On Medical Malfeasance

[Guest guest]

From: LK Woodruff

On Medical Malfeasance

~~~~~~~~~~~~~~~~~~~

I see 'red' when patients and media readily accept without

question or scrutiny what some self-appointed 'experts'

offer as testimony, so today I decided to look into the

issue of 'medical malfeasance' more.

Below is an outline of what effect negligent medical

malfeasance can have, followed by what many consider to

be the best Code of Professional Conduct , written by the

American Academy of Neurology.

I suggest to all patients around the world that we start to

expect/demand far better than we have gotten, to date.

particularly from those--like the Wesseley School--who

work overtime trying to denigrate both our illness, and

us...by going through the legal channels, when potential

consequences for noncompliance occur.

-->We need to hold them accountable, because these

charlatans efforts keep our health at continued risk. And

that is ethically and morally unconscionable.

And further, I suggest that perhaps we need to draft our

own Code of Ethics to adhere to, to ensure that all medical

participants meet the highest standards, have the proper

training and background, are published in peer reviewed

journals, and have treated many patients with ME, as well

as are up-to-date in their knowledge about what is

currently known about the illness of ME (Myalgic

Encephalomyelitis)...before allowing them to speak

publicly and represent us and our cause.

Because things like: Professional Competence, Personal

Conduct, Conflicting Ethical Duties, and Conflicts of

Interest are very important considerations for researchers

who are charged with moving ahead to deal with the

SCIENCE and the FACTS, and work to understand the full

etiology of ME.

LKW

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Expert witness malfeasance: how should specialty

societies respond?

There is little doubt that severe distortions are present in

the legal adjudication of professional medical liability.

The medical expert witness plays an important, often

crucial, role in the medical liability cases. The expert:

* assesses medical information,

* interprets and explains medical uncertainty, medical

research, and customary practice for a nonscientific jury,

and

* offers an expert level opinion as to whether the

standard of medical care was met.

When expert witnesses not merely disagree, but

* misrepresent data,

* misrepresent their background credentials and

expertise, and

* offer egregiously false testimony,

the legal process is violated, and verdicts may be

distorted.

Many medical and surgical professional organizations,

including the American Medical Association, have adopted

programs that provide guidelines for members who serve

as medical expert witnesses in professional liability

cases.

The American Association of Neurological Surgeons

(AANS) was the first to develop a program to deal with

irresponsible expert witness testimony. That program

involves a published code of conduct, which outlines the

expectations of society regarding expert witness

testimony, and potential consequences for

noncompliance. To date, the AANS program has

withstood court challenge, in fact, has received judicial

praise.

Other medical societies, including the American College of

Gastroenterology (ACG), have reviewed efforts by others

and are considering developing their own programs.

Feld AD,

Carey WD

University of Washington and Group Health ative,

Seattle, Washington.

http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve & db=PubMed & list_uids=1\

5842567 & dopt=Abstract

PMID: 15842567 [PubMed - indexed for MEDLINE]

~~~~

American Academy of Neurology

Code of Professional Conduct

Preface

The Ethics and Humanities Subcommittee of the Practice

Committee of the American Academy of Neurology

developed the Code of Professional Conduct to formalize

the standards of professional behavior for neurologist

members of the Academy. The primary goal of the Code is

to promote the highest quality of neurologic care. The

Code is framed to outline the set of professional

standards that neurologists must observe in their clinical

and scientific activities.

The Code embodies traditional medical ethical standards

dating from the time of Hippocrates as well as more

contemporary standards. It includes general principles of

medical ethics and provides their application to the

specific demands of neurologic practice. The Code is

delineated to be generally consistent with the American

Medical Association Code of Medical Ethics and the

American Medical Association Current Opinions of the

Council on Ethical and Judicial Affairs.

The Code is written in relatively broad language. It is

designed to be a dynamic instrument that can grow and

change in response to future developments in the practice

and science of neurology. While ethical principles do not

change with time, developments in science, technology,

and clinical practice may lead to a change in application of

these ethical principles.

The Code outlines the standards of professional conduct

for Academy members. Violations of these standards may

serve as the basis for disciplinary action as provided in

the Bylaws of the Academy.

