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| TEXAS BOARD ETHICS GUIDELINES http://www.tmb.state.tx.us/rules/rules/bdrules.php From: Disciplinary Guidelines, Subchapter B, Violation Guidelines, §190.8 RULE §190.8 Violation Guidelines When substantiated by credible evidence, the following acts, practices, and conduct are considered to be violations of the Act. The following shall not be considered an exhaustive or exclusive listing. (1) Practice Inconsistent with Public Health and Welfare. Failure to practice in an acceptable professional manner consistent with public health and welfare within the meaning of the Act includes, but is not limited to: (A) failure to treat a patient according to the generally accepted standard of care; (B) negligence in performing medical services; (C) failure to use proper diligence in one's professional practice; (D) failure to safeguard against potential complications; (E) improper utilization review; (F) failure to timely respond in person when on-call or when requested by emergency room or hospital staff; (G) failure to disclose reasonably foreseeable side effects of a procedure or treatment; (H) failure to disclose reasonable alternative treatments to a proposed procedure or treatment; (I) failure to obtain informed consent from the patient or other person authorized by law to consent to treatment on the patient's behalf before performing tests, treatments, or procedures; (J) termination of patient care without providing reasonable notice to the patient; (K) prescription or administration of a drug in a manner that is not in compliance with Chapter 200 of this title (relating to Standards for Physicians Practicing Complementary and Alternative Medicine) or, that is either not approved by the Food and Drug Administration (FDA) for use in human beings or does not meet standards for off-label use, unless an exemption has otherwise been obtained from the FDA; (L) prescription of any dangerous drug or controlled substance without first establishing a proper professional relationship with the patient. (i) A proper relationship, at a minimum requires: (I) establishing that the person requesting the medication is in fact who the person claims to be; (II) establishing a diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing. An online or telephonic evaluation by questionnaire is inadequate; (III) discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and (IV) ensuring the availability of the licensee or coverage of the patient for appropriate follow-up care. (ii) A proper professional relationship is also considered to exist between a patient certified as having a terminal illness and who is enrolled in a hospice program, or another similar formal program which meets the requirements of subclauses (I) through (IV) of this clause, and the physician supporting the program. To have a terminal condition for the purposes of this rule, the patient must be certified as having a terminal illness under the requirements of 40 TAC ¡±97.403 and 42 CFR 418.22. (M) inappropriate prescription of dangerous drugs or controlled substances to oneself, family members, or others in which there is a close personal relationship that would include the following: (i) prescribing or administering dangerous drugs or controlled substances without taking an adequate history, performing a proper physical examination, and creating and maintaining adequate records; and (ii) prescribing controlled substances in the absence of immediate need. "Immediate need" shall be considered no more than 72 hours. (2) Unprofessional and Dishonorable Conduct. Unprofessional and dishonorable conduct that is likely to deceive, defraud, or injure the public within the meaning of the Act includes, but is not limited to: (A) violating a board order; (B) failing to comply with a board subpoena or request for information or action; (C) providing false information to the board; (D) failing to cooperate with board staff; (E) engaging in sexual contact with a patient; (F) engaging in sexually inappropriate behavior or comments directed towards a patient; (G) becoming financially or personally involved with a patient in an inappropriate manner; (H) referring a patient to a facility without disclosing the existence of the licensee's ownership interest in the facility to the patient; (I) using false, misleading, or deceptive advertising; (J) providing medically unnecessary services to a patient or submitting a billing statement to a patient or a third party payer that the licensee knew or should have known was improper. "Improper" means the billing statement is false, fraudulent, misrepresents services provided, or otherwise does not meet professional standards; (K) behaving in an abusive or assaultive manner towards a patient or the patient's family or representatives that interferes with patient care or could be reasonably expected to adversely impact the quality of care rendered to a patient; (L) failing to timely respond to communications from a patient; (M) failing to complete the required amounts of CME; (N) failing to maintain the confidentiality of a patient; (O) failing to report suspected abuse of a patient by a third party, when the report of that abuse is required by law; (P) failing to report suspected abuse of a patient by a third party, when the report of that abuse is required by law; (Q) behaving in a disruptive manner toward licensees, hospital personnel, other medical personnel, patients, family members or others that interferes with patient care or could be reasonably expected to adversely impact the quality of care rendered to a patient; (R) entering into any agreement whereby a licensee, peer review committee, hospital, medical staff, or medical society is restricted in providing information to the board; and (S) commission of the following violations of federal and