Handbook of Clinical Neurology, Vol. 118 (3rd series) Ethical and Legal Issues in Neurology J.L. Bernat and R. Beresford, Editors © 2013 Elsevier B.V. All rights reserved

Chapter 7

Professional conduct and misconduct EMILY B. RUBIN* Pulmonary and Critical Care Division, University of Pennsylvania, Perelman School of Medicine, Philadelphia, PA, USA

INTRODUCTION Standards of conduct in any profession reflect the shared values of that profession and define behaviors that are considered either mandatory or proscribed. Although the increasing complexity of the healthcare system has complicated the professional obligations of physicians, all standards of professional conduct in medicine emanate from the overarching duty of the physician to promote patient welfare. This duty is famously codified in the Hippocratic Oath, which states: “I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone” (Hippocratic Oath, 2002). The oath requires that physicians heal patients, act on their behalf, maintain confidentiality of their personal medical information, and honor their trust. This chapter will provide an overview of several of the primary aspects of professional conduct and misconduct by physicians, with an emphasis on the neurologist where appropriate. It will start with an overview of the foundations of the physician–patient relationship, then cover topics including initiation of the physician–patient relationship, communication, therapeutic privilege, disclosure of medical errors, empathy and professional boundaries, barriers to care and termination of the physician–patient relationship, conflicts of interest, self-care, deception of third parties, reporting impaired colleagues, and expert testimony.

DEFINING THE PHYSICIAN^PATIENT RELATIONSHIP Any discussion of professional conduct in medicine must start with a description of the relationship between physician and patient. Many models and metaphors describe the physician–patient relationship. Examples include parent–child interaction, student–teacher

education, seller–purchaser transaction, and engagement as friends or partners (Rodwin, 1995). Certain themes, however, have remained constant. As Crawshaw and colleagues (1995) state, “[m]edicine is, at its center, a moral enterprise grounded in a covenant of trust.” This covenant obliges physicians “to be competent and use their competence in the patient’s best interests” (1553). As a basic starting point, physicians are commonly understood to have a fiduciary duty to their patients (American Academy of Neurology, 2009, Section 1.2). A fiduciary (derived from the Latin fiducia, meaning trust) is someone who undertakes to act for or on behalf of another (Finn, 1997), “a person entrusted with power or property to be used for the benefit of another and legally held to the highest standard of conduct” (Rodwin, 1995, p. 243). Fiduciaries typically have specialized knowledge that enable them to advise others in matters that others cannot manage themselves. They are obligated to use this knowledge for the sole benefit of their client, to be scrupulously honest, and to maintain the client’s confidentiality. The fiduciary metaphor is naturally applied to the physician–patient relationship. Physicians have a highly specialized body of knowledge, which they are obligated to use for the promotion of patient welfare to the exclusion of their own or third-party interests. Physicians and patients also can be said to be bound by an implied contract. Under such a contract, the physician assumes responsibility to act competently and promote the welfare of the patient, the patient assumes responsibility to provide information that enables the physician to do so, and both parties must be willing to negotiate so that each party gains something from the encounter (Quill, 1983; American Academy of Neurology, 2009, Section 1.2). Although the fundamental foundations described above remain, notions of the respective roles of physician

*Correspondence to: Emily B. Rubin, M.D., J.D., 2110 Pemberton Street, Philadelphia, PA 19146, USA. Tel: þ1-617-797-0661, E-mail: [email protected]

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and patient have changed dramatically over the last several decades. Historically, the relationship was a paternalistic one in which the physician dictated what course of action a patient should follow. It has evolved over the last several decades into a more collaborative model in which the patient takes a more active role in healthcare decision-making. In this evolution towards more patient autonomy, there has been much discussion and debate about the most appropriate models and metaphors for the physician–patient relationship. Concern centers on how to balance physicians’ expertise and exercise of judgment with patients’ exercise of control over their own care (Szasz and Hollender, 1956; Veatch, 1975; Marzuk, 1985; Siegler, 1985). In 1992, Ezekiel and Linda Emanuel outlined four theoretic models of the physician–patient relationship. These models encompass the full spectrum from primary emphasis on physician authority to primary emphasis on patient autonomy. Although the medical profession has evolved considerably since that time, their models remain very useful in thinking about how to balance the roles of physician and patient. The first is the paternalistic (or parental) model, under which physicians use their skills to assess patients’ conditions and identify appropriate tests and treatments. The second is the informative (or consumer) model, under which physicians provide the facts and patients decide what treatments to pursue based on their own values. The third is the interpretive model, under which physicians act as counselors, providing relevant information, helping patients to identify their values, and suggesting what treatments might be most consistent with those values. The final model, and the one that the Emanuels endorse as preferable, is a deliberative one, under which the physician “acts as a teacher or friend,” talking through with the patient what course of action would be best and taking an active role in advocating for a particular course of action that the physician thinks would be best in light of the discerned values and priorities of the patient (Emanuel and Emanuel, 1992, p. 2222). In 2001, the United States Institute of Medicine suggested that patient-centered care, defined as care that is responsive to and defined by the needs and values of the individual patient, is critical to healthcare improvement. Patient-centered care includes employing shared decision-making (SDM), which is perhaps most akin to the Emanuels’ interpretive model. Under an SDM model, physicians contribute their expertise regarding evaluation and treatment of disease, patients communicate their own priorities and values, and the parties come to a shared understanding of the best course of action. Many advocate SDM as the optimal model for major healthcare decisions that are not governed by a clear standard of care and involve choices that may have

significantly different consequences. Examples include decisions about surgical and medical management of back pain, lifelong preventive medication such as statin therapy, and screening and diagnostic tests (Bernat and Peterson, 2006; Heesen et al., 2007). A recent statement by representatives from 18 countries endorses SDM as the optimal model for the physician–patient relationship (Salzburg statement, 2011). The various articulated models of the physician– patient relationship fall along a spectrum. No single model can reasonably apply to every situation and every patient. Physicians ideally will tailor their relationship with any given patient to the specific characteristics and preferences of the patient and adopt an approach that is most likely to serve that patient’s needs. It is critical that physicians communicate clearly and honestly, encourage patients to feel safe in articulating their priorities and values (Frosch et al., 2012), and provide the information necessary to facilitate patients’ decisions.

