The NY Times hosts a column each Sunday called the Ethicist. Readers send in their real-life ethical conundrums, and the columnist weighs-in with advice.

Recently, a doctor wrote that “years ago” his patient was having headaches. The patient finally confessed that he committed a serious crime and somebody else “took the fall for it.” Once he confessed, his headaches disappeared. The question posed to the Ethicist was “Should I Protect a Patient at the Expense of an Innocent Stranger?”

The doctor supposedly consulted with a hospital lawyer.  The attorney re-assured there was no obligation to report the incident, because there was no risk of the patient imminently harming himself or others – two situations that might call for breaking doctor-patient confidentiality.

In some states, a doctor has a duty to warn a third party about a specific risk of harm his patient might cause. In other states, a doctor is allowed to warn a third party about a specific risk of harm his patient might cause.

In the first case, the doctor risks liability to the third party if the patient acts on the threat and the doctor stood on the sidelines without warning the stranger.

In both circumstances, the doctor is immune from liability for violating doctor-patient confidentiality.

Back to the ethical dilemma. The reason maintaining confidentiality in a doctor-patient relationship is so important is to encourage candor. If patients believed their most intimate secrets would be divulged, they would withhold information – perhaps to their own detriment.

Nonetheless, something doesn’t feel right about the doctor knowing an innocent man is rotting in jail and he has the power to change that outcome.

The path of least resistance is to encourage the patient to make his own confession to the proper authorities. Perhaps the statute of limitations for the original crime has passed- and the patient would not even be prosecuted. If so, the patient takes zero risk, and the stranger benefits.

Next, doctors are free to divulge confidences if they believe a third party is at risk of imminent harm at the hands of a patient. Arguably, the patient’s actions have created a situation where each and every day, a person sits, unjustly, in a prison cell (assuming the stranger is still in jail). And arguably, this is a harm that could be redressed each and every day. It is not the same type of “emergency” as a patient threatening bodily harm. But, intervention could change the outcome.

The other dilemma is that the patient isn’t directly causing the continued harm. The state prosecuted the stranger. And presumably he was convicted beyond a reasonable doubt – with our collective understanding the judicial system is not perfect. The patient is not making any threat and he is not preparing to take an affirmative step to cause harm. It’s a past action that is leading to continued harm by another actor, the state.

Assume, despite your gentle persuasion, the patient is adamant he will not step up and right the wrong. What would you do?

How often do we hear the phrase – Is there a doctor on-board?

I recall hearing that phrase at least 4 times on flights – probably more.

Different doctors have different attitudes toward stepping in. In general, an uncompensated doctor is protected from liability via Good Samaritan Laws – as long as the intervention is not grossly negligent or intentionally harmful – a pretty high standard.

The legal literature is devoid of examples of doctors being sued because of their mile-high activities. Still doctors who have spent time with the medico-legal system are reluctant to participate.

Lufthansa recently announced a program to make it more inviting for doctors to step up. It’s called the Doctor On Board Program.

When you register, your name and your medical field will be stored at Miles & More so that in a medical emergency the flight attendants can locate you quickly and ask for your help. If several doctors are on board at the same time, a medical council of various fields is possible in serious cases. By that we save valuable time and render speedy help.

When you book flights in future simply give your Miles & More card number as usual. We shall then know that we can rely on your medical support on board.

Lufthansa assures participants they have your back.

Your legal situation as the doctor treating a patient on board is covered. You are covered personally, within the framework of third-party insurance that Deutsche Lufthansa AG has concluded for such cases, against possible claims of recourse by the passenger you have treated. Intent is of course excluded. This disclaimer of liability applies to doctors and skilled lay assistants.

The benefit: 5,000 frequent flyer miles on your first flight plus a free copy of The Handbook of Aviation Medicine and Inflight Medical Emergencies.

One wonders whether this benefit negates Good Samaritan immunity. Typically, Good Samaritan immunity is conditioned on no payment for services rendered. Arguably, by being a mere member in a program, you are not being paid for individual care, just for your identification as someone with potential skills. But, how is that different from being on a call schedule- and being paid for taking call (even if you never submit a bill to a patient in the ER)?

I applaud Lufthansa for making an effort to make flying safer for its passengers. Lufthansa based in Germany- a country with a different medico-legal system than ours. Perhaps the frequent flyer benefit should be adjusted for risk by country of origin.

Oh, one more thing. If Lufthansa has a list of who might be available to provide medical care, will they continue to serve alcoholic beverages to the volunteers? One can imagine this scenario – 4 drinks into the flight. Is there a doctor on board? The inebriated doctor steps up. The lawsuit against Lufthansa – the deep pocket – reads “the airline with wanton disregard for the welfare of the passenger proceeded to intoxicate the sole practitioner able to rend care.” I hate to be a pessimist. 

Earlier this week the Florida State Legislature passed a bill which would require expert witnesses testifying against a physician in a medical malpractice case to practice in the in the exact specialty of medicine as the defendant physician. This is an important piece of legislation which Governor Rick Scott should sign into law.
Florida already requires that expert witnesses review and certify cases for potential medical malpractice prior to these claims being litigated. The problem that Florida has experienced is the lack of expertise of the reviewer. Every medical malpractice case is based upon the standard of care not being met. It is difficult for a physician to know the standard of care in the field of medicine that he or she does not practice. Traditionally, there have been some witnesses that feel confident to testify to standards of care in dozens of specialties of medicine. The basis for these “experts’ ” opinions has solely been the plaintiff’s attorney ability to cut a check.
Senate Bill 1792 cuts into the ability of professional witnesses to testify to a variety of medical specialties. This is a good thing. The whole idea of requiring an expert witness is to provide accurate and current information regarding standard of care in a given medical case. This piece of legislation moves us much closer to that goal. By signing the SB 1792, Gov. Scott will protect Florida physicians and increase the overall integrity of medical malpractice litigation in his state.

