PENNSYLVANIA - REPORTING REQUIREMENTS

January 1, 2008

Pennsylvania state laws and regulations that affect your medical practice

I. GUNSHOT WOUNDS

1. Should gunshot wounds be reported to the proper authorities?

(a) A physician, intern or resident, or any person conducting, managing or in charge of any hospital or pharmacy, or in charge of any ward or part of a hospital, to whom shall come or be brought any person:

(2) upon whom injuries have been inflicted in violation of any penal law of this Commonwealth; commits a summary offense if the reporting party fails to report such injuries immediately, both by telephone and in writing, to the chief of police or other head of the police department of the local government, or to the Pennsylvania State Police. The report shall state the name of the injured person, if known, the injured person's whereabouts and the character and extent of the person' s injuries.

(a) In cases of bodily injury, failure to report under subsection (a)(2) does not constitute an offense if all of the following apply:

(1) The victim is an adult and has suffered bodily injury.

(2) The injury was inflicted by an individual who:

(i) is the current or former spouse of the victim;

(ii) is a current or former sexual or intimate partner of the victim;

(iii) shares biological parenthood with the victim; or

(iv) is or has been living as a spouse of the victim.

(3) The victim has been informed:

(i) of the duty to report under subsection (a)(2); and

(ii) that the report under subsection (a)(2) cannot be made without the victim's consent.

(4) The victim does not consent to the report under subsection (a)(2).

(5) The victim has been provided with a referral to the appropriate victim service agency such as a domestic violence or sexual assault program.

(b) Immunity granted: No physician or other person shall be subject to civil or criminal liability by reason of complying with this section.

( c ) Physician-patient privilege unavailable: In any judicial proceeding resulting from a report pursuant to this section, the physician-patient privilege shall not apply in respect to evidence regarding such injuries or the cause thereof. This subsection shall not apply where a report is not made pursuant to subsection (a.1).

(d) Reporting of crime encouraged: Nothing in this chapter precludes a victim from reporting the crime that resulted in injury.

(e) Availability of information: A physician or other individual may make available information concerning domestic violence or sexual assault to any individual subject to the provisions of this chapter.

18 Pa. C.S.A. § 5106

II. IMPAIRMENT, GROSS INCOMPETENCE OR UNPROFESSIONAL CONDUCT OF ANOTHER PRACTITIONER

1. Should a practitioner report another's impairment, gross incompetence or unprofessional conduct to the State Board of Medical Examiners (SBME)?

The board shall have authority to impose disciplinary or corrective measures on a board-regulated practitioner for any or all of the following reasons:

(1) Failing to demonstrate the qualifications or standards for a license, certification or registration contained in this act or regulations of the board.

(2) Making misleading, deceptive, untrue or fraudulent representations in the practice of the profession or practicing fraud or deceit, either alone or as a conspirator, in obtaining a license, certification or registration or in obtaining admission to a medical college.

(3) Being convicted of a felony or being convicted of a misdemeanor relating to a health profession or receiving probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, a Federal court or a court of any other state, territory or country.

(4) Having a license or other authorization to practice the profession revoked or suspended or having other disciplinary action taken, or an application for a license or other authorization refused, revoked or suspended by a proper licensing authority of another state, territory, possession or country, or a branch of the Federal Government.

(5) Being unable to practice the profession with reasonable skill and safety to patients by reason of illness, addiction to drugs or alcohol, having been convicted of a felonious act prohibited by the Controlled Substance, Drug, Device and Cosmetic Act, or convicted of a felony relating to a controlled substance in a court of law of the United States or any other state, territory, possession or country, or if he or she is or shall become mentally incompetent. An applicant's statement on the application declaring the absence of a conviction shall be deemed satisfactory evidence of the absence of a conviction unless the board has some evidence to the contrary. In enforcing this paragraph, the board shall, upon probable cause, have authority to compel a practitioner to submit to a mental or physical examination by a physician or a psychologist approved by the board. Failure of a practitioner to submit to such examination when directed by the board, unless such failure is due to circumstances beyond his or her control, shall constitute an admission of the allegations against him or her, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A practitioner affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume a competent practice of his or her profession with reasonable skill and safety to patients.

