Determining Whether a Physician is Competent to Practice Medicine is Complex

Physicians are granted a license to practice medicine and it is presumed they will remain “competent” to treat patients throughout their careers. Within the past decade, reports of physician incompetence have been fueled by patients as well as by licensing boards and hospitals. Physicians must be “currently competent” to practice medicine in accordance with standards set by the courts, licensing boards and hospitals’ Bylaws. How is competence defined? What are some of a physician’s behaviors or circumstances that may result in a charge of incompetence? Who is qualified to assess a physician?

The Federation of State Medical Boards (FSMB) defines “competence” as “possessing the requisite abilities and qualities . . . to perform effectively in the scope of professional physician practice while adhering to ethical standards.”[1] However, each state’s licensing board or hospital may have its own definition of competence and physicians should be aware of the relevant standards.

A study by the Center for Personalized Education for Physicians (CPEP) found only 12.6% of the physicians assessed were unsafe to practice without significant remediation.[2] Nevertheless, being evaluated is difficult for any physician to undergo. Physicians with impairments, inadequate skills or beyond a certain age are reluctant to voluntarily enroll in a program due to the expense, time commitment and potential consequences. Most evaluations are the result of licensing board determinations.

Valid methods for determining whether a physician is currently competent must be utilized. The assessment should determine whether the physician has the skills and knowledge to practice medicine in accordance with standards of care. While board certification and recertification may document whether a physician has up-to-date clinical knowledge, knowledge alone may be insufficient to substantiate that a physician should keep practicing. A physician may have clinical performance issues that also limit his/her ability to practice due to cognitive, psychiatric or physical limitations. Real-time clinical practice skills must also be evaluated.

Whether a physician is out-of-practice voluntarily or involuntarily, he/she needs to know that the entity conducting the assessment is well-respected and that he/she has a fair shot at being certified as able to practice medicine safely. Therefore, it is important that an assessment is performed by a qualified entity with a proven track record of measuring knowledge, communication skills and performance. Throughout the entire assessment process, a physician must be assured of a neutral, unbiased system so that there are no discriminatory actions.

If the assessment identifies deficiencies, concrete steps should be identified to remediate the physician’s knowledge and skills so that he/she may return to practice. Remediation may include passing a recognized multiple choice examination, proctoring of cases, participating in targeted Continuing Medical Education (CME) courses, completing a mini-residency and implementing a gradual practice re-entry practice.

Physicians are Increasingly Being Scrutinized for Competence:

Complaints from peers, patients or from other health care professionals have been on the upswing especially since the 1999 “To Err is Human” Report alleged that patients are dying due to medical errors. There are growing complaints that physicians have practiced medicine incompetently. Licensing boards are mandated to investigate complaints against physicians and they are obligated to protect the public by imposing disciplinary action if warranted.

How do Licensing Boards Define Current Competence and Protect the Public and the Physician:

Boards must meet the applicable legal standards before they can sanction a physician by sending him/her for an evaluation. A typical legal standard that a board must follow was articulated by New Jersey Supreme Court which held that the board "`is to protect the health and welfare of members of the public' by assuring that all licensed practitioners are qualified, competent and honest . . ." (emphasis added). In Re Revocation of the License of Polk, 90 N.J. 550 (1982).

Thus, a licensing board should not demand that a physician be tested unless there is credible evidence that the public is at risk.

Behaviors or Circumstances Where a Physician Is Deemed Incompetent:

Typical scenarios where a hospital or licensing board may allege that a physician is incompetent are:

• A lack of skills;
• Deficiencies in knowledge;
• Impairments due to substance abuse, psychiatric or health conditions[3];
• Attaining a certain age;
• A long leave of absence;
• Being disruptive and interfering with other medical professionals’ patient care;
• Misdiagnosis of a patient’s condition;
• Overprescribing of controlled substances;
• Inadequate medical records;
• Practicing outside of the specialty area; and
• Failing to meet specialized standards of practice leading to adverse outcomes.

For instance, a potential issue may occur when a physician, trained in one specialty and practicing in another, provides pain management services which involve prescribing large amounts of controlled substances without adequate medical documentation. It is not surprising that this type of practitioner would be on a licensing board’s radar screen as practicing incompetently given the country’s focus on opiate related deaths.

In addition, hospitals and licensing boards must decide if a physician, who has been out-of-practice for more than a certain number of years and who wishes to reenter the workforce, is still competent. Most licensing boards have a policy for how many years a physician may be out-of-practice before he/she must meet certain requirements.[4]

Whether “aging” physicians need to be evaluated to see if they are still fit to treat patients is another emerging topic. Increasingly, medical staffs are mandating that physicians over a certain age must be tested.[5] In 2015, the American Medical Association, Council on Medical Education released a report on “Competency and the Aging Physician” which called for guidelines to be issued.[6]

A recent JAMA Surgery article found that by 2015, nearly one in four physicians were 65 or older and the authors called for required cognitive evaluations of aging physicians, combined with confidential, anonymous feedback evaluations by peers and coworkers.[7] However, as Frank Stockdale, M.D., a Stanford physician, stated “[w]e should be testing everybody at all ages for their competence. It shouldn’t be because you’re 65”. According to Marcia A. Lammando, R.N., program director for the Foundation of the Pennsylvania Medical Society’s LifeGuard program, identifying practice modifications for an aging physician “can keep a physician working . . . that’s better for the organization and for the patients . . .”