INITIATION OF THE PHYSICIAN^ PATIENT RELATIONSHIP A physician is free to determine whether or not to accept a patient in the first instance. The physician must not, however, discriminate on the basis of race, religion, nationality, sexual orientation, or gender (American Academy of Neurology, 1999, Section 1.3). A physician who assumes care for a patient implicitly commits to providing care until care is no longer required or until the patient ends the relationship, whichever comes first (Quill and Cassel, 1995). At the start of a physician– patient relationship, the physician should identify the patient’s health concerns, priorities, and expectations and allow those to guide the relationship going forward (American College of Physicians, 2012, p. 75). Consulting physicians also should communicate directly with the referring physician as necessary to understand the full context and history of the patient’s presentation.

COMMUNICATION The foundation of professional conduct in medicine is open, honest, respectful, and sensitive communication with patients, fellow healthcare providers, and other interested parties. As a baseline principle, patients are entitled to full disclosure of relevant medical information (Medical Professionalism in the New Millennium, 2002; American Academy of Neurology, 2009, Section 5.1; American College of Physicians, 2012, p. 77). The physician’s duty to disclose medical information to patients arises out of general principles of honesty, the promotion of informed consent, and the preservation of public trust in the medical profession.

PROFESSIONAL CONDUCT AND MISCONDUCT Physicians should convey information directly to patients. They should only share it with family members or other third parties where patients have explicitly given permission, preferably in advance of the information becoming available (American Medical Association Council on Ethical and Judicial Affairs, 2010, Opinion 8.082). Physicians must explain medical information to patients in terms they can understand, using an interpreter when necessary for effective communication. In obtaining informed consent for tests or treatment, physicians must explain the benefits, risks, costs, and alternatives to proposed interventions, giving as much information as the average person would need to know to make an appropriate decision (American Academy of Neurology, 2009, Section 1.4; American College of Physicians, 2012, p. 135). With the rising costs of healthcare, it is increasingly important for physicians also to address financial implications of diagnostic or therapeutic options where those are likely to influence patients’ decisions. When a patient is elderly or frail or has significant mental health or neurologic issues, a physician may be tempted to bypass the patient and talk primarily to family members. It is critical to guard against the inclination in such situations automatically to treat the family as the patient (Mitnick et al., 2009). Where a patient is aphasic or suffers from dementia, or there are other barriers to communicating with the patient, the physician should consider engaging family members or other surrogates in a process of facilitated decision-making (Stein and Wagner, 2006). In such a process, the surrogate is able to ask questions on the patient’s behalf. If a patient truly is incapable of understanding or processing healthrelated information, it is acceptable to direct communication to the patient’s surrogate decision-makers. But the presumption should be in favor of communicating directly with the patient. Neurologists often face situations in which they are asked to give concrete information about diagnosis and prognosis in the face of significant uncertainty. Although patients and families often seek certainty and it might sometimes seem more compassionate to convey such certainty in an effort to facilitate decision-making, it is critical not to exaggerate the certainty of a patient’s prognosis or diagnosis. Physicians should honestly acknowledge what they do not know. They can then try to assist patients and families in making decisions in the face of unsettling uncertainty. Likewise, in the context of serious illness physicians must balance the importance of providing hope and reassurance against the potential harms of conveying false hope or optimism (Bernat and Peterson, 2006). Failure to attend to this issue may deprive patient and family of the opportunity to prepare for death or serious

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disability. The et al. (2000) studied understanding of prognosis in patients with small cell lung cancer. They concluded that a significant amount of false optimism about recovery resulted in large part from the “activism” of the physicians who chose to focus on affirmative steps, such as additional chemotherapy that adhered to a “recovery plot,” rather than on helping patients come to terms with their critical illness and often poor prognosis.

THERAPEUTIC PRIVILEGE “Therapeutic privilege,” also known as “therapeutic nondisclosure,” is defined as the withholding of relevant health information from the patient if nondisclosure is believed to be in the best interests of the patient (President’s Commission, 1982; Berger, 2005). The two most common justifications for such nondisclosure are that the disclosure would create incapacitating emotional distress and that disclosure would violate a patient’s personal, cultural, or other social requirements (Crawley et al., 2001; Berger, 2005). Although the balance of opinion has moved significantly over the last several decades in favor of disclosure of information to patients (Goldberg, 1984), studies continue to demonstrate that physicians often take a relative approach to disclosure. A survey of European intensive care unit physicians, for example, revealed that only onefourth of European doctors would, without exception, give complete information about a patient’s condition. More than half of the surveyed physicians said that the details they would give would “depend on a combination of the type and severity of the disease and the perceived personality of the patient” (Vincent, 1998). In another study, 20% of neurologists favored withholding anxiety-provoking information from adult patients with seizure disorders and their families (Faden et al., 1981). Much has been written about whether it is ever ethically appropriate to invoke therapeutic privilege. The focus has been the tension between respecting a patient’s autonomy and protecting a patient from harm when the physician perceives that the patient might have difficulty processing particular information about his or her medical situation (Goldberg, 1984; Berger, 2005; Sirotin and Lo, 2006; Richard et al., 2010). Nondisclosure directly impairs patients’ autonomy by limiting their ability to make decisions about their own medical care. It also has the potential to undermine the patient’s trust in the physician and to preclude the patient from creating meaning out of illness and making plans and decisions with a realistic understanding of the future. Given these significant potential harms and the moral duty to tell the truth, the justification for nondisclosure must be extremely compelling.

