Frequently Asked Legal Questions

Does a physician have an obligation to report another physician's drug or alcohol problem to the Medical Quality Assurance Commission (MQAC)?

Legislation passed in 2006 repealed the statute that formerly required physicians to report acts of unprofessional conduct. That Legislation directs the Department of Health to adopt rules requiring every license holder to report to the appropriate disciplining authority any conviction, determination, or finding that another license holder has committed an act which constitutes unprofessional conduct, or to report to either the disciplining authority, an impaired practitioner program, or a voluntary substance abuse monitoring program approved by the disciplining authority information that indicates that the other license holder may not be able to practice his or her profession with reasonable skill and safety to consumers as a result of a mental or physical condition. The Department of Health has not yet adopted rules for physicians at this time.

What is the Washington Physician's Health Program?

The Washington Physician's Health Program ("WPHP") is a program administered by a committee of physicians who have expertise in the treatment of alcoholism, drug abuse, and mental illness. For more information on the WPHP go to: http://www.wphp.org/home.html

May a physician prescribe drugs for himself or herself?

It is unprofessional conduct for a physician to self-prescribe controlled substances or to misuse controlled substances or legend drugs.

May a physician prescribe drugs for the physician's family members?

Washington law does not specifically prohibit a physician from prescribing drugs for the physician's family members. Caution should be exercised, however, to keep thorough medical records and to avoid manipulation by family members.

May a physician charge interest or a late fee on an unpaid balance?

Generally, yes. Regularly extending credit to patients, especially credit payable in four or more installments, however, could require a physician to comply with strict state and federal rules governing retail installment credit.

What is the maximum rate of interest which a physician may charge on an unpaid balance?

Generally, the maximum rate of interest that may be charged in Washington is 12% per annum. The actual maximum rate varies monthly. The current rate may be obtained by calling the State Treasurer's Office in Olympia.

Must a physician report suspected child abuse?

Yes. When a physician has reasonable cause to believe that a child has suffered abuse or neglect, the physician must report the incident to the proper law enforcement agency or to DSHS.

When must the report of child abuse be made?

The report must be made at the earliest opportunity, but no later than 48 hours after the physician has reasonable cause to believe that the child has suffered abuse.

What notice should be given to patients when a physician terminates or relocates his or her practice?

Washington law contains no specific statutory or regulatory requirements for notice of the closure or relocation of a practice. Taking the following measures, however, will help to provide prompt notification to patients:

Provide patients with at least 30 days (preferably 90 days if possible) advance written notice of the planned office closure, so that patients will have sufficient time to obtain other physicians.
Retain a copy of the written notice and a list of all patients to whom the written notice was sent.
Publish a notice in a newspaper of general circulation in each area where the physician practices.
At least 30 days prior to closure or relocation of the practice, conspicuously post an announcement in the physician's office.
Review all managed care contracts for, and comply with, any notification provisions they contain.

The notices and the sign should state the date the physician's practice will close or relocate and should advise patients as to what they need to do to obtain or transfer their medical records at that time and after the date of closure or relocation.

How long should patients' medical records be retained?

Medical records, including case histories, treatment records, x-rays, laboratory reports, correspondence with physicians and others, should not be destroyed until the statute of limitations has expired with regard to each patient. This is because the patient's medical records are often a physician's chief source of defense in the event lawsuit is filed.

May a physician be excused from jury duty?

Yes. A state court may excuse a physician from jury duty upon a showing of undue hardship, extreme inconvenience, public necessity or for any reason deemed sufficient by the court.

What must a physician do to be excused from jury duty?

Upon receiving a summons for jury duty and prior to the date on which the physician is to appear, a physician should call the court clerk's office with an explanation of the extreme inconvenience and public necessity. The court may require the physician to provide a written explanation of the reasons for the request to be excused from jury duty. The physician should promptly complete and return any forms sent from the court.

Who has the power to discipline physicians?

