Handbook of Clinical Neurology, Vol.
118 (3rd series)
Ethical and Legal Issues in Neurology
J.L. Bernat and R. Beresford, Editors
2013 Elsevier B.V. All rights reserved
Chapter 7
Professional conduct and misconduct
EMILY B. RUBIN*
Pulmonary and Critical Care Division, University of Pennsylvania, Perelman School of Medicine, Philadelphia, PA, USA
INTRODUCTION
Standards of conduct in any profession reflect the
shared values of that profession and define behaviors
that are considered either mandatory or proscribed.
Although the increasing complexity of the healthcare
system has complicated the professional obligations of
physicians, all standards of professional conduct in med-
icine emanate from the overarching duty of the physician
to promote patient welfare. This duty is famously codi-
fied in the Hippocratic Oath, which states: I will pre-
scribe regimens for the good of my patients according
to my ability and my judgment and never do harm to any-
one (Hippocratic Oath, 2002). The oath requires that
physicians heal patients, act on their behalf, maintain
confidentiality of their personal medical information,
and honor their trust.
This chapter will provide an overview of several of the
primary aspects of professional conduct and misconduct
by physicians, with an emphasis on the neurologist where
appropriate. It will start with an overview of the founda-
tions of the physicianpatient relationship, then cover
topics including initiation of the physicianpatient rela-
tionship, communication, therapeutic privilege, disclo-
sure of medical errors, empathy and professional
boundaries, barriers to care and termination of the
physicianpatient relationship, conflicts of interest,
self-care, deception of third parties, reporting impaired
colleagues, and expert testimony.
DEFINING THE PHYSICIAN^PATIENT
RELATIONSHIP
Any discussion of professional conduct in medicine
must start with a description of the relationship between
physician and patient. Many models and metaphors
describe the physicianpatient relationship. Examples
include parentchild interaction, studentteacher
*Correspondence to: Emily B. Rubin, M.D., J.D., 2110 Pemberton Street, Philadelphia, PA 19146, USA. Tel: 1-617-797-0661, E-mail:
emily.rubin2@uphs.upenn.edu
education, sellerpurchaser transaction, and engage-
ment as friends or partners (Rodwin, 1995). Certain
themes, however, have remained constant.
As Crawshaw and colleagues (1995) state, [m]edi-
cine is, at its center, a moral enterprise grounded in a
covenant of trust. This covenant obliges physicians
to be competent and use their competence in the
patients best interests (1553). As a basic starting point,
physicians are commonly understood to have a fiduciary
duty to their patients (American Academy of Neurology,
2009, Section 1.2). A fiduciary (derived from the Latin
fiducia, meaning trust) is someone who undertakes to
act for or on behalf of another (Finn, 1997), a person
entrusted with power or property to be used for the ben-
efit of another and legally held to the highest standard of
conduct (Rodwin, 1995, p. 243). Fiduciaries typically
have specialized knowledge that enable them to advise
others in matters that others cannot manage themselves.
They are obligated to use this knowledge for the sole ben-
efit of their client, to be scrupulously honest, and to
maintain the clients confidentiality. The fiduciary met-
aphor is naturally applied to the physicianpatient rela-
tionship. Physicians have a highly specialized body of
knowledge, which they are obligated to use for the pro-
motion of patient welfare to the exclusion of their own
or third-party interests.
Physicians and patients also can be said to be bound
by an implied contract. Under such a contract, the phy-
sician assumes responsibility to act competently and pro-
mote the welfare of the patient, the patient assumes
responsibility to provide information that enables the
physician to do so, and both parties must be willing to
negotiate so that each party gains something from
the encounter (Quill, 1983; American Academy of
Neurology, 2009, Section 1.2).
Although the fundamental foundations described
above remain, notions of the respective roles of physician
92 E.B. RUBIN
and patient have changed dramatically over the last sev-
eral decades. Historically, the relationship was a pater-
nalistic one in which the physician dictated what course
of action a patient should follow. It has evolved over
the last several decades into a more collaborative model
in which the patient takes a more active role in healthcare
decision-making. In this evolution towards more patient
autonomy, there has been much discussion and debate
about the most appropriate models and metaphors for
the physicianpatient relationship. Concern centers on
how to balance physicians expertise and exercise of
judgment with patients exercise of control over their
own care (Szasz and Hollender, 1956; Veatch, 1975;
Marzuk, 1985; Siegler, 1985).
In 1992, Ezekiel and Linda Emanuel outlined four
theoretic models of the physicianpatient relationship.
These models encompass the full spectrum from
primary emphasis on physician authority to primary
emphasis on patient autonomy. Although the medical
profession has evolved considerably since that time, their
models remain very useful in thinking about how to bal-
ance the roles of physician and patient. The first is the
paternalistic (or parental) model, under which physicians
use their skills to assess patients conditions and identify
appropriate tests and treatments. The second is the infor-
mative (or consumer) model, under which physicians
provide the facts and patients decide what treatments
to pursue based on their own values. The third is the
interpretive model, under which physicians act as coun-
selors, providing relevant information, helping patients
to identify their values, and suggesting what treatments
might be most consistent with those values. The final
model, and the one that the Emanuels endorse as prefer-
able, is a deliberative one, under which the physician
acts as a teacher or friend, talking through with the
patient what course of action would be best and taking
an active role in advocating for a particular course of
action that the physician thinks would be best in light
of the discerned values and priorities of the patient
(Emanuel and Emanuel, 1992, p. 2222).
In 2001, the United States Institute of Medicine sug-
gested that patient-centered care, defined as care that is
responsive to and defined by the needs and values of
the individual patient, is critical to healthcare improve-
ment. Patient-centered care includes employing shared
decision-making (SDM), which is perhaps most akin to
the Emanuels interpretive model. Under an SDM
model, physicians contribute their expertise regarding
evaluation and treatment of disease, patients communi-
cate their own priorities and values, and the parties come
to a shared understanding of the best course of action.
Many advocate SDM as the optimal model for major
healthcare decisions that are not governed by a clear
standard of care and involve choices that may have
significantly different consequences. Examples include
decisions about surgical and medical management of
back pain, lifelong preventive medication such as statin
therapy, and screening and diagnostic tests (Bernat and
Peterson, 2006; Heesen et al., 2007). A recent statement
by representatives from 18 countries endorses SDM as
the optimal model for the physicianpatient relationship
(Salzburg statement, 2011).
The various articulated models of the physician
patient relationship fall along a spectrum. No single
model can reasonably apply to every situation and every
patient. Physicians ideally will tailor their relationship
with any given patient to the specific characteristics
and preferences of the patient and adopt an approach
that is most likely to serve that patients needs. It is crit-
ical that physicians communicate clearly and honestly,
encourage patients to feel safe in articulating their prior-
ities and values (Frosch et al., 2012), and provide the
information necessary to facilitate patients decisions.
INITIATION OF THE PHYSICIAN^
PATIENT RELATIONSHIP
A physician is free to determine whether or not to accept
a patient in the first instance. The physician must not,
however, discriminate on the basis of race, religion,
nationality, sexual orientation, or gender (American
Academy of Neurology, 1999, Section 1.3). A physician
who assumes care for a patient implicitly commits to
providing care until care is no longer required or until
the patient ends the relationship, whichever comes first
(Quill and Cassel, 1995). At the start of a physician
patient relationship, the physician should identify the
patients health concerns, priorities, and expectations
and allow those to guide the relationship going forward
(American College of Physicians, 2012, p. 75). Consult-
ing physicians also should communicate directly with
the referring physician as necessary to understand the
full context and history of the patients presentation.
COMMUNICATION
The foundation of professional conduct in medicine is
open, honest, respectful, and sensitive communication
with patients, fellow healthcare providers, and other
interested parties. As a baseline principle, patients are
entitled to full disclosure of relevant medical informa-
tion (Medical Professionalism in the New Millennium,
2002; American Academy of Neurology, 2009, Sec-
tion 5.1; American College of Physicians, 2012, p. 77).
The physicians duty to disclose medical information
to patients arises out of general principles of honesty,
the promotion of informed consent, and the preservation
of public trust in the medical profession.
 PROFESSIONAL CONDUCT AND MISCONDUCT
Physicians should convey information directly to
patients. They should only share it with family members
or other third parties where patients have explicitly given
permission, preferably in advance of the information
becoming available (American Medical Association
Council on Ethical and Judicial Affairs, 2010, Opinion
8.082). Physicians must explain medical information to
patients in terms they can understand, using an inter-
preter when necessary for effective communication. In
obtaining informed consent for tests or treatment, phy-
sicians must explain the benefits, risks, costs, and alter-
natives to proposed interventions, giving as much
information as the average person would need to know
to make an appropriate decision (American Academy of
Neurology, 2009, Section 1.4; American College of
Physicians, 2012, p. 135). With the rising costs of health-
care, it is increasingly important for physicians also to
address financial implications of diagnostic or therapeu-
tic options where those are likely to influence patients
decisions.