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The American Medical Association takes a strict stand on this issue, stating that therapeutic privilege “creates a conflict between the physician’s obligations to promote patients’ welfare and respect for their autonomy by communicating truthfully” and that “[w]ithholding medical information from patients without their knowledge or consent is ethically unacceptable” (American Medical Association Council on Ethical and Judicial Affairs, 2010, Opinion 8.082). A physician’s own discomfort with delivering difficult news can never justify withholding such news from a patient (Berger, 2005). Furthermore, the desire to avoid emotional suffering for the patient is not alone sufficient justification for withholding critical medical information. In certain limited circumstances, however, disclosure arguably stands to cause emotional distress to a patient so severe that it is incapacitating and impairs the patient’s ability to make decisions (when, for example, a patient is suffering from severe depression or other mental incapacity). Some have suggested that nondisclosure in such circumstances, which is intended to avoid decisional incapacity, is ethically acceptable (Berger, 2005; Richard et al., 2010). Prior to invoking this principle, however, physicians should critically examine the moral justification for the nondisclosure, consulting with colleagues to ensure that the driving rationale is to avoid decisional incapacity and is not to reduce moral distress for the physician or the patient’s loved ones. When a family invokes cultural practices as a basis for nondisclosure, the physician should attempt to ensure that the patient subscribes to those cultural practices and elicit the patient’s preferences for disclosure of information. If a patient explicitly requests that health-related information be conveyed to family members or other loved ones instead of directly to the patient, it is appropriate to honor that request. If a family member requests that certain information (for example, prognostic information in the case of a stroke, other neurologic insult, or malignancy) be withheld from a patient, the physician should ask the patient if he or she would prefer to be told everything or would prefer his or her family to filter information (American Medical Association Council on Ethical and Judicial Affairs, 2010, Opinion 8.082). Although disclosure is ethically required in all but the most extreme situations, it is not mandatory that physicians disclose all information immediately or at a single encounter. Disclosure of the truth can be an iterative process. The timing and style of disclosure of difficult information can be calibrated to minimize the emotional harms to the patient. It is appropriate, for example, to engage a physician who has a trusted relationship with the patient, to wait until family members or other loved ones are present and able to support the patient emotionally, and otherwise to optimize the setting for disclosure

by ensuring that adequate supports are in place to assist the patient in coping with the disclosure (Goldberg, 1984; Sirotin and Lo, 2006; Richard et al., 2010).

DISCLOSURE OF MEDICAL ERRORS The same general principles of honesty, promotion of informed consent, and preservation of public trust that govern disclosure of general medical information to patients extend to the disclosure of medical errors. A medical error is the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim (Institute of Medicine, 2004). Since the United States’ Institute of Medicine published its 2000 report, To Err is Human, that highlighted the pervasiveness of medical errors in U.S. hospitals, much effort has gone into programs to decrease errors and enhance their disclosure (Joint Commission on Accreditation of Healthcare Organizations, 2005; Lazare, 2006). The general consensus is that, when a patient is harmed by a medical error, physicians have an ethical obligation to disclose the error in a timely fashion (Finkelstein et al., 1997; Gallagher et al., 2003; Full Disclosure Working Group, 2006; American College of Physicians, 2012). Physicians should disclose significant errors whether or not the error is apparent to the patient (Joint Commission on Accreditation of Healthcare Organizations, 2001; Gallagher et al., 2003). Disclosure should include explicit acknowledgment that an error has occurred, a description of the circumstances surrounding the error (including what it was and how it happened), a description of how similar errors will be prevented in the future, and an apology (Gallagher et al., 2003; Mazor et al., 2004). Research has demonstrated that prompt and honest disclosure of errors increases patient satisfaction, trust in the medical system, and positive emotional responses (Mazor et al., 2004). Uncertainty exists about the effect the disclosure of errors has on the likelihood that a patient will take legal action (Kachalia et al., 2003). But some evidence suggests that prompt disclosure and apology reduce the likelihood of legal action in the event of an error (Witman et al., 1996). Notwithstanding broad ethical consensus and multiple regulations affirming the importance of disclosure, several studies demonstrate that a significant number of medical errors are never disclosed to patients (Blendon et al., 2002; Lehmann et al., 2005; Gallagher, 2006). These studies also reveal wide variations in how physicians view and report medical errors and whether they provide apology or just an expression of regret. Research suggests that the failure to disclose medical errors is driven by a variety of factors. These include fear of litigation, lack of training in disclosure, physician’s perception of an error’s severity,

PROFESSIONAL CONDUCT AND MISCONDUCT perceived responsibility for the error, fear that disclosure might distress the family or patient, and confusion about how much information to disclose (Gallagher et al., 2006, 2009). As Gallagher et al. (2009) describe, where uncertainty exists about whether disclosure is necessary, a physician’s desire for self-preservation naturally can foster nondisclosure. They suggest that “any information essential for a reasonable patient or family to be free of fundamental misconceptions about what transpired” should be disclosed (899).

CONFIDENTIALITY Physicians have a primary ethical obligation to maintain confidentiality of patient medical information. This is embodied in the Hippocratic Oath. It states that “[W]hatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private” (Hippocratic Oath, 2002). Patients entrust very intimate information to their physicians. In return, physicians should take extreme care to protect that information from discovery by third parties. This includes handling written documentation with identifiable patient information in ways that minimize the chance that a third party will inadvertently discover the documentation, avoiding use of the patient’s identifiable health information in general discussions with colleagues, and making patients anonymous when discussing their medical information in conferences or other educational forums. In addition, clinicians should only access identifiable patient information available in a database or patient charts if they have a legitimate need to do so (American College of Physicians, 2012, p. 135). Disclosure of a patient’s protected health information to a third party generally should be made only with the patient’s explicit permission. Stringent privacy regulations, including the U.S. Health Insurance Portability and Accountability Act, enacted in 2003, are intended to ensure this discretion. As Lo and colleagues (2005) discuss in detail, such regulations should not overwhelm clinical judgment in ways that adversely affect care. They suggest that incidental disclosure of confidential patient information is ethically acceptable if: (1) the communication is necessary for good patient care; (2) the alternatives for communication are impractical; and (3) the communication practice is transparent to patients and patients do not find it unacceptable. In addition, if a physician has concrete reason to believe that an identifiable third party is in danger of being harmed by a patient, the physician has a duty to warn the third party, even if this entails disclosure of confidential patient information (Tarasoff v. Regents

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of the University of California, 1976). Likewise, if a physician has reason to believe that members of the general public are endangered by a patient, the physician has a duty to alert appropriate public officials or agencies (American Academy of Neurology, 2009, Section 5.5).

