More about the Massachusetts Board of Registration in Medicine and Doctor-Patient Sex

There were two letters to the editor in today's Boston Globe about the Massachusetts Board of Registration in Medicine's decision to take away Dr. Gary Brockington's license. (See here for my original post.)

Nurse Mary Hourihan gives a perspective on Dr. Brockington's overall practice like what we've heard from patients of other physicians who have been disciplined for sexual relationships with patients:

As a nurse who has worked at the Faulkner Hospital for more than 30 years, I was shocked and saddened to read your article concerning the state Board of Registration in Medicine’s revocation of Dr. Gary Brockington’s medical license (“Board revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24). The doctor has cared for his many patients with the utmost professionalism and expertise. Although I do not work directly with him, nearly every day I hear from our mutual patients the reverence in which he is held.

The board is denying thousands of patients the skilled, sensitive care this extraordinary physician provides. I feel that Brockington and his patients deserve reconsideration of this decision.

Mary Hourihan

West Roxbury  

There's nothing surprising about the fact that a physician who displayed a serious ethical lapse with a patient may have been an excellent physician for most or almost all of his patients. (For example, see here.) In my own experience, a former colleague who I knew to be a superb physician, such that I referred one of my sons to him for allergy care, has been convicted for murdering his wife! In prison, he continues to evince the caretaking characteristics that were so prominent in his care of patients. (See here.)

Donald Ross, a physician colleague of Dr. Brockington, comes to the same conclusion I did - that if Brockington's relationship with the patient was a brief, one-time event that occurred during a period of major stress, the Board's actions were too harsh. But I don't agree with Ross that the Board's decision necessarily reflects "lack of compassion." A Board can impose a severe penalty and still regard to person being penalized with compassion, in accord with the precept that we should hate the sin but love the sinner.

In reading the story about Dr. Gary Brockington’s affair with a woman who was a patient and a co-worker, it strikes me that the reaction of the state Board of Registration in Medicine was over the top and lacked compassion in its response (“State revokes Faulkner cardiologist’s license after affair,” Metro, Nov. 24).

Perhaps there was poor judgment involved, but this does not sound like a case in which a doctor used his position in the doctor-patient relationship in an exploitative way. Brockington was also going through a difficult time in his own personal life at the time, and sometimes we don’t make our best decisions under such circumstances.

Perhaps it would have been more appropriate to require Brockington to enter a counseling program rather than imposing what is essentially a death penalty to his career.

Dr. Donald G. Ross

North Andover

As I said in my original post, if Brockington's relationship with his patient was (1) brief, (2) a single occurrence in his practice and not a pattern, (3) occurred at a time of major stress, and (4) preceded by years of responsible caretaking, than (5) permanent loss of license seems too severe a penalty. This is not a matter of compassion but of realism. Some perpetrators of unethical behavior can be rehabilitated and will be able to serve others in a reliably ethical manner.

Was the Massachusetts Board of Registration Too Harsh on this case of Doctor-Patient Sex?

The Boston Globe recently reported that the Massachusetts Board of Registration in Medicine revoked the license of Dr. Gary Brockington, a 54 year old primary care physician and cardiologist, for having had a sexual relationship with a patient.

I've not been able to get a copy of the report from the Division of Administrative Law Appeals, so I'm entirely dependent on the Boston Globe story, which has extensive quotes from Brockington's lawyer. The story, if accurate and complete, leads me to speculate that revocation of licensure may be too severe a penalty in this specific situation.

According to the Globe, Brockington experienced a Job-like series of events in 2006. He was newly divorced, bankrupt, and depressed. During the same stretch of time his sister (his only sibling) broke her neck and was left by her husband. Brockington became legal guardian for her two young children.

One of his patients, a married woman who was a technician at the hospital where Brockington practiced, and who had worked with him on procedures, invited him to stay in her basement. According to Brockington's lawyer he told her she would have to get another primary care physician. He did, however, renew some prescriptions for her. He stayed in her home for two months. Apparently the brief sexual relationship occurred during the last two weeks of his stay. He moved out in July, 2006. The woman did not herself register a complaint.