When a patient is elderly or frail or has significant
mental health or neurologic issues, a physician may be
tempted to bypass the patient and talk primarily to fam-
ily members. It is critical to guard against the inclination
in such situations automatically to treat the family as the
patient (Mitnick et al., 2009). Where a patient is aphasic
or suffers from dementia, or there are other barriers to
communicating with the patient, the physician should
consider engaging family members or other surrogates
in a process of facilitated decision-making (Stein and
Wagner, 2006). In such a process, the surrogate is able
to ask questions on the patients behalf. If a patient truly
is incapable of understanding or processing health-
related information, it is acceptable to direct communi-
cation to the patients surrogate decision-makers. But
the presumption should be in favor of communicating
directly with the patient.
Neurologists often face situations in which they are
asked to give concrete information about diagnosis
and prognosis in the face of significant uncertainty.
Although patients and families often seek certainty
and it might sometimes seem more compassionate to
convey such certainty in an effort to facilitate
decision-making, it is critical not to exaggerate the cer-
tainty of a patients prognosis or diagnosis. Physicians
should honestly acknowledge what they do not know.
They can then try to assist patients and families in mak-
ing decisions in the face of unsettling uncertainty.
Likewise, in the context of serious illness physicians
must balance the importance of providing hope and reas-
surance against the potential harms of conveying false
hope or optimism (Bernat and Peterson, 2006). Failure
to attend to this issue may deprive patient and family
of the opportunity to prepare for death or serious
93
disability. The et al. (2000) studied understanding
of prognosis in patients with small cell lung cancer.
They concluded that a significant amount of false opti-
mism about recovery resulted in large part from the
activism of the physicians who chose to focus on
affirmative steps, such as additional chemotherapy that
adhered to a recovery plot, rather than on helping
patients come to terms with their critical illness and often
poor prognosis.
THERAPEUTIC PRIVILEGE
Therapeutic privilege, also known as therapeutic
nondisclosure, is defined as the withholding of relevant
health information from the patient if nondisclosure is
believed to be in the best interests of the patient
(Presidents Commission, 1982; Berger, 2005). The two
most common justifications for such nondisclosure are
that the disclosure would create incapacitating emo-
tional distress and that disclosure would violate a
patients personal, cultural, or other social requirements
(Crawley et al., 2001; Berger, 2005).
Although the balance of opinion has moved signifi-
cantly over the last several decades in favor of disclosure
of information to patients (Goldberg, 1984), studies con-
tinue to demonstrate that physicians often take a relative
approach to disclosure. A survey of European intensive
care unit physicians, for example, revealed that only one-
fourth of European doctors would, without exception,
give complete information about a patients condition.
More than half of the surveyed physicians said that
the details they would give would depend on a combi-
nation of the type and severity of the disease and the per-
ceived personality of the patient (Vincent, 1998). In
another study, 20% of neurologists favored withholding
anxiety-provoking information from adult patients with
seizure disorders and their families (Faden et al., 1981).
Much has been written about whether it is ever ethi-
cally appropriate to invoke therapeutic privilege. The
focus has been the tension between respecting a patients
autonomy and protecting a patient from harm when the
physician perceives that the patient might have difficulty
processing particular information about his or her med-
ical situation (Goldberg, 1984; Berger, 2005; Sirotin and
Lo, 2006; Richard et al., 2010). Nondisclosure directly
impairs patients autonomy by limiting their ability to
make decisions about their own medical care. It also
has the potential to undermine the patients trust in the
physician and to preclude the patient from creating
meaning out of illness and making plans and decisions
with a realistic understanding of the future. Given these
significant potential harms and the moral duty to tell the
truth, the justification for nondisclosure must be
extremely compelling.
94 E.B. RUBIN
The American Medical Association takes a strict
stand on this issue, stating that therapeutic privilege
creates a conflict between the physicians obligations
to promote patients welfare and respect for their auton-
omy by communicating truthfully and that [w]ithhold-
ing medical information from patients without their
knowledge or consent is ethically unacceptable
(American Medical Association Council on Ethical and
Judicial Affairs, 2010, Opinion 8.082).
A physicians own discomfort with delivering diffi-
cult news can never justify withholding such news from
a patient (Berger, 2005). Furthermore, the desire to avoid
emotional suffering for the patient is not alone suffi-
cient justification for withholding critical medical infor-
mation. In certain limited circumstances, however,
disclosure arguably stands to cause emotional distress
to a patient so severe that it is incapacitating and impairs
the patients ability to make decisions (when, for exam-
ple, a patient is suffering from severe depression or
other mental incapacity). Some have suggested that non-
disclosure in such circumstances, which is intended to
avoid decisional incapacity, is ethically acceptable
(Berger, 2005; Richard et al., 2010). Prior to invoking this
principle, however, physicians should critically examine
the moral justification for the nondisclosure, consulting
with colleagues to ensure that the driving rationale is to
avoid decisional incapacity and is not to reduce moral
distress for the physician or the patients loved ones.
When a family invokes cultural practices as a basis for
nondisclosure, the physician should attempt to ensure that
the patient subscribes to those cultural practices and elicit
the patients preferences for disclosure of information. If
a patient explicitly requests that health-related informa-
tion be conveyed to family members or other loved ones
instead of directly to the patient, it is appropriate to honor
that request. If a family member requests that certain
information (for example, prognostic information in the
case of a stroke, other neurologic insult, or malignancy)
be withheld from a patient, the physician should ask the
patient if he or she would prefer to be told everything
or would prefer his or her family to filter information
(American Medical Association Council on Ethical and
Judicial Affairs, 2010, Opinion 8.082).
Although disclosure is ethically required in all but the
most extreme situations, it is not mandatory that physi-
cians disclose all information immediately or at a single
encounter. Disclosure of the truth can be an iterative pro-
cess. The timing and style of disclosure of difficult
information can be calibrated to minimize the emotional
harms to the patient. It is appropriate, for example, to
engage a physician who has a trusted relationship with
the patient, to wait until family members or other loved
ones are present and able to support the patient emotion-
ally, and otherwise to optimize the setting for disclosure
by ensuring that adequate supports are in place to assist
the patient in coping with the disclosure (Goldberg, 1984;
Sirotin and Lo, 2006; Richard et al., 2010).
DISCLOSURE OF MEDICAL ERRORS
The same general principles of honesty, promotion of
informed consent, and preservation of public trust that
govern disclosure of general medical information to
patients extend to the disclosure of medical errors.
A medical error is the failure of a planned action to
be completed as intended or the use of a wrong plan
to achieve an aim (Institute of Medicine, 2004). Since
the United States Institute of Medicine published
its 2000 report, To Err is Human, that highlighted
the pervasiveness of medical errors in U.S. hospitals,
much effort has gone into programs to decrease errors
and enhance their disclosure (Joint Commission on
Accreditation of Healthcare Organizations, 2005;
Lazare, 2006).
The general consensus is that, when a patient is harmed
by a medical error, physicians have an ethical obligation to
disclose the error in a timely fashion (Finkelstein et al.,
1997; Gallagher et al., 2003; Full Disclosure Working
Group, 2006; American College of Physicians, 2012). Phy-
sicians should disclose significant errors whether or not
the error is apparent to the patient (Joint Commission
on Accreditation of Healthcare Organizations, 2001;
Gallagher et al., 2003). Disclosure should include explicit
acknowledgment that an error has occurred, a description
of the circumstances surrounding the error (including
what it was and how it happened), a description of how
similar errors will be prevented in the future, and an apol-
ogy (Gallagher et al., 2003; Mazor et al., 2004).
Research has demonstrated that prompt and honest
disclosure of errors increases patient satisfaction, trust
in the medical system, and positive emotional responses
(Mazor et al., 2004). Uncertainty exists about the effect
the disclosure of errors has on the likelihood that a
patient will take legal action (Kachalia et al., 2003).
But some evidence suggests that prompt disclosure
and apology reduce the likelihood of legal action in
the event of an error (Witman et al., 1996).
Notwithstanding broad ethical consensus and multiple
regulations affirming the importance of disclosure, sev-
eral studies demonstrate that a significant number of
medical errors are never disclosed to patients (Blendon
et al., 2002; Lehmann et al., 2005; Gallagher, 2006). These
studies also reveal wide variations in how physicians view
and report medical errors and whether they provide apol-
ogy or just an expression of regret. Research suggests that
the failure to disclose medical errors is driven by a variety
of factors. These include fear of litigation, lack of training
in disclosure, physicians perception of an errors severity,
 PROFESSIONAL CONDUCT AND MISCONDUCT
perceived responsibility for the error, fear that disclosure
might distress the family or patient, and confusion about
how much information to disclose (Gallagher et al., 2006,
2009). As Gallagher et al. (2009) describe, where uncer-
tainty exists about whether disclosure is necessary, a phy-
sicians desire for self-preservation naturally can foster
nondisclosure. They suggest that any information essen-
tial for a reasonable patient or family to be free of funda-
mental misconceptions about what transpired should be
disclosed (899).