1.0 The Neurologist-Patient Relationship

1.1 The Practice of Neurology

The profession of neurology exists primarily to study,

diagnose and treat disorders of the nervous system. The

neurologist-patient relationship forms the foundation for

neurologic care.

1.2 Fiduciary and Contractual Basis

The neurologists has fiduciary and contractual duties to

patients. As a fiduciary, the neurologist has an ethical duty

to consider the interests of the patient first. As a party to

an implied contract, the neurologist has a duty to practice

competently and to respect patients' autonomy,

confidentiality, and welfare.

1.3 Beginning and Ending the Relationship

The neurologist is free to decide whether or not to

undertake medical care of a particular person. The

neurologist must not decline a patient on the basis of race,

religion, nationality, or gender. Once the relationship has

begun, the neurologist must provide care until care is

complete, the patient ends the relationship, or the

neurologist returns the patient to the care of the referring

physician. If the neurologist justifiably desires to end the

relationship, and if continued neurologic care is

appropriate, he/she should assist in arranging care by

another neurologist.

1.4 Informed Consent

The neurologist must obtain the patient's consent for tests

or treatment. The neurologist should disclose information

that the average person would need to know to make an

appropriate medical decision. This information should

include benefits, risks, costs, and alternatives to the

proposed treatment. If the patient lacks medical

decision-making capacity, the neurologist must obtain

informed consent from an appropriate proxy.

1.5 Communication

The neurologist has a duty to communicate effectively

with the patient. The neurologist should convey relevant

information in terms the patient can understand and allow

adequate opportunity for the patient to raise questions

and discuss matters related to treatment.

1.6 Emergency Care

In an emergency situation, the neurologist should render

services to the patient to the best of his/her ability. While

obtaining informed consent is desirable before beginning

treatment, the neurologist should not delay urgently

needed treatment because of concerns about informed

consent.

1.7 Medical Risk to the Physician

A neurologist should not refuse to care for a patient solely

because of the real or perceived medical risk to the

neurologist. The neurologist should take appropriate

precautions to minimize his/her medical risk.

1.8 Medical Decision-Making

The patient has the ultimate right to accept or reject the

neurologist's recommendation about medical treatment.

The neurologist should respect decisions made by

patients with decision-making capacity and by the lawful

proxy of patients who lack decision-making capacity. If the

neurologist cannot honor the patient's or proxy's

decision, the neurologist should seek to arrange transfer

of the patient's care to another physician.

2.0 General Principles of Neurologic Care

2.1 Professional Competence

The neurologist must practice only within the scope of

his/her training, experience, and competence. The

neurologist should provide care that represents the

prevailing standards of neurologic practice. To this end,

neurologists should participate in a regular program of

continuing education.

2.2 Consultation

The neurologist should obtain consultations when

indicated. The neurologist should refer patients only to

competent practitioners and should assure that adequate

information is conveyed to the consultant. Any differences

of opinion between the neurologist and consultant or

between the neurologist and their referring physician

should be resolved in the best interest of the patient.

2.3 Confidentiality

The neurologist must maintain patient privacy and

confidentiality. Details of the patient's life or illness must

not be publicized.

2.4 Patient Records

The neurologist should prepare records that include

relevant history, neurologic findings, assessment, and

plan of evaluation and treatment. Patients are entitled to

information within their medical records.

2.5 Professional Fees

The neurologist is entitled to reasonable compensation for

medical services to or on behalf of patients. The

neurologist should receive compensation only for

services actually rendered or supervised. The neurologist

must not receive a fee for making a referral ( " fee-splitting " )

or receive a commission from anyone for an item or

service he/she has ordered for a patient ( " kickback " ). The

agreed upon division of practice income among members

of an organized medical group is acceptable.

2.6 Appropriate Services

The neurologist should order and perform only those

services that are medically indicated.

3.0 Special Categories of Neurologic Care

3.1 The Dying Patient

The neurologist should strive to relieve the suffering of

dying patients. The neurologist should respect the

expressed wishes of dying patients about life-prolonging

therapy, including lawful advance directives.

