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    Undue Influence and the State Board of Medical Examiners

    Dr. Improve has an anonymous patient feedback system in his waiting room.  It is a simple system in which a box is placed in his waiting room for patients to provide their anonymous comments. His waiting room is under the watchful eye of his practice manager, who empties out the box each day.

    Mr. Disgruntled has been coming to Dr. Improve for many years and is always complaining about one issue or another. He leaves a particularly nasty note in the “complaint box” and is convinced that the practice manager has seen him do so. On his next visit to the office, Mr. Disgruntled is in a particularly bad mood and starts to argue with Dr. Improve who promptly tells him to never return to the office.

    Mr. Disgruntled files a complaint against Dr. Improve with the local State Board of Medical Examiners. In the complaint, Mr. Disgruntle alleges that Dr. Improve’s patient feedback system is a method of undue influence on his patients and that Dr. Improve sought retribution for the so-called anonymous complaint against him. Dr. Improve is in disbelief and seeks legal advice. Is it possible that he will be censured by his local State Board of Medical Examiners for his actions?

    Dr. Improve, in discussing the situation at a hearing in front of the State Board, makes the case for gathering patient feedback at the point-of-service. The benefit, he contends, is that information captured at the point-of-service is not dated; it is timely and relevant. He is emphatic that his practice manager’s potential oversight plays no role in “undue influence”. He states that it makes no sense for patients to identify problems that presented days or weeks ago. Memories fade. If you ask patients for feedback down the road, by email, letter, or phone, you typically get little to no response.

    Most members of the hearing were receptive to Dr. Improve’s comments, but one person pushed back, arguing that asking patients for feedback in the office did create “undue influence.” The patients would feel pressure to please and the information would be overly optimistic and have no value.

    Dr. Improve explained that the system was not asking for glowing praise; rather, it asked for honest feedback about what worked and what didn’t, and suggestions for improving. Further, the system was based on anonymity. Patients could choose to give their names but, absent an affirmative step, only a pseudonym was tied to the review. The doctor would not know who the patient was, or even if any given patient completed a survey.

    He did concede that if the doctor or staff was sitting across from a patient, tapping a pencil while the patient completed a survey, then, yes, that could influence the outcome. But that was not the environment in Dr. Improve’s office. Dr. Improve suggested that doctors and patients have to manage a range of conflict of interests, and he suggested that the system did work well the vast majority of times.

    One of the Board Members, upset with Dr. Improve’s responses, asked the following hypothetical question: If a patient sees the doctor to discuss surgery versus conservative options, the patient understands that the surgeon will be paid more for operating. Does the doctor have to explicitly disclose how much he will be paid with either option? Dr. Improve responded with “of course not.” It’s assumed the doctor will behave like a professional and put the patients’ interest first. With that in mind, the patient will make an informed decision.

    Is such a system ever abused? Yes. With just under 1 million doctors in the US, some cannot resist the impulse to treat the patient as a cash cow. But, the majority of doctors comport themselves ethically and with integrity.

    How dermatologists interact with patients determines whether they are treating their patients with respect or whether they are tainting the relationship with undue influence. It has nothing to do with whether a practice asks for feedback at the point-of-service or somewhere else. It is highly unlikely that the Board of Medical Examiners will have any issues with the actions of Dr. Improve. 

    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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