A clumsy attempt at humor gets an emergency physician canned.
On January 28, 2011, 28-year-old single mom Courtney Capps brought her 5-year-old child to the emergency department at Huguley Medical Center in Burleson, TX for evaluation of paronychia. According to Ms. Capps, the emergency physician asked about the child’s race, and, when told that the child was bi-racial, grunted, then asked, “What does your family think about that?” Ms. Capps reported that her son was “quiet during his exam” and watched a cartoon while waiting for evaluation. At the conclusion of the visit, the doctor handed the Ms. Capps a prescription stating “Apply large paddle to bottom of child anytime he needs it.”
Ms. Capps complained to the hospital administrator about the prescription she received for her son. The hospital offered to write off Ms. Capps’ bill for the visit and to arrange for a personal apology from the emergency physician (we'll call him Dr. Doe). Ms. Capps refused this offer. According to the news reports, the hospital’s offers to attempt to correct the situation stopped when Ms. Capps threatened to contact an attorney. Ms. Capps reportedly did retain a lawyer, but, has yet to file a lawsuit.
Inquiries from reporters about the interaction led to a statement from a hospital spokesperson that Dr. Doe no longer works at Huguley Medical Center. Ms. Capps then reported Dr. Doe to the Texas State Medical Board. Nearly six months after the alleged incident, this story hit the news [bit.ly/qFlkvu] and blogosphere [bit.ly/ppkwKC]. Dr. Doe has thus far not commented publicly on the matter, but in an interview, Dr. Doe’s wife briefly stated that Dr. Doe “wrote the prescription as a lark” as he and Ms. Capps joked in the room and “had no idea” Ms. Capps was upset by the prescription.
After reading the story, I thought that the prescription was written in jest and found it amusing. If my kids were misbehaving and their doctor wrote such a prescription, it would have made me chuckle. I would have later used the prescription to teach my children about how their behavior can be perceived by others. However, Ms. Capps alleges that her child was well-behaved during the encounter. Something just doesn’t fit. I can’t realistically see any person recommending that someone spank their child without some type of behavior that warrants a spanking. Think about it. Would you ever just look at a “well-behaved” kid waiting in the checkout line at a grocery store and think to yourself that the child needs to be disciplined? Now suppose the same child was knocking things off the shelves, screaming, having temper tantrums, punching his mother, and trying to tip over the grocery cart. Would you be more likely to think that the child needs to be disciplined then? I can’t see an impetus for a well-respected physician to write a prescription to discipline a child - as a lark or otherwise - without the child’s behavior being an issue during the emergency department visit.
That said, were the doctor’s actions appropriate? Using humor during patient encounters has been shown to improve patient satisfaction and decrease the likelihood of subsequent lawsuits. However, the decision to use humor during a patient encounter largely depends upon the situation and the rapport with the patient – not everyone finds “humor” in any given event. One newspaper reporter writing about Dr. Doe’s encounter contacted Dr. Charles Rosen, the president of the Association for Medical Ethics, for comment. Dr. Rosen stated that Dr. Doe’s prescription was “socially inappropriate” and “medically unnecessary.”
Was it, though? Viewed on its face, a recommendation to discipline a child with corporal punishment is neither socially inappropriate nor medically unnecessary. While I personally do not advocate corporal punishment and the American Academy of Pediatrics “strongly opposes” corporal punishment of children [bit.ly/mUWbj3], a 1997 survey of 3000 adults commissioned by the Civitas Initiative showed that 61% believe that spanking a child is an acceptable form of punishment [bit.ly/ppQqo0], and corporal punishment of children is legal in all 50 states [bit.ly/pPW7kh]. Reasonable minds can disagree as to the social appropriateness of corporal punishment, but a physician’s recommendation to spank a child, even if unpopular, is no more medically inappropriate than a physician’s recommendation to prescribe a child multiple psychoactive medications for the same behavioral problems.
Perhaps Dr. Doe misjudged his rapport with Ms. Capps. Perhaps Dr. Doe’s attempt at humor by writing the prescription was unconventional. Such a prescription is not outside the range of professionalism. In fact, I have personally written similar notes while working in the emergency department. Once, a patient who worked in a factory saw me for treatment of a cut to his arm. We talked, and he mentioned that it was his last shift before a 3 week vacation. I joked that he would have a patch on his arm that wouldn’t be tan due to the bandage. I sewed him up and sent him back to work. A few hours later, the same patient came back with another cut on the opposite hand. I laughed at the irony. The patient was upset, though, saying that two injuries on the same day would probably cost him his job by the time he came back from vacation. On his work release, I wrote “May only use safety scissors and crayons for the remainder of his shift.” About a month later, the patient came back to the registration desk and asked to speak with me. He shook my hand and handed me a gift, saying that his boss found my work note so humorous that he didn’t pay as much attention to the patient’s injuries and that my note probably saved the patient’s job. In retrospect, I suppose that I was fortunate that the media did not learn about the work release I had written … until now.
