Joel B. Rose, DO
Chairman
Florida Board of Osteopathic Medicine
Fellow Federation of State Medical Boards
Fellow American Association of Osteopathic Medical Examiners
January 28, 2015 9 am
26th Annual Osteopathic Winter Conference
Sandpearl Resort
Clearwater Beach, Florida
Disclosure
 I have no financial relationship in regard to the
content of this presentation
Objectives
 Fulfill the requirements of the Florida Mandatory
CME course on professional medical ethics.
 Address current ethical issues regarding medical
ethics in Florida.
 Review the AOA Code of Ethics and demonstrate how
the principles are codified in Florida Law and Rule.
OSTEOPATHIC PLEDGE OF COMMITMENT
I pledge to:
Provide compassionate, quality care to my
patients;
Partner with them to promote health;
Display integrity and professionalism
throughout my career;
Advance the philosophy, practice and
science of osteopathic medicine;
Continue life-long learning;
Support my profession with loyalty in
action, word and deed; and
Live each day as an example of what an
osteopathic physician should be.
OSTEOPATHIC MEDICAL PROFESSIONALISM
25 States and jurisdictions that have enacted laws
permitting medical marijuana use
Alaska
Illinois
New Jersey
Arizona
Maine
New Mexico
California
Maryland
New York
Colorado*
Massachusetts
Oregon
Connecticut
Michigan
Rhode Island
Delaware
Minnesota
Vermont
District of
Columbia
Montana
Washington*
Florida
Nevada
* Permits
recreational use
Hawaii
New Hampshire
ADP 9/15/14 Marijuana Laws: FAQs from Small Businesses
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 How many will order low dose THC for patients?
 How many of you would consider being the medical
director of a cannabis farm?
 Is it unethical to withhold “ordering” low dose THC in
Florida for someone with recalcitrant seizures?
 Is it unethical to “order” low dose THC for patients?
 Is it unethical to “order” medical marijuana if
amendment 2 passes?
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Does federal law permit the use of medical or recreational
marijuana?
 Under federal law, marijuana remains a controlled substance
and therefore both medical and recreational use of marijuana
is prohibited
 This is especially important for business that have federal
contracts, received federal grants, or are subject to industry
specific rules that have drug-free workplace requirements
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Can a company refuse to hire individuals who test positive
for marijuana during pre-employment drug testing?
 Currently, Arizona, Connecticut, Delaware, Illinois, Maine,
Minnesota, and Rhode Island expressly prohibit employers
from making employment decisions solely on the basis of a
person’s status as a medical marijuana user. In these states
the employer may be required to:
 Give the individual the opportunity to produce proof that the
positive result was due to medicinal use
 Make an individualized assessment as to whether the
medicinal use of marijuana would interfere with the
candidates essential job duties and responsibilities
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 In other states with medicinal or recreational marijuana laws,
employer’s are cautioned not to implement a blanket policy of
rejecting all candidates who test positive for marijuana
 Employers are urged to work closely with legal counsel to
determine their rights and responsibilities when a prospective
employee tests positive for marijuana
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Does a company have to provide reasonable
accommodations to users of medical marijuana under
the ADA?
 Employers are not required to provide reasonable
accommodations for medical marijuana use because it is
an illegal drug under federal law
 However, employers should remember that in many
cases the underlying condition that necessitates the use
of medical marijuana may trigger the need to
accommodate the employee in another way under ADA
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Conclusion:
 Employers should keep in mind that many of these state
marijuana laws have not yet been tested in court
 Employers should continue to monitor for developments
in the area, draft and enforce policies in accordance with
federal and state law, and consult legal counsel as
needed
Professional Ethics
 On the horizon
 Florida