(6) Violating a lawful regulation promulgated by the board or violating a lawful order of the board previously entered by the board in a disciplinary proceeding.

(7) Knowingly maintaining a professional connection or association with any person who is in violation of this act or regulations of the board or knowingly aiding, assisting, procuring or advising any unlicensed person to practice a profession contrary to this act or regulations of the board.

(8) Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall include departure from or failing to conform to an ethical or quality standard of the profession. In proceedings based on this paragraph, actual injury to a patient need not be established.

(i) The ethical standards of a profession are those ethical tenets which are embraced by the professional community in this Commonwealth.

(ii) A practitioner departs from, or fails to conform to, a quality standard of the profession when the practitioner provides a medical service at a level beneath the accepted standard of care. The board may promulgate regulations which define the accepted standard of care. In the event the board has not promulgated an applicable regulation, the accepted standard of care for a practitioner is that which would be normally exercised by the average professional of the same kind in this Commonwealth under the circumstances, including locality and whether the practitioner is or purports to be a specialist in the area.

(9) Acting in such manner as to present an immediate and clear danger to public health or safety.

(10) Acting outside the scope of a license or certificate.

(11) Making a false or deceptive biennial registration with the board.

63 P.S. 422.41

III. DUTY TO WARN

1. Does a mental health professional have a duty to warn if he or she suspects a patient to have violent tendencies?

The relationship between a mental health professional and his patient constitutes a special relationship which imposes upon the professional an affirmative duty to protect a third party against harm. Pennsylvania courts have held that it is reasonable and in the public's interest to impose a duty on a mental health professional to warn a third party of an immediate, known and serious risk of potentially lethal harm. Given the competing concerns of productive therapy, confidentiality, and the interest in public safety, the circumstances in which a duty to warn a third party arises are extremely limited and should include: (1) the existence of a specific and immediate threat of serious bodily injury that has been communicated to the professional; and (2) the threat is made against a specifically identified or readily identifiable victim.

Emerich v. Philadelphia Center for Human Development, 554 Pa. 209 (1999)

The regulations promulgated by the State Board of Psychology recognize the exception to the psychiatrist or psychologist-patient privilege in the case of a serious threat of harm to an identified or readily identifiable person:

Information received in confidence is revealed only after most careful deliberation and when there is a clear and imminent danger to an individual or to society, and then only to appropriate professional workers or public authorities. This Code of Ethics does not prohibit a psychologist from taking reasonable measures to prevent harm when an client has expressed a serious threat or intent to kill or seriously injure an identified or readily identifiable person or group of people and when the psychologist determines that the client is likely to carry out the threat or intent. Reasonable measures may include directly advising the potential victim of the threat or intent of the client. Because those measures should not be taken without careful consideration of clients and their situation, consultation with other mental health professionals should be sought whenever there is time to do so to validate the clinical impression that the threat or intent of harm is likely to be carried out.

49 Pa. Code § 41.61

IV. Duty to Report Abuse or Neglect of Children

1. What is a physician's duty with respect to reporting the abuse or neglect of children?

General rule:

A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator. Except with respect to confidential communications made to a member of the clergy, and except with respect to confidential communications made to an attorney, the privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.

Immunity from liability:

A person, hospital, institution, school, facility, agency or agency employee that participates in good faith in the making of a report, whether required or not, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse, the taking of photographs or the removal or keeping of a child, and any official or employee of a county agency who refers a report of suspected abuse to law enforcement authorities or provides services under this chapter, shall have immunity from civil and criminal liability that might otherwise result by reason of those actions.

Penalties for failure to report or to refer:

A person or official required by this chapter to report a case of suspected child abuse or to make a referral to the appropriate authorities who willfully fails to do so commits a misdemeanor of the third degree for the first violation and a misdemeanor of the second degree for a second or subsequent violation.

PA LEGIS 2006-179

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.