When can I accept a patient's gift?

July 13, 2015

Dr. Goldberg discusses five patient gifting situations. Are any of these acceptable?

David J. Goldberg, M.D., J.D.Dr. Mole treats many skin cancer patients. He has had one very difficult melanoma patient whom he has treated for years. This wealthy patient, forever grateful, gave Dr. Mole a new Mercedes in appreciation. Dr. Mole, so excited about the gift told all his fellow dermatologists. One of them filed a complaint with the Ethics Committee of his state dermatology society. Did Dr. Mole do something wrong?

Fiduciary violations

Whenever a dermatologist accepts a gift from a patient it becomes a matter of ethics. Fiduciary violations can result in discipline for misconduct. Furthermore, patients and estates of deceased patients can sue for the return of what was gifted. So, when accepting a patient’s gift, it’s important to keep basic legal issues in mind.

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As a fundamental matter, the doctor-patient relationship imposes unique professional boundaries, which patient gifting blurs. The doctor-patient relationship is a fiduciary relationship that mandates the dermatologist act only for the good of the patient. Gifting touches on the question of whether the patient and/or doctor are acting for the doctor’s personal benefit.

Medical care, and in dermatology the diagnosis of melanoma, often leads to an emotional experience. In that context, gratitude is a predictable emotion. Many patients seek a way to express that emotion tangibly. Doctors, who increasingly feel that their work is viewed as thankless, are grateful when that outreach is made. So, can Dr. Mole accept gifts from patients?

NEXT: AMA's Guidance

 

AMA's guidance

The answer is sometimes.

This inherently ambiguous situation is reflected in AMA Opinion 10.017 (Gift from Patients). 

The Opinion starts off inclusively: 

Gifts that patients offer to physicians are often an expression of appreciation and gratitude or a reflection of cultural tradition, and can enhance the patient-physician relationship.

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However, the Opinion then details caveats on the value of the gift and the possible motive of the patient. The Opinion concludes, quite unsatisfactorily for a doctor seeking firm guidance on proper conduct, “There are no definitive rules to determine when a physician should or should not accept a gift.”

NEXT: Precedented behavior

 

Precedented behavior

State laws parallel this, extending punitive sanctions to situations that suggest exploitation of the patient but otherwise leaving the matter largely up to the judgment of the physician. Several examples of this scenario will clarify appropriate behavior by dermatologists. 

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  • A patient, a famous musician, is dying of cancer. You show up uninvited at his home, bringing your young kids, a guitar, and two cards. Your son plays a song and then you present the guitar and the cards to your patient to be signed. The musician is too weak to do so, so you guide his hand. You leave with the now almost priceless autographed memorabilia.

  • You operate on a melanoma in a patient who is the extremely wealthy owner of a nationwide restaurant chain. As he leaves the office, he slips a box into your pocket. “The insurance will pay for the work you did but I want to really say thanks for saving my life, doc.” After he leaves you take out the box and see it contains a solid gold Rolex.

  • You were financially devastated in the 2008 crash and have never really been able to get back on your feet since. You decide that it is not possible to keep your small town dermatology office open and that you will need to move to the city and take an employed position at a multi-specialty group. When you let patients know that you are leaving, they spontaneously organize a fund-raising effort and present you with a check for $40,000 to cover your outstanding debts so you can now stay.

  • It’s almost Christmas and a patient stops by your dermatology practice to bring you a tin of cookies that she baked. “Here’s to you helping me get into that clinical trial next year” she calls out as she leaves with a smile.

  • It’s almost Christmas and a patient stops by your dermatology practice to bring you a bottle of excellent Scotch. “Here’s to you getting me through this year. God bless you, doc” he says as he hands it to you.

NEXT: Five situations of gifts from patients. Are any of them acceptable?

 

So – there are five situations of gifts from patients. Are any of them acceptable?

The first case actually represents what happened between Dr. Gil Lederman and his patient, George Harrison. Witnesses had also seen the doctor inserting himself into his frail patient’s life. The Harrison estate sued and the items were returned. In NY, where this occurred, such conduct – whether out of greed or merely because the doctor was star-struck – would fall under the prohibition in Education Law 6530 that bars “exercising undue influence on the patient.”

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It exemplifies the first caveat on a gift from a patient to a physician: that gift cannot be one that the physician received by exploiting his position in the therapeutic relationship. Such exploitation is professional misconduct and can result in sanctions against the doctor’s license.

But what about the rest? What about the situations in which the gift is freely offered by a competent patient?

Following the paradigms that the AMA Opinion lays out, (paradigms which a medical board or court will show considerable deference to), let’s look at (1) the motivation for the gift and (2) the value of the gift:

1. The motive must be actual generosity. The patient attempting to get something from the doctor in a quid pro quo for future care or to influence the doctor’s medical decision is offering an unacceptable gift.

This means that the Rolex or the expensive bottle of Scotch is acceptable by this standard because both are pure acts of gratitude for past care. But the tin of homemade cookies that seems to be given to “sweeten” the doctor’s judgment on the clinical trial would not be.

The check from the townspeople is a borderline matter because it does extend to future care since they want the doctor to stay and treat them in the future. But it is a group gift and not tied to specific patients making specific requests for care and so is presumptively acceptable.

2. In general, a gift of low to moderate value is acceptable but the patient’s circumstances do matter in this regard.

Consider a patient the doctor knows is struggling financially. She shows up with a silk scarf for the doctor at Christmas. She should be thanked warmly and told to return it for store credit because to take a $15 item from that patient would be to take something too costly for her to give.

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However, even if someone is very rich that is not an excuse for letting them be a spigot.

By this standard, the rich man’s gift of the Rolex may raise ethical limitations while the bottle of Scotch comes squarely under the level that is considered appropriate as long as the patient can reasonably afford it. As long as the townspeople all individually gave only what they could afford and no one gave such a large amount that it is intrinsically disproportionate to the diminished financial status of the doctor, the aggregate check for the financially troubled doctor would also pass muster.

In summary: Dr. Mole may not exploit the therapeutic relationship to acquire a gift from a patient but gifts that are of a financially appropriate level and offered by patients simply out of gratitude for care already received can be ethically accepted. 

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