Marijuana compassionate use law
Amendment 2 – failed but will be resurrected
 California – Prop 46 - failed
 Rollback MICRA
 Mandatory PDMP check
 Doctor Drug Testing
 Issues
 Medical directors
 Misrepresentation of credentials
Which occupations contribute the most to
society’s well being?
Pew Research Center survey
March 21-April 8, 2013
Responses of those who
did not give an answer are
not shown
A lot
Some
Not Very Much/Nothing
78
Military
15
72
Teachers
18
Medical Doctors
66
Scientists
65
23
Engineers
63
28
Artists
30
Journalists
28
Bussiness Execs
Lawyers
8
8
36
7
18
42
24
42
24
18
9
24
37
Clergy
5
42
43
27
28
34
Professional Ethics
 86 year old former Ohio state lawmaker and pilot was




selling airplane rides at an airport he owned
30 minutes after takeoff the plane crashed killing all
six people aboard
NTSB reported the pilot failed to maintain control of
the airplane which then stalled and he used poor
judgment in continuing to fly while legally blind
He suffered from macular degeneration
FAA medical examiner who was an Ohio ER doctor
“failed to assess and report” the failing eyesight
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Professionalism is a core competency expected of all
physicians
JAOA June 2013 Vol 113 No 6
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Recognized elements of ethics and professionalism
 First, do no harm (Non-maleficence)
 Act as a professional role model (Students, Residents,
Fellows)
 Display respect in interactions with others (Collegiality)
 Legal & ethical behavior
 Appropriate management of conflicts of interest
 Act in the best interest of the patient (Beneficence)
JAOA June 2013 Vol 113 No 6
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 AOA’s Code of Ethics offers rules to guide physicians
 Any assessment of a physicians conduct must be made
with due to consideration to the facts & circumstances
that existed at the time of the conduct in question
 Recognizes that a physician may have had to act based
upon uncertain or incomplete information
JAOA June 2013 Vol 113 No 6
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Rules & Guidelines
 Not intended to be a basis for civil liability
 Perceived failure to comply with an obligation or
prohibition is a basis for invoking the AOA’s disciplinary
process (Bureau of Membership’s Subcommittee on
Ethics)
JAOA June 2013 Vol 113 No 6
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Conduct
 Physicians conduct shall be consistent with requirements of
the law in


Providing medical/professional services or
Conducting business and personal affairs
 Status
 Physicians should use their status as professionals only for
legitimate purposes
 Not used to take advantage of economic or social
opportunities or to harass or intimidate others
JAOA June 2013 Vol 113 No 6
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Respect
 Physicians should conduct themselves with appropriate
respect for their patients’ social and culture needs and
provide necessary care without regard to







Gender
Race
Color
Religion
Creed
Veteran Status
Sexual Orientation
JAOA June 2013 Vol 113 No 6
Age
Marital Status
National Origin
Political Belief
Mental/Physical Disability
Gender Identity
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Compliance is primarily voluntary
 Make efforts to secure observance by others through
formal or informal peer opinion, or when necessary
invocation of disciplinary proceedings
 Adverse events and medical errors should be fully
disclosed within the context of appropriate peer review
JAOA June 2013 Vol 113 No 6
456.075 Duty to Notify Patients
 Every licensed health care practitioner shall inform
each patient, or an individual pursuant to §765.401(1),
in person about adverse incidents that result in serious
harm to the patient
 Does not constitute acknowledgement of admission of
liability, nor can such notifications be introduced into
evidence
AOA Code of Ethics
 Section 1 (Confidentiality – Protected Information)
 The physician shall keep in confidence whatever
she/he may learn about a patient in the discharge of
professional duties
 The physician shall divulge information only when
required by law or when authorized by the patient
 HIPAA codifies this into law

Violations may lead to civil and administrative action
Dr A & B
 Dr. A invites Dr. B to create a concierge practice
 Practice is extremely successful and Dr. A becomes unable






to work
Dr. B does all the work of two practices
Dr. A returns but needs Dr. B to sign papers for PRN stating
he will manage him medically if needed so he can RTW
Dr. A locks Dr. B out of the practice
Dr. B sues Dr. A
Dr. B’s attorney discloses in court filings details of Dr. A’s
health issues
Is this now a problem for Dr B?
Dr A & B
 Dr. A files a complaint against Dr. B alleging HIPAA
violation and improper discharge
AOA Code of Ethics
 Lessons Learned:
 Violations may lead to civil and administrative
action



