Preventive Medicine and the Seven Deadly Sins: Avoiding Discipline Against your Medical License

Envy n. 1. A feeling of discontent and resentment aroused by another's desirable possessions or qualities, accompanied by a strong desire to have them for oneself.

I am jealous of those who possess sufficient insight to envision the difficulty in demonstrating a meaningful correlation between envy, the "3rd Deadly Sin," and the practice of medicine. The question is: to what level of aberrance will the proverbial "green-eyed monster" take me? Will I try to discredit and smear my competitors? Will I lash out violently and attack my computer in a fit of rage? Time will tell.

Everyone experiences envy at some point. Envy can actually be a motivator for success. Envy can also be a remarkably destructive impetus to try to ruin or inflict psychic damage on a person. This article will explore two ways we Medical Board investigators often encounter envy: the physician in the business environment and the psychologically compromised complainant.

No one can dispute that we work in a competitive environment. In the medical field, competition in some specialties is profound. As advertising has gained acceptability (and legality) in the medical field, competition has become increasingly intense, especially in the arenas of plastic surgery, hair restoration, erectile dysfunction, ophthalmology (specifically, laser eye surgery) and most recently, bariatric surgery. Peruse any major newspaper and you will find numerous advertisements appealing to a variety of ailments to generate "business." In the spirit of competition, when physicians engage in behaviors that attempt to impede or sabotage their competitors' businesses, that is when envy is invoked. This also can be known as an "unfair business practice."

Business and Professions Code section 651 is captioned "Dissemination of false or misleading information concerning professional services or products; permissible advertising." It is among the most long-winded sections (five pages of actual text) we encounter, so I will take editorial liberties and focus on the most pervasive violations we see:

It is unlawful for any person licensed under this division ... to disseminate or cause to be disseminated any form of public communication containing a false, fraudulent, misleading or deceptive statement, claim or image for the purpose of or likely to induce, directly or indirectly, the rendering of professional services or furnishing of products in connection with the professional practice or business for which he or she is licensed.
-- BUSINESS AND PROFESSIONS CODE SECTION 651

This includes mail, television, radio, newspaper, list or directory, Internet or other electronic communication.

The bottom line is, does the advertisement contain a misrepresentation of fact? Is it intended or likely to create false or unjustified expectations of favorable results (this includes the use of any photograph or other image that does not accurately depict the results of the procedure being advertised or that has been altered in any manner from the image of the actual subject depicted)? Does it fail to fully and specifically disclose all variables and other material factors relating to fees? Does it make a claim either of professional superiority or of performing services in a superior manner, unless that claim is relevant to the service being performed and can be substantiated with objective scientific evidence?

It is also unlawful to use the term "board certified" unless you are certified by a board that is an American Board of Medical Specialties (ABMS) member board or a specialty board approved by the Medical Board of California as equivalent to an ABMS specialty board.

Advertising violations can result in discipline against your medical license. Ordinarily, first-time offenders are allowed an opportunity to correct the problem, but continuous offenders may become the object of a citation and fine or, ultimately, the filing of an accusation.

An interesting counterpoint is that a substantial number of complaints alleging false advertising come anonymously. Frequently, we are able to determine that the complainant is a physician who is in competition with the alleged false advertiser. Caveat emptor, or should I say caveat doctor: If your advertising is not legally sound, when the Medical Board is not watching, your competitors may be!

Which leads me to segue not so subtly to the topic of disgruntled complainants. I want to emphasize that in no way are these next few paragraphs intended to dissuade someone from filing a complaint. In fact, Business and Professions Code section 2318 affords immunity from civil liability to those who provide information to the board indicating that a licensee may be guilty of unprofessional conduct. If ever in doubt, I always recommend erring on the side of filing the complaint.

There are, however, a small number of complaints, often memorable, that are generated from envy. Some of these complaints are petty. Some are reality-challenged. Some are veracity-challenged. On first glance, it appears there may be a violation of law, but upon further scrutiny and investigation, complaints such as these just reaffirm the adage: "hell hath no fury like a ______ scorned."

Recently, we received a complaint from an envious ex-husband of a physician. The complaint alleged scurrilous behavior and included videotapes of his wife engaged in extremely intimate activity with someone who was obviously not this ex-husband. The complainant in the divorce matter wished to portray his ex-wife as mentally unstable and drug using. The brief investigation of this matter did not yield facts to bear out this allegation. What it really established is to what deplorable depths a person will go to hurt another, whether it is prompted by envy, fear, anger, or any other emotion. It was an unfortunate use of our resources and could have detracted from a more serious matter.

Custody disputes are another common source of complaints. These can be particularly bothersome because some appear to be merely an individual's opportunity to "vent" on paper. Occasionally, however, one of these complaints will reveal a practitioner who did depart from the standard of care. The departure, invariably, is failing to perform a fair, objective and unbiased examination and render a fair, objective and unbiased opinion. Is this envy transference? The professional is assuming the envious component of the dysfunctional parent? Levity aside, there is an extremely severe consequence to this breach in the standard of care. This conduct can deprive a parent of his or her child.

Finally, there was the "two brothers investigation." These two physicians had been in practice together and had a falling out. One of the brothers began filing complaints against the other. Some of the issues raised in the complaint were valid but one of the aspects that hurt the case was the motivation for the brother filing the complaint, especially since he had been privy to the offending brother's conduct long before the complaint was filed. If I'm working for someone, and I'm observing unethical and illegal behavior but looking the other way until I become jealous, or mad, that will reflect poorly on my credibility in the legal arena (among other places). It can generally be overcome, but it is yet another fascinating component of human nature to contemplate how we sometimes tolerate unacceptable behavior in others until the unacceptable behavior personally impacts us.

How do you, as a physician, deal with being the subject of a frivolous or a false complaint? Being licensed means that someone may file a complaint against you. I can assure you that we are trained to prove and disprove allegations. I can assure you we will not pursue a meritless case. Although we recognize this can be extremely frustrating for you, your task in these situations is to resist the inclination to become angry, and instead exhibit as much patience as you can muster. Patience, after all, is a virtue!

Coming up next: Anger