Fundamentals of Medical Practice Investigation

Jeffrey D. Lane

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780367596279
• eBook ISBN: 9781315350929
• Topic: Law
• Subtopic: Forensic Science
• Index: Law

Fundamentals of Medical Practice Investigation fills an important gap in the resources for criminal investigators. Appropriate for novice medical investigators as well as seasoned investigators looking to sharpen their skills, this book unites step-by-step fundamentals with up-to-date research reviews of critical issues in the field, including sexual misconduct, patient abuse, drug use among medical practitioners, and unethical or illegal prescription practices. An essential tool for law enforcement and other criminal justice professionals, Fundamentals of Medical Practice Investigation will improve the quality of all types of medical investigation.

chapter one

Medicine and the investigation thereof

The purpose of this book is to introduce the reader to basic investigative fundamentals when called upon to investigate a medical practitioner. The relevance of the book is based on one simple premise: medical practitioners not only figuratively, but literally, touch our lives. When medical mistakes are made, or when a patient is abused by their practitioner, the effects can be devastating. The affected patient/victim deserves a thorough intelligently conducted investigation. Author Paul Starr in his Pulitzer Prize winning work, The Social Transformation of American Medicine, eloquently describes the physician/patient relationship: “Even among the sciences, medicine occupies a special position. Its practitioners come into direct and intimate contact with people in their daily lives; they are present at the critical transitional moments of existence. They serve as intermediaries between science and private experience, interpreting personal troubles in the abstract language of scientific knowledge. For many people, they are the only contact with a world that otherwise stands a forbidding distance. Physicians offer a kind of individualized objectivity, a personal relationship as well as authoritative counsel. The very circumstances of sickness promote acceptance of their judgment. Often in pain, fearful of death, the sick have a special thirst for reassurance and vulnerability to belief.”¹

What is meant when we speak of fundamentals? My thoughts immediately go to the word basic, the foundation on which more complex intricate processes are built. In medicine, one would think that certain fundamentals should be mastered before moving on to more complex procedures. One would be concerned if they were about to undergo a coronary artery bypass procedure if their physician had not mastered the fundamentals of anatomy, chemistry, biology, etc., learned in medical school. It is said in the world of sports, fundamentals win games. In the game of baseball, the fundamentals consist of pitch, catch, throw, and hit. When these fundamentals are mastered and carried out on the field of play, the odds of winning increase.

The conduct of medical investigations is not much different in that mastering the fundamentals of investigation greatly increases the likelihood of a well thought out, thoroughly conducted investigation. In sports, the goal is to perform at our best, implementing sound fundamentals and hopefully win the game. In the conduct of medical investigations, the goal is to implement sound fundamental investigative techniques resulting in a thorough investigation obtaining the necessary facts to determine if some form of sanction is warranted.

This book seeks to guide the reader through several areas of common physician misconduct and other medical-related areas of concern. The chapters provide the basics in terms of carrying out a fundamentally sound investigation. Throughout one’s career, as skills and knowledge develop, more complex investigations will be confronted; however, regardless of the complexity of the case, the investigator will be able to rely on the central fundamental basics. During my tenure as the Director of Investigations for the Georgia Composite Medical Board, I attempted to instill in the investigative staff the importance of adhering to the fundamentals. When a case was turned in to me for review, it was closely scrutinized to ensure that “all of the bases were covered.” If not, the case was returned to the investigator for completion.

As we continue the discussion of medical practice investigation, it is important to draw some distinctions. The concept of medical practice investigation should not be confused with medical malpractice investigation. The two are in no way synonymous; however, they are certainly interrelated. As used in this book, the term “medical practice investigation” refers to the investigation of a medical practitioner for alleged violations of laws, rules, and regulations pertaining to the practice of medicine. For example, a medical practice investigation may examine allegations of sexual boundary violations, inappropriate excessive prescribing of controlled substances or physical or mental impairment.

Medical malpractice investigation refers to allegations of a breach of the standard of care whereby the medical practitioner is alleged to have practiced medicine negligently causing an injury to the patient. A medical malpractice investigation is another example of a medical practice investigation. More will be discussed on malpractice investigations in Chapter 8.