state laws whether or not there is a complaint, indictment, or conviction: (i) any felony; (ii) any offense in which assault or battery, or the attempt of either is an essential element; (iii) any criminal violation of the Medical Practice Act or other statutes regulating or pertaining to the practice of medicine; (iv) any criminal violation of statutes regulating other professions in the healing arts that the licensee is licensed in; (v) any misdemeanor involving moral turpitude as defined by paragraph (6) of this section; (vi) bribery or corrupt influence; (vii) burglary; (viii) child molestation; (ix) kidnapping or false imprisonment; (x) obstruction of governmental operations; (xi) public indecency; and (xii) substance abuse or substance diversion. (3) Disciplinary actions by another state board. A voluntary surrender of a license in lieu of disciplinary action or while an investigation or disciplinary action is pending constitutes disciplinary action within the meaning of the Act. The voluntary surrender shall be considered to be based on acts that are alleged in a complaint or stated in the order of voluntary surrender, whether or not the licensee has denied the facts involved. (4) Disciplinary actions by peer groups. A voluntary relinquishment of privileges or a failure to renew privileges with a hospital, medical staff, or medical association or society while investigation or a disciplinary action is pending or is on appeal constitutes disciplinary action that is appropriate and reasonably supported by evidence submitted to the board, within the meaning of section 164.051(a)(7) the Act. (5) Repeated or recurring meritorious health care liability claims. It shall be presumed that a claim is "meritorious," within the meaning of section 164.051(a)(8) of the Act, if there is a finding by a judge or jury that a licensee was negligent in the care of a patient or if there is a settlement of a claim without the filing of a lawsuit or a settlement of a lawsuit against the licensee in the amount of $50,000 or more. Claims are "repeated or recurring," within the meaning of section 164.051(a)(8) of the Act, if there are three or more claims in any five-year period. The date of the claim shall be the date the licensee or licensee's medical liability insurer is first notified of the claim, as reported to the board pursuant to section 160.052 of the Act or otherwise. (6) Discipline based on Criminal Conviction. The board is authorized by the following separate statutes to take disciplinary action against a licensee based on a criminal conviction: (A) Felonies. (i) Section 164.051(a)(2)(B) of the Medical Practice Act, section 204.303(a)(2) of the Physician Assistant Act, and section 203.351(a)(7) of the Acupuncture Act, (collectively, the "Licensing Acts") authorize the board to take disciplinary action based on a conviction, deferred adjudication, community supervision, or deferred disposition for any felony. (ii) Chapter 53, Tex. Occ. Code authorizes the board to revoke or suspend a license on the grounds that a person has been convicted of a felony that directly relates to the duties and responsibilities of the licensed occupation. (iii) Because the provisions of the Licensing Acts may be based on either conviction or a form of deferred adjudication, the board determines that the requirements of the Act are stricter than the requirements of Chapter 53 and, therefore, the board is not required to comply with Chapter 53, pursuant to section 153.0045 of the Act. (iv) Upon the initial conviction for any felony, the board shall suspend a physician's license, in accordance with section 164.057(a)(1)(A), of the Act. (v) Upon final conviction for any felony, the board shall revoke a physician's license, in accordance with section 164.057(b) of the Act (B) Misdemeanors. (i) Section 164.051(a)(2)(B) of the Act authorizes the board to take disciplinary action based on a conviction, deferred adjudication, community supervision, or deferred disposition for any misdemeanor involving moral turpitude. (ii) Chapter 53, Tex. Occ. Code authorizes the board to revoke or suspend a license on the grounds that a person has been convicted of a misdemeanor that directly relates to the duties and responsibilities of the licensed occupation. (iii) For a misdemeanor involving moral turpitude, the provisions of section 164.051(a)(2) of the Medical Practice Act and section 205.351(a)(7) of the Acupuncture Act, may be based on either conviction or a form of deferred adjudication, and therefore the board determines that the requirements of these licensing acts are stricter than the requirements of Chapter 53 and the board is not required to comply with Chapter 53, pursuant to section 153.0045 of the Act. (iv) The Medical Practice Act and the Acupuncture Act do not authorize disciplinary action based on conviction for a misdemeanor that does not involve moral turpitude. The Physician Assistant Act does not authorize disciplinary action based on conviction for a misdemeanor. Therefore these licensing acts are not stricter than the requirements of Chapter 53 in those situations. In such situations, the conviction will be considered to directly relate to the practice of medicine if the act: (I) arose out of the practice of medicine, as defined by the Act; (II) arose out of the practice location of the physician; (III) involves a patient or former patient; (IV) involves any other health professional with whom the physician has or has had a professional relationship; (V) involves the prescribing, sale, distribution, or use of any dangerous drug or controlled substance; or (VI) involves the billing for or any financial arrangement regarding any medical service; (v) Misdemeanors involving moral turpitude. Misdemeanors involving moral turpitude, within the meaning of the Act, are those that involve