CONFIDENTIALITY
Physicians have a primary ethical obligation to maintain
confidentiality of patient medical information. This is
embodied in the Hippocratic Oath. It states that [W]hat-
ever I see or hear in the lives of my patients, whether in
connection with my professional practice or not, which
ought not to be spoken of outside, I will keep secret, as
considering all such things to be private (Hippocratic
Oath, 2002).
Patients entrust very intimate information to their
physicians. In return, physicians should take extreme
care to protect that information from discovery by third
parties. This includes handling written documentation
with identifiable patient information in ways that mini-
mize the chance that a third party will inadvertently dis-
cover the documentation, avoiding use of the patients
identifiable health information in general discussions
with colleagues, and making patients anonymous when
discussing their medical information in conferences or
other educational forums. In addition, clinicians should
only access identifiable patient information available in
a database or patient charts if they have a legitimate need
to do so (American College of Physicians, 2012, p. 135).
Disclosure of a patients protected health information
to a third party generally should be made only with the
patients explicit permission. Stringent privacy regula-
tions, including the U.S. Health Insurance Portability
and Accountability Act, enacted in 2003, are intended
to ensure this discretion. As Lo and colleagues (2005)
discuss in detail, such regulations should not overwhelm
clinical judgment in ways that adversely affect care.
They suggest that incidental disclosure of confidential
patient information is ethically acceptable if: (1) the com-
munication is necessary for good patient care; (2) the
alternatives for communication are impractical; and
(3) the communication practice is transparent to patients
and patients do not find it unacceptable.
In addition, if a physician has concrete reason to
believe that an identifiable third party is in danger of
being harmed by a patient, the physician has a duty to
warn the third party, even if this entails disclosure of
confidential patient information (Tarasoff v. Regents
95
of the University of California, 1976). Likewise, if a phy-
sician has reason to believe that members of the general
public are endangered by a patient, the physician has a
duty to alert appropriate public officials or agencies
(American Academy of Neurology, 2009, Section 5.5).
ELECTRONIC COMMUNICATION
Physicians increasingly are using electronic forms of
communication to communicate with patients. The same
principles of honesty, respect, and sensitivity that apply
to face-to-face communication apply equally to elec-
tronic communication. Given privacy and confidentiality
concerns raised by the use of electronic media, however,
physicians must specifically define with each patient
what type of electronic communication is acceptable
for that patient. Physician and patient together should
set boundaries regarding what types of information will
and will not be shared electronically. Physicians should
explain the limitations of providing medical advice over
electronic mail or via other electronic media without
being able to talk to or examine the patient. In addition,
physicians should clearly explain to patients how quickly
patients can reasonably expect the physician to respond
to electronic communication. Finally, physicians must
take proper steps to protect the confidentiality of infor-
mation that is conveyed electronically, including, for
example, properly encrypting electronic devices
(Mandi et al., 1998; Bovi, 2003; American Medical
Association Council on Ethical and Judicial Affairs,
2010, Opinion 5.026).
EMPATHY
Empathy with patients is widely cited as one of the foun-
dations of a productive therapeutic physicianpatient
relationship (Spiro et al., 1993; Hojat et al., 2002;
Mercer and Reynolds, 2002) and a key clinical compe-
tency of those studying to be physicians. Many decry
what they view as a decline in empathy among medical
students and practicing physicians, citing the transfor-
mation of medicine into a less personal profession with
increasing demands on time and less opportunity to
develop deep and lasting relationships with patients
(Spencer, 2004; Hojat et al., 2009).
It seems a truism to say that physicians should empa-
thize with their patients. As Francis Peabody famously
noted in 1927 in speaking to Harvard Medical School stu-
dents, the secret of the care of the patient is in caring for
the patient. There is, however, legitimate debate about
the definition of clinical empathy, the appropriate
balance between scientific detachment and emotional
connection in the physicianpatient relationship, how
empathy develops, and whether or not it can be learned
or taught.
96 E.B. RUBIN
The colloquial definition of empathy is the ability to
understand or share the feelings of another person.
Merriam Websters Medical Dictionary defines empa-
thy as the imaginative projection of a subjective state
onto an object so that the object appears to be infused
with it or the action of understanding, being aware
of, being sensitive to, and vicariously experiencing the
feelings, thoughts, and experience of another of either
the past or present without having the feelings, thoughts,
and experience fully communicated in an objectively
explicit manner (Merriam Webster, 2007). Freud
(1955) noted that empathy is the mechanism by means
of which we are enabled to take up any attitude at all
towards another mental life.
Students of empathy in medicine express somewhat
conflicting views about the nature of clinical empathy.
Some define it as an emotional or affective characteris-
tic, some as a cognitive attribute, and some as a combi-
nation of the two. By way of example, Howard Spiro
(2009) describes empathy as a natural human emotion
that arises spontaneously and enables the physician to
see him- or herself in the patients situation. He suggests
that the ability to empathize is shaped by a persons
innate character and life experiences and urges more
consideration of the character of medical students when
selecting them for medical study. Hojat and colleagues,
on the other hand, define empathy as a predominantly
cognitive attribute . . . that involves an understanding of
patients experience, concerns, and perspectives com-
bined with a capacity to communicate this understand-
ing (Hojat et al., 2009, p. 1183).
Many who study empathy in the clinical setting divide
it into multiple dimensions. Mercer and Reynolds (2002),
for example, conceptualize empathy as a learnable, multi-
dimensional communication skill involving both appreci-
ation of a patients feelings and effective communication
of that appreciation to the patient. They divide physician
empathy into four component parts: (1) a cognitive dimen-
sion, which involves being able to take the perspective of
another and understand that persons beliefs and feelings;
(2) a moral component, which involves the physicians
internal motivation to empathize; (3) an emotional compo-
nent, which involves the tendency to respond emotionally
to the feelings experienced by others; and (4) a behavioral
component, which involves communicating with the sub-
ject of empathy the understanding of his or her perspec-
tive (Morse et al., 1992; Neumann et al., 2012). They
synthesize these four components to define clinical empa-
thy as the ability to understand the patients situation, per-
spective and feelings; to communicate that understanding
and check its accuracy; and to act on that understanding in
a therapeutic way.
In discussions of clinical empathy, much has been
made of the distinction between empathy and sympathy.
Many distinguish the two by stating that, while empathy
involves appreciation and understanding of a patients
experiences, sympathy implies strong emotional involve-
ment by the physician in those feelings (Hojat et al.,
2009; Lussier, 2010). Others seem to suggest the
opposite that empathy implies more emotional involve-
ment than sympathy. Spiro (2009), for example, believes
that sympathy requires compassion whereas empathy
requires passion. Given diverse and sometimes conflict-
ing definitions, the distinction between sympathy and
empathy by itself does not seem particularly useful as
a construct. It does seem to be a proxy, however, for
the legitimate question of what degree of emotional
engagement by physicians is optimal for maximizing
the quality of patient care and physician wellbeing.
Some express concern that a physicians actually
experiencing the patients feelings in an emotional sense
can lead to lack of objectivity and blurring of professional
boundaries to the detriment of medical care (Hojat et al.,
2009; Marchand, 2010; Smajdor et al., 2011; Neumann
et al., 2012). Others stress that true emotional engagement
is critical for effective empathy (Halpern, 2001; Mercer
and Reynolds, 2002; Spiro, 2009). Still others argue that
the focus on empathy in clinical medicine is misplaced, that
competent medical practice depends in large part on objec-
tivity, and that being able to enter a patients world is not
necessary or adaptive for physicians (Marchand, 2010;
Smajdor et al., 2011).
Studies have purported to demonstrate a correlation
between increased clinical empathy and improvements
in patient disclosure, diagnostic accuracy, patient
compliance, patient satisfaction, and clinical outcomes
(see Neumann et al. (2012) for a summary of relevant
research). Patients have been shown to derive physio-
logic benefits from relationships with physicians they
perceive as empathic, including improved immune
function and shorter postsurgical hospital stays (Riess,
2010). Increased empathy has also been shown to affect
physician wellbeing positively and decrease physician
distress (Shanafelt, 2009). It is somewhat difficult to
interpret this body of work objectively given the varying
definitions of empathy, the different tools used to mea-
sure it, and the innate difficulty of measuring a variable
that is so inherently subjective. The research taken as a
whole, however, suggests that the perception by a patient
that a physician relates to the patient on an emotional
level has positive effects on both the therapeutic relation-
ship and physician satisfaction.