ELECTRONIC COMMUNICATION Physicians increasingly are using electronic forms of communication to communicate with patients. The same principles of honesty, respect, and sensitivity that apply to face-to-face communication apply equally to electronic communication. Given privacy and confidentiality concerns raised by the use of electronic media, however, physicians must specifically define with each patient what type of electronic communication is acceptable for that patient. Physician and patient together should set boundaries regarding what types of information will and will not be shared electronically. Physicians should explain the limitations of providing medical advice over electronic mail or via other electronic media without being able to talk to or examine the patient. In addition, physicians should clearly explain to patients how quickly patients can reasonably expect the physician to respond to electronic communication. Finally, physicians must take proper steps to protect the confidentiality of information that is conveyed electronically, including, for example, properly encrypting electronic devices (Mandi et al., 1998; Bovi, 2003; American Medical Association Council on Ethical and Judicial Affairs, 2010, Opinion 5.026).

EMPATHY Empathy with patients is widely cited as one of the foundations of a productive therapeutic physician–patient relationship (Spiro et al., 1993; Hojat et al., 2002; Mercer and Reynolds, 2002) and a key clinical competency of those studying to be physicians. Many decry what they view as a decline in empathy among medical students and practicing physicians, citing the transformation of medicine into a less personal profession with increasing demands on time and less opportunity to develop deep and lasting relationships with patients (Spencer, 2004; Hojat et al., 2009). It seems a truism to say that physicians should empathize with their patients. As Francis Peabody famously noted in 1927 in speaking to Harvard Medical School students, the “secret of the care of the patient is in caring for the patient.” There is, however, legitimate debate about the definition of clinical empathy, the appropriate balance between scientific detachment and emotional connection in the physician–patient relationship, how empathy develops, and whether or not it can be learned or taught.

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The colloquial definition of empathy is the ability to understand or share the feelings of another person. Merriam Webster’s Medical Dictionary defines empathy as “the imaginative projection of a subjective state onto an object so that the object appears to be infused with it” or “the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner” (Merriam Webster, 2007). Freud (1955) noted that empathy is the “mechanism by means of which we are enabled to take up any attitude at all towards another mental life.” Students of empathy in medicine express somewhat conflicting views about the nature of clinical empathy. Some define it as an emotional or affective characteristic, some as a cognitive attribute, and some as a combination of the two. By way of example, Howard Spiro (2009) describes empathy as a natural human emotion that arises spontaneously and enables the physician to see him- or herself in the patient’s situation. He suggests that the ability to empathize is shaped by a person’s innate character and life experiences and urges more consideration of the character of medical students when selecting them for medical study. Hojat and colleagues, on the other hand, define empathy as a “predominantly cognitive attribute . . . that involves an understanding of patients’ experience, concerns, and perspectives combined with a capacity to communicate this understanding” (Hojat et al., 2009, p. 1183). Many who study empathy in the clinical setting divide it into multiple dimensions. Mercer and Reynolds (2002), for example, conceptualize empathy as a learnable, multidimensional communication skill involving both appreciation of a patient’s feelings and effective communication of that appreciation to the patient. They divide physician empathy into four component parts: (1) a cognitive dimension, which involves being able to take the perspective of another and understand that person’s beliefs and feelings; (2) a moral component, which involves the physician’s internal motivation to empathize; (3) an emotional component, which involves the tendency to respond emotionally to the feelings experienced by others; and (4) a behavioral component, which involves communicating with the subject of empathy the understanding of his or her perspective (Morse et al., 1992; Neumann et al., 2012). They synthesize these four components to define clinical empathy as the ability to understand the patient’s situation, perspective and feelings; to communicate that understanding and check its accuracy; and to act on that understanding in a therapeutic way. In discussions of clinical empathy, much has been made of the distinction between empathy and sympathy.

Many distinguish the two by stating that, while empathy involves appreciation and understanding of a patient’s experiences, sympathy implies strong emotional involvement by the physician in those feelings (Hojat et al., 2009; Lussier, 2010). Others seem to suggest the opposite – that empathy implies more emotional involvement than sympathy. Spiro (2009), for example, believes that sympathy requires compassion whereas empathy requires passion. Given diverse and sometimes conflicting definitions, the distinction between sympathy and empathy by itself does not seem particularly useful as a construct. It does seem to be a proxy, however, for the legitimate question of what degree of emotional engagement by physicians is optimal for maximizing the quality of patient care and physician wellbeing. Some express concern that a physician’s actually experiencing the patient’s feelings in an emotional sense can lead to lack of objectivity and blurring of professional boundaries to the detriment of medical care (Hojat et al., 2009; Marchand, 2010; Smajdor et al., 2011; Neumann et al., 2012). Others stress that true emotional engagement is critical for effective empathy (Halpern, 2001; Mercer and Reynolds, 2002; Spiro, 2009). Still others argue that the focus on empathy in clinical medicine is misplaced, that competent medical practice depends in large part on objectivity, and that being able to enter a patient’s world is not necessary or adaptive for physicians (Marchand, 2010; Smajdor et al., 2011). Studies have purported to demonstrate a correlation between increased clinical empathy and improvements in patient disclosure, diagnostic accuracy, patient compliance, patient satisfaction, and clinical outcomes (see Neumann et al. (2012) for a summary of relevant research). Patients have been shown to derive physiologic benefits from relationships with physicians they perceive as empathic, including improved immune function and shorter postsurgical hospital stays (Riess, 2010). Increased empathy has also been shown to affect physician wellbeing positively and decrease physician distress (Shanafelt, 2009). It is somewhat difficult to interpret this body of work objectively given the varying definitions of empathy, the different tools used to measure it, and the innate difficulty of measuring a variable that is so inherently subjective. The research taken as a whole, however, suggests that the perception by a patient that a physician relates to the patient on an emotional level has positive effects on both the therapeutic relationship and physician satisfaction. Regarding whether empathy is innate or can be taught or cultivated, some suggest that it is a trait that people possess to certain degrees depending on their background and personal experiences. Others express the view that empathy can be fostered by activities such as mindfulness training, exposure to human stories