dishonesty, fraud, deceit, misrepresentation, deliberate violence, or that reflect adversely on a licensee's honesty, trustworthiness, or fitness to practice under the scope of the person's license. (C) In accordance with section 164.058 of the Act, the board shall suspend the license of a licensee serving a prison term in a state or federal penitentiary during the term of the incarceration regardless of the offense. This section of the chapter was last updated on January 25, 2006. FROM: Statement on Ethical Advertising Editor's note: the following article appeared in the Fall/Winter 1994 issue of the Board newsletter. It is the purpose of this "Statement on Ethical Advertising" to explain some of the legal and ethical aspects of advertising in order to ensure truth in advertising, to promote the well-being of patients, and to help physicians avoid being subject to sanctions by the Texas State Board of Medical Examiners. Within the medical profession and in the not too distant past, any advertising by physicians beyond their name, address, telephone number and specialty was considered unethical if not illegal. The rationale was to avoid solicitation or drumming of patients who, because of their medical circumstances, were particularly vulnerable to undue influence. The reality today is that "truthful" advertising in any media is considered not only ethical but also legal. The rationale is that truthful advertising not only serves to better educate patients toward a more informed decision and choice regarding their medical care, but also enhances competitiveness among providers. The key word here, however, is "truthful." "Truth" in advertising can often be as difficult to establish as the concept of "quality." Truth in advertising, however, must be verifiable since false, misleading or deceptive advertising is not only unethical but also illegal and subject to sanctions by both the Federal Trade Commission and the Texas State Board of Medical Examiners, as well as a lawsuit by patients.
B. Rules to avoid false, deceptive or misleading advertising1 In order to avoid false, deceptive or misleading advertising several rules to follow include but are not limited to the following four: (a) Advertisements should not contain material false claims or misrepresentations of material fact. (b) Advertisements should not contain material implied false claims or implied misrepresentations of material fact. (c) There should not be omissions of material fact from advertisements. (d) Physicians should be able to substantiate material objective claims and representations made in an advertisement. While applying these rules is certainly more difficult than simply outlining them, they nevertheless can serve as "guidelines" to obtain direction in advertising. The following "laws" apply to advertising. C. Applicable federal and state laws regarding false, deceptive or misleading advertising. (1) The Federal Trade Commission Act, 15 U.S.C. Sec. 45 subjects the physician who disseminates false, deceptive or misleading advertising to suit by the FTC, fines and injunctions to cease and desist from dissemination of such advertising. (2) Tex. Occ. Code Ann. §101.201 (Vernon 2000 Pamphlet) provides: § 101.201. False, Misleading, or Deceptive Advertising (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification. (b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that: (1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (4) contains a testimonial; (5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional; (6) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (7) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (9) represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999 (3) Texas Occupations Code, Sections 151.001-165.160 (Vernon 2000 Pamphlet) authorizes the Texas State Board of Medical Examiners to take disciplinary action against a licensed Texas physician for the following: (a) Sec 164.052(6); use of any advertising statement that is false, misleading, or deceptive; and, 164.052(7), advertising professional superiority or the performance of professional service in a superior manner if the advertising is not readily subject to verification. However, Section 153.002, restrictions on bidding and advertising, provides the following: § 153.002. Rules Restricting Advertising or Competitive Bidding (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person (b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that: (1) restricts the use of any advertising medium; (2) restricts the person's personal appearance or the use of the person's voice in an advertisement; (3) relates to the size or duration of an advertisement by the person; or (4) restricts the person's advertisement under a trade name. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. All of the above sections of the Texas Occupations Code, with the limitations set out in Section 153.002, subject the advertising physician to sanctions by the Texas State Board of Medical Examiners for advertising violations. (4) Texas State Board of Medical Examiners Board Rules and Regulations, 22 TAC Sec. 164.1 (West 1994) regarding misleading or deceptive advertising provides: (a) A physician's authorization of or use in any advertising for his or her practice of the term "Board Certified" or any similar words or phrase calculated to convey the same meaning shall constitute misleading or deceptive advertising under the Act, Sec 164.052, unless the physician discloses the complete name of the specialty board which conferred the aforementioned certification. (b) A physician may not use the term "Board Certified" or any similar words or phrase calculated to convey the same meaning if the claimed board certification has expired and has not been renewed at the time the advertising in question was published or broadcast. While these laws more or