3.2 The Profoundly Paralyzed Patient

The neurologist should attempt to enhance the

independence and communication of profoundly

paralyzed patients. Patients with advanced degrees of

paralysis who retain decision-making capacity should be

encouraged and assisted to participate in decisions about

their medical care including decisions about withdrawing

life-support.

3.3 The Demented Patient

The neurologist should define a course of treatment which

respects the wishes expressed by the patient before

dementia had impaired decision-making capacity. If such

wishes are not ascertainable, the neurologist should be

guided about appropriate treatment by the patient's lawful

proxy.

3.4 The Patient in a Persistent Vegetative State

The neurologist managing the patient in a persistent

vegetative state should follow the provisions of lawful

advance directives for medical care and, in their absence,

the health care decisions of a lawfully authorized proxy.

3.5 The Brain-Dead Patient

The neurologist should determine brain death using

accepted tests and techniques. The neurologist should be

mindful that some patients may have religious or other

strongly held objections to the concept of brain death.

Compassionate management in these situations is

desirable.

4.0 Personal Conduct

4.1 Respect for the Patient

The neurologist must treat patients with respect, honesty,

and conscientiousness. The neurologist must not abuse

or exploit the patient psychologically, sexually, physically,

or financially.

4.2 Respect for Agencies and the Law

The neurologist should observe applicable laws. Because

agencies may impact on patients' welfare, the neurologist

should cooperate and comply with reasonable requests

from insurance, compensation, reimbursement, and

government agencies within the constraints of patient

privacy and confidentiality.

4.3 Maintenance of the Neurologist's Personal Health

The neurologist should strive to maintain physical and

emotional health. The neurologist should refrain from

practices that may impair capacities to provide adequate

patient care.

5.0 Conflicts Of Interest

5.1 The Patient's Interest is Paramount

Whenever a conflict of interest arises, the neurologist

must attempt to resolve it in the best interest of the patient.

If the conflict cannot be eliminated, the neurologist should

withdraw from the care of the patient.

5.2 Avoidance and Disclosure of Potential Conflicts

The neurologist must avoid practices and financial

arrangements that would, solely because of personal gain,

influence decisions in the care of patients. Financial

interests of the neurologist that might conflict with

appropriate medical care should be disclosed to the

patient.

5.3 Dispensing Medication

The neurologist may dispense medication, assistive

devices, and related patient-care items as long as this

practice provides a convenience or an accommodation to

the patient without taking financial advantage of the

patient. The patient should be given a choice to accept the

dispensed medication or device or to have a prescription

filled outside the neurologist's office.

5.4 Health-Care Institutional Conflicts

The neurologist generally should support his patient's

medical interests when they are compromised by policies

of a health-care institution or agency. Physicians

employed by healthcare institutions should represent the

patient's medical interests and serve as their medical

advocate to the institutional administration.

5.5 Conflicting Ethical Duties

While a neurologist ordinarily must respect a patient's

confidentiality, there are circumstances in which a breach

of confidentiality may be justified. When the neurologist is

aware that an identifiable third party is endangered by a

patient, the neurologist must take reasonable steps to

warn the third party. When the neurologist is aware that

members of the general public are endangered by a

patient, the neurologist must take reasonable steps to

advise responsible public officials or agencies of that

danger.

6.0 Relationships with Other Professionals

6.1 ation with Health Care Professionals

The neurologist should cooperate and communicate with

other health care professionals, including other

physicians, nurses, and therapists, in order to provide the

best care possible to patients.

6.2 Peer Review

The neurologist should participate in peer review activities

in order to promote the best care possible of patients.

6.3 Criticism of a Colleague

The neurologist should not unjustifiably criticize a

colleague's judgment, training, knowledge, or skills.

Neurologists should not knowingly ignore a colleague's

incompetence or professional misconduct, thus

jeopardizing the safety of the colleague's present and

future patients.

6.4 Legal Expert Testimony

The neurologist called upon to provide expert medical

testimony should testify only about those subjects for

which the neurologist is qualified as an expert by training

and experience. Before giving testimony the neurologist

should carefully review the relevant records and facts of

the case and the prevailing standards of practice. In

providing testimony, the neurologist should provide

scientifically correct and clinically accurate opinions.