Definition

It would be presumptuous to assume that the definition of the “practice of medicine” is understood by all who may read this work. Undoubtedly all of us have been exposed to this term at one time or another just as I am certain that all of us have had an occasion to visit a physician for some type of illness, injury, surgery, etc. It is important to develop a working definition of the “practice of medicine” otherwise the remaining chapters may have little import.

There is no single all-encompassing definition. An examination of the definition of the practice of medicine in the state codes reveals that all states use various combinations of the following: (1) diagnosing, preventing, treating, and curing disease; (2) holding oneself out to the public as able to perform the foregoing; (3) intending to receive a gift, fee, or compensation for the above; (4) attaching such titles as “M.D.” to one’s name; (5) maintaining an office for reception, examination, and treatment; (6) performing surgery; and (7) using, administering, or prescribing drugs or medicinal preparations.² States use myriad variations of these terms in their definitions. States typically utilize words such as diagnosis, treatment, prevention, cure, advise, and prescribe. These words are usually accompanied by disease, injury, deformity, and mental or physical condition.²

The definition in the medical practice statutes of four randomly chosen states from four regions of the United States was reviewed for similarities. The states are Michigan (northern region), Alabama (southern region), Delaware (eastern region), and Oregon (western region).

Michigan Public Health Code 333.17001(1)(f)

“Practice of medicine” means the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.³

Alabama Code Section 34-24-50

The “practice of medicine or osteopathy” means: (1) To diagnose, treat, correct, advise, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain, or other condition, physical or mental, real or imaginary, by any means or instrumentality; (2) To maintain an office or place of business for the purpose of doing acts described in subdivision (1), whether for compensation or not; (3) To use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human disease or conditions, the designation “doctor,” “doctor of medicine,” “doctor of osteopathy,” “physician,” “surgeon,” “physician and surgeon,” “Dr.,” “M.D.,” or any combination thereof unless such a designation additionally contains the description of another branch of the healing arts for which a person has a license.⁴

24 Delaware Code, Chapter 17, Subchapter 1, § 1702(9)

”Practice of medicine” or “practice medicine” includes: (a) Advertising, holding out to the public, or representing in any manner that one is authorized to practice medicine in this State; (b) Offering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of another person; (c) Offering or undertaking to prevent or to diagnose, correct, and/or treat in any manner or by any means, methods, or devices a disease, illness, pain, wound, fracture, infirmity, defect, or abnormal physical or mental condition of another person, including the management of pregnancy and parturition; (d) Offering or undertaking to perform a surgical operation upon another person; (e) Rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a person or the actual rendering of treatment to a person within the State by a physician located outside the State as a result of transmission of the person’s medical data by electronic or other means from within the State to the physician or to the physician’s agent; (f) Rendering a determination of medical necessity or a decision affecting or modifying the diagnosis and/or treatment of a person; (g) Using the designation Doctor, Doctor of Medicine, Doctor of Osteopathy, physician, surgeon, physician and surgeon, Dr., M.D., or D.O., or a similar designation, or any combination thereof, in the conduct of an occupation or profession pertaining to the prevention, diagnosis, or treatment of human disease or condition, unless the designation additionally contains the description of another branch of the healing arts for which one holds a valid license in the State.⁵

Oregon Revised Statutes, Chapter 677.085

A person is practicing medicine if the person does one or more of the following: (1) Advertise, hold out to the public or represent in any manner that the person is authorized to practice medicine in this state; (2) For compensation directly or indirectly received or to be received, offer or undertake to prescribe, give or administer any drug or medicine for the use of any other person; (3) Offer or undertake to perform any surgical operation upon any person. (4) Offer or undertake to diagnose, cure or treat in any manner, or by any means, methods, devices or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity, defect or abnormal physical or mental condition of any person. (5) Except as provided in ORS 677.060, append the letters “M.D.” or “D.O.” to the name of the person, or use the words “Doctor,” “Physician,” “Surgeon,” or any abbreviation or combination thereof, or any letters or words of similar import in connection with the name of the person, or any trade name in which the person is interested, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions mentioned in this section.⁶

As one can see by the italicized terms and phrases, the four definitions cited, while significantly different in their wording and structure, utilize many of the same terms and phrases. It will be important for the medical investigator to become familiar with the statutes of their particular state and to learn from prior case history the medical board’s and the courts’ interpretation of the statutes and definitions.