less clarify what is legal or illegal advertising, a more difficult task is to specify what is ethical or unethical. It is within the realm of possibility that advertising can be both legal and yet unethical. Because of some patients' position of vulnerability they may be unduly influenced by advertising that is perhaps legal but unethical since it may direct them to use the advertised services to their detriment rather than betterment. Under these circumstances it is a physician's duty to adhere to a higher standard in advertising so that no undue influence is placed on any patient. Unethical behavior which leads to the detriment of patients, whether it is in and of itself legal, is still subject to discipline by the Texas State Board of Medical Examiners based on unprofessional and dishonorable conduct or failure to practice medicine in an acceptable manner. It is the responsibility of each physician to carefully scrutinize his advertisements and adhere to the highest ethical standards of truth in advertising. What follows are specific areas of concern in advertising that physicians should fully understand and implement carefully. D. Specific areas of advertising concern (1) Uninvited solicitation: any uninvited solicitation such as door-to-door solicitation of a given population or other such tactics for "drumming" patients is prohibited by the Medical Practice Act of Texas. (2) Advertising not identified as advertising: any article or other presentation written or produced in any media by physicians must not be vague as to their intent as advertising. (3) Representation about the quality of care: since "quality" is such an ethereal concept to define and even more difficult to substantiate objectively it should be avoided. Publication of clinical outcomes and patient surveys may be used if substantiated. (4) Physician qualifications: qualifications should not be exaggerated or imply a level of training or education or competence that the physicians did not indeed receive or that he possesses and, of course, these qualifications must be substantiated. (5) Board certification: if board certification is claimed then the certifying board must be named. Simply to state that the physician is board certified is inadequate and subject to discipline by the Texas State Board of Medical Examiners. Furthermore, the certifying organization must indeed be a reputable organization that performs in good faith a rigorous review of the certified physician's qualifications so that it is not simply a sham. (6) Exclusive or unique skills claimed: if a physician claims to have a unique or exclusive skill, then substantiation of such claim must be available. (7) Fees and costs and offers of free service: fees and costs must be truthful. If other costs are frequently incurred when the advertised service is obtained then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action. (8) Waiver of Medicare or Medicaid co-payment: Federal law prohibits "routine" waiver of co-payments and deductibles. Advertising such waivers and carrying them out subjects the physician to sanctions as well as criminal prosecution. v 1Draft, Guidelines for Truthful Advertising of Physician Services, The Office of the General Counsel of The American Medical Association, January 10, 1992. 2Emphasis added by author FROM: Physician/Patient Intimacy From the Texas State Board of Medical Examiners Newsletter. Vol. 15.1. An internal medicine physician was asked to consult for a general medical evaluation on a female patient prior to a surgical procedure. He also rendered care for several days post-operatively. Six months later he was again asked to consult with the same patient for a post-operative infection and, along with the surgeon, treated the patient in the hospital for two days. No subsequent care was rendered following this hospitalization. Three months following this professional contact, the female patient called the consulting male internist and invited him to dinner. A romantic involvement ensued, resulting in a pregnancy, and the physician admitted being the father of the child. The physician's conduct ethical in light of the doctor-patient relationship? Would your answer be different if the physician had been a psychiatrist? In an article by Michael Young, JD, Texas Medical Association attorney [1, the essence of the doctor-patient relationship is the physician's agreement to an overt or implied request to become responsible for the patient's care. The physician may not withdraw from the relationship without warning the patient, but the patient is free at any time, for any or no reason and without notice, to decide not to be treated any longer by the physician. A study published in 1972 of a random sample of 400 physicians in five specialties revealed that most said they did not believe in the efficacy of, or engage in, non-erotic physical contact (holding, hugging, kissing for providing comfort or support) with their patients. Five to 13 percent indicated they engaged in erotic (intended to arouse or satisfy sexual desire) behavior with patients. Five to 7.2 percent engaged in sexual intercourse specifically. Physicians participating in this kind of activity do so because they feel they have both a professional and a separate social relationship with these patients. In the traditional doctor-patient relationship, not static nor always well defined, the physician has considerable power which could be exploited. The subordinate position of the patient has been considered as a valid reason to call a doctor-patient relationship unethical. An opposing argument is that, everyday life, women seek a more powerful partner, and this is not considered unethical. The parent-child component of the doctor-patient relationship is another reason for the unethical quality of a sexual relationship because of incestuous