It is not advisable to become a monitoring or treating
physician for another physician in your practice
Make a medical record of any “courtesy” prescriptions
issued
Confidentiality must be maintained for medical records
especially for super confidential or very sensitive
information regarding ALL PATIENTS regardless of how
untenable a business relationship may become if you
choose to treat a business partner
AOA Code of Ethics
 Lessons Learned:



Know the full implications of what you are agreeing
to do by contacting the issuing source of the
document directly
Make sure you have co-counsel well experienced in
medical administrative laws (state and federal) in
partnership pleadings
If terminating a professional relationship give
proper and timely notice
AOA Code of Ethics
 Section 2 (Patient Condition)
 The physician shall give a candid account of the
patient's condition to the patient or to those
responsible for the patient's care
AOA Code of Ethics
 Section 3 (Physician-Patient Relationships)
 A physician-patient relationship must be founded on mutual
trust, cooperation, and respect
 Freedom to choose:


The patient must have complete freedom to choose her/his
physician
The physician must have complete freedom to choose patients
whom she/he will serve
 The physician should not refuse to accept patients because of
the patient's race, creed, color, sex, national origin or
handicap
 In emergencies a physician should make her/his services
available
AOA Code of Ethics
 Section 4 (Abandonment)
 A physician is never justified in abandoning a
patient
 The physician shall give due notice to a patient
or to those responsible for the patient's care
when she/he withdraws from the case so that
another physician may be engaged
459.015(1)(k) Improper Refusal to
Provide Health Care
 FIRST OFFENSE
 MINIMUM
 Reprimand and $5,000
fine
 MAXIMUM
 Probation and $5,000 fine
 SECOND OFFENSE
 MINIMUM
 Suspension to be followed
by probation and $7,500
fine
 MAXIMUM
 Revocation and $10,000
fine
AOA Code of Ethics
 Section 5 (Standard of Care)
 A physician shall practice in accordance with the
body of systematized and scientific knowledge
related to the healing arts
 A physician shall maintain competence in such
systematized and scientific knowledge through
study and clinical applications (OCC & MOC
can demonstrate this) MOL?
456.50 (1)(g) & 459.015(1)(x) Failure to Practice
Medicine in Accordance with appropriate level of care,
skill, & treatment recognized in general law related to
medical practice
 FIRST OFFENSE:
 MINIMUM

Letter of concern up to 1
year probation and a $1000
fine
 SECOND OFFENSE:
 MINIMUM

2 years probation and a
$7,500 fine
 First
 MAXIMUM

Denial and revocation and
up to a $10,000 fine
 MAXIMUM
 Denial or revocation and a
$10,000 fine
459.015(x) Grounds for Disciplinary Action
 (x) 2. Committing gross medical malpractice
 (x) 3. Committing repeated medical malpractice as
defined in s. 456.50. A person found by the board to have
committed repeated medical malpractice based on s.
456.50 may not be licensed or continue to be licensed by
this state to provide health care services as a medical doctor
in this state.
 The Boards legal standard is clear and convincing
AOA Code of Ethics
 Section 6 (Self-Regulation)
 The osteopathic medical profession has an obligation to
society to maintain its high standards and, therefore, to
continuously regulate itself
 A substantial part of such regulation is due to the efforts
and influence of the recognized local, state and national
associations representing the osteopathic medical
profession
 A physician should maintain membership in and
actively support such associations and abide by their
rules and regulations
AOA Code of Ethics
 Section 7 (Advertising)
 Under the law a physician may advertise, but
no physician shall advertise or solicit patients
directly or indirectly through the use of matters
or activities, which are false or misleading
459.015(1)(d) FALSE, DECEPTIVE OR
MILSEADING ADVERTISING
 FIRST OFFENSE:
 MINIMUM