While the aging physician or those out-of-practice for more than a few years may be receiving the most attention in the competency debate, in reality the CPEP found the largest number of referrals are from licensing boards imposing disciplinary actions.[8]

Who is Qualified to Decide if a Physician is Currently Competent and How Should an Assessment be Conducted:

The FSMB published a directory of physician assessment and remedial education programs. The most widely recognized programs, such as the CPEP, the Physician Assessment and Clinical Education Program at the University of California, San DiegoPhysician Assessment and Clinical Education Program at the University of California, San Diego and the Albany Medical College’s New York’s Patient Safety and Clinical Competency Center, generally assess a physician’s skills through a variety of methods. They conduct a clinical review with the physician of a limited number of cases. Medical knowledge and practice patterns are also reviewed based upon: examining a physician’s medical records, evaluating clinical skills using simulated patients and analyzing the results of a psychological assessment. Assessment programs may use the MicroCog, a computerized neuropsychological screen.

What Physicians Should Keep in Mind:

Licensing boards and hospitals are pressured to determine which physicians are dyscompetent. Physicians should be mindful of the need to stay current in multiple ways and seek assistance if needed. The following are examples of best practices:

• Charts should contain comprehensive documentation of the care rendered, preferably using electronic medical records which are tailored to the practice;
• Board re-certification should be continued, as it demonstrates specialty specific medical knowledge;
• CME courses should be completed at in-person sessions, not just online;
• Voluntarily enrolling in professional assistance programs or counseling early on should be viewed positively;
• Embracing proactive steps in managing a practice, such as a reduced case load for the aging physician, should be accepted;
• Keeping up-to-date on changing standards of practice in your state, i.e. limitations on prescribing opiates, is essential; and
• Becoming knowledgeable about factors that affect clinical competence is necessary.

Conclusion:

The reasons a practitioner may be alleged as incompetent are varied and complex. Some, such as attaining a certain age or being out-of-practice due to a leave of absence, call for different solutions than evaluating a physician who may be jeopardizing a patient.

Assuring the public that physicians are competent involves awareness of the need for assessments. There requisite resources must be in place to conduct the testing in a credible manner. Once a physician completes these rigorous assessments, he/she must be provided with the tools to remediate the alleged deficiencies unless the program determines the physician will not be able to treat a patient safety due to his/her condition.

Regardless of the stage of a physician’s career, he/she should remember the importance of learning new ways to practice medicine thereby reaffirming the important current competence.

[1] Federation of State Medical Boards, The Special Committee on the Quality of Care and Maintenance of Competence, adopted House of Delegates, 1999.

[2]Predictors of Physician Performance on Competence Assessment: Findings From CPEP, the Center for Personalized Education for Physicians, E. Grace, M.D., E. Wenghofer, Ph.D., E. Korinek, MPH, Academic Medicine, Vol. 89, No. 6, June 2014.

[3] Impairment is defined as affecting a physician’s ability to practice medicine with “skill and safety”; it is not an illness per se and the two must be distinguished. Public Policy Statement on Illness versus Impairment in Healthcare and Other Licensed Professional, American Society of Addiction Medicine, April 12, 2011.

[4] New Jersey’s regulations provide that a physician who has been on inactive status for more than five years must demonstrate that he/she has maintained proficiency. Pennsylvania provides that a physician out-of-practice more than four years may be required to have a re-entry plan which includes the completion of a clinical skills assessment among other items.

[5] Cooper University Hospital in Camden, New Jersey now mandates that physicians over age 72 must have their cognitive abilities tested to remain on staff. The “Late Career Practitioner Policy” adopted at California’s Stanford University Hospitals contains a controversial “three-component screening process for physicians age 75 and older.”

[6] AMA Report of the Council on Medical Education, Competency and the Aging Physician, November 2015.

[7] JAMA Surgery, “The Aging Physician and the Medical Profession. A Review”, E. P. Dellinger, M.D.; C.. Pellegrini, M.D.; T. Gallagher, M.D. (July 19, 2017)

[8] Predictors of Physician Performance on Competence Assessment: Findings From CPEP, the Center for Personalized Education for Physicians, E. Grace, M.D., E. Wenghofer, Ph.D., E. Korinek, MPH, Academic Medicine, Vol. 89, No. 6, June 2014.

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Alma Saravia is a shareholder at Flaster Greenberg PC in Cherry Hill, N.J. She practices in the area of healthcare law and was a member of the New Jersey Board of Medical Examiners. She can be reached at 856.661.2290 or alma.saravia@flastergreenberg.com.