Regarding whether empathy is innate or can be taught
or cultivated, some suggest that it is a trait that people
possess to certain degrees depending on their back-
ground and personal experiences. Others express the
view that empathy can be fostered by activities such
as mindfulness training, exposure to human stories
 PROFESSIONAL CONDUCT AND MISCONDUCT
through theater, literature, and writing, and formal
venues for sharing thoughts and emotions (Shanafelt
et al., 2005; Stepien and Baernstein, 2006; Spiro,
2009). A recent randomized controlled trial showed that
three 60-minute empathy modules grounded in the neu-
roscience of empathy significantly improved patient rat-
ing of empathy in resident physicians (Riess et al., 2012).
DUAL RELATIONSHIPS AND
PROFESSIONAL BOUNDARIES
Although the ability to empathize with patients may
be one of the foundations of a mutually beneficial
physicianpatient relationship, it is critical that the physi- cians caring for friends or family members often
cian maintain appropriate professional boundaries by
avoiding dual relationships that risk excessive emotional
proximity (American College of Physicians, 2012, p. 81).
Gabbard and Nadelson (1995) summarized this point well:
An essential element of the physicians role is the
notion that what is best for the patient must be the
physicians first priority. Physicians must set aside
their own needs in the service of addressing the
patients needs. Other kinds of relationships that
coexist simultaneously with the physicianpatient
relationship have the potential to contaminate
the physicians ability to focus exclusively on the
patients well-being and can impair the physicians
judgment (p. 1447).
The most extreme example of an inappropriate dual rela-
tionship between physician and patient is a sexual rela-
tionship. Broad consensus exists that it is unethical for
a physician to engage in a sexual relationship with a cur-
rent patient. The primary rationale for this hard and fast
rule is that the physicians position of authority and the
patients position of vulnerability raise the risk of exploi- should avoid accepting any gift that has the potential
tation of the patient by the physician (Gabbard and
Nadelson, 1995).
Sexual relationships between physicians and former
patients similarly raise the prospect that a residual
dynamic of dependence of the patient on the physician
will pose a risk of exploitation. Such relationships are
discouraged and are considered unethical if the physi-
cian uses or exploits the trust, knowledge, emotions, or
influence derived from the previous professional rela-
tionship (American College of Physicians, 2012, p. 81).
Likewise, physicians are expected to avoid sexual or
romantic interactions with third parties who play an inte-
gral role in the physicianpatient relationship if those
interactions can be seen as based on exploitation of trust
or emotions derived from the professional relationship.
In considering whether such a relationship is appropri-
ate, the physician should consider factors such as the
nature of the patients medical problem, the length of
97
the professional relationship, the degree of the third
partys emotional dependence on the physician, and
the importance of the clinical encounter to the third party
and the patient (American Medical Association Council
on Ethical and Judicial Affairs, 2010, Opinion 8.145).
Dual relationships between physicians and patients
less dramatic than sexual or romantic relationships also
can pose problems for the physicianpatient relation-
ship. They may obscure social and professional bound-
aries, compromise clinical objectivity, and promote
short cuts in history-taking, physical examination, and
other critical aspects of the physicianpatient relation-
ship. Research has suggested, for example, that physi-
provide inferior care (American College of Physicians,
2012, p. 81), and it is generally understood that emotional
proximity between physician and patient can compro-
mise objectivity. Accordingly, a physician should under-
take the care of friends and family members only if the
care is within the physicians area of expertise and there
are no reasonable alternatives. The physician should take
extreme care to prevent the dual relationship from inter-
fering with comprehensive, diligent medical care.
Other potentially problematic dynamics include busi-
ness transactions between physicians and patients and
the acceptance of gifts by physicians. Small gifts as
tokens of appreciation may not cause problems. But
accepting larger gifts and services may represent a con-
scious or unconscious bribe to keep aggression, negative
feelings or unpleasant subjects out of the physician
patient relationship or may represent a secret quid
pro quo that influences how the physician treats the
patient (Gabbard and Nadelson, 1995, p. 1447). In decid-
ing whether to accept a gift from a patient, the physician
should consider the patients likely expectations and
to create an expectation of favoritism.
Excessive self-disclosure by a physician can also be a
destructive boundary-crossing if it represents a misuse
of the patient to satisfy ones own needs for comfort or
sympathy (Gabbard and Nadelson, 1995, p. 1448).
Although minimal personal disclosure sometimes can
be a useful way of expressing empathy towards a
patient, physicians should ensure that the priority is
the care of the patient and that self-disclosure does
not shift an encounter towards the concerns of the
physician.
Proliferation of online media, particularly social net-
working, has created new ethical and practical questions
for physicians regarding appropriate professional
boundaries. Social networking between physicians and
patients raises the possibility of establishing dual rela-
tionships with patients that could interfere with optimal
care. It also raises the prospect of intentional or
98 E.B. RUBIN
inadvertent excessive self-disclosure of personal infor- the physicians recommendations, there are real and
mation by the physician to the patient. Physicians must sometimes insurmountable barriers that arise in the
be aware of these potential harms and take care to avoid physicianpatient relationship. Quill (1989) reviews
blurring the lines between professional obligations and some of the implicit signs that a barrier exists. These
social interactions with patients. Guseh et al. (2009) dis- include verbalnonverbal mismatch, cognitive disso-
cuss the use of the ubiquitous social networking site nance, unexpected resistance, physician discomfort,
Facebook by physicians. They suggest that physicians noncompliance, treatment failure, and exacerbation of
not immediately accept invitations to be online friends chronic disease (52).
with patients, respect patients privacy by carefully man-
aging any information obtained about them on social
TERMINATION OF THE PHYSICIAN^
networking sites, exercise restraint when disclosing per-
PATIENT RELATIONSHIP
sonal information on social networking sites, and read
and understand the sites privacy settings. Although physicians should terminate a patient relation-
ship only as a last resort, the obligation to treat noncom-
BARRIERS TO CARE pliant patients is not absolute. If a patient is disrupting
the care of other patients and reasonably can be held
It is common in clinical medicine for physicians to
responsible for his or her actions, or if differences
encounter frustration and barriers as the physician
between a physician and patient become intractable to
patient relationship evolves. Given the high incidence
the point where the physician reasonably believes he or
of cognitive difficulties and psychiatric comorbidities
she can no longer properly treat the patient, the physician
among neurology patients, such barriers are inevitable
may elect to discontinue the relationship. The American
in neurology practice. In one survey of neurologists in
College of Physicians (2012) states that [a]lthough the
an academic medical center practice, 62% of those sur-
physician must address the patients concerns, he or
veyed had at least once asked a patient to leave their
she is not required to violate fundamental personal
practice, most often because of disruptive or threatening
values, standards of medical care or ethical practice,
behavior or failure to agree on a plan of care (Brody and
or the law (American College of Physicians, 2012,
Haut, 2009).
p. 75). Likewise, the American Academy of Neurology
Patients have a right to refuse medical treatment and
(2009) provides specifically for the possibility that a neu-
waiver of that right should not be imposed as a condition
rologist will at times be unable to continue treatment of a
of medical care (Orentlicher, 1991). The American Acad-
patient: If the neurologist cannot honor the patient or
emy of Neurology states in its Code of Professional Con-
proxys decision, the neurologist should seek to arrange
duct that [t]he patient has the ultimate right to accept or
transfer of the patients care to another physician
reject the neurologists recommendation about medical
(American Academy of Neurology, 2009, Section 1.8).
treatment. The neurologist should respect decisions
In cases where discontinuation of the physician
made by patients (American Academy of Neurology,
patient relationship is deemed absolutely necessary, it
2009, Section 1.8).
is essential that the patients healthcare and safety not
If significant differences arise between physician and
be jeopardized in the process. To this end, assuming
patient, the physician should make every effort to
the patient requires ongoing care, the physician should
attempt to resolve those differences and not simply
notify the patient in writing and in person that he or
abandon a patient who disagrees with the physicians
she is terminating the relationship and help ensure tran-
preferred plan of care. The first step in moving past a
sition of care to another physician. The physician must
barrier is attempting to identify and characterize the bar-
not abandon the patient without helping facilitate alter-
rier using skills such as acknowledgment and empathy.
native arrangements for care. The American Medical
Open-minded exploration of the conflict with the patient
Association Council on Ethical and Judicial Affairs
often can help resolve it (Quill, 1989). Other strategies
(2010) states:
include negotiating with the patient by focusing on com-
mon interests, creating a contract outlining conditions of [o]nce having undertaken a case, the physician
care that clearly states the limits of acceptable behavior should not neglect the patient, nor withdraw from
and communication, discussing alternative therapies, the case without giving notice to the patient, the
and considering psychiatric or other mental health refer- relatives or responsible friends sufficiently long
ral if a patient seems to have psychiatric comorbidities in advance of withdrawal to permit another med-
and is willing to be evaluated. ical attendant to be secured (American Medical
Although physicians are obligated not to dismiss out Association Council on Ethical and Judicial
of hand patients who disagree with or do not comply with Affairs, 2010, Opinion 8.115).
