I entered the practice of medicine at a time when physicians could more or less count on being masters of their professional domains. Most either worked in solo practice, where their authority was absolute, or in group practices with the expectation to eventually earn partnership. Both settings afforded the almost unquestioned ability to make independent decisions about patient care. Of course, being in control of care also meant being willing to assume responsibility for care-associated outcomes, good and bad.

Today, decisions about patient care are increasingly subject to factors outside the treating provider’s control, creating challenges for licensees and the Board alike. This evolution in health care delivery presents this quandary: How can the NCMB effectively hold individuals accountable in situations where the licensee’s true impact on patient care cannot be easily determined? The answer is neither obvious nor simple.

We practice medicine in an environment where managed care policies dictate which studies, procedures and medications should be used. Economic and regulatory pressures have led more licensees to choose hospital or corporate employment (just over a quarter of physicians work in practices owned in part or in full by a hospital or health system, according to a survey by the American Medical Association released in July) over partnership or solo practice. With this comes increased pressure to follow corporate, system or department protocols that may conflict with provider judgment. The trend toward team-based medical practice, despite its many potential benefits, also dilutes the physician’s ability to control decisions about care. Finally, the prevalence of electronic health records and system communication breakdowns add additional layers of complexity that can lead to mistakes and poor care.

Frequently, Board review of a disciplinary case suggests some factor outside the licensee’s control played a significant role in the case. The NCMB’s mission is clear: we have a duty to protect patients. But the circumstances of these cases are not clear. Sometimes Board Members conclude that a poor outcome is truly more of a team failure or system failure, but we do not regulate teams or health systems. The Board licenses individuals and its disciplinary process is designed to hold individuals accountable. At times it seems that we are trying to fit a proverbial square peg in a round hole.

I’ll share some examples of the types of cases that regularly challenge the Board:

When following established protocols fails patients

Case study: A licensee treats a patient who presents in the hospital emergency room with symptoms suggestive of a serious underlying medical problem, but test results do not meet thresholds established in hospital protocols for admission. Protocol recommends discharge to home and follow up as an outpatient. The patient is discharged home. The patient’s condition worsens, and they present to another emergency department the following day with similar symptoms and die within 24 hours of admission.
Discussion points: Health care institutions have written and unwritten policies for managing patients and resources. These guidelines are in place to ensure consistent quality of care and prevent overconsumption of resources. A licensee is in the difficult position of having to follow policy while having the skill and intuition to tailor care to meet the unique needs of their patients. When licensee judgment runs counter to established policy, what responsibility does the licensee have to buck the system? The clinician members of the Board understand that it’s not reasonable or realistic to expect licensees to argue for exceptions every time their gut tells them that, this time, the protocol isn’t right and the patient does need to be admitted. The Board does expect licensees to learn from bad outcomes and work constructively with department and system administrators to make changes that improve care. At the same time, we appreciate this is only possible when department and system administrators are willing to work with the licensee to make necessary changes in policies and procedures.

Case study: A licensee accepts a position with a medical practice that manages a large population of chronic pain patients. The practice follows a written protocol that directs opioid prescribing and other aspects of patient management. The protocol does not meet accepted and prevailing standards of care. A patient’s family members file a complaint, after the patient is admitted to the hospital for opioid poisoning.
Discussion points: It’s difficult to come into an established practice group and question the way things are done. At the end of the day, however, licensees are held individually accountable for practicing care that meets accepted standards. If you agree to follow established protocols, you have a responsibility to ensure you will still be able to provide quality care. If you discover that you cannot, finding an employment situation that does is the best way to protect yourself and your patients. If it comes to it, the explanation of, “I was just following my practice protocol” will not prevent the Board from voting to take action, if warranted.

Complications of the healthcare delivery system

Case study: A licensee performs emergency abdominal surgery on a patient with a burst appendix. The patient lives alone and will require outside assistance with recovery and follow up care. The licensee orders home health services for the patient during discharge planning, but home health is not in place when the patient is discharged home, and antibiotic therapy is not continued as directed by the licensee. Two days after discharge, the patient calls for an ambulance after developing a fever, shortness of breath and chest pain. The patient is diagnosed with abscess, sepsis and pneumonia and is readmitted.
Discussion points: This is the sort of case we often refer to as a “system failure.” Who is ultimately responsible for the bad outcome? Should the licensee be held accountable for ensuring that orders have been properly executed or is his or her duty discharged simply by ordering the correct course of treatment? In these types of case, one approach the Board might use is to hold the licensee accountable (by issuing a Public or Private Letter of Concern, for example) while acknowledging the system failures that contributed to the poor outcome.

Case study: A licensee who practices family medicine sees an established patient with a remote history of depressive illness for a routine visit. The licensee’s practice recently implemented an electronic health records system and the licensee is using a scribe to handle documentation of the visit. The licensee takes the patient history and conducts an examination and no issues are noted. Later that night, the patient presents in a hospital emergency room with an acute grief reaction and an acute overdose of Tylenol. Later, the patient tells the licensee that she is going through a painful divorce and had been feeling down for weeks prior to her check up, but did not feel comfortable bringing up the divorce and related feelings in the presence of the scribe.
Discussion points: This is an example of one way that changes in the health care delivery system (routine use of EHR and medical scribes) have the potential to impact care in unpredictable ways. Licensees must strive to remember that patients are as affected by changes to the health care delivery system as the providers who are struggling to adapt to new processes and tools, and be sensitive to their patients’ needs.

Where do we go from here?
I’d love to say that the Board has discovered a foolproof way of analyzing complex cases that always results in determining who is accountable in a way that is fair to both licensees and to patients. However, that just isn’t the case. I can tell you that the Board is fully cognizant that the traditional model of holding licensees responsible as “captains of the ship” regardless of extenuating circumstances outside the licensee’s control is not always appropriate. We recognize that the health care delivery system has changed and that we cannot ignore how this impacts the licensee’s control over outcomes and other aspects of care. We also recognize that the NCMB’s traditional processes need to evolve to match modern circumstances. This will not happen overnight and it will not happen easily.
For now, I and my colleagues on the Board consider the facts of each case and do the very best we can to come to a resolution that holds the licensee accountable for decisions and actions that he or she can reasonably be held responsible for while noting the influence of external factors. This is an uphill battle, but one that must be aggressively pursued to ensure that the NCMB is able to effectively fulfill its mission in a way that is fair to licensees.

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Protect Yourself
Licensees can avoid putting themselves in professional situations that may expose them to sanction by the Board by going into any new employment situation with their eyes open. Points to consider when entering a new work environment:

•Understand the organizational structure/ownership – to
treat patients lawfully in NC, practices must be owned at
least in part by someone with an active NCMB license
• Be familiar with the written policies for healthcare delivery
• Be familiar with the unwritten policies for care
• Anticipate problems before you commit. Ask yourself, will I
be working in an environment that meets the standard of
care and reflects your personal standards for care
• Recognize that your obligation to provide care that meets
accepted standards may require you to walk away from a
situation that does not allow this

Source: Dr. Walker-McGill