There are a couple of things that we all can learn from Dr. Doe’s interaction.
(1) Lawsuits aren’t the only way that angry patients can affect a physician’s career.
In my law practice, I have represented several physicians who were the subject of patient complaints both to hospital administrators and to state medical boards. Based on my experiences, the actions that Ms. Capps took are fairly typical progression of events that occurs when a patient or family is upset with a physician. Ms. Capps reportedly retained a lawyer, yet no lawsuit has been filed. I have few doubts that Ms. Capps wanted to file a lawsuit, and I suspect that she took her case to several attorneys. When reviewing a patient’s medical records under such circumstances, it is not uncommon to see multiple requests for records from different plaintiff law firms. The presence of multiple record requests is usually an indication that multiple law firms have decided that the case does not have merit and that the patient is “shopping the case around” to try to find an attorney to accept the case. A successful medical malpractice lawsuit requires a patient to prove that the physician had a duty to treat the patient, a physician provided medical services to a patient, the physician breached the standard of care (negligence), and the physician’s breach caused some damage to the patient. In Ms. Capps’ case it would be difficult to prove that negligence occurred or that Ms. Capps’ child suffered damages due to Dr. Doe’s prescription. A lawsuit in this case just wasn’t a viable alternative.
On the other hand, State Medical Boards do not have such high pleading requirements. In most cases, a complaint to a medical board will prompt some type of communication to the involved physician for an explanation. Ms. Capps also filed a complaint about Dr. Doe to the Texas State Medical Board. A review of Dr. Doe’s profile on the Texas Medical Board’s site shows that he has been licensed in Texas since 1983 and, as of this date, has had no disciplinary action taken against him by the Medical Board. Often, the inconveniences and mental stress in responding to an inquiry from a state medical board can be substantial, including hiring an attorney (although some insurance carriers will provide an attorney on your behalf), creating a written response to a complaint, and attending hearings about the complaint.
After legal and professional recourse against Dr. Doe did not achieve their desired results, Ms. Capps then took her case to the media. The publicity behind this case creates the second teaching point.
(2) Most emergency medicine physician contracts are terminable at will.
Hospitals thrive on a positive public perception. We don’t know why this emergency physician is no longer on staff at Huguley Medical Center, but I think it is safe to assume that the potential for adverse publicity caused hospital administrators to either encourage Dr. Doe’s resignation or to request that the emergency physician group remove Dr. Doe from the schedule. A negative newspaper article about you or relating to medical care you provided may be all that is needed for you to lose your job.
All of the emergency medicine physician contracts I have reviewed in my legal practice contain language that allows the contract to be terminated immediately under certain circumstances, which, in legal lingo, is called a “for cause” termination. In many contracts, the circumstances that could lead to immediate termination include vague language such as “if the hospital requests that the physician no longer be scheduled” or “if the physician commits any actions that could adversely affect the reputation of the hospital or its affiliates.” A physician who signs a contract containing such vague “for cause” termination language essentially agrees to be subject to immediate termination for almost any reason. For example, a hospital could request an emergency physician’s removal from the schedule simply because he is not liked by an influential staff physician. Any action a physician takes has the potential to adversely affect a hospital’s reputation. If a patient does not receive antibiotics for a viral infection and gives the physician low marks on a patient satisfaction survey, the hospital’s ranking will decrease and its reputation will be adversely affected, which would give the hospital the ability to terminate the physician immediately “for cause.” Attempting to remove vague “for cause” termination language from a physician’s contract can often be difficult. Hospitals should be aware that unreasonable “for cause” terminations may subject a hospital to legal action by the terminated physician, and termination of physicians is one of the more commonly litigated issues that hospitals face.
The most reliable way to combat vague “termination for cause” language in an employment contract is to diversify the risk of termination by being on staff at more than one hospital. That way, if a contract at one hospital is terminated, the physician can pick up shifts at other hospitals to maintain an income stream while finding and obtaining staff privileges at a new facility.
There are obviously extreme comments and actions that are always unacceptable. Hate speech is neither funny nor tolerable under any circumstances. Foul language may be tolerable depending on the situation. It is unacceptable for a third grade teacher to use expletives in front of his students, but a comedian that uses the same language in a nightclub may offend some people while causing other people to laugh. Dr. Doe’s note wasn’t about extremes, though. The prescription the doctor wrote was an attempt at humor and I find it disturbing that others advocate taking some type of action against Dr. Doe or his medical license for writing it.
My advice for those who are offended by Dr. Doe’s prescription is to lighten up a little. If you don’t like how someone interacts with you, then walk away and don’t speak to that person again. If you think someone’s actions were illegal, then call the police or go talk to an attorney. If no legal action is taken, that should be a good indication that you need to let things go and move on with your life.
If society believes it is appropriate to penalize every person who does not behave in an unquestionably socially acceptable manner, then I don’t foresee an end point at taking actions against potentially offensive statements written on prescription pads. Will society’s next target be parents whose children misbehave in emergency department treatment rooms?