Letter of concern
 SECOND OFFENSE:
 MINIMUM

 MAXIMUM
 Probation and a $5,000 fine
Probation and a $1,000 fine
 THIRD OFFENSE:
 MINIMUM

 MAXIMUM
 Reprimand and a $1,000 fine
3 month suspension to be
followed by probation and
$5,000 fine
 MAXIMUM
 1 year suspension to be
followed by probation and
$5,000 fine
AOA Interprets the Code of Ethics
 Interpretation of Section 7
 The public should be protected from subjective
advertising material designed to solicit patients,
which is essentially misleading. Includes:


Attempts to obtain patients by influence or persuasion,
Employing statements that are self-laudatory and
deceptive;
(the result of which is likely to lead a patient to a
misinformed choice and unjustified expectations.
AOA Code of Ethics
 Section 8
 Use of degrees

A physician shall not hold forth or indicate possession of any degree
recognized as the basis for licensure to practice the healing arts
unless he is actually licensed on the basis of that degree in the state
in which she/he practices (John Doe, DO, MD)
 A physician shall designate her/his osteopathic school of
practice in all professional uses of her/his name
 Indications of specialty practice, membership in professional
societies, and related matters shall be governed by rules
promulgated by the American Osteopathic Association
AOA Interprets the Code of Ethics
 Guide to Section 8 – continued
 In telephone directory listings of doctors, it is
recommended that the doctor's name be followed by the
abbreviation DO
 The abbreviation "Dr" is not recommended because it is
misleading. "Dr" can refer to dentists, doctors of
medicine, etc. "Phys" is also misleading because it can
refer to MDs
64B15-14.001 ADVERTISINGS
 Any advertisement or advertising is false, deceptive, or
misleading if it
 States or implies that an osteopathic physician has been
certified as a specialist in any aspect of the practice of
osteopathic medicine unless he or she has in fact received
such certification
 States or implies that the osteopathic physician is a specialist
in any aspect of the practice of osteopathic medicine unless
he has in fact completed post-doctoral training in the
recognized specialty field including internship, residency,
fellowship, or alternative training requirements accredited by
either the AOA or ACGME for the number of years
contemplated for completion of the specialty program
64B15-14.001 ADVERTISINGS
 However, a physician may indicate the services offered and
may state that the practice is limited to one or more types
of services when this is, in fact, the case; or
 States or implies that an osteopathic physician has been
certified as a specialist in any aspect of the practice of
osteopathic medicine unless he or she has in fact received
such certification, meets the training requirements of
paragraph above and includes the name of the certifying
agency in any statement or advertisement claiming
certification, and the certifying agency meets the following
criteria:
 AOA, ABMS, AAPS, ABIPP
459.015(1)(nn) Falsely advertising or holding
oneself out as a board certified specialist
 FIRST OFFENSE
 MINIMUM

Reprimand and $5,000 fine
 MAXIMUM

Probation and $5,000 fine
 SECOND OFFENSE
 MINIMUM

Suspension to be followed by probation and $7,5000 fine
 MAXIMUM

Revocation and $10,000 fine
456.072(1)(a) & (m) & 459.015(1)(m) Deceptive, untrue
or fraudulent misrepresentations
 FIRST OFFENSE
 MINIMUM

Reprimand and $10,000 fine
 MAXIMUM
 Denial of licensure or suspension to be followed by probation and
$10,000 fine
 SECOND OFFENSE
 MINIMUM

Denial of licensure or suspension to be followed by probation and
$10,000 fine
 MAXIMUM
 Denial of licensure or revocation and $10,000 fine
AOA Code of Ethics
 Section 9
 A physician should not hesitate to seek
consultation whenever she/he believes it
advisable for the care of the patient
456.072(1)(o) & 459.015(1)(z)
Practicing Beyond One’s Scope
 FIRST OFFENSE
 MINIMUM

