Public Health Law Map - Beta 5 - Medical and Public Health Law Site

and balances inherent in having general medical care rendered by a physician who is
independent of the company are lost in these hybrid practices. This raises ethical issues
when the physician is asked to determine whether an injury, such as a heart attack, is
work related, triggering workers’ compensation coverage, or not work related, perhaps
denying the employee compensation but reducing costs for the employer. These
conflicts are greatly exacerbated when the employee lacks insurance for general health
problems.
Outside occupational medicine providers are subject to medical malpractice litigation
for the services they provide to employees. Whereas corporate employee physicians
may also be sued for malpractice under the dual-capacity doctrine, employers usually
indemnify their physicians for any losses that result from actions within the course and
scope of their employment. (The dual capacity doctrine allows employees to sue fellow
employees with independent professional licenses, on the theory that the company does
not control a licensed professional.) Unless contractually indemnified by the employer,
physicians are also liable for the cost of complying with state and regulatory agency
actions. Such actions can be very expensive in terms of legal costs and lost time for the
providers involved. Unlike lawsuits that allege medical negligence, these costs will not
be paid by the physician’s malpractice insurer. In contrast, if the occupational medicine
provider is an employee of the company, these actions will be brought against the
employer rather than the physician. Even if the physician is individually joined, the
company will remain liable for the incurred costs. Physicians who contract with
employers to deliver occupational medical services must ensure that their contracts
require the employer to pay for the costs of agency enforcement actions that arise from
treating its employees. Private physicians without special training or experience in
occupational medicine should consult an attorney about their allowable scope of
practice and legal obligations before agreeing to provide occupational medical
services.
1. Return to Work Certifications
All physicians engaged in clinical practice face the problem of certifying that a
patient was legitimately absent from work because of an acute illness or injury. Most
employees who are covered by the Americans with Disabilities Act (ADA) because
of long-term disabilities have periods of acute illness. Acute problems are not
covered by the ADA. The same medical standards for work fitness apply to disabled
employees covered by the ADA as to other employees. It is not certain, however,
whether the ADA’s limitations on information to be provided to employers prevents
the employer from inquiring into the cause of a disabled employee’s absence.
Return-to-work evaluations fall into two classes, depending on whether the employee
is seeking to avoid returning or wishes to return to work. Situations in which the
patient wishes to return to work pose fewer ethical problems because the patient and
the employer generally have the same interest. Nevertheless, the physician must still
determine the employee’s medical fitness to return to prevent possible injuries to the
employee and potential legal liability for the physician. Except for companyemployed
occupational medicine physicians, the decision about return to work
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