PROFESSIONAL CONDUCT AND MISCONDUCT 97 through theater, literature, and writing, and formal the professional relationship, the degree of the third venues for sharing thoughts and emotions (Shanafelt party’s emotional dependence on the physician, and et al., 2005; Stepien and Baernstein, 2006; Spiro, the importance of the clinical encounter to the third party 2009). A recent randomized controlled trial showed that and the patient (American Medical Association Council three 60-minute empathy modules grounded in the neuon Ethical and Judicial Affairs, 2010, Opinion 8.145). roscience of empathy significantly improved patient ratDual relationships between physicians and patients less dramatic than sexual or romantic relationships also ing of empathy in resident physicians (Riess et al., 2012). can pose problems for the physician–patient relationship. They may obscure social and professional boundDUAL RELATIONSHIPS AND aries, compromise clinical objectivity, and promote PROFESSIONAL BOUNDARIES short cuts in history-taking, physical examination, and other critical aspects of the physician–patient relationAlthough the ability to empathize with patients may ship. Research has suggested, for example, that physibe one of the foundations of a mutually beneficial cians caring for friends or family members often physician–patient relationship, it is critical that the physiprovide inferior care (American College of Physicians, cian maintain appropriate professional boundaries by avoiding dual relationships that risk excessive emotional 2012, p. 81), and it is generally understood that emotional proximity (American College of Physicians, 2012, p. 81). proximity between physician and patient can compromise objectivity. Accordingly, a physician should underGabbard and Nadelson (1995) summarized this point well: take the care of friends and family members only if the An essential element of the physician’s role is the care is within the physician’s area of expertise and there notion that what is best for the patient must be the are no reasonable alternatives. The physician should take physician’s first priority. Physicians must set aside extreme care to prevent the dual relationship from intertheir own needs in the service of addressing the fering with comprehensive, diligent medical care. patient’s needs. Other kinds of relationships that Other potentially problematic dynamics include busicoexist simultaneously with the physician—patient ness transactions between physicians and patients and relationship have the potential to contaminate the acceptance of gifts by physicians. Small gifts as the physician’s ability to focus exclusively on the tokens of appreciation may not cause problems. But patient’s well-being and can impair the physician’s accepting larger gifts and services may represent “a conjudgment (p. 1447). scious or unconscious bribe to keep aggression, negative feelings or unpleasant subjects out of the physician– The most extreme example of an inappropriate dual relapatient relationship” or may represent a secret quid tionship between physician and patient is a sexual relationship. Broad consensus exists that it is unethical for pro quo that influences how the physician treats the a physician to engage in a sexual relationship with a curpatient (Gabbard and Nadelson, 1995, p. 1447). In deciding whether to accept a gift from a patient, the physician rent patient. The primary rationale for this hard and fast should consider the patient’s likely expectations and rule is that the physician’s position of authority and the should avoid accepting any gift that has the potential patient’s position of vulnerability raise the risk of exploito create an expectation of favoritism. tation of the patient by the physician (Gabbard and Excessive self-disclosure by a physician can also be a Nadelson, 1995). destructive boundary-crossing if it represents a “misuse Sexual relationships between physicians and former patients similarly raise the prospect that a residual of the patient to satisfy one’s own needs for comfort or dynamic of dependence of the patient on the physician sympathy” (Gabbard and Nadelson, 1995, p. 1448). Although minimal personal disclosure sometimes can will pose a risk of exploitation. Such relationships are be a useful way of expressing empathy towards a discouraged and are considered unethical if “the physipatient, physicians should ensure that the priority is cian uses or exploits the trust, knowledge, emotions, or the care of the patient and that self-disclosure does influence derived from the previous professional relanot shift an encounter towards the concerns of the tionship” (American College of Physicians, 2012, p. 81). physician. Likewise, physicians are expected to avoid sexual or romantic interactions with third parties who play an inteProliferation of online media, particularly social netgral role in the physician–patient relationship if those working, has created new ethical and practical questions interactions can be seen as based on exploitation of trust for physicians regarding appropriate professional or emotions derived from the professional relationship. boundaries. Social networking between physicians and In considering whether such a relationship is appropripatients raises the possibility of establishing dual relaate, the physician should consider factors such as the tionships with patients that could interfere with optimal nature of the patient’s medical problem, the length of care. It also raises the prospect of intentional or

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inadvertent excessive self-disclosure of personal information by the physician to the patient. Physicians must be aware of these potential harms and take care to avoid blurring the lines between professional obligations and social interactions with patients. Guseh et al. (2009) discuss the use of the ubiquitous social networking site Facebook by physicians. They suggest that physicians not immediately accept invitations to be online friends with patients, respect patients’ privacy by carefully managing any information obtained about them on social networking sites, exercise restraint when disclosing personal information on social networking sites, and read and understand the site’s privacy settings.

BARRIERS TO CARE It is common in clinical medicine for physicians to encounter frustration and barriers as the physician– patient relationship evolves. Given the high incidence of cognitive difficulties and psychiatric comorbidities among neurology patients, such barriers are inevitable in neurology practice. In one survey of neurologists in an academic medical center practice, 62% of those surveyed had at least once asked a patient to leave their practice, most often because of disruptive or threatening behavior or failure to agree on a plan of care (Brody and Haut, 2009). Patients have a right to refuse medical treatment and waiver of that right should not be imposed as a condition of medical care (Orentlicher, 1991). The American Academy of Neurology states in its Code of Professional Conduct that “[t]he patient has the ultimate right to accept or reject the neurologist’s recommendation about medical treatment. The neurologist should respect decisions made by patients” (American Academy of Neurology, 2009, Section 1.8). If significant differences arise between physician and patient, the physician should make every effort to attempt to resolve those differences and not simply abandon a patient who disagrees with the physician’s preferred plan of care. The first step in moving past a barrier is attempting to identify and characterize the barrier using skills such as acknowledgment and empathy. Open-minded exploration of the conflict with the patient often can help resolve it (Quill, 1989). Other strategies include negotiating with the patient by focusing on common interests, creating a contract outlining conditions of care that clearly states the limits of acceptable behavior and communication, discussing alternative therapies, and considering psychiatric or other mental health referral if a patient seems to have psychiatric comorbidities and is willing to be evaluated. Although physicians are obligated not to dismiss out of hand patients who disagree with or do not comply with

the physician’s recommendations, there are real and sometimes insurmountable barriers that arise in the physician–patient relationship. Quill (1989) reviews some of the implicit signs that a barrier exists. These include verbal–nonverbal mismatch, cognitive dissonance, unexpected resistance, physician discomfort, noncompliance, treatment failure, and exacerbation of chronic disease (52).