overtones. The point is made that this, too, is part of other couple relationships. But are the patient and physician merely another couple, who, under other circumstances, would have been attracted to one another? Or is it the special knowledge and circumstances of the relationship which provides the impetus toward intimacy? In the past, ethical considerations of a doctor-patient social and sexual relationship have not been adequately addressed in many training programs. Nor were they topics of continuing education. Most literature discussions are insight-oriented or analytical psychotherapy. Behavioral guidelines or limitations to the social relationships with patients have either not been addressed or were poorly defined. This is slowly changing. From the early strictures of Hippocrates to current ethical codes, the medical profession has held that sexual contact between doctor and patient is unethical. The old saw, "When in doubt, don't!" may institute an unwelcome control over mind and body, but it avoids peer and patient condemnation, professional sanctions, and legal actions. Just saying "no" is the key to ethical behavior.
B. Rules to avoid false, deceptive or misleading advertising1 In order to avoid false, deceptive or misleading advertising several rules to follow include but are not limited to the following four: (a) Advertisements should not contain material false claims or misrepresentations of material fact. (b) Advertisements should not contain material implied false claims or implied misrepresentations of material fact. (c) There should not be omissions of material fact from advertisements. (d) Physicians should be able to substantiate material objective claims and representations made in an advertisement. While applying these rules is certainly more difficult than simply outlining them, they nevertheless can serve as "guidelines" to obtain direction in advertising. The following "laws" apply to advertising. C. Applicable federal and state laws regarding false, deceptive or misleading advertising. (1) The Federal Trade Commission Act, 15 U.S.C. Sec. 45 subjects the physician who disseminates false, deceptive or misleading advertising to suit by the FTC, fines and injunctions to cease and desist from dissemination of such advertising. (2) Tex. Occ. Code Ann. §101.201 (Vernon 2000 Pamphlet) provides: § 101.201. False, Misleading, or Deceptive Advertising (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification. (b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that: (1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (4) contains a testimonial; (5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional; (6) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (7) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (9) represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999 (3) Texas Occupations Code, Sections 151.001-165.160 (Vernon 2000 Pamphlet) authorizes the Texas State Board of Medical Examiners to take disciplinary action against a licensed Texas physician for the following: (a) Sec 164.052(6); use of any advertising statement that is false, misleading, or deceptive; and, 164.052(7), advertising professional superiority or the performance of professional service in a superior manner if the advertising is not readily subject to verification. However, Section 153.002, restrictions on bidding and advertising, provides the following: § 153.002. Rules Restricting Advertising or Competitive Bidding (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person (b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that: (1) restricts the use of any advertising medium; (2) restricts the person's personal appearance or the use of the person's voice in an advertisement; (3) relates to the size or duration of an advertisement by the person; or (4) restricts the person's advertisement under a trade name. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. All of the above sections of the Texas Occupations Code, with the limitations set out in Section 153.002, subject the advertising physician to sanctions by the Texas State Board of Medical Examiners for advertising violations. (4) Texas State Board of Medical Examiners Board Rules and Regulations, 22 TAC Sec. 164.1 (West 1994) regarding misleading or deceptive advertising provides: (a) A physician's authorization of or use in any advertising for his or her practice of the term "Board Certified" or any similar words or phrase calculated to convey the same meaning shall constitute misleading or deceptive advertising under the Act, Sec 164.052, unless the physician discloses the complete name of the specialty board which conferred the aforementioned certification. (b) A physician may not use the term "Board Certified" or any similar words or phrase calculated to convey the same meaning if the claimed board certification has expired and has not been renewed at the time the advertising in question was published or broadcast. While these laws more or less clarify what is legal or illegal advertising, a more difficult task is to specify what is ethical or unethical. It is within the realm of possibility that advertising can be both legal and yet unethical. Because of some patients' position of vulnerability they may be unduly influenced by advertising that is perhaps legal but unethical since it may direct them to use the advertised services to their detriment rather than betterment. Under these circumstances it is a physician's duty to adhere to a higher standard in advertising so that no undue influence is placed on any patient. Unethical behavior which leads to the detriment of patients, whether it is in and of itself legal, is still subject to discipline by the Texas State Board of Medical Examiners based on unprofessional and dishonorable conduct or failure to practice medicine in an acceptable