January 16, 2020

QUESTION:        Our Medical Staff Rules and Regulations prohibit physicians and other practitioners from treating themselves, their spouses, and their children at the hospital.  We have been receiving a bit of push-back on this prohibition, particularly because we are located in a somewhat rural area where the selection of specialists can be somewhat limited and, at times, it can be more convenient for family members to schedule and obtain treatment from their own relatives.  Do most hospitals and medical staffs prohibit self-treatment and treatment of family members?  Do most allow exceptions in certain cases?   Do you know whether these prohibitions are just “best practice” recommendations or, alternatively, required by law?


ANSWER:        The issue of self-treatment and treatment of close family members comes up from time to time, often after a hospital and its medical staff have received reports of some sort of alleged “abuse” of the hospital’s facilities or services in furtherance of such activities.  For example, it is not uncommon for a hospital and its medical staff leaders to propose restrictions on self-treatment or treatment of family members after learning that a practitioner has been ordering his or her own labs and other diagnostic tests or, a bit less commonly, bringing in family members for “after hours” and undocumented colonoscopies and other diagnostic procedures.

There are a number of reasons that hospitals and their medical staff leaders should consider policymaking in this area.  For one thing, if practitioners are caring for family members without establishing formal patient-physician relationships, performing appropriate histories and examinations, and creating medical records – there could be increased risk of malpractice (and the attendant increased risk of liability).

Aside from the risk that is created when practitioners treat themselves and their family members (due to the informalities in treatment mentioned above, the fact that family members may not feel comfortable revealing full histories to the practitioner, that practitioners may overprescribe to themselves or fail to objectively diagnose themselves or  close family, etc.) – there are other reasons to consider policymaking in this area.

First, a number of states have passed statutes and regulations that specifically prohibit licensed practitioners from treating themselves and certain close relatives.  Accordingly, any hospital or medical staff considering such a policy should first research applicable state law.  Even in states that do not legally prohibit self-treatment or treatment of family members, the Board of Medicine may discourage the practice or have established certain parameters to ensure that any such practice is done safely.  Note the following FAQ from the California Medical Board website:

Can a physician treat and prescribe to family, friends or employees?

There is no law which specifically prohibits a physician from evaluating, diagnosing, treating, or prescribing controlled substances to a family member, employee or friend. However, the practice is discouraged. There are laws to consider when assessing any prescribing issues which include, but are not limited to: 1) a physician cannot prescribe without an appropriate prior exam and a medical indication for the prescription, and 2) an adequate and accurate medical record relating to the provision of services to the patient and documenting the medical need for the prescription must be created and maintained by the physician. Basically, a physician must follow the same practice/protocol for any patient in which medications are prescribed.

Though the federal Drug Enforcement Administration (DEA) regulations do not include an outright prohibition on self treatment or treatment of family members, they do establish requirements for the prescribing of controlled substances, including that they be issued for a legitimate medical purpose by a practitioner who is acting “in the usual course of his professional practice.”  It is possible, then, that a physician who prescribes a controlled substance for a family member, where the type of prescribing falls outside of his usual course of professional practice, or where the prescribing occurs outside of an established physician-patient relationship, would be engaged in unlawful diversion of controlled substances.  For example, would it be lawful for a surgeon to prescribe Ativan for her mother-in-law’s anxiety?  Though the prescription may be medically indicated, depending on the condition of the mother-in-law, the surgeon could be found to be acting outside the usual course of her surgical practice and the prescription could, in turn, be found to be unlawful.

Aside from looking at legal requirements and prohibitions, also be aware that many medical associations and societies recommend that physicians and other practitioners limit self-treatment and treatment of family members.  While these do not have the force of law, they can provide persuasive guidance for best practice and are worth considering.  For example, the American Medical Association’s Code of Medical Ethics’ Opinion on Physicians Treating Family Members states:

Opinion 8.19 – Self-Treatment or Treatment of Immediate Family Members

Physicians generally should not treat themselves or members of their immediate families. Professional objectivity may be compromised when an immediate family member or the physician is the patient; the physician’s personal feelings may unduly influence his or her professional medical judgment, thereby interfering with the care being delivered. Physicians may fail to probe sensitive areas when taking the medical history or may fail to perform intimate parts of the physical examination. Similarly, patients may feel uncomfortable disclosing sensitive information or undergoing an intimate examination when the physician is an immediate family member. This discomfort is particularly the case when the patient is a minor child, and sensitive or intimate care should especially be avoided for such patients. When treating themselves or immediate family members, physicians may be inclined to treat problems that are beyond their expertise or training. If tensions develop in a physician’s professional relationship with a family member, perhaps as a result of a negative medical outcome, such difficulties may be carried over into the family member’s personal relationship with the physician.

Concerns regarding patient autonomy and informed consent are also relevant when physicians attempt to treat members of their immediate family. Family members may be reluctant to state their preference for another physician or decline a recommendation for fear of offending the physician. In particular, minor children will generally not feel free to refuse care from their parents. Likewise, physicians may feel obligated to provide care to immediate family members even if they feel uncomfortable providing care.

It would not always be inappropriate to undertake self-treatment or treatment of immediate family members. In emergency settings or isolated settings where there is no other qualified physician available, physicians should not hesitate to treat themselves or family members until another physician becomes available. In addition, while physicians should not serve as a primary or regular care provider for immediate family members, there are situations in which routine care is acceptable for short-term, minor problems. Except in emergencies, it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members.

A number of other organizations/publications have discussed this issue as well:

Finally, note that although Medicare’s reimbursement rules do not appear to have any outright prohibition on self-treatment or treatment of family members, CMS does take the position that services provided by an immediate family member or another individual who is a member of the same household would normally be provided gratuitously, in light of the relationship between the individuals.  In turn, reimbursement for such services is excluded under Parts A and B of Medicare  (see Section 130 of the Medicare Benefits Policy Manual for more details).

With all of this background in mind, what to do?  Well, first of all, work with your legal counsel to research applicable state law.  If your state has an outright prohibition on self-treatment or treatment of certain family members (or specific types of treatments for family members), the decision about what to include in the Rules and Regulations or other policy will be easier – and should closely track the state law (though you can be more restrictive than the state prohibition, if you wish).

If your state is silent on the issue, this is a matter that should be carefully considered and discussed, weighing patients’ best interests and the practicality of an outright prohibition on self-treatment or treatment of family, given your geographic location (or other relevant factors, such as those related to ready availability of services in the area).

For educational purposes, we provide the following, sample language.  It reflects the type of language that is fairly common, in our experience, in areas where state law is silent about these matters.  To that end, note that most hospitals and medical staffs seem to agree with the professional societies and associations, erring toward fairly tight limitations on self-treatment and treatment of family members, due to the increased risks:

Self-Treatment and Treatment of Family Members, COLLEAGUES, and co-workers

(1)        Self-Treatment:

(a)       Practitioners are strongly discouraged from treating themselves, except in an emergency situation or where no viable alternative treatment is available.

(b)       Practitioners should never write prescriptions for controlled substances for themselves.

(2)        Treatment of Immediate Family Members, Colleagues, and Co-Workers:

(a)        Generally, practitioners should refrain from the following activities in the Hospital:

(1)       admitting or consulting on immediate family members (i.e., spouse, natural or adoptive parent, child, or sibling, step-parent, step-child, or step-sibling, parent-in-law, child-in-law, or sibling-in-law, grandparent, grandchild, spouse of a grandparent, spouse of a grandchild, step-child, or anyone residing in the same household as the practitioner); or

(2)       being involved in the care of an immediate family member with complex or potentially serious symptoms or diagnoses or in situations that raise ethical concerns.

When considering these guidelines, factors such as the availability of other Practitioners to provide the needed care, patient acuity, and the patient’s right to direct his/her own medical care should also be considered.

(b)       Practitioners should never write prescriptions for controlled substances for family members.

(c)        As it relates to colleagues and co-workers in the Hospital, practitioners should refrain from:

(1)       treating any individual without first performing an appropriate assessment and creating a proper medical record; or 

(2)       writing a prescription for any individual in the absence of a formal practitioner-patient relationship.