TERMINATION OF THE PHYSICIAN^ PATIENT RELATIONSHIP Although physicians should terminate a patient relationship only as a last resort, the obligation to treat noncompliant patients is not absolute. If a patient is disrupting the care of other patients and reasonably can be held responsible for his or her actions, or if differences between a physician and patient become intractable to the point where the physician reasonably believes he or she can no longer properly treat the patient, the physician may elect to discontinue the relationship. The American College of Physicians (2012) states that “[a]lthough the physician must address the patient’s concerns, he or she is not required to violate fundamental personal values, standards of medical care or ethical practice, or the law” (American College of Physicians, 2012, p. 75). Likewise, the American Academy of Neurology (2009) provides specifically for the possibility that a neurologist will at times be unable to continue treatment of a patient: “If the neurologist cannot honor the patient or proxy’s decision, the neurologist should seek to arrange transfer of the patient’s care to another physician” (American Academy of Neurology, 2009, Section 1.8). In cases where discontinuation of the physician– patient relationship is deemed absolutely necessary, it is essential that the patient’s healthcare and safety not be jeopardized in the process. To this end, assuming the patient requires ongoing care, the physician should notify the patient in writing and in person that he or she is terminating the relationship and help ensure transition of care to another physician. The physician must not abandon the patient without helping facilitate alternative arrangements for care. The American Medical Association Council on Ethical and Judicial Affairs (2010) states: [o]nce having undertaken a case, the physician should not neglect the patient, nor withdraw from the case without giving notice to the patient, the relatives or responsible friends sufficiently long in advance of withdrawal to permit another medical attendant to be secured (American Medical Association Council on Ethical and Judicial Affairs, 2010, Opinion 8.115).

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CONFLICTS OF INTEREST One of the most challenging aspects of professional conduct in medicine involves the handling of conflicts of interest. A conflict of interest is defined broadly as “a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be unduly influenced by a secondary interest” (Institute of Medicine, 2009). There is general consensus that the primary interests of the medical profession include promoting the welfare of patients, protecting the integrity of research, and fostering the education of students (Thompson, 1993; Rodwin, 1995). There are a host of secondary interests that have the potential to interfere with the promotion of these primary interests. The most obvious and studied of these secondary interests is personal financial gain. There are other personal interests that also have the potential to interfere with the service of the primary interests listed above, including the desire for professional advancement and the inclination to provide favors to friends, family, students, or colleagues. Although conflicts of interest classically have been understood to arise out of personal interests, they also can arise out of the “divided loyalties of an actor performing competing roles” (Rodwin, 1995, p. 244). This type of conflict is becoming more pervasive in medicine as physicians increasingly are involved in practice and compensation models that require them to consider interests of parties other than their own patients. The mounting pressure on individual physicians to consider and limit the costs of healthcare also arguably creates conflicts of interest in caring for individual patients. Secondary interests are omnipresent in medicine and are not by themselves illegitimate. The mere existence of a conflict of interest does not by itself constitute an ethical breach, only a red flag that temptation exists to neglect the patient’s primary interest in favor of a secondary interest (Brody, 2011). As Rodwin (1995) states, “[c]onflicts of interest exist prior to any breach of trust. They signal an increased risk that the fiduciary may not act as expected” (p. 244). Given that secondary interests inevitably will exist, the key principle is ensuring that those secondary interests do not overwhelm or compromise the primary obligations of the medical profession, most prominently, promoting the welfare of individual patients. Rules regarding conflict of interest aim to maintain the integrity of professional judgment and the public’s confidence in such judgment by minimizing the influence of secondary interests. There are certain overt conflicts of interest that are strictly regulated given the risk that they will interfere with physician objectivity, decrease public trust, and increase healthcare costs. These include

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self-referrals to facilities that physicians own or in which they have a significant interest (American Medical Association Council on Ethical and Judicial Affairs, 2010, Section 8.0321) and “kickbacks,” which are payments in exchange for referring patients or ordering or providing a particular service.

RELATIONSHIPS WITH INDUSTRY Much attention has been devoted over the last decade to the conflicts of interest raised by relationships between physicians and prescription drug and medical supply manufacturers (referred to collectively as “industry”) (Studdert et al., 2004). Given the significant role that industry plays in funding research and medical education, such relationships are not only ubiquitous; they also have the potential to influence the behavior of physicians substantially. A robust body of psychosocial and biomedical ethics research suggests that even small gifts create a sense of indebtedness that is likely to influence physician behavior and that physicians (as do humans in general) regularly underestimate the extent to which they are influenced by such gifts (Wazana, 2000; Dana and Loewenstein, 2003; Katz et al., 2003; Studdert et al., 2004). Acknowledging the influence that relations with industry have on physician behavior, professional societies and medical education institutions have made progress in strictly limiting gifts by industry to physicians. There is general consensus now that physicians should not accept gifts of material value from industry (Institute of Medicine, 2009; Pharmaceutical Research and Manufacturers of America, 2009; Martin, 2010). In addition, many academic institutions have begun to limit the compensation that physicians can receive from corporations for board membership or consulting services (Lo, 2010). There is also increasing scrutiny of conflicts of interest among those who serve on panels that develop clinical guidelines (Holloway et al., 2008), with many interested parties suggesting that individuals with conflicts of interest should not serve on such panels (IOM, 2009; Rothman et al., 2009; Council of Medical Speciality Societies, 2011).