manner. It is the responsibility of each physician to carefully scrutinize his advertisements and adhere to the highest ethical standards of truth in advertising. What follows are specific areas of concern in advertising that physicians should fully understand and implement carefully. D. Specific areas of advertising concern (1) Uninvited solicitation: any uninvited solicitation such as door-to-door solicitation of a given population or other such tactics for "drumming" patients is prohibited by the Medical Practice Act of Texas. (2) Advertising not identified as advertising: any article or other presentation written or produced in any media by physicians must not be vague as to their intent as advertising. (3) Representation about the quality of care: since "quality" is such an ethereal concept to define and even more difficult to substantiate objectively it should be avoided. Publication of clinical outcomes and patient surveys may be used if substantiated. (4) Physician qualifications: qualifications should not be exaggerated or imply a level of training or education or competence that the physicians did not indeed receive or that he possesses and, of course, these qualifications must be substantiated. (5) Board certification: if board certification is claimed then the certifying board must be named. Simply to state that the physician is board certified is inadequate and subject to discipline by the Texas State Board of Medical Examiners. Furthermore, the certifying organization must indeed be a reputable organization that performs in good faith a rigorous review of the certified physician's qualifications so that it is not simply a sham. (6) Exclusive or unique skills claimed: if a physician claims to have a unique or exclusive skill, then substantiation of such claim must be available. (7) Fees and costs and offers of free service: fees and costs must be truthful. If other costs are frequently incurred when the advertised service is obtained then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action. (8) Waiver of Medicare or Medicaid co-payment: Federal law prohibits "routine" waiver of co-payments and deductibles. Advertising such waivers and carrying them out subjects the physician to sanctions as well as criminal prosecution. v 1Draft, Guidelines for Truthful Advertising of Physician Services, The Office of the General Counsel of The American Medical Association, January 10, 1992. 2Emphasis added by author FROM: Physician/Patient Intimacy From the Texas State Board of Medical Examiners Newsletter. Vol. 15.1. An internal medicine physician was asked to consult for a general medical evaluation on a female patient prior to a surgical procedure. He also rendered care for several days post-operatively. Six months later he was again asked to consult with the same patient for a post-operative infection and, along with the surgeon, treated the patient in the hospital for two days. No subsequent care was rendered following this hospitalization. Three months following this professional contact, the female patient called the consulting male internist and invited him to dinner. A romantic involvement ensued, resulting in a pregnancy, and the physician admitted being the father of the child. The physician's conduct ethical in light of the doctor-patient relationship? Would your answer be different if the physician had been a psychiatrist? In an article by Michael Young, JD, Texas Medical Association attorney [1, the essence of the doctor-patient relationship is the physician's agreement to an overt or implied request to become responsible for the patient's care. The physician may not withdraw from the relationship without warning the patient, but the patient is free at any time, for any or no reason and without notice, to decide not to be treated any longer by the physician. A study published in 1972 of a random sample of 400 physicians in five specialties revealed that most said they did not believe in the efficacy of, or engage in, non-erotic physical contact (holding, hugging, kissing for providing comfort or support) with their patients. Five to 13 percent indicated they engaged in erotic (intended to arouse or satisfy sexual desire) behavior with patients. Five to 7.2 percent engaged in sexual intercourse specifically. Physicians participating in this kind of activity do so because they feel they have both a professional and a separate social relationship with these patients. In the traditional doctor-patient relationship, not static nor always well defined, the physician has considerable power which could be exploited. The subordinate position of the patient has been considered as a valid reason to call a doctor-patient relationship unethical. An opposing argument is that, everyday life, women seek a more powerful partner, and this is not considered unethical. The parent-child component of the doctor-patient relationship is another reason for the unethical quality of a sexual relationship because of incestuous overtones. The point is made that this, too, is part of other couple relationships. But are the patient and physician merely another couple, who, under other circumstances, would have been attracted to one another? Or is it the special knowledge and circumstances of the relationship which provides the impetus toward intimacy? In the past, ethical considerations of a doctor-patient social and sexual relationship have not been adequately addressed in many training programs. Nor were they topics of continuing education. Most literature discussions are insight-oriented or analytical psychotherapy. Behavioral guidelines or limitations to the social relationships with patients have either not been addressed or were poorly defined. This is slowly changing. From the early strictures of Hippocrates to current ethical codes, the medical profession has held that sexual contact between doctor and patient is unethical. The old saw, "When in doubt, don't!" may institute an unwelcome control over mind and body, but it avoids peer and patient condemnation, professional sanctions, and legal actions. Just saying "no" is the key to ethical behavior.