The Medical Quality Assurance Commission (MQAC), formerly the Medical Disciplinary Board, is the state agency which has the power to discipline physicians. MQAC members are appointed by the governor. The MQAC is composed of thirteen physicians, two physician assistants, and six members of the public at least two of which are from outside of the health care industry. Each congressional district has at least one physician member on the MQAC.

What should a physician do if he or she is served with formal charges issued by the MQAC?

A physician has 20 days to respond to charges after being served with them. It is critical to respond promptly to such charges. Failure to do so may constitute a waiver of all rights to contest the charges and may result in a default. It is advisable to seek legal advice regarding an appropriate response.

Is a physician immune from civil liability for a complaint made or information provided to the MQAC?

Generally, yes. A physician is immune from civil liability for reporting or providing information to the MQAC, provided the physician does so in good faith.

Must a physician self-report any information to the MQAC?

Yes. A physician must self-report to the MQAC any conviction, and any determination or finding that the physician has committed unprofessional conduct or is unable to practice with reasonable skill or safety. A physician must also report any disqualification from federal Medicare or Medicaid programs.

What should a physician do when the physician receives a summons and complaint?

Upon receiving a summons and/or complaint, a physician should immediately call his or her professional liability insurance company. Failure to act promptly could result in a default judgment being entered against the physician.

May a physician offer an apology or express sympathy for a treatment outcome that is the basis of a malpractice action without it being admissible in evidence?

Yes. In a medical malpractice lawsuit, a statement, affirmation, gesture or conduct expressing fault, apology, sympathy, condolence or another general sense of benevolence, or a statement or affirmation regarding remedial actions that may be taken, is not admissible as evidence if the statement was conveyed by the physician to the injured person or certain family members within 30 days of the act or within 30 days of the time the act was discovered by the physician, whichever period expires later.

Can minors legally consent to their own health care?

In some cases, yes. A minor can legally provide consent in the following circumstances:

If the minor is emancipated (legally independent) or married to someone over age 18.
If emergency care is being given, and the parent or legal guardian is unable to provide consent.
For birth control and pregnancy-related care. See BIRTH CONTROL; and PREGNANCY CARE section found in the Washington Physician's Guide to Health Law available for online purchase.
For sexually transmitted diseases, including HIV if the minor is age 14 or older. See AIDS/HIV/STD section found in the Washington Physician's Guide to Health Law available for online purchase.
For outpatient drug and alcohol abuse treatment if the minor is age 13 or older.
For outpatient mental health treatment, if the minor is age 13 or older.

For any other care and treatment of a minor, consent of a parent or guardian is usually necessary.

What is a noncompete or noncompetition clause?

A noncompetition clause is a provision, typically found in an employment contract or a contract for sale of a practice, in which an employee or seller of a practice agrees not to compete with the employer or purchaser of a practice within a certain geographic area for a certain period of time following termination of the employment relationship or purchase of the practice.

Are noncompete clauses enforceable against physicians?

Generally, yes. Noncompete clauses are generally enforceable, as long as the duration, geographic area, and scope covered by the noncompete restriction are reasonable.

What is a non-solicitation clause?

A non-solicitation clause is a provision, typically found in an employment contract, or contract for sale of a practice, in which an employee or seller of a practice agrees not to solicit business from patients or referral sources of the employer or purchaser of the practice following termination of the employment relationship or purchase of the practice.

Are non-solicitation clauses enforceable?

Generally, yes. Non-solicitation clauses are generally enforceable as long as they are reasonable.

May a physician serve as a witness in a lawsuit?

Yes. Physicians are often asked to serve as witnesses in lawsuits. A physician may serve as either a fact or an expert witness.

When is a physician a fact witness?

When a physician testifies in his or her capacity as a treating physician, the physician is a fact witness and not an expert witness.

May a physician fact witness charge for his or her time?

Yes. The party seeking testimony from a treating physician must pay the physician a reasonable fee for the time spent.

When is a physician an expert witness?

A physician who is retained for the purpose of litigation and who develops facts or forms opinions for the purpose of litigation is an expert witness.

May a physician expert witness charge for his or her time?

