A colleague may be losing it--but asks you not to tell

December 6, 1999

What confidentiality rules do you follow when the doctor is your patient, your associate, and your friend?

Hard Choices

A colleague may be losing it—but asks you not to tell

What confidentiality rules do you follow when the doctor is your patient,your associate, and your friend?

This is the last of three articles exploring ethical dilemmasfor today's physicians. The articles resulted from roundtable discussionsorganized by Senior Editor Anne L. Finger. See "Would a cost-conscious physician order this MRI?" Aug. 9, 1999, and "Who really has the last word on a DNR?" Oct. 11, 1999 (both available at www.memag.com).

The participants:

Willard Gaylin, MD, (below) the panel moderator, is a clinicalprofessor of psychiatry at Columbia University College of Physicians andSurgeons, New York City, and co-founder of The Hastings Center, a bioethicsinstitution.

Jordan S. Busch, MD, (below) an internist, medical director ofBeth Israel Health Care, in Brookline, MA, and an instructor in medicineat Harvard Medical School.

Daniel Callahan, PhD,(below) co-founder of The Hastings Center,and currently director of its international programs and senior associatefor health policy. He is also a visiting scholar at Harvard Medical School.

Harvey R. Gross, MD, (below) chief, Department of Family Practice,Englewood (NJ) Hospital and Medical Center, and assistant clinical professorof medicine, Mount Sinai School of Medicine, New York City.

Bonnie Steinbock, PhD, (below) professor and chair, Departmentof Philosophy, State University of New York at Albany, with joint appointmentsin the department of Public Administration and Policy and Health Policy,Management, and Behavior.

The case: Stanley Brenner is a family physician in a multispecialtygroup that includes surgeon Walter Meadows, a close friend. Meadows comesto Brenner's office and confides that he's experiencing weakness in hishands and difficulty swallowing. After examining Meadows, Brenner suspectsa degenerative disorder—possibly amyotrophic lateral sclerosis—and hewants to refer Meadows to a neurologist.

But Meadows refuses to go. He is terrified of being ill, of being foundout, of having to give up the surgery that is his greatest passion. He asksBrenner to watch him operate. After doing so, Brenner acknowledges thathis friend is still a brilliant and quick surgeon.

Now Brenner faces a dilemma: Should he remain silent about his friend'seffort to conceal the early signs of a grave illness, or reveal Meadows'condition to their peers before the surgeon harms a patient?

Willard Gaylin: Under the old-fashioned concept of medical ethics,there were clear-cut issues of right and wrong. Under the new concept, wehave ethical quandaries in which people of goodwill must weigh one rightagainst another. This case straddles the line between them.

What should Brenner do?

Harvey Gross: If we think there's a potential for impairment,we're obligated to do something. This is a difficult diagnosis, and I'dwant to be sure about it. My first instinct would be to make my friend gofor a neurologic assessment. If he won't, and if I felt my patients' surgicalcare would be compromised, I don't think I could walk away from the problemand wait until he has his first dis aster in the OR. The fact that I knewhe refused to get help would impact negatively upon me, as well.

Gaylin: What would you say—and to whom?

Gross: I would probably go to someone within my group. There mustbe a structure within every practice so that when something like this arises,someone can help figure out what to do next.

Jordan Busch: Several issues here need careful thought. Do youhave a doctor-patient relationship with Meadows, the surgeon? At what pointdoes that doctor-patient relationship start?

I have a number of friends who come to see me as their doctor. They typicallystarted by saying—at a dinner party, for example—"Do you mind lookingat my sore throat?" Does that constitute a doctor-patient relationship,or does it start the first time they come into the office? Or when theypay me?

The matter of when the doctor-patient relationship begins is fundamentallyimportant because it helps Brenner, the family physician in this case, understandhis options for treatment or referral. Once you have a doctor-patient relationship,there are issues of confidentiality. Do you then tell the leader of yourgroup, "I don't think we should be referring to Meadows?" I feelthat's a breach of confidentiality—unless you really believe that patientsare now in jeopardy.

As a friend, a lot of options might be open to you. You might say tosome of your colleagues, "I'm worried about a friend of ours."You might go to his wife or some other family member he's close to and say,"I'm worried about him. You really have to get him to see a neurologist."That's how friends can help friends.

Gaylin: That's an interesting question. Are the obligations offriends and physicians different? Remember, you are now Dr. Brenner, familyphysician. Let's say you're Meadows' good friend; you play golf with himevery week. In your medical group, there is a neurologist. Dr. Meadows isa surgeon; he knows as well as you that his symptoms tend to be neurological.So why do you think he asked you to examine him?

Busch: He may have come to me because I'm his closest friend,and he'd like the visit to be off the record. But when he asked—or allowed—meto examine him, a doctor-patient relationship began between us. He askedfor my professional opinion—not for my opinion as his friend.