B. Rules to avoid false, deceptive or misleading advertising1 In order to avoid false, deceptive or misleading advertising several rules to follow include but are not limited to the following four: (a) Advertisements should not contain material false claims or misrepresentations of material fact. (b) Advertisements should not contain material implied false claims or implied misrepresentations of material fact. (c) There should not be omissions of material fact from advertisements. (d) Physicians should be able to substantiate material objective claims and representations made in an advertisement. While applying these rules is certainly more difficult than simply outlining them, they nevertheless can serve as "guidelines" to obtain direction in advertising. The following "laws" apply to advertising. C. Applicable federal and state laws regarding false, deceptive or misleading advertising. (1) The Federal Trade Commission Act, 15 U.S.C. Sec. 45 subjects the physician who disseminates false, deceptive or misleading advertising to suit by the FTC, fines and injunctions to cease and desist from dissemination of such advertising. (2) Tex. Occ. Code Ann. §101.201 (Vernon 2000 Pamphlet) provides: § 101.201. False, Misleading, or Deceptive Advertising (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification. (b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that: (1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (4) contains a testimonial; (5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional; (6) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (7) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (9) represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999 (3) Texas Occupations Code, Sections 151.001-165.160 (Vernon 2000 Pamphlet) authorizes the Texas State Board of Medical Examiners to take disciplinary action against a licensed Texas physician for the following: (a) Sec 164.052(6); use of any advertising statement that is false, misleading, or deceptive; and, 164.052(7), advertising professional superiority or the performance of professional service in a superior manner if the advertising is not readily subject to verification. However, Section 153.002, restrictions on bidding and advertising, provides the following: § 153.002. Rules Restricting Advertising or Competitive Bidding (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person (b) The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that: (1) restricts the use of any advertising medium; (2) restricts the person's personal appearance or the use of the person's voice in an advertisement; (3) relates to the size or duration of an advertisement by the person; or (4) restricts the person's advertisement under a trade name. Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. All of the above sections of the Texas Occupations Code, with the limitations set out in Section 153.002, subject the advertising physician to sanctions by the Texas State Board of Medical Examiners for advertising violations. (4) Texas State Board of Medical Examiners Board Rules and Regulations, 22 TAC Sec. 164.1 (West 1994) regarding misleading or deceptive advertising provides: (a) A physician's authorization of or use in any advertising for his or her practice of the term "Board Certified" or any similar words or phrase calculated to convey the same meaning shall constitute misleading or deceptive advertising under the Act, Sec 164.052, unless the physician discloses the complete name of the specialty board which conferred the aforementioned certification. (b) A physician may not use the term "Board Certified" or any similar words or phrase calculated to convey the same meaning if the claimed board certification has expired and has not been renewed at the time the advertising in question was published or broadcast. While these laws more or less clarify what is legal or illegal advertising, a more difficult task is to specify what is ethical or unethical. It is within the realm of possibility that advertising can be both legal and yet unethical. Because of some patients' position of vulnerability they may be unduly influenced by advertising that is perhaps legal but unethical since it may direct them to use the advertised services to their detriment rather than betterment. Under these circumstances it is a physician's duty to adhere to a higher standard in advertising so that no undue influence is placed on any patient. Unethical behavior which leads to the detriment of patients, whether it is in and of itself legal, is still subject to discipline by the Texas State Board of Medical Examiners based on unprofessional and dishonorable conduct or failure to practice medicine in an acceptable manner. It is the responsibility of each physician to carefully scrutinize his advertisements and adhere to the highest ethical standards of truth in advertising. What follows are specific areas of concern in advertising that physicians should fully understand and implement carefully. D. Specific areas of advertising concern (1) Uninvited solicitation: any uninvited solicitation such as door-to-door solicitation of a given population or other such tactics for "drumming" patients is prohibited by the Medical Practice Act of Texas. (2) Advertising not identified as advertising: any article or other presentation written or produced in any media by physicians must not be vague as to their intent as advertising. (3) Representation about the quality of care: since "quality" is such an ethereal concept to define and even more difficult to substantiate