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?
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?
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.”
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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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.