November 14, 2019

QUESTION:        Is there any way to ensure that practitioners at our hospital keep patients within the community and don’t unnecessarily transfer them to other facilities for the practitioners’ convenience or profit, without going through all of the rigamarole of summarily suspending the physician and then revoking his appointment and privileges, as in the Patel case that was featured in the “NEW CASES” section of this week’s Health Law Express?

ANSWER:            Yes!  Hospital and medical staff leaders can use a number of strategies to help ensure that patients who present to the hospital for treatment do not end up being unnecessarily transferred away to other organizations and/or other communities.  Most organizations’ Medical Staff Bylaws or Credentials Policy includes, as a threshold eligibility criterion for Medical Staff appointment, that an individual live and/or maintain an office within a certain geographic distance of the hospital.  The intent of such requirements is to ensure that practitioners are routinely available to respond to their patients when needed and to participate in medical staff affairs.  Further, it helps to ensure that follow-up, outpatient services are available to patients within the community.

Note that some organizations choose to have a general geographic distance requirement for medical staff membership (e.g., “within 30 miles” or “within 30 minutes driving”) and to also have specialty-specific requirements for those specialties where patient needs may be more urgent or demanding.  For example, it is not uncommon for there to be more stringent geographic requirements (e.g., “within 10 miles” for trauma).  Further, some organizations impose a loose requirement for general medical staff appointment (e.g., “within 50 miles”) but require individuals within certain specialties to be closer to the hospital when serving on call for the emergency department.

In the end, each organization has to choose how to define its geographic requirements, based on the unique nature of the community and the services offered by the hospital’s practitioners.  There’s not a “right” or “wrong” answer with respect to that.  So long as the Bylaws and/or Credentials Policy are appropriately drafted, an individual who fails to meet the geographic distance requirement need not have an application for appointment denied but, rather, can simply be told that he or she has been deemed ineligible to have an application  processed and considered.  Further, so long as those documents call for automatic relinquishment of appointment and privileges when an individual fails to satisfy any eligibility criteria, an individual whose status changes during the course of an appointment term could simply be informed of his or her automatic relinquishment, rather than the Medical Executive Committee and Hospital having to go through the motions (and possible hearing, appeal, and litigation) associated with revocation of appointment and privileges.

Finally, with respect to employed physicians, many organizations require (either in the employment contract or in separate employment policies) that services to be provided within the employer’s facilities unless certain, enumerated circumstances apply (e.g., the patient’s best interest requires transfer to another facility with more specialized capabilities, the patient’s health insurer insists, the patient requests transfer).

October 17, 2019

QUESTION:        A few years ago, CMS proposed a rule that would have required hospitals to send a copy of the discharge instructions and the discharge summary to practitioners responsible for the patient’s follow-up care.  Specifically, the proposed rule attached a 48-hour deadline to this requirement, with an exception for pending test results (which would have been due within 24 hours after becoming available).  Was the 48-hour deadline ever finalized?

ANSWER:          No, CMS ultimately decided not to impose this 48-hour deadline.  At the end of September, the agency published a final rule explaining its rationale.  CMS received numerous comments that supported the idea of requiring hospitals to send a copy of the discharge instructions and discharge summary to the practitioners responsible for the follow-up care, so long as those practitioners were known and had been clearly identified.  However, most of the commentators expressed concern about the idea of a 48-hour time frame.  In the Federal Register, CMS explained that it found these concerns convincing.  Specifically, it acknowledged that the 48-hour deadline would not be reasonable or appropriate for all situations.  It therefore eliminated that specific time frame requirement and instead gave hospitals discretion on when to send this information.

However, CMS did finalize a requirement for hospitals to “discharge the patient, and transfer or refer the patient where applicable, along with all necessary medical information pertaining to the patient’s current course of illness and treatment, post-discharge goals of care, and treatment preferences.”  This does place certain obligations on the hospital (and discharging practitioners) to ensure that necessary medical information is ready to be sent at the time of discharge.

To hear more on this topic and other recent CMS changes, tune in to our upcoming audio conference:

“Patients Over Paperwork”? The New CMS Rules and Their Impact on Your Patients and Policies

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