Let's get ethical

Legally Speaking

Rob Portman

Rob Portman is a health care attorney with Powers Pyles Sutter & Verville in Washington, D.C., and serves as General Counsel for the AAD and AADA.

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Let’s face it — no one wants to report a colleague for an ethical violation. But the American Academy of Dermatology’s Code of Medical Ethics for Dermatologists imposes an affirmative obligation on its members to do precisely that in certain circumstances, such as false expert witness testimony, self-medicating, or inappropriate behavior with patients, their staff, or Academy staff. Filing such a report can have severe repercussions for the accused member, but can also create potential legal risks and other problems for the complainant. Therefore, it is incumbent upon Academy members to be familiar with their obligations under the Code and the procedures for filing and adjudicating complaints, both of which are available on the Academy’s website at www.aad.org/Forms/Policies/ar.aspx

Obligation to report

The Code sets forth the dermatologist’s obligation to report a colleague for an ethical violation or a violation of the Academy’s bylaws or other policies as follows:

Academy members are expected to report knowledge of violations of the Bylaws, Code of Ethics, or other Administrative Regulations or Board-approved policies to the Academy. When a member is convinced that another member is violating the Bylaws, Code of Ethics, other Administrative Regulations, or Board-approved policies, the member should send a confidential written communication to the Academy’s secretary-treasurer or executive director. The information so submitted will then be further investigated and processed according to the provisions of the Bylaws and Administrative Regulations. 

The Code also encourages dermatologists to work with their peers to prevent or stop unethical or illegal activity and/or to report such misconduct to the proper legal authorities. [pagebreak]

Procedures for filing and adjudicating complaints

The Academy’s Administrative Regulation on Judicial Panel — Disciplinary Procedures outlines in great detail the steps involved in initiating and adjudicating ethics complaints or other disciplinary actions. The primary reason for such detail is to protect the due process rights of Academy members accused of misconduct. Such complaints may only be filed by an Academy member or the Ethics Committee itself. The complaint must be in writing and submitted to the Academy executive director. It must specify the basis for the complaint and point to the specific provisions of the Code or Academy bylaws that has been violated, or other basis for disciplinary action.

The executive director shares the complaint with the chair of the Ethics Committee, the president, the secretary-treasurer, and legal counsel. The Ethics Committee chair and the secretary-treasurer, in consultation with legal counsel, will review the complaint and determine whether it meets the criteria set forth in the Disciplinary Procedures. Specifically, the complaint must state facts that if proven to be true would provide a basis for disciplinary action. If the complaint does not meet this test, or it involves a matter that is the subject of pending litigation, the complaint will be dismissed.

If the complaint survives this review, the complainant will be notified and given the chance to provide more information. The notice will also state that the complaint (including the name of the complainant) will be shared with the respondent, but otherwise must be kept confidential until there is a final resolution. The notice will inform the complainant that s/he has the right to withdraw the complaint, and if s/he does so, the Ethics Committee may exercise its discretion to initiate a complaint against the respondent on its own, and will keep the complainant’s identity anonymous if doing so would not violate the respondent’s due process rights. [pagebreak]

The respondent then has the opportunity to submit a response to the complaint, which will be shared with the Ethics Committee and the complainant. The Ethics Committee reviews all of the submissions by the parties and meets to decide whether the complaint states a valid ethics claim — i.e., whether the allegations, if proven to be true, would constitute a violation of the Academy’s Bylaws or Code of Ethics, or represent other conduct justifying disciplinary action. If the Committee finds that complaint fails this test, it will dismiss the complaint. If it finds that the complaint does state a valid ethics claim (if the facts are proven to be true), the matter will be referred to the Academy’s Judicial Panel. At this point, the respondent will be given the opportunity for a hearing before the Judicial Panel. If the respondent does not request a hearing, the Judicial Panel will move forward based on the written submissions. If a hearing is requested, the Judicial Panel will hold the hearing in accordance with the procedures set forth in the Administrative Regulations and make its determination based on the hearing testimony and the documents. 

Either way, the Judicial Panel makes a recommendation to the Board as to whether the complaint should be dismissed or provides a basis for disciplinary action. If the Judicial Panel decides to exonerate the respondent, that determination is final. If the Panel decides that disciplinary action is warranted, that determination is passed on to the Board in the form of a recommendation, which must also specify which of the available disciplinary actions should be taken by the Board — i.e., censure/admonition, probation, suspension, or termination of membership.

If the Panel recommends disciplinary action, the respondent will be given a chance to appear before the Board of Directors in an informal hearing. After reviewing the submissions and testimony, the Board of Directors may accept, reject, or modify the recommendation(s) of the Judicial Panel, and an affirmative vote of at least two-thirds of the members of the Board of Directors present at the hearing is required to approve any disciplinary action. The Board must also decide which sanction to impose. A decision to take disciplinary action must be based on a reasonable belief that the action is warranted by the facts and circumstances presented in the case. [pagebreak]

The Board’s decision is final, and notice of the decision is sent to the respondent and the complainant within 30 days, including a statement of reasons for the decision. The Academy will report the decision to the National Practitioner’s Data Bank and the appropriate state medical board if the underlying conduct is associated with patient treatment and welfare. The information may also be reported to the American Board of Dermatology or local dermatology societies if the circumstances justify doing so. Otherwise, the Board’s decision remains confidential.

The Academy has also developed an abbreviated process for handling complaints against members based on a state medical board taking disciplinary action against that member’s license, if the member voluntarily surrenders his/her license during the pendency of a proposed disciplinary action against the member, or if the member is indicted or convicted of a felony.

Protections for complainants

While there is always a risk that a respondent will sue a complainant for defamation or under some other tort theory, the Academy’s disciplinary process is designed to ensure that it is eligible for immunity provided by the Health Care Quality Improvement Act for organizations engaged in bona fide peer review activities and for those who report in good faith to such organizations. Illinois, where the Academy is headquartered, has also provided statutory protection for individuals who report to peer review organizations within the state through the Illinois Medical Studies Act. Many other states have provided similar immunity from suit for peer review participants and reporters. Although the protections provided by these statutes are not guaranteed, they should provide some comfort to members about the legal risk of reporting ethics violations to the Academy. [pagebreak]

Tips on filing ethics complaints

Academy members considering filing a complaint against another member should go through the following checklist:

  1. A complaint may only be filed by a member against a member. Non-members may not file complaints, and the Academy does not have jurisdiction to take disciplinary action against non-members.
  2. The conduct must violate a specific provision or provisions of the Academy’s Code of Ethics, bylaws, or other policies.
  3. The complaint must submit all the relevant information and documentation, and all patient identifiers should be redacted (removed).
  4. The matter must not be the subject of pending litigation.
  5. The complainant may ask to remain anonymous, but the Ethics Committee may or may not pursue the complaint on its own initiative; it will only pursue the complaint without identifying the complainant if doing so will not violate the due process rights of the respondent.
  6. The matter must be kept confidential except for official reports submitted by the Academy to the National Practitioner’s Data Bank, state medical boards, and others.

Filing an ethics complaint against a fellow Academy member is serious business. But it is also an ethical obligation. Those considering filing a complaint should carefully review the Academy’s Administrative Regulations on Code of Ethics and Judicial Panel — Disciplinary Procedures before taking this step.