If, as Brockington's lawyer claims, the facts show that this was a single episode in an otherwise exemplary career, it's not clear that public safety requires permanent loss of license. In other posts I've strongly supported permanent loss of license when the pattern of facts was different, as in this case. In another case, I concluded that Rhode Island was correct when it reinstated the license of a physician who participated in an extensive rehabilitation program, and agreed to continue in ongoing psychotherapy and long term supervision of practice. (see here)

The spokesman for the Massachusetts Board of Registration is quoted as saying that "the board has zero tolerance for sexual misconduct between physicians and patients." I believe that "zero tolerance" is the correct stance, but don't believe that sexual misconduct always requires permanent loss of license. If the Boston Globe article is the full story, a case can be made that this was a single, out-of-character episode that occurred in extraordinarily stressful circumstances. If that is how the Board saw the situation, I believe it acted too harshly.

Pay for Performance vs Intrinsic Motivation

Among the many stories about health care heroes during Hurricane Sandy, this was my favorite:

Allison Chisholm, 46, who works for the Visiting Nurse Service, lives with a frail mother in Park Slope, Brooklyn. When the lights started flickering during the storm on Monday, she had images of her mother falling in the dark. But she also had patients who needed her, including one receiving hospice care in a 12th floor apartment in Chinatown, and one needing an intravenous round of antibiotics in the West Village.

“It was treacherous driving during the hurricane,” said Ms. Chisholm, fitting an intravenous line into the arm of Jill Gerson, 71, who teaches social work at Lehman College in the Bronx. “But it’s just something you have to do as a nurse. That continuity of care helps the healing. I don’t see this as being heroic. I have a conscience. I need to get to sleep at night.”

Ms. Chisholm was responding to intrinsic motivation - her values as a nurse, embodying the tradition associated with Florence Nightingale and Mother Theresa. She wasn't being "incentivized" (one of my least favorite words) by pay-for-performance, unless we regard the threat from her conscience that - like Lady Macbeth - she would "sleep no more" if she failed to put her values into action as a performance management system, as an "incentivizing" force!

Pay-for-performance has considerable face validity. Extrinsic motivation clearly works in vast swathes of the economy. But as my friend Dr. Steffie Woolhandler's recent post on the Health Affairs blog shows, it's  not at all clear that pay-for-performance is effective in domains that have historically rested on intrinsic motivators such as idealism, altruism, and care. Pay-for-performance can increase the behaviors that are being measured, but evidence that these systems enhance patient outcomes is weak or absent. And there is substantial evidence from the behavioral economics literature that monetary rewards can actually decrease motivation for tasks that are intrinsically rewarding.

My own reaction when I hear of programs to "incentivize physicians to do [XYZ desirable clinical behavior]" is decidedly negative. When I began my own fee-for-service practice in the 1970s I took pleasure in including Medicaid beneficiaries, but after a time the burdensome paperwork and inefficient reimbursement process, combined with microscopic fees, acted as a disincentive for doing what I wanted to do, and I limited the number of Medicaid beneficiaries I took on. I didn't need to be "incentivized" but I would have responded well to a reduction of disincentives.

Rats in a Skinner box are "incentivized" by food pellets. But as the interview with Ms. Chisholm reflects, the kinds of caretaking we want to encourage in medicine flows from values, not P4P pellets. Program managers will do better by recognizing, respecting, and supporting intrinsic motivation. This is best done by removing impediments, not by the condescending view of doctors and nurses as reluctant laborers.

No Treatment as the Treatment of Choice

In the October 3 issue of JAMA, Allen Detsky and Amol Verma offered "A New Model for Medical Education: Celebrating Restraint." Restraint in medical practice is decidedly un-American. Not surprisingly, the authors are Canadian!

Detsky and Verma are concerned with both quality and cost. Here's the essence of their argument:

...we suggest complementing health care cost control initiatives by transforming the current approach used in medical education that primarily rewards meticulousness of clinical investigation to one that also celebrates appropriate restraint...Clinical teachers who are role models could embrace a new approach. They could emphasize teaching restraint, both to improve health care quality and to acknowledge the professional duty of resource stewardship.

The worship of obscure diagnoses is a longstanding part of US medical culture. It's exemplified by the "zebra joke," which I first heard as a medical student in the early 1960s:

Two senior physicians are walking alongside a wall. On the other side they hear galloping foot beats. One says to the other - "what's that?" His colleague replies "it must be a zebra."

Sometimes the search for zebras turns up a real striped quadruped. When that happens it makes a heroic story. More typically the search involves "zebra tests" which turn up "incidentalomas," abnormal findings that have no clinical significance, but which elicit further tests. Apart from the wasteful expenditures the search for zebras can produce, the process can create harmful complications - the side effects of unneeded biopsies or even surgeries, excessive radiation exposure, and more.

