Michael Victoroff, MD, described the phone call he received from an attorney asking a thorny ethics question involving a patient's gift to another physician. Victoroff, a past member of the ethics committee of the American Academy of Family Physicians (AAFP), had definite thoughts about it.
"The attorney was representing the daughters of an elderly gentleman who had moved from the East Coast to Colorado to be closer to them," said Victoroff, who teaches bioethics in the MBA program at the University of Denver and also practices at the University of Colorado School of Medicine.
"The father visited his new primary care physician frequently because he had multiple health issues."
The patient was happy with the doctor's medical care and over time, they developed a friendship. Victoroff emphasized that no sexual or romantic impropriety ever took place between the patient and his physician.
"But the social relationship went beyond the ordinary doctor–patient boundaries. The patient ultimately named the doctor as his healthcare proxy in the event that he became unable to make decisions regarding his care. He also mentioned he was going to leave her $100,000 in his will," says Victoroff.
The physician did accept the role of proxy, "which raises a whole host of ethical issues," says Victoroff. As it happened, she was never called upon to exercise that decision-making authority, since the patient died suddenly and was mentally competent at the time.
After his death, his daughters became aware of the large sum of money he had bequeathed to his doctor. They felt it was unethical for her to accept such a substantial bequest from a patient and they hired an attorney to contest the will.
No Law Against It
Dennis Hursh, attorney and managing partner of Physician Agreements Health Law, a Pennsylvania-based law firm that represents physicians, says "The problem isn't legal per se. Rather, the problem is an ethical one," he told Medscape.
Legally speaking, there's no prohibition against receiving a bequest or other form of gift from a patient. "People are free to dispose of their estates in whatever way they see fit, and no law technically precludes a physician from accepting a bequest," says Victoroff. "But this presupposes there is nothing improper going on, such as extortion, deception, coercion, or exercising undue influence."
The issue of bequeathing money to their physician gained attention in a recent case that took place in Australia. Peter Alexakis, MD, received a whopping bequest of $24 million from a patient. The elderly patient had changed his will to name Alexakis as the sole beneficiary — after Alexakis had visited him at home 92 times during the preceding months. The original heirs filed a lawsuit in Australia's Supreme Court against Alexakis, contesting the will.
The lawsuit was unsuccessful in court, but Alexakis was found guilty of malpractice by Australia's Health Care Complaints Commission (HCCC) after being reported to the HCCC by the palliative care physicians who were treating the patient. They alleged that Alexakis had interfered with their care of the patient. The more serious allegation was that the doctor had engaged in a deliberate strategy to exploit the relationship for financial gain.
Alexakis was chastised by the HCCC for engaging in "obtuse" and "suspicious" behavior and for "blurring the boundaries of the doctor–patient relationship."
There are three domains — legal, ethical, and practical — when it comes to accepting bequests or any gifts from patients, says Victoroff.
"There's the legal domain — for example, if you receive a bequest from anyone, patient or otherwise, you have to know your local laws about estates and taxes and so forth and obey them," he said.
Attorney Hursh pointed out that the Australian doctor wasn't found guilty of wrongdoing in a court of law but rather of unethical conduct by the Australian medical licensing entity.
Patients Giving Gifts Is Often a Part of a Physician's Life
When Ian Schorr, MD, first started out in practice, he was surprised that patients began bringing him gifts of food to express gratitude for his care.
"I thought it was unethical to accept their gifts, so I turned them down and wouldn't accept so much as a cookie," Schorr, a now-retired ophthalmologist, told Medscape. "But that changed because my office staff told me that some patients were feeling disappointed and insulted. I realized that some people want to express appreciation in ways that go beyond a monetary payment."
The next time he received a gift from a patient, he "accepted it gracefully." And he wrote a thank you note, which he continued to do any time he received a gift from a patient.
Kenneth Prager, MD, professor of clinical medicine, director of clinical ethics and chairman of the Medical Ethics Committee at Columbia University Medical Center, New York City, says, "I have literally received hundreds of gifts, the vast majority being tokens of patients' appreciation," he told Medscape. "I'll get boxes of chocolate or cakes, or sometimes articles of clothing."
Occasionally, Prager receives a "somewhat larger gift"— for example, two tickets to a baseball game. "To reject these gifts would be a slap in the face to the patient," he says, but "where it gets more ethically cloudy is when a gift is very substantial."
Prager has never been offered a "substantial" gift or bequest personally. "But a patient whose brother I cared for has indicated that she has left instructions in her will to endow an associate chair of ethics in my honor, and I didn't decline that," he said.