Yes. A physician serving as an expert witness is entitled to a reasonable fee for time spent. A physician should bill the time spent reviewing the case, meeting with the party who retained the physician, or testifying at trial to the party who requested the expert's services. Time spent at a deposition generally is billed to the party taking the deposition.

A physician is well-advised to discuss fees for serving as an expert witness in advance with the attorney or party retaining the physician and to confirm in writing any agreement reached.

Is the physician-patient relationship created when a patient calls for an appointment? What about the initial appointment?

If confidential information is given or medical advice is conveyed over the phone, the physician-patient relationship may have been created. Generally, the initial appointment establishes the relationship.

Must a physician render medical care to anyone requesting it?

Generally, no. A managed care contract, however, may require a physician to treat any of the health plan's members who select the physician. Moreover, a physician is prohibited from refusing treatment on the basis of sex, race, national origin, religion, or disability. A physician also may not refuse to treat a patient because the patient has AIDS or is HIV positive.

How does a physician terminate a physician-patient relationship?

A physician may terminate a relationship with a patient by written notice to the patient which provides adequate time and opportunity for the patient to obtain care from another physician.

Is professional courtesy prohibited by law in Washington?

No. A physician may provide care free of charge or at reduced rates as a professional courtesy to other physicians and their families.

A physician should be careful, however, about extending professional courtesy by forgiving coinsurance or copayments, as forgiveness of coinsurance or copayments may be forbidden by certain managed care contracts. Moreover, routine waiver of Medicare deductibles or coinsurance is prohibited.

Can a physician be disciplined for sexual contact with a current or former patient?

Yes. Sexual contact with a patient is considered unprofessional conduct. A physician shall not engage in sexual conduct with a former patient or a key third party (a person in a close personal relationship with the patient - including spouses, partners, parents, siblings, children and guardians) if the physician:

Uses or exploits the trust, knowledge, influence, or emotions derived from the professional relationship.
Uses or exploits privileged information or access to privileged information to meet the physician's personal or sexual needs.

A physician may be found to have engaged in sexual misconduct even if the contact was initiated by the patient, former patient, or key third party, or if the party consented to the contact, or if the contact occurred outside the professional setting.

What should a physician do upon receipt of a subpoena?

Upon receiving a subpoena, a physician should read the subpoena carefully to determine what information is being requested, when, and by whom. If the physician has any doubt about the appropriate response to the subpoena, the physician should contact an attorney immediately. If the physician has any reason to believe that his or her care and treatment may be called into question, the physician should not speak to the patient's attorney, and should contact his or her attorney or malpractice carrier for advice.

If the subpoena is from a government agency, the physician should contact an attorney and his or her malpractice carrier immediately.

If the subpoena is from an attorney and seeks either a copy of a patient's medical record or the physician's testimony concerning a patient's health care information, the physician should:

Verify whether the required 14-day advance notice or a valid patient authorization was received.
Verify whether a protective order has been entered.
If no 14-day advance notice or valid patient authorization was received, the physician should not release the requested health care information and should notify the attorney issuing the subpoena that the physician cannot comply with the subpoena.
If the 14-day advance notice or a valid patient authorization was received, and no protective order has been received, the physician should comply with the subpoena according to its terms.
- If the subpoena is for the physician's testimony at a deposition or trial and the date and time on the subpoena are not convenient, the physician should contact the attorney who issued the subpoena to arrange a more convenient date and time and to attempt to reach an agreement regarding the reasonable compensation to be paid for the physician's time.
- If an agreement is reached regarding compensation, the physician should confirm it in writing.
- If no agreement can be reached as to date and time or compensation, and the physician cannot appear at the date or time stated in the subpoena, the physician should consult an attorney.
If a protective order has been entered, the physician should comply with the terms of the protective order.
Place the subpoena, and a notation about the physician's response to the subpoena, in the patient's medical record.
If there is any question, contact an attorney.

May a physician charge for time spent in testifying or for producing copies of a patient's medical records in response to a subpoena?

Yes.