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When does a Doctor have a Duty to Turn in Another Doctor under Illinois Law?

The Illinois State Medical Society has a Code of Ethics for its physician members.  ISMS makes it clear that their Code is not a law, but a standard developed to serve the best interest of patients.  The Code begins by cautioning physicians that they also owe a responsibility to society and other healthcare professionals.  Such duties include competent care with respect for human dignity, respect for the law and for the rights of patients and other colleagues, and a promise to continue to further their education in the medical field.  Of prominence in the Code is a canon to uphold access to medical services for all persons and to safeguard medicine’s responsibility to the patient as paramount. 

Under the Code, a physician is not required, but still must strive to report other physicians who may be deficient in character or competence, and those who engage in fraud or deception.  At first blush, it may seem a bit backward to cite patient responsibility as paramount, while not also requiring the immediate reporting of another physician known to be of low competence or who is committing fraud or deception, such behavior would seem to automatically signal a diminished value of patient care. On the flip side, physicians are charged with enormous responsibilities each and every day, oftentimes literally making life and death decisions.  Who is to say that one physician’s judgment is right or wrong, or that their actions are negligent or not?  Are colleagues able to draw a black and white line between what is the best patient care in a particular situation, or are there a million shades of gray? 

While peer reporting is not required in the ISMS Code of Ethics, there are some circumstances where reporting is mandated by statute.  The Illinois Medical Practice Act of 1987 225 ILCS 60/23 sets forth specific circumstances and instances where persons or entities are required to report a physician’s conduct.  The Chief Administrator and/or Chief Executive Officer of any licensed health care institution in Illinois must report when any person’s clinical privileges are terminated or restricted based on a final determination made in accordance with that institution’s by-laws or rules and regulations that a person has acted in a way that directly threatens patient care, or that a physician may have a mental or physical disability that may endanger patients under his or her care. Such officers must also report if a physician accepts voluntary termination or restriction of clinical privileges in lieu of formal action based upon conduct related directly to patient care or in lieu of formal action seeking to determine whether that individual may have a mental or physical disability that may endanger patients under his or her care. Program Directors of Clinical Training Programs shall report if an individual separate from the program prior to its conclusion. The President or CEO of any professional agency must report after rendering a final determination that a physician has committed unprofessional conduct related to patient care or suffers from a mental or physical disability that could endanger a patient.

In other words, when a physician is acting as a Chief Administrator, Clinical Program Director, or President of a professional agency, they have a duty to report physician misconduct, over and above the ISMS Code of Ethic’s “strive” standard.

Who else has a duty to report a physician’s misconduct under 225 ILCS 60/23? Liability insurers must report any settlements reached on behalf of insured physicians relating to negligence.  State Attorneys must report any felony conviction, and state agencies are obligated to report acts or conduct indicative of a mental or physical impairment that may affect patient care. 

In 2008, the Head of the Department of Surgery of the University Illinois College of Medicine and Surgery Chief for the University of Illinois Medical Center, filed suit relating to the mandatory reporting statutes discussed above.  See Abcarian v.  McDonald, et al.  The University had entered into a Settlement Agreement on Dr. Abcarian’s behalf, effectively rendering him a third-party beneficiary, and then statutorily reported the settlement to the medical board and the National Practitioner Data Bank.  Dr. Abcarian claimed he suffered violations of his free speech rights, his rights to equal protection of the law, and due process.  The Court found in favor of the University, upholding the mandatory reporting statutes.  Notable in the reporting is Dr. Abcarian’s inability to “tell his side of the story” relating to the negligence allegation leading to the settlement agreement.  The University settled on his behalf, and then reported him to the appropriate state and federal licensing boards, all without airing the doctor’s side of the story.  A blemish will always be on his professional record, even though no disciplinary action was ever taken against him. 

The American Medical Association has similarly issued Reporting Guidelines in §9.4.2 of its Code of Medical Ethics. The AMA expounds professional self-regulation, stating that reporting a colleague who is incompetent or who engages in unethical behavior is intended to protect patients and to appropriately assist the offending physician.  The AMA guidelines clearly state, “Physicians must not submit false or malicious reports.”  The guidelines include a model hierarchy for reporting, beginning with appropriate clinical authorities, notifying a peer review board of the medical facility and/or state medical society, and a report to the state licensing board if the threat is immediate.

While mandatory reporting of physician peers in everyday situations has not been codified by the ISMS, the AMA’s reasoning to protect patients is sound.  The limited circumstances in which mandatory reporting is required have a legitimate relationship to protecting patient safety; however, Dr. Abcarian’s case brings to light the potential harmful effects on a physician of the mandatory reporting. 

The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.

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