objectively it should be avoided. Publication of clinical outcomes and patient surveys may be used if substantiated. (4) Physician qualifications: qualifications should not be exaggerated or imply a level of training or education or competence that the physicians did not indeed receive or that he possesses and, of course, these qualifications must be substantiated. (5) Board certification: if board certification is claimed then the certifying board must be named. Simply to state that the physician is board certified is inadequate and subject to discipline by the Texas State Board of Medical Examiners. Furthermore, the certifying organization must indeed be a reputable organization that performs in good faith a rigorous review of the certified physician's qualifications so that it is not simply a sham. (6) Exclusive or unique skills claimed: if a physician claims to have a unique or exclusive skill, then substantiation of such claim must be available. (7) Fees and costs and offers of free service: fees and costs must be truthful. If other costs are frequently incurred when the advertised service is obtained then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action. (8) Waiver of Medicare or Medicaid co-payment: Federal law prohibits "routine" waiver of co-payments and deductibles. Advertising such waivers and carrying them out subjects the physician to sanctions as well as criminal prosecution. v 1Draft, Guidelines for Truthful Advertising of Physician Services, The Office of the General Counsel of The American Medical Association, January 10, 1992. 2Emphasis added by author FROM: Physician/Patient Intimacy From the Texas State Board of Medical Examiners Newsletter. Vol. 15.1. An internal medicine physician was asked to consult for a general medical evaluation on a female patient prior to a surgical procedure. He also rendered care for several days post-operatively. Six months later he was again asked to consult with the same patient for a post-operative infection and, along with the surgeon, treated the patient in the hospital for two days. No subsequent care was rendered following this hospitalization. Three months following this professional contact, the female patient called the consulting male internist and invited him to dinner. A romantic involvement ensued, resulting in a pregnancy, and the physician admitted being the father of the child. The physician's conduct ethical in light of the doctor-patient relationship? Would your answer be different if the physician had been a psychiatrist? In an article by Michael Young, JD, Texas Medical Association attorney [1, the essence of the doctor-patient relationship is the physician's agreement to an overt or implied request to become responsible for the patient's care. The physician may not withdraw from the relationship without warning the patient, but the patient is free at any time, for any or no reason and without notice, to decide not to be treated any longer by the physician. A study published in 1972 of a random sample of 400 physicians in five specialties revealed that most said they did not believe in the efficacy of, or engage in, non-erotic physical contact (holding, hugging, kissing for providing comfort or support) with their patients. Five to 13 percent indicated they engaged in erotic (intended to arouse or satisfy sexual desire) behavior with patients. Five to 7.2 percent engaged in sexual intercourse specifically. Physicians participating in this kind of activity do so because they feel they have both a professional and a separate social relationship with these patients. In the traditional doctor-patient relationship, not static nor always well defined, the physician has considerable power which could be exploited. The subordinate position of the patient has been considered as a valid reason to call a doctor-patient relationship unethical. An opposing argument is that, everyday life, women seek a more powerful partner, and this is not considered unethical. The parent-child component of the doctor-patient relationship is another reason for the unethical quality of a sexual relationship because of incestuous overtones. The point is made that this, too, is part of other couple relationships. But are the patient and physician merely another couple, who, under other circumstances, would have been attracted to one another? Or is it the special knowledge and circumstances of the relationship which provides the impetus toward intimacy? In the past, ethical considerations of a doctor-patient social and sexual relationship have not been adequately addressed in many training programs. Nor were they topics of continuing education. Most literature discussions are insight-oriented or analytical psychotherapy. Behavioral guidelines or limitations to the social relationships with patients have either not been addressed or were poorly defined. This is slowly changing. From the early strictures of Hippocrates to current ethical codes, the medical profession has held that sexual contact between doctor and patient is unethical. The old saw, "When in doubt, don't!" may institute an unwelcome control over mind and body, but it avoids peer and patient condemnation, professional sanctions, and legal actions. Just saying "no" is the key to ethical behavior. FAIR USE NOTICE: This may contain copyrighted (© ) material the use of which has not always been specifically authorized by the copyright owner. Such material is made available for educational purposes, to advance understanding of human rights, democracy, scientific, moral, ethical, and social justice issues, etc. It is believed that this constitutes a 'fair use' of any such copyrighted material as provided for in Title 17 U.S.C. section 107 of the US Copyright Law. This material is distributed without profit. |
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