 PROFESSIONAL CONDUCT AND MISCONDUCT
CONFLICTS OF INTEREST
One of the most challenging aspects of professional con-
duct in medicine involves the handling of conflicts of
interest. A conflict of interest is defined broadly as a
set of circumstances that creates a risk that professional
judgment or actions regarding a primary interest will be
unduly influenced by a secondary interest (Institute of
Medicine, 2009). There is general consensus that the
primary interests of the medical profession include pro-
moting the welfare of patients, protecting the integrity
of research, and fostering the education of students
(Thompson, 1993; Rodwin, 1995).
There are a host of secondary interests that have the
potential to interfere with the promotion of these pri-
mary interests. The most obvious and studied of these
secondary interests is personal financial gain. There
are other personal interests that also have the potential
to interfere with the service of the primary interests
listed above, including the desire for professional
advancement and the inclination to provide favors to
friends, family, students, or colleagues.
Although conflicts of interest classically have been
understood to arise out of personal interests, they also
can arise out of the divided loyalties of an actor per-
forming competing roles (Rodwin, 1995, p. 244). This
type of conflict is becoming more pervasive in medicine
as physicians increasingly are involved in practice and
compensation models that require them to consider
interests of parties other than their own patients. The
mounting pressure on individual physicians to consider
and limit the costs of healthcare also arguably creates
conflicts of interest in caring for individual patients.
Secondary interests are omnipresent in medicine and
are not by themselves illegitimate. The mere existence of
a conflict of interest does not by itself constitute an eth-
ical breach, only a red flag that temptation exists to
neglect the patients primary interest in favor of a sec-
ondary interest (Brody, 2011). As Rodwin (1995) states,
[c]onflicts of interest exist prior to any breach of trust.
They signal an increased risk that the fiduciary may not
act as expected (p. 244).
Given that secondary interests inevitably will exist,
the key principle is ensuring that those secondary inter-
ests do not overwhelm or compromise the primary obli-
gations of the medical profession, most prominently,
promoting the welfare of individual patients. Rules
regarding conflict of interest aim to maintain the integ-
rity of professional judgment and the publics confi-
dence in such judgment by minimizing the influence
of secondary interests. There are certain overt conflicts
of interest that are strictly regulated given the risk that
they will interfere with physician objectivity, decrease
public trust, and increase healthcare costs. These include
99
self-referrals to facilities that physicians own or in which
they have a significant interest (American Medical
Association Council on Ethical and Judicial Affairs,
2010, Section 8.0321) and kickbacks, which are pay-
ments in exchange for referring patients or ordering
or providing a particular service.
RELATIONSHIPS WITH INDUSTRY
Much attention has been devoted over the last decade to
the conflicts of interest raised by relationships between
physicians and prescription drug and medical supply man-
ufacturers (referred to collectively as industry)
(Studdert et al., 2004). Given the significant role that indus-
try plays in funding research and medical education, such
relationships are not only ubiquitous; they also have the
potential to influence the behavior of physicians substan-
tially. A robust body of psychosocial and biomedical ethics
research suggests that even small gifts create a sense of
indebtedness that is likely to influence physician behavior
and that physicians (as do humans in general) regularly
underestimate the extent to which they are influenced
by such gifts (Wazana, 2000; Dana and Loewenstein,
2003; Katz et al., 2003; Studdert et al., 2004). Acknow-
ledging the influence that relations with industry have
on physician behavior, professional societies and medical
education institutions have made progress in strictly
limiting gifts by industry to physicians. There is general
consensus now that physicians should not accept gifts of
material value from industry (Institute of Medicine,
2009; Pharmaceutical Research and Manufacturers of
America, 2009; Martin, 2010). In addition, many academic
institutions have begun to limit the compensation that
physicians can receive from corporations for board mem-
bership or consulting services (Lo, 2010). There is also
increasing scrutiny of conflicts of interest among those
who serve on panels that develop clinical guidelines
(Holloway et al., 2008), with many interested parties sug-
gesting that individuals with conflicts of interest should
not serve on such panels (IOM, 2009; Rothman et al.,
2009; Council of Medical Speciality Societies, 2011).
PRACTICE MODELS AND STEWARDSHIP
More nuanced issues regarding conflicts of interest arise
from challenges presented by changing and evolving
medical practice models and by the increasing impera-
tive for physicians to act as gatekeepers in the control
of healthcare costs (Bernat et al., 1997; Shortell et al.,
1998). Many practice models that have evolved over
the last two decades have significant potential to create
divided loyalties for participating physicians. Managed
care models, for example, require participating physi-
cians to take into account the interests of members of
100 E.B. RUBIN
the practice group and not just the individual patient in
front of them. Fee for service models create a direct
financial incentive to maximize the amount of care pro-
vided to the patient, presenting the risk of overcare.
Capitation arrangements present the opposite risk of
undercare (i.e., the possibility that physicians will limit
care to an individual patient in an effort to minimize cost
and maximize profit) (Bernat et al., 1998; Hutchins et al.,
2012). Pay for performance models have the potential to
increase quality of care. But they also have the potential
to encourage playing to the measures rather than focus-
ing on the patient as a whole and to produce worse care
for patients with complex chronic conditions (Snyder
and Neubauer, 2007). All of these evolving practice
models pose a risk of eroding trust between physicians
and patients.
Distinct from, but related to, the specific conflicts pre-
sented by certain practice models, the general responsibil-
ity of physicians to control healthcare costs and protect the
medical commons has the potential to create conflict in
caring for a particular patient (Cassel and Brennan,
2007). Many professional societies have issued statements
simultaneously emphasizing the primacy of individual
patient welfare and the obligation of physicians to
serve as stewards of scarce healthcare resources. The
American College of Physicians (2012), for example,
emphasizes that [a] clinicians first and primary duty is
to promote the good of the patient . . . [t]he duty of patient
advocacy is a fundamental element of this relationship
that should not be undermined. It goes on to say, how-
ever, that [c]linicians have a responsibility to practice
effective and efficient health care and to use health
care resources responsibly and that Although the
patientclinician relationship is primary, clinicians must
also consider limitations of health care resources
(Povar et al., 2004).
It is frequently argued that resource allocation policy
should not be made at the bedside because individual
decisions are idiosyncratic and have the potential to cre-
ate unacceptable inequality (Weinstein, 2001). Unless
and until such policy is effectively made at a broader
societal level, however, individual physicians will
increasingly face the challenge of reconciling the argu-
ably competing objectives of maximizing the welfare
of each individual patient, working within the frame-
work of their particular practice model, and maximizing
societal use of healthcare resources.
The dominant themes emerging from the extensive
literature on conflicts of interest in clinical practice
are that physicians should: (1) avoid arrangements that
are not necessary to the role of the physician and that
pose a serious risk of threatening the public trust in
the medical profession; (2) avoid any arrangement that
specifically requires a quid pro quo; (3) be aware of
and acknowledge the existence of conflicts of interest
in their care of patients, being scrupulously honest with
themselves about the likelihood that the conflict will
interfere with fiduciary duty to patients and attempting
to mitigate any such effects; (4) disclose major conflicts
of interests to patients; and (5) focus on rational clinical
decision-making in the interest of the individual patient,
avoiding waste to the extent possible by avoiding unnec-
essary testing and treatments that are not evidence-based
(Marco et al., 2006; American Academy of Neurology,
2009, Section 2.6; Brody, 2011).
DISCLOSURE OF CONFLICTS
If a physician has a clear conflict of interest with the
potential to affect patient care directly (for example, a
significant financial interest in a company that manufac-
tures a drug the physician recommends to a patient), the
physician is obligated to disclose the conflict to the
patient. The American Academy of Neurology Code
of Conduct provides that [f]inancial interests of the
neurologist that might conflict with appropriate medical
care should be disclosed to the patient (American
Academy of Neurology, 2009, Section 5.2). Physicians
are also obligated to disclose all financial conflicts of
interest when they are teaching, speaking, or authoring
material (American College of Physicians, 2012, 88).
