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    Can a mistake lead to medical license revocation?

    Dr. Mistake was a well-respected dermatologist who was liked by both his patients and his peers. He prided himself on the loyalty of his patients — even in the era of managed care and the havoc of social media sites.

    It was a well-known fact that he had been through a difficult divorce, which he openly discussed with patients and peers. 

    One patient who saw Dr. Mistake every three months due to a history of malignant melanoma, was always impressed with the thoroughness of his full body skin examinations. During one exam the patient felt very uncomfortable with the way Dr. Mistake touched her skin, but assumed nothing of it. Three months later, she asked for a chaperone during another skin examination. She was informed by Dr. Mistake’s staff that they did not have the necessary staff to provide such a chaperone. When she asked whether such a chaperone was required by state regulation, she was correctly told that most states do not require such a service. 

    The patient was certain that she was touched inappropriately during the exam. The patient became aghast and immediately demanded to know what her physician was doing. Dr. Mistake admitted that he had been inappropriate, apologized, and asked her to recognize the difficulties that his failed marriage had presented to him. 

    The patient filed a complaint with the state board of medical examiners. The board sought to permanently revoke Dr. Mistake’s license. He pleaded for mercy from both the board and his patient. She testified on his behalf and asked that he only receive a reprimand and a requirement for counseling. The board refused and permanently revoked his medical license. 

    Did they take the right approach? What if Dr. Mistake appeals the decision to a state court? 

    An Ohio appeals court, some time ago, found that permanent revocation of a physician’s license was a proper sanction following allegations of sexual abuse of a patient. The appeals court also found that the hearing afforded the doctor by his state medical board was in accordance with due process.

    In the Ohio case, the physician, a practicing psychiatrist was notified by the Ohio State Medical Board that it intended to revoke his medical license based on allegations of improper sexual conduct with a patient. The physician requested a hearing by the board which was granted. He acknowledged his problem and admitted he victimized the patient and, by doing so, violated the standard that a physician owes his patients. 

    The board listened to expert witnesses who testified that a patient who has been sexually abused would be “more vulnerable” and that such conduct by a physician was never within the standard of care. 

    The board voted to permanently revoke the physician’s medical license. He appealed to the Ohio Court of Appeals. He argued that the board’s findings were grossly excessive.

    The court disagreed. It stated that the penalty imposed was not excessive or disproportionate to the prohibited acts committed by the doctor. Finding that the evidence against the psychiatrist was overwhelming, the appeals court held the permanent revocation of his license was not contrary to law. 

    Dr. Mistake’s permanent medical license revocation would probably also hold up to court challenge. Neither a state medical board nor a court is likely to be impacted by the facts of Dr. Mistake’s marital history. In addition, his patient’s attempt to invoke reprimand and not license revocation will not help Dr. Mistake.  State medical boards are in place to protect the public’s trust in medicine. Their argument will be that medical license revocation is required to prevent Dr. Mistake from repeating his unacceptable behavior. 

    It is unlikely that any court would reverse such a state medical board decision. 

     

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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