Denial or reprimand and a $5,000 fine
 MAXIMUM
 Denial or suspension to be followed by probation and $5,000 fine
 SECOND OFFENSE
 MINIMUM

Denial or suspension to be followed by probation and $7,5000 fine
 MAXIMUM
 Denial or revocation and a $10,000 fine
AOA Code of Ethics
 Section 10
 In any dispute between or among physicians
involving ethical or organizational matters,
the matter in controversy should first be
referred to the appropriate arbitrating bodies of
the profession
AOA Code of Ethics
 Section 11
 In any dispute between or among physicians
regarding the diagnosis and treatment of a
patient, the attending physician has the
responsibility for final decisions, consistent
with any applicable osteopathic hospital rules or
regulations
AOA Code of Ethics
 Section 12
 Any fee charged by a physician shall compensate
the physician for services actually rendered
 There shall be no division of professional
fees for referrals of patients
459.015 GROUNDS FOR DISCIPLINARY ACTION
 (1) Paying or receiving any commission, bonus,
kickback, or rebate, or engaging in any split-fee
arrangement in any form whatsoever with a physician,
organization, agency, person, partnership, firm,
corporation or other business entity for patients
referred to providers of health care goods and services,
including, but not limited to, hospitals, nursing
homes, clinical laboratories, ambulatory surgical
centers or pharmacies
459.015(1)(j) KICKBACKS AND
UNAUTHORIZED FEE ARRANGEMENTS
 FIRST OFFENSE
 MINIMUM

Probation and $2,500 fine
 MAXIMUM
 Denial or suspension to be followed by probation and $5,000 fine
 SECOND OFFENSE
 MINIMUM

Denial or suspension to be followed by probation and $10,000 fine
 MAXIMUM
 Denial or revocation and a $10,000 fine
AOA Code of Conduct
 Section 13
 A physician shall respect the law.
 When necessary a physician shall attempt to
help to formulate the law by all proper means in
order to improve patient care and public health





FOMA legislative committee
Key Contact Physician Advocacy Program
Providing expert testimony to the Legislature
Testifying at Rules Workshops
Serving on State Boards and Committees
456.072(1)(k) & 459.015(1)(g) Failure
to perform legal duty or obligation
 FIRST OFFENSE
 MINIMUM

Reprimand and $1,000 fine
 MAXIMUM
 Denial with the ability to reapply after no less than 2 years or
revocation and $5,000 fine
 SECOND OFFENSE
 MINIMUM

Probation and $5,000 fine
 MAXIMUM
 Denial or Revocation and $10,000 fine
456.042
Practitioner profiles; update
 A practitioner must submit updates of required
information within 15 days after the final activity that
renders such information a fact
 The Department of Health shall update each
practitioner’s practitioner profile periodically
 An updated profile is subject to the same requirements
as an original profile
AOA Code of Conduct
 Section 14 (Community Activities)
 In addition to adhering to the foregoing ethical
standards, a physician shall recognize a
responsibility to participate in community
activities and services
AOA Code of Conduct
 Section 15
 It is considered sexual misconduct for a
physician to have sexual contact with any
current patient whom the physician has
interviewed and/or upon whom a medical or
surgical procedure has been performed
456.063 SEXUAL MISCONDUCT; DISQUALIFICATION FOR
LICENSE, CERTIFICATE OR REGISTRATION
 (1) Sexual misconduct in the practice of health care
profession means:
 Violation of the professional relationship through which the
health care practitioner uses such relationship to engage or
attempt to engage the



Patient or client
Immediate family member, guardian, or representative of the patient
or client
Induce or attempt to induce such person to engage in verbal or
physical sexual activity outside the scope of the professional practice
of such health care profession
 Sexual misconduct in the practice of a health care profession
is prohibited
SEXUAL MISCONDUCT WITHIN THE PATIENT PHYSICIAN
RELATIONSHIP F.S. 456.072(1)(v) and 459.015(1)(l)
 FIRST OFFENSE:
 MINIMUM

