethics asserts that some form of intervention or reporting to a licensing or disciplinary board is required if the physician is impaired, incompetent or behaving unethically. On the other hand, the treating physician is bound by contract to secrecy and may not disclose any aspects of the physician-patient’s medical care, except as required by law or when essential to protect patients from harm. Even when required by law, the treating physician is bound to only reveal the minimum amount of information that is required.

The ACP code also addresses this conflict between the dueling obligations to protect confidentiality and to report. The code makes the recommendation that a third party, independent of the treating physician, should monitor the impaired physician’s fitness for duty.10

Ethical duties of professional organizations

Professional and specialty societies have a duty to ensure that their members are capable of providing safe medical care. The AMA Code of Ethics specifies that this obligation is discharged by promoting health and wellness among physicians and intervening promptly when a colleague’s health or wellness is compromised. The Code also calls for the establishment of physician health programs. The importance of this obligation to ASA is evidenced by the fact that the Ethical Guidelines are the only ASA documents that are binding upon all of its members.

Case resolution

Dr. X has suffered a significant illness with residual disability that threatens to compromise his ability to provide safe anesthetic care. The burden of proof is on Dr. X to demonstrate that his skills are once again adequate to the challenging tasks of providing a safe anesthetic. His professional obligations to his patients require that he discontinue or at least curtail his practice until such time as it is clear to himself and to his advisors that he is once again capable of providing competent care.

If Dr. X is incapable or unwilling to accept an objective assessment of his limitations, his colleagues and the organizations of medicine share a duty to ensure that he does not return to practice until his level of competence is assured. This obligation might have to be exercised through legal channels.

Key points

• Up to one-third of physicians will suffer from a disabling injury or illness during their professional careers.

• Medical licensure carries ethical and legal responsibilities to maintain physical, mental and emotional abilities necessary to the safe practice of medicine.

• Physicians have ethical obligations to self-report problems that may compromise their ability to practice, and to take measures to mitigate the problem, seek appropriate help and honestly assess their ability to continue practice.

• Physicians have obligations of respect and compassion for disabled colleagues; to intervene if a colleague’s performance is impaired, and to engage disabled colleagues to the degree that they can in continued contribution to the profession.

• Professional organizations have duties to ensure that their members are capable of providing safe medical care.

References

1 Leape, L.L. and J.A. Fromson. (2006). Problem doctors: is there a system-level solution? Ann Intern Med144(2), 107–15.

2 DeLisa, J.A. and Thomas, P. (2005). Physicians with disabilities and the physician workforce: a need to reassess our policies. Am J Phys Med Rehabil84(1), 5–11.

3* American Medical Association. (2001). Guides to the Evaluation of Permanent Impairment. 5th edn. Chicago: American Medical Association.

4* Federation of the State Medical Boards of the United States, Inc. (1995) Report of the Ad Hoc Committee on Physician Impairment. [cited 2009 5/27]; Available from:http://www.fsmb.org/pdf/1995_grpol_Physician_Impairment.pdf.

5 29 U.S.C.  701 et seq.

6 42 U.S.C.  12101 et seq

7 29 U.S.C.  2601 et seq

8* Percival, T. (1803). Medical Ethics; Or, a Code of Institutes and Precepts, Adapted to the Professional Conduct of Physicians and Surgeons. London: Johnson and Bickerstaff

9* American Medical Association. (2008) Code of Medical Ethics: Current Opinions with Annotations, 2008–2009. [cited 2009 5/28]; Available from: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.shtml.

10* Snyder, L. and Leffler, C. (2005). Ethics manual: fifth edition. Ann Int Med142(7), 560–82.

11* American Society of Anesthesiologists. (2009). Guidelines for the ethical practice of Anesthesiology [cited 2009 5/27]; Available from: http://www.asahq.org/publicationsAndServices/standards/10.pdf.

12* The sick physician. Impairment by psychiatric disorders, including alcoholism and drug dependence. (1973). JAMA223(6), 684–712.

13 Nielsen, U.D. How big is the problem of disability among physicians? June, 2001 [cuted 2010 1/06]; Available from: http://www.capd.ca/How_BIG_is....htm.

Further reading

Rich, C.F. (1999). Physician licensing and the Americans with Disabilities Act. An update on the Minnesota Board of Medical Practice. Minn Med82(1), 30–1, 43.

Rosenbaum, J.R.Bradley, E.HHolmboe, E.S.et al. (2004). Sources of ethical conflict in medical housestaff training: a qualitative study. Am J Med116(6), 402–7.

Steinberg, A.G.Lezzoni, L.I.Conill, A., and Stineman, M. (2002). Reasonable accommodations for medical faculty with disabilities. JAMA288(24), 3147–54.