I'm a skeptic about medical maximalism and the search for zebras. In the early 1970s, supervising psychiatry residents who had been inculcated in concept of the 50 minute hour, I sometimes had dialogues like the following with my supervisees:

Me: What kind of treatment do you want to prescribe for the patient we've been discussing?
Resident: Twice a week intensive psychotherapy.
Me: How long would each session be, and how long would you want the treatment to last?
Resident: This seems kind of silly, but let's say 50 minutes per session for three years.
Me: That would be approximately 270 50 minute sessions. Do you think we could attain the same outcome if each session was 48 minutes and we had 85 sessions per year instead of 90.
Resident: This really does seem silly. But if you insist on the question, I suppose we could attain the same outcome or close to it.
Me: So even before we look at the techniques psychoanalysts like Peter Sifneos have developed for briefer treatment, we've reduced the cost by 10% without meaningful loss of quality. Not bad!

In 1981 I felt I'd encountered kindred spirits, when Allen Frances, who I've posted about before, and John Clarkin wrote "No Treatment as the Prescription of Choice." They weren't nihilists about treatment, but they correctly noted that psychiatric consultants almost always recommended treatment for the folks they evaluated. Frances and Clarkin suggested a typology of patients who would do better without treatment - patients who were not likely to benefit and for whom treatment might inadvertently be harmful.

As a student, some of the old timers I learned from taught me about the curative impact of "tincture of time." Some conditions will get better on their own if the patient is approached in an optimistic spirit and is willing to allow some time to pass. In non-acute situations where it's not clear what is going on, applying "tincture of time" can be a good diagnostic and therapeutic approach.

Sometimes patients push for this kind of low-interventionist approach. Many years ago I saw a young man who had briefly been hospitalized for what looked like an episode of schizophrenia. I suggested that we start an antipsychotic medication. He objected. He was convinced that the episode came from a recreational drug he'd used. We agreed to follow him - initially weekly, but ultimately every month or two. As best we could tell over the course of two years, he was right. We were both happy. With another patient whose history convinced me that she had bipolar illness, she made a similar argument and refused medication. I told her that I wasn't a worrier, but I was worried about her. I hoped I was wrong and she was right. We followed her status and got to know each other. Unfortunately, as I'd feared, she was wrong - a recurrent episode convinced her of that. But it worked better that she was convinced by her own experience, not simply by yielding to medical authority.

Detsky and Verma come across as wise clinicians. I'm on board with their counsel. I hope others join in. The model they propose would promote a salutary change in US medical culture.

More about the Massachusetts "Death with Dignity" Act

Last week I wrote about the Massachusetts "Death with Dignity" ballot initiative. For those who are interested in the initiative and how it is playing out, this morning's Boston Globe has a very informatinve article on the topic.

Is it OK for GP's to have sex with their patients?

For anyone interested in the ethics of doctor-patient sex and the relationship between ethics and law, the recent 5-1 decision of the Supreme Court of Pennsylvania in Thierfelder v Wolfert makes fascinating reading. (If the details interest you, make sure to read Justice Todd's dissent - in my view she got the issue right!)

In 1996 David and Joanne Thierfelder became patients of Dr. Irwin Wolfert, a family physician. He treated them both for conditions that included low libido. In 2002 Ms. Thierfelder told Dr. Wolfert that he had "cured" her problems and was her "hero." They began a sexual relationship that lasted for a year. She became more anxious and depressed and finally ended the relationship in January 2003. She told her husband about the affair two months later, and together they brought malpractice action against Dr. Wolfert.

Dr. Wolfert argued that as a general practitioner he should not be held to the same standard as psychiatrists, for whom a clear duty not to have sexual involvement with patients had been recognized. The court accepted this view on the basis that psychiatrists are trained to recognize and deal with "transference" (reacting to current relationships, like Ms. Thierfelder's with Dr. Wolfert, in terms of past relationships). GPs, the court concluded, should not be held to the same duty of care, since they are not trained to do treatment based on dealing with transference. If they were held to this standard it would discourage them from providing mental health counseling to their patients, which would be a bad societal outcome.

The majority made clear that the fact that Dr. Wolfert's actions were seen as unethical within the medical profession did not mean that he had violated legally enforceable duty. The Pennsylvania Board of Medicine had in fact sanctioned Dr. Wolfert before the Supreme Court heard the case. (It ordered a three year suspension of his license, but stayed the suspension under terms that included professional development activities, 550 hours of community service, and a fine.)

