For the sake of patient safety and public trust, physicians must be able to report suspicions of incompetent or unethical conduct of health care professionals without fear of being sued for defamation, physicians tell a Kentucky court.
Physicians have an ethical and legal responsibility to report certain conduct, or suspicion of misconduct, and a Kentucky trial court’s decision puts them in a difficult position to be able to do what’s necessary to protect patients from harm, fraud and abuse, the Litigation Center of the American Medical Association and State Medical Societies and the Kentucky Medical Association (KMA) tell the Kentucky Court of Appeals in an amicus brief urging the court to overturn a trial court decision.
“The decision here will determine whether important physician communications are chilled due to fears that a physician’s suspicions or opinions will be viewed as defamatory or that the common interest privilege may not apply to reporting concerning conduct, which will, in turn, have a detrimental effect on health care as a whole,” says the brief in the case, Heligman v. Carey.
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
A physician doing his duty
Craig Heligman, MD, chief medical officer for CSX Transportation, noticed a suspicious spike in medical leaves in the weeks following the company’s announcement that there would be furloughs in the Huntington, West Virginia, area. Employees can get benefits for a significantly longer time if they are furloughed while on medical leave.
More than 65 employees submitted forms requesting medical leave that claimed “minor soft-tissue injuries sustained while all off duty,” court records how. The forms were similar in content, were signed by one of two chiropractors and all called for eight weeks or more of medical leave. One of the chiropractors submitted 14 similar forms on a single day.
Dr. Heligman wrote the federal agency that is responsible for paying benefits to furloughed railroad workers about his “concern about the practices.” His letter to the Railroad Retirement Board read, in part: “In my professional medical opinion, both of these providers continued to keep employees off work for much longer than is medically appropriate. These conditions would be considered minor musculoskeletal injuries that would generally resolve without any treatment, without more than a few weeks away from work, or with no more than a couple of weeks of chiropractic care. Therefore, their practices are also highly suspicious for excessive and inappropriate treatment.”
While Dr. Heligman had suspicions, he and his CSX colleagues “were not able to identify patterns that were clearly fraudulent,” he wrote. He submitted a list of the names of the employees and the two chiropractors and urged the government agency to fully investigate.
Physicians: Trial court errored
The chiropractors filed defamation claims against Dr. Heligman based on his letter and the trial court did not let the jury consider the common-interest privilege to protect Dr. Heligman from being found liable of defamation. The court also determined as a matter of law that the letter was not pure opinion.
The AMA Litigation Center and KMA tell the Kentucky Court of Appeals that Dr. Heligman’s letter is “pure opinion” and that he “acted lawfully and consistent with this professional and ethical obligations.”
The AMA Code of Medical Ethics directs physicians who become “aware of or strongly suspect that conduct threatens patient welfare or otherwise appears to violate ethical or legal standards” to report such conduct.” The AMA Code is not law in Kentucky, but the law does require that all Kentucky licensed physicians conform to them, the brief tells the court. Physicians can face disciplinary action from the Kentucky Board of Medical Licensure for not conforming to the AMA Code of Medical Ethics.
“If this verdict is allowed to stand, then Kentucky physicians will be placed between a rock (their ethical obligations and potential professional censure) and a hard place (fear of personal liability from individuals they reasonably believe are violating professional and ethical norms),” the brief tells the court. “Physicians should not have to choose between complying with their ethical and legal responsibilities or avoiding a defamation claim.”