Bonnie Steinbock: The doctor-patient relationship is a two-edgedsword. One edge is the confidentiality you've mentioned, which may or maynot be an issue for the friend. But the other edge is the obligation toprotect other patients. You don't have those professional responsibilitiesas a friend, but you do as a doctor.

Gaylin: What about obligations other than those of the doctor-patientrelationship?

Daniel Callahan: I think doctors do have social obligations, andI believe that in this case the physicians have obligations to people whowill be affected by their patients. If this is going to put the surgeon'spatients at risk, then by gosh . . .

Gaylin: Are there patients at risk?

Busch: The diagnosis hasn't been made, and you don't know thenatural history of this disease. Maybe Meadows' first problem isn't goingto happen until 20 years from now.

Gross: But that's not an excuse if you suspect or know that there'sa problem with somebody who's practicing medicine—especially a close colleague—andit comes out later that you did nothing.

Busch: You did do something. You tried to assess whether the doctoris still operating competently.

Steinbock: And maybe it's not yet time to go to other people.It seems to me there's an intermediate stage where you say, "You cameto me, and I've observed you. I don't see any disability now, but I thinkyou should see a neurologist, and I'll just keep monitoring you and badgeringyou until you do. And if at some point it seems to me that there is someimpairment, I may have to tell someone else."

Gross: I don't think you've done a disservice to him if you goto someone in your group.

Steinbock: As long as you tell him first what you're going todo.

Busch: But at some point, everyone's function deteriorates, andwe can't predict when that will be. Let's say we are in a practice together,and I come to see you and mention, "I don't know what's wrong lately;I keep losing my keys." At what point do you say, "I'm not goingto send him any more patients; he may forget what he did with the lab results"?

There are surgeons still operating at 85, though probably not as quicklyand effectively as when they were 55. But other skills may make up for whatthey've lost, and you may think an 85-year-old is the best surgeon to referto. Based only on some symptoms, with no solid evidence of a true functionalproblem, I'd have a hard time saying you should either tell your colleaguesor report this surgeon to someone—whether or not you have a doctor-patientrelationship with him.

In a doctor-patient relationship, I think you have an obligation to reportsomeone if you're concerned that he will put other people in harm's way.You may believe this patient will become impaired eventually. But he's notimpaired now.

Gaylin: So far, we've raised two questions: Are you doctor orfriend? And how does the answer to that question make a difference? If youdecide that Brenner has taken the physician's role, does he have more orless obligation to tell—when there's no disability that affects Meadows'practice at this point?

Busch: As a friend, you have more avenues available to encouragehim to see a neurologist. You could discuss this with Meadows' wife. Oryou could say to him, "Listen, if you're not willing to go to the neurologist,I'll have to bring this up with the chief of our group."

I don't think those avenues are open if you have a doctor-patient relationship.If you ask Meadows, "Is it okay if I discuss this with your wife?"and he says No, you're bound by that.

Gaylin:. So by your standard of having examined him, you've beenconverted from a friend into a doctor. Then you have less obligation toreport?

Busch: No. I have fewer avenues to encourage him to see a neurologist.Remember, I'm not yet 100 percent certain of the diagnosis. In terms ofreporting, I think my responsibility is the same. Once I've decided thatmy friend's operating skills are risky to patients, I'm obligated to reportthat to someone.

Steinbock: I wouldn't underestimate the power of badgering. Asa friend—or as a physician—I'd keep saying, "You really have to seea neurologist about this. I know you're afraid you'll have to give up yourpractice, but if it's going to happen, wouldn't it be better to preparefor it a little bit? Maybe it's something else, something we can treat,and you could set your mind at rest."

Callahan: If Brenner's intuition about the surgeon is correct,harm will take place one of these days. He has to worry about the effectof that harm—not only to the patient, but also to himself. Even as thesurgeon's friend, he has an obligation, it seems to me.

If the surgeon kills somebody, and it comes out that Brenner knew abouthis condition and did nothing, the family physician would be in terribletrouble. He has to protect himself, not just his patients. I would go thenudging route, and escalate after a while: "I've told you this fivetimes. Now I have to be blunt about it."

The more interesting moral question—which seems equally serious—isabout the friendship. Breaking the confidence of a friend is as bad as breakingthe confidence of a patient. Most people would consider them on a par. Afriend is someone you don't squeal on.

Gaylin: Let's change the circumstances a bit. You're playing squashwith your surgeon friend, and you notice a skin lesion. You know he's gay,and you have reason to suspect that he may have AIDS. How does that changeanything? There is one change concerning the risk: Even a superb physiciancan cut his finger while his hands are in a patient's abdomen. Althoughthe risk of transmission of the AIDS virus may be very low, isn't that aconcern? What do you do?