Probation and $10,000 fine
 MAXIMUM

Denial of licensure or revocation and $10,000 fine
 SECOND OFFENSE:
 MINIMUM

Suspension to be followed by probation and $10,000 fine
 MAXIMUM

Denial of licensure or revocation and $10,000 fine
AOA Code of Ethics
 Section 16
 Sexual harassment by a physician is
considered unethical
 Sexual harassment is defined as physical or
verbal intimation of a sexual nature involving a
colleague or subordinate in the workplace or
academic setting, when such conduct creates an
unreasonable, intimidating, hostile or offensive
workplace or academic setting
AOA Code of Ethics
 Section 17
 From time to time, industry may provide some AOA
members with gifts as an inducement to use their
products or services
 Members who use these products and services as a result
of these gifts, rather than simply for the betterment of
their patients and the improvement of the care rendered
in their practices, shall be considered to have acted in an
unethical manner. (Approved July 2003)
Allegations
 Novartis held thousands of speaker programs all over
the country
 Few or no slides were shown
 Doctors who participated spent little or no time
discussing the drug at issue
 Novartis simply
 Wined and dined doctors at high-end restaurants and
sports bars
 Took doctors on fishing trips
 Utilized other venues not conducive to an educational
program (Many were held at Hooters)
Allegations
 One Tallahassee doctor was paid between $50,000 and
$75,000 for speeches he mostly did not give between 2003
and 2011
 Novartis paid another doctor $3,750 for giving the same
speech five times in a nine-month period, with the same
four doctors attending each time
 The doctors repeatedly took turns in the role of speaker
and student, attending programs of the same topic they
had spoken about. The same six doctors attended the same
program 23 times in six months
 Education was a very small part of the (events). The
doctors talked mostly about other things
AOA Interprets the Code of Ethics
 Interpretation of Section 17 (Gifts)
 Section 17 relates to the interaction of physicians with
pharmaceutical companies




Physicians’ responsibility is to provide appropriate care to patients
This includes determining the best pharmaceuticals to treat their
condition
This requires that physicians educate themselves as to the available
alternatives and their appropriateness so they can determine the
most appropriate treatment for an individual patient
Appropriate sources of information may include journal articles,
continuing medical education programs, and interactions with
pharmaceutical representatives
AOA Interprets the Code of Ethics
 It is ethical and in the best interest of their patients for
osteopathic physicians to meet with pharmaceutical
companies and their representatives for the purpose of
product education, such as, side effects, clinical
effectiveness and ongoing pharmaceutical research.
 Pharmaceutical companies may offer gifts to Physicians
from time to time. These gifts should be of limited value
and be appropriate to patient care or the practice of
medicine
 Gifts unrelated to patient care are generally
inappropriate.
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Hollywood cardiologist’s ties with St. Jude sales rep raises
red flags (Miami Herald)
 Generates $500K in pacemaker sales
 Has partnership in two yogurt shops with sales rep
 Is this a conflict of interest?
 Community physician - not hospital employed
 Has no input as to which pacemakers are approved at
the hospital
OSTEOPATHIC MEDICAL
PROFESSIONALISM
 Miami Whistleblower lawsuit
 2006 pacemaker sales at Jackson soared by 400%
 Cardiologist acknowledged his girlfriend was a St. Jude
sales rep and that the increase was coincidence
 2008 Pew Charitable Trust survey:
 86% of patients said doctors should not be allowed to
get free dinners from drug makers
OSTEOPATHIC MEDICAL
PROFESSIONALISM & SOCIAL MEDIA
AOA CODE OF ETHICS
 http://www.osteopathic.org/inside-
aoa/about/leadership/Pages/aoa-code-of-ethics.aspx
 jrose@jrosemed.com