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LEGAL AND ETHICAL PROBLEMS IN OCCUPATIONAL MEDICINE

Occupational medicine is one of the three subspecialties certified by the Board of Preventive Medicine. It is a subspecialty of preventive medicine because occupational medicine physicians must practice primary prevention, evaluating the short-term and long-term hazards of the workplace as they relate to people and disease. In the 40-year history of the board, only a few thousand physicians have become board certified in occupational medicine. This certification assumes competence in general medicine and minor emergency care, toxicology, environmental medicine (heat, physical stress, etc.), ergonomics, and job fitness evaluations.

In general, it is ethically questionable for physicians to offer services they are not properly qualified to perform. Occupational medicine poses a particular problem because the employee usually has no right to refuse the physician's services or seek alternative care. There is a special duty to protect patients who are in coercive environments. Employees are peculiarly dependent on the occupational medicine physician's expertise to protect them from toxic exposures. As discussed in Chapter 31, it is anticipated that occupational medicine physicians will seek information about toxic exposures, even if that information is a trade secret. Independent contractor physicians with limited access to the workplace and no detailed knowledge of workplace toxicology cannot effectively protect their employee patients from toxic exposures.

In several specific situations, state or federal regulations mandate special training or certification for physicians performing the regulated activity. The most widely known are the Department of Transportation regulations on who may do physical examinations of pilots. Only a Federal Aviation Administration-approved flight surgeon is allow to perform these on licensed pilots. Yet even simple activities such as reading routine X rays of industrial employees may require a special certification. Physicians who read chest X rays on workers exposed to asbestos must be certified for the readings to satisfy OSHA surveillance requirements. In some instances, the OSHA regulations require occupational medicine physicians to refer workers to specialists. If the white blood cell count on a benzene-exposed worker falls below a certain level, the occupational medicine physician must refer the patient to a hematologist for further evaluation.

Despite the special nature of occupational medicine practice, most ambulatory care centers, minor emergency clinics, and group practices hold themselves out as offering occupational medicine services. Until recently this meant preemployment physical examinations and treatment for acute workplace injuries. Increasingly, however, these entities are contracting with employers to provide services that are expected to be professionally comparable to inhouse occupational medical services provided by experienced occupational medicine professionals. These contracts subject such providers to the full panoply of state and federal regulations.

Independent contractor occupational medicine providers are handicapped by their isolation from the workplace. They are generally limited to second-hand, fragmented information about working conditions and workplace exposures, yet determining job fitness requires detailed information about both the job and the workplace. If they also provide the employee's general medical care, they are faced with significant questions about the segregation of job-related and personal medical information. Moreover, the checks and balances inherent in having general medical care rendered by a physician who is independent of the company are lost in these hybrid practices. This raises ethical issues when the physician is asked to determine whether an injury such as a heart attack is work related, triggering worker's compensation coverage, or not work related, perhaps denying the employee compensation but reducing costs for the employer. These conflicts are greatly exacerbated when the employee lacks insurance for general health problems.

Independent contractor occupational medicine providers are subject to medical malpractice litigation for the services they provide to employees. While corporate employee physicians may also be sued under the dual-capacity doctrine, employers usually indemnify their physicians for any losses that result from actions within the course and scope of their employment. Unless contractually indemnified by the employer, physicians are also liable for the cost of complying with state and regulatory agency actions. Such actions can be very expensive in terms of legal costs and lost time for the providers involved. Unlike lawsuits that allege medical negligence, these costs will not be paid by the physician's malpractice insurer. In contrast, if the occupational medicine provider is an employee of the company, these actions will be brought against the employer rather than the physician. Even if the physician is individually joined, the company will remain liable for the incurred costs. Physicians who contract with employers to deliver occupational medical services must ensure that their contracts require the employer to pay for the costs of agency enforcement actions that arise from treating its employees. Private physicians without special training or experience in occupational medicine should consult an attorney about their allowable scope of practice and legal obligations before agreeing to provide occupational medical services.

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