By Anthony M. Sola and Samantha E. Shaw
Thursday, October 12, 2017
It is quite common for physicians to be asked to render “informal” care and treatment to family and friends. Providing casual care and treatment, even by way of a simple prescription, while probably common, can result in potentially serious adverse medical consequences for the patient and major legal consequences for the physician. In this article we will discuss some of the potential ramifications and reference a case we had involving gynecological cancer caused by an internist treating his wife.
The American College of Physicians Ethics Manual: Sixth Edition warns that “Physicians should usually not enter into the dual relationship of physician-family member or physician-friend for a variety of reasons” (pgs. 47-48). Some of the reasons such relationships are discouraged include incomplete counseling, failure to keep appropriate medical records, inadequate history taking or insufficient physical examinations, interference with the physician’s clinical objectivity, over testing and inappropriate prescriptions. The risk of rendering treatment outside a physician’s area of expertise is a further reason why a physician rendering care and treatment to a friend or family member is cautioned against doing so.
There is also the concern of running afoul of New York State Department of Health (DOH) requirements. The New York State Office of Professional Medical Conduct (OPMC) is the arm of the DOH that regulates and investigates several areas that are frequently seen as applicable when a physician renders care and treatment in a dual relationship capacity. Importantly, OPMC’s view is that even when treating family or friends without compensation, the physician is required to maintain medical records made contemporaneously with the care and treatment. Failure to do so can result in sanctions against the physician. This begs the question: Do you maintain an office chart for your spouse or nephew to whom you prescribed a Z-pack for an upper respiratory infection? If not, you may find yourself in some hot water.
This precise issue, among others, arose in one of our cases. In that lawsuit, a woman sued her gynecologist for an alleged delay in diagnosing a gynecological cancer. During discovery, it was revealed from pharmacy records that the plaintiff’s own husband — an internist — had been prescribing estrogen replacement therapy to his wife for a lengthy period of time to treat her post-menopausal symptoms. Of course, such single hormone therapy has been linked to an increased risk of gynecological cancers and this plaintiff-wife was ultimately diagnosed with just such a cancer. The defendant-physician therefore counter-sued the plaintiff’s husband for medical malpractice. Discovery also revealed that the physician-husband failed to maintain any records of his treatment of his wife. As a result, OPMC initiated an investigation and sanctions could be imposed. One wonders about the tenor of the dinnertime conversation in the plaintiffs’ home when the wife realized her own husband’s prescriptions to treat her vaginal dryness caused her cancer.
The moral of the story is that while it is not forbidden to render medical care to family members or friends, physicians should be very circumspect about entering into such relationships. The physician should consider his or her area of expertise in relation to the treatment being requested as well as the severity of the illness, and the longevity and continuous nature of such requested treatment. To the extent that such a dual relationship is entered, proper documentation must be created and maintained as would be for any other patient.