The AMA Code of Ethics confirms that accepting gifts offered "as an expression of gratitude or a reflection of the patient's cultural tradition" can "enhance the patient–physician relationship." But sometimes gifts "may signal psychological needs that require the physician's attention." Accepting such gifts is "likely to damage the patient–physician relationship."
Potential damage to the therapeutic relationship applies to all physicians, but especially for psychiatrists and mental health professionals. "There are more stringent ethical requirements when it comes to these disciplines, where gift giving gets into the territory of transference or may have particular psychological meaning, and accepting the gift may muddy the therapeutic waters," Victoroff said.
Impact on the Patient's Family and on Other Patients
The AMA statement encourages physicians to be "sensitive to the gift's value, relative to the patient's or physician's means." Physicians should decline gifts that are "disproportionately or inappropriately large, or when the physician would be uncomfortable to have colleagues know the gift had been accepted."
They should also decline a bequest from a patient if they have reason to believe that to accept it "would present an emotional or financial hardship to the patient's family."
"If Bill Gates were leaving $100,000 to his doctor, I imagine Melinda would be just fine," Hursh said. "But under ordinary circ*mstances, if the patient's family might feel the impact of the bequest, it would be unethical to accept it and could be grounds for revocation of the doctor's license."
The AMA statement also warns physicians that by offering a gift, some patients may be seeking to "secure or influence care or to secure preferential treatment," which can "undermine physicians' obligation to provide services fairly to all patients."
For this reason, bequests are "sticky," said Laurel Lyckholm, MD, professor of hematology and oncology at West Virginia University School of Medicine. In the case of institutions where patients or community members donate money, "we know whose names are on the plaques that hang on the hospital walls, so it's a delicate balance. What if there's only one bed or one ventilator? Will the wife of the donor get preferential treatment?"
Follow Institutional Policy
A "very small gift, such as a fruitcake, is fine," says Lyckholm, author of an essay on accepting gifts from patients. She said there's a dollar amount ($15) that her institution mandates, above which a gift — even food — is considered too expensive to accept. "I was a nurse before I became a physician and people always tried to give us gifts because we were so close to the minute-by-minute care of the patients," she said. "We were not allowed to accept money or anything lavish."
But in the case of small gifts, "the risk–benefit analysis is that there's much more risk not to take it and to hurt the patient's feelings."
Gifts above $15 are given to charity. "I explain to patients that I'm not allowed to take such a large gift, but I'd love to give it to the hospital's Rosenbaum Family House that provides patients and their relatives with lodging, or to the homeless shelter in Morgantown."
Lyckholm, who serves on the ethics committee at J.W. Ruby Memorial Hospital, once was offered expensive tickets and she said to the patent, "This is so incredibly thoughtful and kind, but I can't accept them. I would like to give the tickets to a charity that can auction them off."
She advises physicians to find out their institution's policies. Many institutions have policies about what gifts their staff — whether physicians, nurses, or other healthcare professionals — can accept.
Passing the "Smell Test"
Accepting a large gift from a patient could potentially make it look like you might have exercised undue influence.
"That concern brings us to the third domain, which is very practical and all about appearances and perceptions," Victoroff said.
He noted that there is "an inherent power differential between a physician and a patient. The very nature of the relationship can create a risk of 'undue influence' on the doctor's part, even if it's not apparent to the doctor." For this reason, it's necessary to be utterly transparent about how the bequest came about.
He suggests that if a patient informs you that he or she would like to leave money to you, it might be wise to suggest a meeting with the patient's family, thus establishing some transparency.
It may not be possible to meet with the patient's family for logistical reasons or because the patient would prefer not to involve their family in their estate planning. But in any case, it's advisable to document any conversation in the patient's chart, Victoroff advised.
"You should make a contemporaneous note that the patient initiated the suggestion and that you counseled them about the implications, no differently than you would with an interaction of a clinical nature," he suggests. That way, if money has been left to you and is disputed, there's a clear record that you didn't solicit it or use any undue influence to bring it about.
He also recommended getting advice from a trusted colleague or a member of your institution's ethics committee. "Taking time to get a second opinion about an ethical question is a safeguard, like having a chaperone in the room during an examination."
Ultimately, "there is no human relationship without potential conflicts of interest. Our job is to manage those as best as we can, and sunlight is the best antidote to bad appearances," Victoroff said.
Batya Swift Yasgur, MA, LSW is a freelance writer with a counseling practice in Teaneck, New Jersey. She is a regular contributor to numerous medical publications, including Medscape and WebMD, and is the author of several consumer-oriented health books as well asBehind the Burqa: Our Lives in Afghanistan and How We Escaped to Freedom(the memoir of two braveAfghan sisters who told her their story).
For more news, follow Medscape on Facebook, Twitter, Instagram, YouTube, andLinkedIn