Compensation for testimony should be reasonable and

commensurate with time and effort spent, and must not be

contingent upon outcome.

6.5 Health Care Organizations

The neurologist may enter into contractual agreements

with managed health care organizations, prepaid practice

plans, or hospitals. The neurologist should retain control

of medical decisions without undue interference. The

patient's welfare must remain paramount.

6.6 The Impaired Physician

The neurologist should strive to protect the public from an

impaired physician and to assist the identification and

rehabilitation of an impaired colleague.

7.0 Relationships with the Public and Community

7.1 Public Representation

The neurologist should not represent himself/herself to

the public in an untruthful, misleading, or deceptive

manner. A patient's medical condition must not be

discussed publicly without the patient's consent.

7.2 Duties to Community and Society

Neurologists should work toward improving the health of

all members of society. This may include participation in

educational programs, research, public health activities,

and the provision of care to patients who are unable to

pay for medical services. The neurologist should be aware

of the limitation of society's health care resources and

should not squander those finite resources by ordering

unnecessary tests and ineffective treatments.

7.3 Disclosure of Potential Conflicts

Neurologists who make written or oral public statements

concerning a product of a company from which they

receive compensation or support, or in which they hold a

significant equity position, have a duty to disclose their

financial relationship with the company in that public

statement.

8.0 Clinical Research

8.1 Institutional Review

The neurologist who participates in clinical research must

ascertain that the research has been approved by an

Institutional Review Board (IRB) or other comparable body

and must observe the requirements of the approved

protocol.

8.2 Disclosure of Potential Conflicts

The neurologist who is paid for treating patients in a

clinical research project should inform the patient of any

compensation the neurologist receives for the patient's

participation. The compensation for patient treatment

should be reasonable in amount. The neurologist should

not bill the patient or the insurer for services already

compensated by the study sponsor.

8.3 Individual Patient Experimentation

The neurologist who begins a patient on an experimental

therapy that has not been approved as a valid clinical

study by an IRB should obtain informed consent from the

patient.

8.4. Reporting Research Results

The neurologist should publish research results truthfully,

completely, and without distortion. In reporting research

results to the news media, the neurologist should make

statements that are clear, understandable, and

supportable by the facts. Neurologists should not

publicize results of research until after the data have been

subjected to appropriate peer review.

Portions of this Code were modified from the following

codes of professional ethics and professional conduct:

1.American Academy of Orthopaedic Surgeons: Guide to

the Ethical Practice of Orthopaedic Surgery, 1990. 2.

American Association of Neurological Surgeons:

American Association of Neurological Surgeons Code of

Ethics. 3.American Academy of Ophthalmology: Code of

Ethics of the American Academy of Ophthalmology, Inc.,

1991. 4. American College of Physicians: American

College of Physicians Ethics Manual. Part I: history; the

patient; other physicians; ls of Internal Medicine;

1989; 111:245-252. 5. American College of Physicians:

American College of Physicians Ethics Manual. Part II: the

physician and society; research; life-sustaining treatment;

other issues. ls of Internal Medicine; 1989;

111:327-335. 6. American College of Surgeons: American

College of Surgeons Statements on Principles, 1989. 7.

American Psychiatric Association: The Principles of

Medical Ethics with Annotations Especially Applicable to

Psychiatry, 1989. 8. American Medical Association: Code

of Medical Ethics and Current Opinions of the American

Medical Association Council on Ethical and Judicial

Affairs, 1992. Approved PC 02/93. Approved EB 02/93.

Ethics and Humanities Subcommittee: Cranford,

MD-Chair, H. Beresford, MD, L. Bernat, MD,

Gastone G. Celesia, MD, Maynard M. Cohen, MD, P.

Conomy, MD, R. Delfs, MD, P. Foa, MD,

Alison Wichman, MD (Copyright 1993-American Academy

of Neurology)

Last updated: Jul 15, 2005

Content provided by: Ethics Standards

http://www.ama-assn.org/ama/pub/category/13339.html