PRACTICE MODELS AND STEWARDSHIP More nuanced issues regarding conflicts of interest arise from challenges presented by changing and evolving medical practice models and by the increasing imperative for physicians to act as gatekeepers in the control of healthcare costs (Bernat et al., 1997; Shortell et al., 1998). Many practice models that have evolved over the last two decades have significant potential to create divided loyalties for participating physicians. Managed care models, for example, require participating physicians to take into account the interests of members of

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the practice group and not just the individual patient in front of them. Fee for service models create a direct financial incentive to maximize the amount of care provided to the patient, presenting the risk of “overcare.” Capitation arrangements present the opposite risk of “undercare” (i.e., the possibility that physicians will limit care to an individual patient in an effort to minimize cost and maximize profit) (Bernat et al., 1998; Hutchins et al., 2012). Pay for performance models have the potential to increase quality of care. But they also have the potential to encourage playing to the measures rather than focusing on the patient as a whole and to produce worse care for patients with complex chronic conditions (Snyder and Neubauer, 2007). All of these evolving practice models pose a risk of eroding trust between physicians and patients. Distinct from, but related to, the specific conflicts presented by certain practice models, the general responsibility of physicians to control healthcare costs and protect the medical commons has the potential to create conflict in caring for a particular patient (Cassel and Brennan, 2007). Many professional societies have issued statements simultaneously emphasizing the primacy of individual patient welfare and the obligation of physicians to serve as stewards of scarce healthcare resources. The American College of Physicians (2012), for example, emphasizes that “[a] clinician’s first and primary duty is to promote the good of the patient . . . [t]he duty of patient advocacy is a fundamental element of this relationship that should not be undermined.” It goes on to say, however, that “[c]linicians have a responsibility to practice effective and efficient health care and to use health care resources responsibly” and that “Although the patient–clinician relationship is primary, clinicians must also consider limitations of health care resources” (Povar et al., 2004). It is frequently argued that resource allocation policy should not be made at the bedside because individual decisions are idiosyncratic and have the potential to create unacceptable inequality (Weinstein, 2001). Unless and until such policy is effectively made at a broader societal level, however, individual physicians will increasingly face the challenge of reconciling the arguably competing objectives of maximizing the welfare of each individual patient, working within the framework of their particular practice model, and maximizing societal use of healthcare resources. The dominant themes emerging from the extensive literature on conflicts of interest in clinical practice are that physicians should: (1) avoid arrangements that are not necessary to the role of the physician and that pose a serious risk of threatening the public trust in the medical profession; (2) avoid any arrangement that specifically requires a quid pro quo; (3) be aware of

and acknowledge the existence of conflicts of interest in their care of patients, being scrupulously honest with themselves about the likelihood that the conflict will interfere with fiduciary duty to patients and attempting to mitigate any such effects; (4) disclose major conflicts of interests to patients; and (5) focus on rational clinical decision-making in the interest of the individual patient, avoiding waste to the extent possible by avoiding unnecessary testing and treatments that are not evidence-based (Marco et al., 2006; American Academy of Neurology, 2009, Section 2.6; Brody, 2011).

DISCLOSURE OF CONFLICTS If a physician has a clear conflict of interest with the potential to affect patient care directly (for example, a significant financial interest in a company that manufactures a drug the physician recommends to a patient), the physician is obligated to disclose the conflict to the patient. The American Academy of Neurology Code of Conduct provides that “[f]inancial interests of the neurologist that might conflict with appropriate medical care should be disclosed to the patient” (American Academy of Neurology, 2009, Section 5.2). Physicians are also obligated to disclose all financial conflicts of interest when they are teaching, speaking, or authoring material (American College of Physicians, 2012, 88). Notwithstanding broad statements by professional societies regarding disclosure, there is debate about the utility and potential perverse effects of routine disclosure of conflicts of interest to patients. Some research has suggested, for example, that disclosure of conflicts of interest can paradoxically lead physicians to offer biased advice. When physicians anticipate that their advice will be discounted based on a disclosed conflict of interest, they can be tempted to overemphasize their recommendations in an effort to compensate for the anticipated discounting (Loewenstein et al., 2012). In addition, disclosure can have the perverse effect of making physicians believe that they have taken care of the problem by revealing it and need not do more to mitigate the effect of the conflict, when the potential for adverse effects on patients and irrational decision-making still exists. Finally, such disclosures have the potential to disrupt the physician–patient relationship and it is unclear to what extent patients will know what to do with the information provided. This may be particularly true in geographic regions where patients have limited choices for medical care. Given the scope of intellectual and financial conflicts of interest in medicine, it may be impractical to expect that physicians will disclose every single intellectual and financial conflict of interest to every patient. However, broad regulatory requirements obligating physicians publicly to disclose significant conflicts of

PROFESSIONAL CONDUCT AND MISCONDUCT interest may have the positive effect of encouraging physicians to consider carefully and attempt to minimize the effects of such conflicts of interest. Examples of regulations aimed at increasing transparency include the proposed Physician Payment Sunshine Act in the United States. It would require pharmaceutic and medical device companies to disclose certain payments of over $100 to physicians and teaching hospitals. Also, the French Sunshine Act requires health products companies to make available to the public the existence of any contract with healthcare providers and certain entities of the health sector, as well as any benefit in cash or in kind granted to the latter beyond a certain threshold.

