Reporting physician impairment: It’s a tough call

BY Mary M. Bearden
Brown & Fortunato, P.C.

Physicians, other health care professionals, peer review committees, and hospitals often want to know when they have a duty to report a physician for possible impairment or other behavior that could pose a threat to patient safety. From time to time, suspicions and concerns about impairment arise in the ER or with a physician’s late night visit to a patient. Did the physician have the smell of alcohol on his breath? Was the practitioner weaving as he walked? At other times, physicians in a group practice may wonder about the behavioral patterns of their fellow physicians. Is something wrong? Why is my colleague becoming increasingly unproductive? What should I do?

The Texas Medical Practice Act governs reporting requirements to the Texas Medical Board. The TMB Rules also give guidance on how to handle concerns regarding actions that may affect patient safety as well as possible substance abuse or impairment. Additionally, internal documents of hospitals or physician practices (i.e., medical staff bylaws, policies and procedures, etc.) may provide guidance on responding to issues of concern about possible impairment or aberrant behavior.

Under the Medical Practice Act, certain persons and committees must report relevant information to the Board relating to the acts of a physician if, in the opinion of the person or committee, the physician in question poses a continuing threat to the public welfare through the practice of medicine. Those required to report to the TMB include: (1) a medical peer review committee; (2) a physician licensed in Texas or otherwise lawfully practicing medicine in Texas; (3) a physician engaged in graduate medical education or training; (4) a medical student; (5) a physician assistant or acupuncturist licensed in Texas or otherwise lawfully practicing in Texas; and (6) a physician assistant student or acupuncturist student. The report should include a narrative statement describing the time, date, and place of the acts or omissions on which the report is based, and it should be made to the Board as soon as possible after the threat is identified and the relevant information can be assembled. The duty to report may not be nullified by contract (i.e., by some kind of settlement or other agreement).

The Medical Practice Act defines “continuing threat to the public welfare” as a real danger to the health of a physician’s patients or to the public from the acts or omissions of the physician caused through the physician’s lack of competence, impaired status, or failure to care adequately for the physician’s patients, as determined by (1) the Board; (2) a medical peer review committee; (3) a physician licensed to practice medicine in Texas or otherwise lawfully practicing medicine in Texas; (4) a physician engaged in graduate medical education or training; or (5) a medical student.

Even though the Medical Practice Act identifies who must report, questions still arise among possible reporters because the determination of whether a physician is “a continuing threat to the public welfare through the practice of medicine” is a subjective determination. Some members of a medical peer review committee, for example, may believe that the physician is a continuing threat when others are not so sure.

While one section of the Medical Practice Act requires reports for the determination of a “continuing threat to the public welfare,” another section specifically addresses impairment. The section applies to: (1) a committee of a professional medical society or association operating under written bylaws and composed primarily of physicians; (2) the staff of that committee; or (3) a district or local intervenor participating in a program established to aid physicians whose ability to practice medicine is impaired, or reasonably believed to be impaired, by drug or alcohol abuse or mental or physical illness.

Under the impairment provision, a person or committee: (1) may report to the TMB or to a health care entity in which an affected physician has clinical privileges the name of an impaired physician, together with pertinent information relating to that impairment; and (2) must report to the TMB and any known health care entity in which the physician has clinical privileges if the person or committee determines that, through the practice of medicine, the physician poses a continuing threat to the public welfare. Even in the impairment provision, the determination for mandated reporting is the same. The physician must pose “a continuing threat to the public welfare through the practice of medicine.” Reports made to the TMB are, with limited exceptions, confidential and privileged.

Many physicians, medical students, and others are reluctant to report physicians to the TMB. If a concerned individual is unable to make a determination that a physician poses a “continuing threat,” then a report may be made (and from an ethical standpoint probably should be made) to a physician health committee at a hospital where the physician has clinical privileges or to the physician health committee of the local medical society. The Texas Medical Association also provides assistance in the rehabilitation of impaired physicians.

entities may have relevant bylaw provisions or policies and procedures that provide guidance on the reporting of possible impairments or disturbing behavior. If so, the policies and procedures should be followed. In the hospital setting, initial reports are generally referred, on a confidential basis, to the physician health committee, which has experience in responding to concerns of possible impairment and which generally receives the protection of the peer review privilege. In a group practice, the managing physician may address the issue with the affected practitioner. Requests for an alcohol or drug screen are often made before definitive action is taken.

The Medical Practice Act also allows a physician to self-report an impairment problem. If the problem involves a first-time report and the physician has not committed a standard or care violation, the TMB often works with the self-reporting physician and may impose a nondisciplinary rehabilitation order. Unlike a disciplinary order, a rehabilitation order is confidential and is not reported to the National Practitioner Data Bank. Physicians under rehabilitation orders are monitored closely, and violations may result in immediate discipline, including temporary suspension of the physician’s license.

The Medical Practice Act provides immunity from civil liability to those who make reports to the Board. The following individuals and entities receive statutory immunity for reports: (1) a person who, in good faith, reports or furnishes information to a medical peer review committee or the Board; (2) a member, employee, or agent of the Board, a medical peer review committee, or a medical organization committee, or a medical organization district or local intervenor, who takes an action or makes a recommendation within the scope of the functions of the board, committee, or intervenor program, if that member, employee, agent, or intervenor acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to that person; and (3) a member or employee of the Board or any person who assists the Board in carrying out its duties or functions provided by law.

A person or health care entity required to report to the Board may not be found liable in a civil action for failure to report to the Board unless the failure was committed knowingly or willfully, except that the appropriate state licensing body may take action against a licensed person or entity for not reporting as required by law.

Reporting a physician who may be impaired is a difficult task. Texas law has helped to clarify who must report and who may report. Guidelines of the TMB and the TMA have made reporting less onerous, and the rehabilitation of impaired physicians is one of the primary goals of both the TMB and the TMA.