Busch: In the scenario you have described, you don't have a doctor-patientrelationship, so there are far more avenues available. In this situation,you can share your concern with your friend, engage in a dialogue, and outlinewhat you feel needs to be done.

Gaylin: Suppose the surgeon friend comes to you and says, "There'sa lesion on my back that hasn't gone away; would you take a good look atit?" You say, "It looks like Kaposi's to me."

Busch: That may not be enough to substantiate a doctor-patientrelationship. But if the surgeon actually came into your office for a fullhistory and examination, you would now have a doctor-patient relationship.

At that point, it gets really tough. Your friend's patients are at risk,and you have to tell him that the information about that risk must be shared.Then you need to share it in confidence with whoever's in charge of thosewho operate. But you couldn't do that behind the patient's back.

Gaylin: Suppose he says, "No. I don't want this to get out;I'm a married man." You ask him, "Is it possible you've been exposedto the AIDS virus?" And he says, "It's possible."

Busch: The best I can do is try to get the patient to do whatI think is appropriate, using the nudge approach. That may include tellinghim, "By the way, until we get this sorted out, I can't refer any morepatients to you." That can be a powerful incentive.

In the ALS case, assuming that I felt the doctor was still operatingcompetently, I would continue to refer patients.

Gross: The criterion that we're always using is the risk to ourpatients. Friendship is important, but when we think our patients are atrisk, we're obligated to do something.

Busch: There is clearly an ethics and morality around friendship.Someone can ask for my confidence about something unrelated to medicine.I may ask myself what being a good friend requires me to do in this circumstance.That's very different from a doctor-patient relationship.

Gross: The irony of the AIDS case is that we are breaking confidentiality,and the confidentiality that we have with our patients is probably the mostimportant thing in our practice.

Gaylin: Then let's make confidentiality the pure issue. Bonnie,suppose you're a neurologist, and a well-known surgeon from a small towncomes to see you. You say, "I think you have ALS." He says, "Thankyou very much, Doctor," and leaves. Do you have any kind of responsibilitythere?

Steinbock: No, because that would just lead to a situation whereeveryone would be checking up on everyone else, and I don't see how youcould do that. Your responsibility in the original scenario kicked in becauseyou're in a group together; you have an obligation to the patients you share.

Gaylin: All right, then suppose you're the chief neurologist ata leading New York hospital, and you're visited by the chief surgeon atanother prominent New York hospital. You ask, "How come you came tome?" He says, "I wanted respect for my privacy." Now we havethe same situation. You still have no obligation to tell?

Steinbock: I don't think you do. There's a difference betweenseeing another doctor from within your group and seeing one who comes toyou from out of the blue.

I have much less obligation to nudge if I'm not the chief surgeon's friend,and he's not dealing with my patients. I might say, "Have you reallythought about this? You've come to me, and I'm telling you the responsiblething to do." But if he says, "Thank you very much; our relationshiphas ended," I don't think I'd have anything more to say.

Gross: I believe that in a doctor-patient relationship, you can'tforce the patient to do anything. Our responsibility in this situation endswhen we make all our recommendations and document our thoughts.

Gaylin: I'm going to leave the world of ALS and AIDS and go intoaging. I raise this issue because this is where a person of integrity ismore likely to be self-deceptive than in the other instances we've discussed.As one of the older people in this room, I know that it took me a long timeto look into the mirror and not see a 45-year-old man.

Let's say we have a distinguished 73-year-old doctor. You've noticedthat his hands are trembling, his decisions are not quite right—a few littlethings like that. How do you handle that in your group?

Busch: Is he your patient?

Gaylin: No, you just notice it. You do know that he performs delicateoperations.

Busch: I would probably do one of two things. If I knew the surgeonwell enough, I'd say, "I'm very concerned about these things, and Iam going to talk to somebody about my concerns."

The harder choice occurs if you don't know him well, and you've justnoticed this. Do you just blindside this colleague by telling someone abouthim? If you really think that he may be impaired functionally, you haveto act—especially if you think patients are at risk.

If anyone is legitimately concerned about the capabilities and competenciesof any physician who isn't performing as well as expected, the person withthat knowledge is obligated to report it to the appropriate supervisor.That's what I would do if I were aware of such a situation, and it's whatI would expect my colleagues to do about me.

What do you think?

If you were Stanley Brenner, the family physician in the situation describedabove, how would you deal with it? What distinctions do you draw betweenyour responsibilities as a physician and as a friend? How would you balanceyour physician patient's demands for confidentiality with a perceived riskto other patients? Are there approaches to this dilemma that haven't beendiscussed in this article?

Please fax your response to 201-722-2688, ATT: ALF, or send an e-mailto anne.finger@medec.com

. A colleague may be losing it--but asks you not to tell.

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