What were they thinking?

Let’s admit it. Every time the annual report of a regulatory board is received by a chiropractor or, for that matter, any licenced practitioner, the very first thing that is read is the section on disciplinary matters.

The reader is likely perusing that section of the annual report to find out if he or she knows any of the individuals who have been prosecuted for inappropriate behaviour. Unfortunately, this is not the best motivation for reading these reports.

The decisions of a disciplinary board are public in nature and provide an indication of the problems that may arise with respect to a practitioner’s misconduct.

In dealing with issues of professional misconduct, there are a number of responses that generally come from an issue of a concern in practice, whether the issues arise in the arena of a professional complaint, an associateship, a partnership or the acquisition of a practice. The following are many of the responses.

1.) No good deed goes unpunished. This is likely to arise when a practitioner is requested to use insurance coverage of one spouse to treat another spouse.

2.) Today’s favour is tomorrow’s obligation. A practitioner who does not adhere to an office policy on Monday is unlikely to be able to enforce the policy on Tuesday. This occurs most often with respect to associate agreements wherein the parties vary the terms of the relationship by their conduct and then at some point try and reinstate the terms of the agreement. At least one party is never happy.

3.) “Records are a pain to deal with.” That is just the responsibility of the professional which comes with the rights and privileges provided to the professional.

4.) “But the patient wanted it.” This arises in a number of situations involving such matters as a romantic relationship between the doctor and patient; a prepayment of treatments when the patient requests a refund and the doctor attempts to enforce a signed agreement; or treatment without a signed consent form.

5.) Hell hath no fury like an ex-employee’s scorn. We are all genuinely concerned about our staff and enjoy a long and fruitful relationship with staff. But, remember that working at your clinic is a job not lifetime commitment and definitely not a hobby. Treat staff with respect and don’t ever rely on a relationship to keep confidential what happened in a clinic that should not have happened in a clinic.

6.) “But it was only a couple of patients.” The amount of inappropriate behaviour in any wrongful act is inconsequential to the ultimate penalty. Being caught after inappropriately billing two or three patients is unlikely to decrease the penalty, simply because the fraud did not continue unabated.

7.) “But no one was hurt.” This is definitely absolutely no excuse for inappropriate behaviour, and frankly there is always a victim whether it is the patient, the insurance company, the public or the profession.

8.) Did it pass the smell test? Prior to any action or agreement, ask yourself the age old question – is it too good to be true? Agreements do not have to be reasonable to be enforceable and what appears reasonable today may be really unfortunate tomorrow. Use your imagination and foresight to think ahead a few years when entering into an agreement.

9.) “But it was consensual.” It may be but it is unlikely the patient who is not a member of any professional regulatory board is going to suffer the same pain and humiliation that you are going to suffer for inappropriate behaviour, fraud or sexual inappropriateness.

10.) “But they owed me money.” Suing a patient is like waving a red flag in front of a bull. You sue the patient for, i.e. $500 for an outstanding bill, and they send a letter that costs a dollar in postage to the regulatory board accusing you of inappropriate behaviour. The legal fees for your defence may just start at $500.00 but more than likely it will end up costing you thousands. Simply write off the debt and be better at collecting your accounts.

11.) “I gave them a paid receipt so they could collect from the insurance company. Why won’t they pay me?” Because they don’t have to. You gave them a receipt and if you sue them they are likely to produce the receipt. If you testify that the receipt was given for them to collect money from the insurance company, you are likely to end up having bigger problems resulting from a false receipt that resulted in insurance fraud. This goes from bad to worse.

12.) “I was doing them a favour – I didn’t get anything out of it.” See #1. Your participation in inappropriate conduct will lead to serious consequences.

13.) “It was my receptionist’s fault.” Don’t even go there. The buck stops at your desk. This argument simply confirms that you are not living up to your responsibility.

14.) “It was a computer glitch.” This excuse is about as acceptable as “my dog ate my homework.” As professionals we are required to be able to provide documents when requested. Backup, backup, backup. It is really hard to keep a straight face when attempting to use this excuse for not having patient or financial records.

15.) “But it wasn’t my clinic.” It simply doesn’t matter. It doesn’t matter who owns the clinic, who owns the files, who does the billings, who does the collecting of accounts. See #14 – the responsibility is that of the practitioner – no ands, ifs or buts.

16.) “Why are they persecuting me?” They are not persecuting they are prosecuting. A regulatory board has statutory obligations and deal with complaints when submitted by a patient.

There are other reasons, alibis or excuses for what amount to potential disasters in a professional practice.

The best advice is to obtain advice as soon as a potential problem might arise. When all is said and done, a reasonable practitioner acting reasonably is the best defence to a problem ever occurring in a professional
practice.

Allan Freedman is a Toronto-based lawyer and an instructor at the Canadian Memorial Chiropractic College, teaching risk and practice management. You can contact him at allan@amf-law.ca.