Most doctors have taken care of patients who were medically impacted by their illegal act. Some of these patients actually have third party insurance. I know, you’re skeptical. OK, how about a rock star who overdoses? Maybe he’s not come to your ER. But, he came to someone’s ER.

Dzokhar Tsarneav, another criminal, was transported to a hospital to be treated – probably at great cost – for injuries sustained in a gun battle with the police. This issue brings into focus the problems physicians face in getting an insurer to cover patients for what they brought on themselves through illegal acts.

The basic rule of insurance is carriers will not cover an insured for intentional illegal acts. Insurers will cover patients for harm resulting from their illegal act IF that crime was not intended.  Therefore, if a driver is injured while trying to run down his neighbor that driver will not be covered. But if the driver drove while drunk – itself an illegal act but without intention to commit a crime – he would be covered for injuries he sustained when he crashes into a lamppost.

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First, let’s dispense with political correctness. I will not use the words “alleged” or “suspect.” We’re all adults here. Dzhokhar Tsarnaev is the younger brother whose bombs killed 3 innocents or maimed scores of participants or bystanders in the Boston Marathon.

I was proud to be called a physician that day. Not because of anything I did. I did nothing. But because of the gut-wrenching work my colleagues in Boston did. Without their work (and the work of EMTs, nurses, scrub techs, helpful Good Samaritans, and so many others), many more would have perished. These colleagues deserve our collective gratitude. They are exemplars of what make civil society function. Some say they rose to the occasion. Others say they fell back on their training. The actual explanation is probably – a little of both.

Dzhokhar Tsarnaev is in custody, in a hospital bed. He has doctors and nurses who care for him. What does that mean? Most doctors, over the course of their career, have taken care of people who committed a crime. That’s not news. We do what we do. Render urgent care to the patient (whether or not he’s a criminal) and then let the justice system address the crime.

Most of us (in the U.S.) have never taken care of those hell-bent on mass destruction. It seems different. It almost certainly is different. I commend our colleagues for having the discipline to continue caring for such individuals. It must take discipline. Because those who wish to kill and maim so many innocents are beyond contempt.

In North Carolina, state law requires a physician be present at all judicial executions. In January 2007, the North Carolina State Medical Board adopted the policy that the physician’s code of ethics would be violated by a doctor taking part in an execution. This could subject the doctor to having his or her medical license revoked.

Because of this policy, physicians declined to participate in executions in any manner, which has resulted in a de facto moratorium on executions in North Carolina. The North Carolina Dept. of Corrections sued the Medical Board over the statute mandating a doctor’s presence at an execution. The Medical Board apparently did not object to doctors’ presence at executions, only to their participation through the monitoring of the condemned inmate’s vital functions.

The Board recognizes that N.C. Gen. Stat. § 15-190 requires the presence of “the surgeon or physician of the penitentiary” during the execution of condemned inmates. Therefore, the Board will not discipline licensees for merely being “present” during an execution in conformity with N.C. Gen. Stat. § 15-190. However, any physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen. Stat. § 15-190, that facilitates the execution may be subject to disciplinary action by this Board.

In 2009, the North Carolina Supreme Court ruled 4-3 that while the North Carolina Medical Board does “retain disciplinary power over a licensed medical doctor who participates in an execution,” the Board “may not discipline or threaten discipline against its licensees solely for participating in the execution alone.”  Consistent with the Supreme Court’s ruling, the Board cannot take any disciplinary action against a physician for participation in an execution. While this ruling only applies to North Carolina, it will be considered “persuasive” if and when the issue arises in other jurisdictions.

What does it mean to be Dzhokhar Tsarnaev’s doctor? Probably many things.

Doctors are testing various models of telemedicine. Every state treats the online practice of medicine differently. And, it’s unclear how this will shake out over time. Patients can even obtain sex therapy from a certified therapist – online. As one therapist’s site note: “If the traffic light on the left is green, I am online and available for a session now.” I guess I accessed the site at an inopportune time as the light on the website was red. “Earl is not online.”

About ten years ago, a Texas veterinarian, Ronald Hines, moved his practice online. He would connect with pet owners by email or phone. He offered a flat fee of $58. And the pet owner did not have to endure carting their pet in a cage, place in the car, and begin the journey …you get the picture.

Sometimes pet owners emailed him lab results. Unclear how these lab results materialized. Other times, the pet owners described symptoms. If he believed he could help, he would recommend therapy. Obviously one cannot perform a physical over the phone.

Dr. Hines’ metamorphosis as a virtual veterinarian came to screeching halt this year. The Texas Board of Veterinary Medical Examiners disciplined him for violating a state law which mandates against establishing a client-patient relationship “solely by telephone or electronic means.”

The Board suspended Dr. Hines’ license for a year. They fined him $500. He decided to shut down his practice.

But, Dr. Hines decided to fight for virtual treatment of dogs and cats. He joined with the Institute of Justice, a libertarian public interest firm, and filed suit against the Board. They allege the Board violated Dr. Hines First Amendment rights by censoring his advice under a law far broader than necessary to protect the state’s interest in the animals’ health.

Two-thirds of states have laws on the books similar to Texas. And the statute is similar to guidelines put forth by the American Veterinary Medical Association (AVMA).  A spokesman for the AVMA said the guidelines were intended to protect patients. The spokesman continued that providing advice to pet owners over the Internet is a “slippery slope.”

Really? To what?

Will we soon have laws harmonizing telemedicine’s do’s and don’ts for human doctors across the country? Adjudicating this state by state makes little sense when the Internet crosses state boundaries with ease. Seeing how this is playing out with Rover makes me believe the answer is not around the corner.