HONEST DEALING WITH THIRD PARTIES Physicians have both legal and ethical obligations to avoid fraud in their dealings with patients, governments, and third parties. In the United States, for example, federal fraud and abuse regulations (31 U.S.C. } 3729) prohibit false claims for reimbursement, defining a false claim as a knowing and willful statement that is inaccurate and is made to obtain funds from the government. Professional guidelines reiterate the obligation of physicians to act honestly and without duplicity. The American College of Physicians (2012) emphasizes, for example, the obligation to maintain accurate records and to be honest in documentation, not misstating diagnoses or treatments to ensure insurance coverage or to maximize reimbursement. Notwithstanding such categoric statements, there is debate within the profession about whether deception is ever acceptable as a means to the end of promoting patient welfare. It clearly is ethically unacceptable for a physician to engage in deception for self-protection or to cover up an error. Some physicians would, however, defend misrepresentation in limited circumstances. An example might be a situation in which a modest deception helps ensure insurance coverage of a given visit or screening test deemed necessary to the patient’s wellbeing. In a study by Novack and colleagues (1989), 87% of physicians indicated their belief that deception is acceptable on rare occasions when conflicting moral values are at play – including, for example, when a patient would be harmed by knowing the truth or in order to circumvent ridiculous rules and to protect confidentiality. Likewise, in a study of U.S. neurologists, Bernat et al. (1997) found that neurologists expressed a limited willingness to use deception or gaming to further their patient’s welfare. The most common justifications cited for occasional deception of third parties are consequentialist in nature: that the benefits to the patient of an occasional

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deception outweigh the costs. Others argue that the principle of beneficence sometimes affirmatively requires doctors to lie on behalf of their patients (Tavaglione and Hurst, 2012). Brody (1983) emphasizes that truth-telling is not an absolute moral imperative for physicians. He states that honesty is prized because it is typically the best way to demonstrate respect for persons, but suggests that in rare instances respect for persons might demand giving higher priority to other considerations. Others take a much more absolutist stance on deception by physicians (Huddle, 2012). Bernard Lo, for example, has stated that misrepresentation or gaming is wrong no matter what the motive. He cites truth-telling as a fundamental moral guideline and warns that misrepresentation undermines trust in the medical profession, usually is unnecessary, and may harm other people (Lo, 1995).

REPORTING IMPAIRED PHYSICIANS As a general matter, physicians should avoid criticizing the professional judgment or skills of colleagues. If, however, one physician has reason to believe that another is practicing medicine incompetently, or is impaired by substance use or other factors in a way that has the potential to jeopardize the wellbeing of patients, the nonimpaired physician should report the impaired physician to the relevant credentialing authority and try to assist in whatever way possible the rehabilitation of the impaired colleague (American Academy of Neurology, 2009, Section 6.6).

EXPERT TESTIMONY Physicians are permitted to testify as expert witnesses in legal proceedings. In this role, they can serve an important civic function by providing objective testimony that helps to clarify medical issues and facilitates the search for truth. Such testimony may include medical evaluation of a party to a legal proceeding, descriptions of relevant medical standards of care, and opinions regarding whether violations of standards of care caused harm to a claimant. Physicians must prepare diligently by reviewing all medical and scientific data, may testify only to matters within their particular area of expertise, and must be transparent regarding whether an opinion is based on personal experience, published information, practice guidelines, or prevailing expert opinion. Although it is acceptable for a physician to receive a fee for testifying that is reasonable in light of the time required for preparation and testimony, it is impermissible for such fee to be contingent on the outcome of the case (Williams et al., 2006).

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CARE OF SELF Physicians often prioritize their work to the point of neglecting their own personal lives and personal needs (Novack et al., 1997). Significant imbalance between professional and personal priorities can result in compassion fatigue, burnout and dissatisfaction, depression, anxiety, substance abuse, and disillusionment, all of which are likely to impact negatively patient care and patient satisfaction (Mawardi, 1979; Lewis et al., 1991; Sullivan and Buske, 1998; Haas et al., 2000; Shanafelt et al., 2002; West et al., 2006). Physician burnout and stress also have been linked to increased mistakes and significant medical errors (Firth-Cozens and Greenhalgh, 1997; West et al., 2006). Conversely, physician wellbeing has been linked to improved patient care. Shanafelt and colleagues (2005), for example, conducted a study of internal medicine residents demonstrating that those residents who had higher measured wellbeing had higher cognitive empathy scores, meaning they were better able to understand another person’s perspective regarding their experience (560). In order to optimize care of patients, physicians must take care of themselves. Physician self-care includes attending to personal relationships, maintaining religious or spiritual practices, fostering positive habits, including a healthy diet, adequate sleep and exercise, and avoiding addictive substances or other selfdestructive habits. It has also been shown that imposing limits on one’s own work and developing a personal life philosophy contribute significantly to physician wellbeing (Weiner et al., 2001; Shanafelt, 2002). Self-care also entails awareness and examination of one’s own personal attributes and emotions. A physician’s personal values and background, and the way he or she experiences patient interactions emotionally, can have significant impact on patient care. This is particularly true in situations that provoke strong emotional responses, such as caring for neurologically devastated or otherwise critically ill or dying patients. Meier et al. (2001) emphasize that unexamined physician emotions can seriously compromise patient care. They suggest a systematic approach to physicians’ identification and assessment of their feelings. It involves recognizing high-risk clinical situations and risk factors, monitoring signs and symptoms, developing a differential diagnosis, and determining a practical means of responding to the emotions. They encourage physicians going through difficult emotional turmoil in the context of patient care to step back to gain perspective, identify behaviors that result from their emotions, consider the implications and consequences of their behaviors, think through alternative outcomes for patients according to different behaviors, and consult a trusted professional colleague.

Krasner et al. (2009) found that an educational course for primary care physicians in mindful communication, including meditation, self-awareness exercises, and narratives about meaningful clinical experiences, was associated with short-term and sustained improvements in wellbeing, decreased burnout, and positive changes in empathy. Others have emphasized the importance of storytelling groups, small group discussions among colleagues, or other informal venues that enable physicians to reflect on and share the emotional challenges of their professional life (Quill and Williamson, 1990; Novack et al., 1997; Rabow and McPhee, 2001; Shanafelt et al., 2003). Finally, a critical element of self-care is recognizing when to seek help or time off from practice in order to change self-destructive habits or to regain equanimity. As Novack et al. (1997) emphasize, “[t]hose who are more satisfied with their practices have more satisfied patients . . . [t]hose who understand their needs and abilities in relation to others can function more effectively as members of health care teams and as members of families” (pp. 8–9).

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