Notwithstanding broad statements by professional
societies regarding disclosure, there is debate about the
utility and potential perverse effects of routine disclosure
of conflicts of interest to patients. Some research has sug-
gested, for example, that disclosure of conflicts of inter-
est can paradoxically lead physicians to offer biased
advice. When physicians anticipate that their advice will
be discounted based on a disclosed conflict of interest,
they can be tempted to overemphasize their recommenda-
tions in an effort to compensate for the anticipated dis-
counting (Loewenstein et al., 2012). In addition,
disclosure can have the perverse effect of making physi-
cians believe that they have taken care of the problem by
revealing it and need not do more to mitigate the effect of
the conflict, when the potential for adverse effects on
patients and irrational decision-making still exists. Finally,
such disclosures have the potential to disrupt the physi-
cianpatient relationship and it is unclear to what extent
patients will know what to do with the information pro-
vided. This may be particularly true in geographic regions
where patients have limited choices for medical care.
Given the scope of intellectual and financial conflicts
of interest in medicine, it may be impractical to expect
that physicians will disclose every single intellectual
and financial conflict of interest to every patient. How-
ever, broad regulatory requirements obligating physi-
cians publicly to disclose significant conflicts of
 PROFESSIONAL CONDUCT AND MISCONDUCT
interest may have the positive effect of encouraging phy-
sicians to consider carefully and attempt to minimize the
effects of such conflicts of interest. Examples of regu-
lations aimed at increasing transparency include the pro-
posed Physician Payment Sunshine Act in the United
States. It would require pharmaceutic and medical
device companies to disclose certain payments of over
$100 to physicians and teaching hospitals. Also, the
French Sunshine Act requires health products companies
to make available to the public the existence of any con-
tract with healthcare providers and certain entities of the
health sector, as well as any benefit in cash or in kind
granted to the latter beyond a certain threshold.
HONEST DEALING WITH THIRD
PARTIES
Physicians have both legal and ethical obligations to
avoid fraud in their dealings with patients, governments,
and third parties. In the United States, for example, fed-
eral fraud and abuse regulations (31 U.S.C. } 3729) pro-
hibit false claims for reimbursement, defining a false
claim as a knowing and willful statement that is inaccu-
rate and is made to obtain funds from the government.
Professional guidelines reiterate the obligation of physi-
cians to act honestly and without duplicity. The
American College of Physicians (2012) emphasizes, for
example, the obligation to maintain accurate records
and to be honest in documentation, not misstating diag-
noses or treatments to ensure insurance coverage or to
maximize reimbursement.
Notwithstanding such categoric statements, there is
debate within the profession about whether deception
is ever acceptable as a means to the end of promoting
patient welfare. It clearly is ethically unacceptable for
a physician to engage in deception for self-protection
or to cover up an error. Some physicians would, how-
ever, defend misrepresentation in limited circumstances.
An example might be a situation in which a modest
deception helps ensure insurance coverage of a given
visit or screening test deemed necessary to the patients
wellbeing. In a study by Novack and colleagues (1989),
87% of physicians indicated their belief that deception
is acceptable on rare occasions when conflicting moral
values are at play including, for example, when a
patient would be harmed by knowing the truth or in order
to circumvent ridiculous rules and to protect confidenti-
ality. Likewise, in a study of U.S. neurologists, Bernat
et al. (1997) found that neurologists expressed a limited
willingness to use deception or gaming to further their
patients welfare.
The most common justifications cited for occasional
deception of third parties are consequentialist in
nature: that the benefits to the patient of an occasional
101
deception outweigh the costs. Others argue that the
principle of beneficence sometimes affirmatively
requires doctors to lie on behalf of their patients
(Tavaglione and Hurst, 2012). Brody (1983) emphasizes
that truth-telling is not an absolute moral imperative for
physicians. He states that honesty is prized because it is
typically the best way to demonstrate respect for
persons, but suggests that in rare instances respect
for persons might demand giving higher priority to
other considerations.
Others take a much more absolutist stance on decep-
tion by physicians (Huddle, 2012). Bernard Lo, for exam-
ple, has stated that misrepresentation or gaming is wrong
no matter what the motive. He cites truth-telling as a fun-
damental moral guideline and warns that misrepresenta-
tion undermines trust in the medical profession, usually
is unnecessary, and may harm other people (Lo, 1995).
REPORTING IMPAIRED PHYSICIANS
As a general matter, physicians should avoid criticizing
the professional judgment or skills of colleagues. If,
however, one physician has reason to believe that another
is practicing medicine incompetently, or is impaired by
substance use or other factors in a way that has the
potential to jeopardize the wellbeing of patients, the non-
impaired physician should report the impaired physician
to the relevant credentialing authority and try to assist in
whatever way possible the rehabilitation of the impaired
colleague (American Academy of Neurology, 2009,
Section 6.6).
EXPERT TESTIMONY
Physicians are permitted to testify as expert witnesses in
legal proceedings. In this role, they can serve an impor-
tant civic function by providing objective testimony that
helps to clarify medical issues and facilitates the search
for truth. Such testimony may include medical evalua-
tion of a party to a legal proceeding, descriptions of rel-
evant medical standards of care, and opinions regarding
whether violations of standards of care caused harm to a
claimant. Physicians must prepare diligently by review-
ing all medical and scientific data, may testify only to
matters within their particular area of expertise, and
must be transparent regarding whether an opinion is
based on personal experience, published information,
practice guidelines, or prevailing expert opinion.
Although it is acceptable for a physician to receive a
fee for testifying that is reasonable in light of the time
required for preparation and testimony, it is impermissi-
ble for such fee to be contingent on the outcome of the
case (Williams et al., 2006).
102 E.B. RUBIN
CARE OF SELF
Physicians often prioritize their work to the point of
neglecting their own personal lives and personal needs
(Novack et al., 1997). Significant imbalance between pro-
fessional and personal priorities can result in compas-
sion fatigue, burnout and dissatisfaction, depression,
anxiety, substance abuse, and disillusionment, all of
which are likely to impact negatively patient care and
patient satisfaction (Mawardi, 1979; Lewis et al., 1991;
Sullivan and Buske, 1998; Haas et al., 2000; Shanafelt
et al., 2002; West et al., 2006). Physician burnout
and stress also have been linked to increased mistakes
and significant medical errors (Firth-Cozens and
Greenhalgh, 1997; West et al., 2006). Conversely, physi-
cian wellbeing has been linked to improved patient
care. Shanafelt and colleagues (2005), for example, con-
ducted a study of internal medicine residents demon-
strating that those residents who had higher measured
wellbeing had higher cognitive empathy scores, meaning
they were better able to understand another persons
perspective regarding their experience (560).
In order to optimize care of patients, physicians must
take care of themselves. Physician self-care includes
attending to personal relationships, maintaining reli-
gious or spiritual practices, fostering positive habits,
including a healthy diet, adequate sleep and exercise,
and avoiding addictive substances or other self-
destructive habits. It has also been shown that imposing
limits on ones own work and developing a personal life
philosophy contribute significantly to physician well-
being (Weiner et al., 2001; Shanafelt, 2002).
Self-care also entails awareness and examination of
ones own personal attributes and emotions. A physi-
cians personal values and background, and the way he
or she experiences patient interactions emotionally,
can have significant impact on patient care. This is par-
ticularly true in situations that provoke strong emotional
responses, such as caring for neurologically devastated
or otherwise critically ill or dying patients. Meier et al.
(2001) emphasize that unexamined physician emotions
can seriously compromise patient care. They suggest a
systematic approach to physicians identification and
assessment of their feelings. It involves recognizing
high-risk clinical situations and risk factors, monitoring
signs and symptoms, developing a differential diagno-
sis, and determining a practical means of responding
to the emotions. They encourage physicians going
through difficult emotional turmoil in the context of
patient care to step back to gain perspective, identify
behaviors that result from their emotions, consider the
implications and consequences of their behaviors, think
through alternative outcomes for patients according to
different behaviors, and consult a trusted professional
colleague.
Krasner et al. (2009) found that an educational course
for primary care physicians in mindful communication,
including meditation, self-awareness exercises, and nar-
ratives about meaningful clinical experiences, was asso-
ciated with short-term and sustained improvements in
wellbeing, decreased burnout, and positive changes in
empathy. Others have emphasized the importance of sto-
rytelling groups, small group discussions among col-
leagues, or other informal venues that enable
physicians to reflect on and share the emotional chal-
lenges of their professional life (Quill and Williamson,
1990; Novack et al., 1997; Rabow and McPhee, 2001;
Shanafelt et al., 2003).
Finally, a critical element of self-care is recognizing
when to seek help or time off from practice in order to
change self-destructive habits or to regain equanimity.
As Novack et al. (1997) emphasize, [t]hose who are more
satisfied with their practices have more satisfied patients
. . . [t]hose who understand their needs and abilities in rela-
tion to others can function more effectively as members of
health care teams and as members of families (pp. 89).
REFERENCES
American Academy of Neurology (2009). Code of
Professional Conduct. http://www.aan.com/go/about/
ethics (accessed June 28, 2012).