The majority cited Korper v Weinstein, a case in my home state of Massachusetts. Dr. Weinstein had done a breast biopsy on Ms. Korper at the Harvard University Health Service. (It was benign.) After completing her followup care, the two had lunch together, and a consensual sexual relationship ensued. Dr. Weinstein was not involved in a further treatment relationship. When he ended the relationship two years later she brought action against him. The court opined:

Any trust and confidence she placed in the defendant as a person...even augmented by circumstances that made her emotionally dependent on him, did not create a fiduciary duty in the defendant to prevent the personal relationship that developed consensually between them, especially where he terminated the physician-patient relationship as soon as the personal relationship began.

In her dissent, Dr. Todd concluded that (a) general practitioners frequently provide mental health services and are allowed to do so by their licenses and (b) sexual relations with patients is explicitly prohibited by the medical community, with (c) the result that she had "no hesitation in concluding that general practice physicians who provide mental health disorders to patients have a duty to abstain from sexual relations with their patients...and that these physicians may be potentially liable in professional negligence actions for any harm to their patients - patients they pledged to take no action to harm - as a result of engaging in such conduct" (page 18 in the dissent).

I believe Dr. Todd, though outnumbered 5 to 1, was correct. It's widely known that sexual relationships with patients being treated for mental health conditions have high potential for causing harm. Treating mental health conditions is within the purview of general practitioners. The ethical standards of the profession are well-known to prohibit sexual relationships with current patients. It's hard to see why the allegation of malpractice should not have been judged on the basis of its facts, rather than being prevented from coming to trial. The facts would have shown that Dr. Wolfert breached a duty. But it would have to be further shown that this had directly led to damage to Ms. Thierfelder.

The majority did not argue that it's ethically acceptable for general practitioners to have a sexual relationship with patients they are treating for mental health conditions. But in my view their conclusion that seeing a duty not to do so sets too high a standard is insulting to GPs. Being sued for malpractice is every physician's nightmare, but implying that GPs don't have enough understanding of human psychology and the treatment process to know that sexual relations and mental health treatment don't go together is demeaning to their competence and maturity.

Massachusetts Death with Dignity Ballot Initiative

My home state of Massachusetts has an initiative on the November ballot that would establish a "death with dignity" law closely modeled on the existing laws in Oregon and Washington. Surveys suggest that a majority of the public support the law, but influential groups including the Catholic Church and the Massachusetts Medical Society oppose it.

Today I had the privilege of meeting with a group of elderly men at a community center to tell them about the initiative, summarize the essence of the pro and con positions, and then lead them in discussion. In other words, something like a focus group.

The heart of the discussion was a spirited exchange between two of the participants. One who I'll call "Skeptic," opposed the initiative. Human nature being imperfect, he anticipated that some doctors would "specialize" in certifying that patients met the criteria for receiving a lethal prescription without the kind of careful clinical attention the law encourages. Whether the motivation was financial profit or perverse sadism, Skeptic was certain that this kind of medical misbehavior was inevitable.

The other, who I'll call "Advocate," argued that the right to receive a prescription for ending one's life in the context of a terminal illness is a natural and necessary extension of the right to refuse treatment or to discontinue ongoing treatment. Advocate believed that science has created all manner of life prolonging interventions and that patients need tools to control what they receive or are subjected to.

Skeptic focused on the risks arising from misuse of the proposed law. Advocate focused on the risks arising from lack of autonomy for patients with terminal conditions.

The group agreed that both risks were real. Oversight by the Department of Publich Health, to whom use of the law would have to be reported, and the Board of Medicine, which could sanction outliers of the kind Skeptic envisioned, was trusted by some but not by others.

In my summary of the pros and cons I cited religious beliefs about the wrongness of hastening one's own death and told the group about the Roman Catholic Archdiocese website "Suicide is Always a Tragedy." No one in the group, however, brought in theological reasoning. I don't know if this was because theology was not a driving force for them or if they regarded religious belief as private.

Where we ended was with a sense that the exchange between Skeptic and Advocate was best understood as a "good versus good" conflict. Skeptic took a consequentialist view - the law would allow unethical physicians to consign people to death without application of the safeguards the law sought to put into place. Advocate took a rights-based view - patients need and deserve more tools to allow them to advance their own autonomous choices.

I wasn't trying to persuade the group to any position on the law. My aim was to (a) inform them and then (b) get a sense of how a population for whom the law, if passed, could become relevant, thought about the law. We concluded that intelligent, thoughtful, well-motivated persons of good will could, would, and did disagree.

I'll write more about the topic after November 6!