This is particularly important in that there are several other health professions that diagnose and treat certain conditions. These professions are generally regulated by their own licensing board, that is, dentistry, nursing, chiropractic, podiatry, etc. Another potential quagmire is the advent of numerous “alternative” therapies that are not subject to any government regulation establishing standards of care, practitioner training, and education. Several of these holistic practices include chelation therapy, homeopathy, aroma therapy, and reflexology to name a few. A more thorough discussion of these modalities will be discussed in Chapter 14.

The standard of care

The standard of care, also referred to as the minimum standard of acceptable and prevailing medical practice, is viewed as the measure by which a physician’s care and treatment of patients is evaluated. The medical practice acts of all U.S. states, District of Columbia, and U.S. territories contain language essentially stating that the practice of medicine below the standard of care or practice that fails to conform the acceptable and prevailing practice of medicine is considered unprofessional conduct and is sanctionable.

How is the standard of care defined? Federal, state, and local laws help frame the definition as do the rules and regulations of state medical boards and medical specialty boards, that is, boards recognized by the American Board of Medical Specialties. It is interesting to note that there exists no universally accepted medical definition, however, standard of care is steadfastly established in law.⁷ It is defined as “the caution that a reasonable person in similar circumstances would exercise in providing care to a patient.”⁷ In other words, a physician has a duty to exercise the degree of care expected of a minimally competent physician in the same specialty and under the same circumstances.⁷

In 1860, the Supreme Court of Illinois issued its first decision on what constitutes standard of care.⁷ The lawsuit alleged that a physician was negligent in that he improperl...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Disclaimer
• Acknowledgments
• Author
• Chapter 1 Medicine and the investigation thereof
• Chapter 2 Professional ethics
• Chapter 3 The regulation of the practice of medicine
• Chapter 4 The investigative process
• Chapter 5 Witness interviews and respondent interviews
• Chapter 6 The medical record
• Chapter 7 Evidence and evidence handling
• Chapter 8 Standard of care investigations
• Chapter 9 Controlled substance prescribing investigations
• Chapter 10 Professional sexual misconduct investigations
• Chapter 11 Mental and physical impairment investigations
• Chapter 12 Investigating healthcare fraud
• Chapter 13 Other investigative concerns
• Chapter 14 Investigating the unlicensed practice of medicine and complementary and alternative medicine
• Chapter 15 The report of investigation
• Chapter 16 The trial and hearing process and the investigator as a witness
• Chapter 17 Managing your caseload
• Appendix 1: HIPAA privacy authorization form
• Appendix 2: Ambulance call report
• Appendix 3: Emergency department notes
• Appendix 4: Face sheet
• Appendix 5: Admission note—history and physical
• Appendix 6: Radiology note
• Appendix 7: Consult note
• Appendix 8: Informed consent for invasive, diagnostic, medical, and surgical procedures
• Appendix 9: Operative note
• Appendix 10: Anesthesia note
• Appendix 11: Physician orders
• Appendix 12: Progress note
• Appendix 13: Nursing notes
• Appendix 14: Medication administration record
• Appendix 15: Lab report
• Appendix 16: Discharge summary
• Appendix 17: Incident report
• Appendix 18: Evidence receipt and chain of custody
• Appendix 19: Peer review report
• Appendix 20: Prescription drug monitoring programs and contact information
• Appendix 21: Pharmacy data printout
• Appendix 22: Patient record review
• Appendix 23: State physician/professionals health programs
• Appendix 24: List of medicaid fraud control units
• Appendix 25: State insurance commissioner offices
• Appendix 26: Health insurance claim form
• Appendix 27: Superbill
• Appendix 28: Fraud worksheet
• Appendix 29: Initial physician application
• Appendix 30: State medical and osteopathic medical boards
• Appendix 31: Miscellaneous agency web addresses
• Index