American College of Physicians (2012). Ethics Manual, 6th
edn. Ann Intern Med 156: 73104.
American Medical Association Council on Ethical and
Judicial Affairs (2010). Code of Medical Ethics: Current
Opinions, American Medical Association, Chicago.
Berger JT (2005). Ignorance is bliss? Ethical considerations in
therapeutic nondisclosure. Cancer Invest 23: 9498.
Bernat JL, Peterson LM (2006). Patient-centered informed
consent in surgical practice. Arch Surg 141: 8692.
Bernat JL, Ringel SP, Vickrey BG et al. (1997). Attitudes of
US neurologists concerning the ethical dimensions of man-
aged care. Neurology 49: 413.
Bernat JL, Goldstein ML, Ringel SP (1998). Conflicts of inter-
est in neurology. Neurology 50: 327331.
Blendon RJ, DesRoches CM, Brodie M et al. (2002). Views of
practicing physicians and the public on medical errors.
N Engl J Med 347: 19331940.
Bovi A (2003). Ethical guidelines for use of electronic mail
between patients and physicians. Am J Bioeth 3: W-IF2.
Brody H (1983). Deception in the teaching hospital. Prog Clin
Biol Res 139: 8186.
Brody H (2011). Clarifying conflict of interest. Am J Bioeth 11:
2328.
Brody BD, Haut SR (2009). Ending the doctorpatient
relationship in neurology practice. Neurologist 15:
277281.
Cassel C, Brennan TE (2007). Managing medical resources:
return to the commons? JAMA 292: 25182520.
Council of Medical Speciality Societies (2011). Code for inter-
actions with companies. http://cmss.org/codeforinteractions.
aspx (accessed June 30, 2012).
 PROFESSIONAL CONDUCT AND MISCONDUCT
Crawley LM, Marshall PA, Koenig BA (2001). Respecting
cultural differences at the end of life. In: Snyder L,
Quill TE (Eds.), Physicians Guide to End-of-Life
Care. American College of Physicians, Philadelphia,
pp. 3555.
Crawshaw R, Rogers DE, Pellegrino ED et al. (1995). Patient
physician covenant. JAMA 273: 1553.
Dana J, Loewenstein G (2003). A social science perspective on
gifts to physicians from industry. JAMA 290: 252255.
Emanuel EJ, Emanuel LL (1992). Four models of the physi-
cianpatient relationship. JAMA 267: 22212226.
Faden RR, Becker C, Lewis C et al. (1981). Disclosure of
information to patients in medical care. Med Care 19:
718733.
Finkelstein D, Wu AW, Holtzman NA et al. (1997). When a
physician harms a patient by a medical error: ethical, legal,
and risk-management considerations. J Clin Ethics 8:
330335.
Finn PD (1997). Fiduciary Obligations. Law Book Co.,
Sydney.
Firth-Cozens J, Greenhalgh J (1997). Doctors perceptions of
the links between stress and lowered clinical care. Soc Sci
Med 44: 10171022.
Freud S (1955). Group psychology and the analysis of the ego.
In: Strachey J (Ed.), The Complete Works of Sigmund
Freud, Vol. 18. Hogarth Press, London.
Frosch DL, May SG, Rendle KA et al. (2012). Authoritarian
physicians and patients fear of being labeled difficult
among key obstacles to shared decison making. Health
Aff 31: 10301038.
Full Disclosure Working Group (2006). When things go
wrong: responding to adverse events: a consensus state-
ment of the Harvard Hospitals. Massachusetts Coalition
for the Prevention of Medical Errors, Boston, MA.
Gabbard GO, Nadelson C (1995). Professional boundaries
in the physicianpatient relationship. JAMA 273:
14451449.
Gallagher TH, Waterman AD, Ebers AG et al. (2003).
Patients and physicians attitudes regarding the disclosure
of medical errors. JAMA 289: 10011007.
Gallagher TH, Waterman AD, Garbutt JM et al. (2006). US
and Canadian physicians attitudes and experiences regard-
ing disclosing errors to patients. Arch Intern Med 166:
16051611.
Gallagher TH, Bell SK, Smith KM et al. (2009). Disclosing
harmful medical errors to patients: tackling three touch
cases. Chest 136: 897903.
Goldberg RJ (1984). Disclosure of information to adult cancer
patients: issues and update. J Clin Oncol 2: 948955.
Guseh JS II, Brendel RW, Brendel DH (2009). Medical profes-
sionalism in the age of online social networking. J Med
Ethics 35: 584586.
Haas JS, Cook EF, Puopolo AL et al. (2000). Is the professional
satisfaction of general internists associated with patient sat-
isfaction? J Gen Intern Med 15: 122128.
Halpern J (2001). From detached concern to empathy: human-
izing medical practice. Oxford University Press, Oxford.
Heesen C, Kopke S, Richter T et al. (2007). Shared decision
making and self-management in multiple sclerosis a
103
consequence of evidence. J Neurol 254 (Suppl 2): II/
116II/121.
Hippocratic Oath (2002). Translated by Michael North.
National Library of Medicine, National Institutes of
Health. http://www.nlm.nih.gov/hmd/greek/greek_oath.
html (accessed June 29, 2012).
Hojat M, Gonnella JS, Mangione S et al. (2002). Empathy in
medical students as related to academic performance, clin-
ical competence and gender. Med Educ 36: 522527.
Hojat M, Vergare MJ, Maxwell K et al. (2009). The devil is in
the third year: a longitudinal study of erosion of empathy in
medical school. Acad Med 84: 11821191.
Holloway RG, Mooney CJ, Getchius TSD et al. (2008).
Conflicts of interest for authors of American Academy of
Neurology clinical practice guidelines. Neurology 71:
5763.
Huddle TS (2012). Honesty is an internal norm of medical
practice and the best policy. Am J Bioeth 12: 1517.
Hutchins JC, Rydell CM, Griggs RC et al. (2012). American
Academy of Neurology policy on pharmaceutical and
device industry support. Neurology 78: 750754.
IOM (Institute of Medicine) (2000). To Err is Human:
Building a Safer Health System. National Academy
Press, Washington, DC.
IOM (Institute of Medicine) (2001). Crossing the Quality
Chasm: A New Health System for the 21st Century.
National Academy Press, Washington, DC.
IOM (Institute of Medicine) (2004). Patient Safety: Achieving
a New Standard for Care. The National Academies Press,
Washington, DC.
IOM (Institute of Medicine) (2009). Conflict of interest in med-
ical research, education and practice. In: Lo B, Field MJ
(Eds.), National Academies Press, Washington, DC.
Joint Commission on Accreditation of Healthcare
Organizations (2001). Revisions to Joint Commission
Standards in Support of Patient Safety and Medical
Health Care Error Reduction. Joint Commission on
Accreditation of Healthcare Organizations, Oakbrook
Terrace, IL.
Joint Commission on Accreditation of Healthcare
Organizations (2005). Health care at the crossroads: strat-
egies for improving the medical liability system and pre-
venting patient injury, http://www.jhacoorg/news (full
citation).
Kachalia A, Shojania KG, Hofer TP et al. (2003). Does full dis-
closure of medical errors affect malpractice liability? The
jury is still out. Jt Comm J Qual Saf 29: 503511.
Katz D, Caplan AL, Merz J (2003). All gifts large and small.
Am J Bioeth 3: 3946.
Krasner M, Epstein RM, Beckman H et al. (2009). Association
of an educational program in mindful communication with
burnout, empathy, and attitudes among primary care phy-
sicians. JAMA 302: 12841293.
Lazare A (2006). Apology in medical practice: an emerging
clinical skill. JAMA 296: 14011404.
Lehmann LS, Puopolo AL, Shaykevich S et al. (2005).
Iatrogenic events resulting in intensive care admission: fre-
quency, cause, and disclosure to patients and institutions.
Am J Med 118: 409413.
104 E.B. RUBIN
Lewis CE, Prout DM, Chalmers EP et al. (1991). How satisfy-
ing is the practice of internal medicine? A national survey.
Ann Intern Med 114: 15.
Lo B (1995). Resolving ethical dilemmas: a guide for clini-
cians. Williams & Wilkins, Baltimore pp. 223229.
Lo B (2010). Serving two masters: conflicts of interest in aca-
demic medicine. N Engl J Med 362: 669671.
Lo B, Dornbrand L, Dubler NN (2005). HIPAA and patient care:
the role for professional judgment. JAMA 293: 17661771.
Loewenstein G, Sah S, Cain DM (2012). The unintended con-
sequences of conflict of interest disclosure. JAMA 307:
669670.
Lussier MT (2010). Should family physicians be empathetic?
Can Fam Physician 56: 740742.
Mandi KD, Kohane I, Brandt A (1998). Electronic patient
physician communication: problems and promise. Ann
Intern Med 129: 495500.
Marchand M (2010). Should family physicians be empathetic?
Can Fam Physician 56: 741743.
Marco C, Moskop J, Solomon R et al. (2006). Gifts to physi-
cians from the pharmaceutical industry: an ethical analysis.
Ann Emerg Med 48: 513521.
Martin JB (2010). The pervasive influence of conflicts of
interest: a personal perspective. Neurology 74: 20162021.
Marzuk PM (1985). The right kind of paternalism. N Engl J
Med 313: 14741476.
Mawardi BH (1979). Satisfactions, dissatisfactions, and
causes of stress in medical practice. JAMA 241: 14831486.
Mazor KM, Simon SR, Yood RA, Martinson BC et al. (2004).
Health plan members views about disclosure of medical
errors. Ann Intern Med 140: 409418.
Medical Professionalism in the New Millennium: A Physician
Charter (2002). Project of the ABIM Foundation,
ACP-ASIM Foundation, and European Federation of
Internal Medicine. Ann Intern Med 136: 243246.
Meier DE, Back AL, Morrison RS (2001). The inner life of phy-
sicians and the care of the seriously ill. JAMA 286: 30073014.
Mercer SW, Reynolds WJ (2002). Empathy and quality of
care. Br J Gen Pract 52 (Suppl): S9S13.
Merriam Websters Medical Dictionary (2007). Merriam
Webster.http://www.merriam-webster.com/medical/empathy
(accessed October 6, 2013).
Mitnick S, Leffler C, Hood V For the American College of
Physicians Ethics, Professionalism and Human Rights
Committee (2009). Family caregivers, patients and physi-
cians: ethical guidance to optimize relationships. J Gen
Intern Med 25: 255260.
Morse JM, Anderson G, Bottorff JL et al. (1992). Exploring
empathy: a conceptual fit for nursing practice? Image J
Nurs Sch 24: 273280.
Neumann M, Scheffer C, Tauschel D et al. (2012). Physician
empathy: definition, outcome-relevance and its measure-
ment in patient care and medical education. GMS Z Med
Ausbild 29, Doc 11.
Novack DH, Detering BJ, Arnold R et al. (1989). Physicians
attitudes toward using deception to resolve difficult ethical
problems. JAMA 261: 29802985.
Novack DH, Suchman AL, Clark W et al. (1997). Calibrating
the physician: personal awareness and effective patient
care. JAMA 278: 502509.
Orentlicher D (1991). From the office of the general counsel:
denying treatment to the noncompliant patient. JAMA 265:
15791582.
Pharmaceutical Research and Manufacturers of America (2009).
Code on interactions with healthcare professionals, http://
www.phrma.org/about/principles-guidelines/code-interac-
tions-healthcare-professionals (accessed June 30, 2012).
Povar GJ, Blumen H, Daniel J et al. (2004). Ethics in practice:
managed care and the changing health care environment:
medicine as a profession managed care ethics working
group statement. Ann Intern Med 141: 131136.
Presidents Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavioral Research (1982).
Making Health Care Decisions, Vol. 1 U.S. Government
Printing Office, Washington, pp. 9596.
Quill TE (1983). Partnerships in patient care: a contractual
approach. Ann Intern Med 98: 228234.
Quill TE (1989). Recognizing and adjusting to barriers in
doctorpatient communication. Ann Intern Med 111:
5157.
Quill TE, Cassel CK (1995). Nonabandonment: a central obli-
gation for physicians. Ann Intern Med 5: 368374.
Quill TE, Williamson PR (1990). Healthy approaches to phy-
sician stress. Arch Intern Med 50: 18571861.
Rabow MW, McPhee SJ (2001). Doctoring to heal: fostering
well-being among physicians through personal reflection.
West J Med 174: 6669.
Richard C, Lajeuenesse Y, Lussier M (2010). Therapeutic
privilege: between the ethics of lying and the practice of
truth. J Med Ethics 36: 353357.
Riess H (2010). Empathy in medicine a neurobiological per-
spective. JAMA 304: 16041605.
Riess H, Kelley JM, Bailey RW et al. (2012). Empathy training
for resident physicians: a randomized controlled trial of a
neuroscience-informed curriculum. J Gen Intern Med 27:
12801286.
Rodwin MA (1995). Strains in the fiduciary metaphor: divided
physician loyalties and obligations in a changing health
care system. Am J Law Med 21: 241257.
Rothman DJ, McDonald WJ, Berkowitz CD et al. (2009).
Professional medical associations and their relationships
with industry: a proposal for controlling conflict of interest.
JAMA 301: 13671372.
Salzburg statement on shared decision making (2011). Br Med
J 342: d1745.
Shanafelt TD, Bradley KA, Wipf JE et al. (2002). Burnout and
self-reported patient care in an internal medicine residency
program. Ann Intern Med 136: 358367.
Shanafelt TD, Sloan JA, Habermann TM (2003). The well-
being of physicians. Am J Med 114: 513519.
Shanafelt TD, West C, Zhao X et al. (2005). Relationship
between increased personal well-being and enhanced
empathy among internal medicine residents. J Gen Intern
Med 20: 559564.
 PROFESSIONAL CONDUCT AND MISCONDUCT
Shanafelt TD (2009). Enhancing meaning in work: a prescrip-
tion for preventing physician burnout and promoting
patient-centered care. JAMA 302: 13381340.
Shortell SM, Waters TM, Clarke KW (1998). Physicians as
double agents: maintaining trust in an era of multiple
accountabilities. JAMA 280: 11021108.
Siegler M (1985). The progression of medicine: from physi-
cian paternalism to patient autonomy to bureaucratic parsi-
mony. Arch Intern Med 45: 713715.
Sirotin N, Lo B (2006). The end of therapeutic privilege? J Clin
Ethics 17: 312316.
Smajdor A, Stockl A, Salter C (2011). The limits of empathy:
problems in medical education and practice. J Med Ethics
37: 380383.
Spencer J (2004). Decline in empathy in medical education:
how can we stop the rot? Med Educ 38: 916920.
Spiro H (2009). The practice of empathy. Acad Med 84:
11771179.
Spiro H, MccRea Curnen M, Peschel E et al. (1993). Empathy
and the practice of medicine: beyond pills and the scalpel.
Yale University Press, New Haven, CT.
Stein J, Wagner LC (2006). Is informed consent a yes or
no response? Enhancing the shared-decision making
process for persons with aphasa. Top Stroke Rehabil
13E: 4246.
Stepien KA, Baernstein A (2006). Educating for empathy: a
review. J Gen Intern Med 21: 524530.
Studdert DM, Mello MM, Brennan TA (2004). Financial
conflicts of interest in physicians relationships with
the pharmaceutical industry self-regulation in the
shadow of federal prosecution. N Engl J Med 351:
18911900.
Sullivan P, Buske L (1998). Results from CMAs huge 1998
physician survey point to dispirited professional. CMAJ
159: 5258.
105
Szasz TS, Hollender MH (1956). The basic models of the doctor
patient relationship. Arch Intern Med 97: 585592.
Tarasoff v. Regents of the University of California, 17 Cal. 3d
425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).
Tavaglione N, Hurst S (2012). Why physicians ought to lie for
their patients. Am J Bioeth 12: 412.
The AM, Hak T, Koeter G et al. (2000). Collusion in doctor-
patient communication about imminent death: an ethno-
graphic study. BMJ 321: 13761381.
Thompson DF (1993). Understanding conflicts of interest.
N Engl J Med 329: 573576.
Veatch RM (1975). Models for ethical medicine in a revolu-
tionary age. Hastings Cent Rep 2: 35.
Vincent JL (1998). Information in the ICU: are we being hon-
est with our patients? The results of a European question-
naire. Intensive Care Med 24: 12511256.
Wazana A (2000). Physicians and the pharmaceutical industry:
is a gift ever just a gift? JAMA 283: 373380.
Weiner EL, Swain GR, Wolf B et al. (2001). A qualitative
study of physicians own wellness-promotion practices.
West J Med 174: 1923.
Weinstein M (2001). Should physicians be gatekeepers of
medical resources? J Med Ethics 27: 268274.
West CP, Huschka MM, Novotny PJ et al. (2006). Association
of perceived medical errors with resident distress and
empathy: a prospective longitudinal study. JAMA 296:
10711078.
Williams MA, Mackin GA, Beresford HR et al. (2006).
American Academy of Neurology qualifications and
guidelines for the physician expert witness. Neurology
66: 1314.
Witman AB, Park DM, Hardin SB (1996). How do patients
want physicians to handle mistakes? A survey of internal
medicine patients in an academic setting. Arch Intern
Med 156: 25652569.