95.000 ETHICS

95.964        MSSNY Supports Medical Aid in Dying  

The Medical Society of the State of New York will rescind MSSNY Policy 95.989

MSSNY supports legislation such as the medical aid in dying act.

Physicians should continue to retain their choice to opt-in or decline to engage in the processes and procedures as outlined in any proposed medical aid in dying legislation. (HOD 2024 – 171)

95.965         Addressing the Historical Injustices of Anatomical Specimen Use

MSSNY will advocate to AMSNY (Association of Medical Schools in the State of NY) for the return of human remains to living family members, or, if none exist, the burial of anatomical specimens older than 2 years where consent for permanent donation cannot be proven.

MSSNY will advocate that medical schools and teaching hospitals in NY State review their anatomical collections for remains of American Indian, Hawaiian Native, and Alaska Native remains and immediately return remains and skeletal collections to tribal governments as required by laws such as the Native American Graves and Repatriation Act.

MSSNY will advocate that medical schools and teaching hospitals in NY State review their anatomical collections for remains of Black and Brown people and other minority groups, and return remains and skeletal collections to living family members, or, if none exist, then respectful burial of anatomical specimens or remains.

MSSNY will seek legislation or regulation that requires the return of anatomic specimens of American Indian, Hawaiian Natives, Alaskan Natives and other minority groups.

MSSNY supports the creation of a national anatomical specimen database that includes registry demographics.
For purpose of differentiation and clarity, anatomical specimens, tissues and other human material that were collected and maintained for purposes of diagnosis and compliance under Clinical Laboratory Improvement Act (CLIA) where informed consent has been obtained are consistent with the goals of this resolution and that biospecimens donated for research, education, and transplantation with informed consents of donors (or, if available, next of kin if deceased) are consistent with the goals of this resolution as such materials can advance medical knowledge, improve the quality of healthcare and save lives.

MSSNY forward the above resolves and the following to the AMA for consideration at the next AMA HOD:

That our AMA study and develop recommendations regarding regulations for ethical body donations including, but not limited to guidelines for informed and presumed consent, care and use of cadavers, body parts, and tissue.

That our AMA continue to study and encourage research into the ethical implications of presumed consent as it relates to anatomical donations for research and medical education.

That our AMA amend policy 6.1.4 Presumed Consent & Mandated Choice for Organs from Deceased Donors should be amended as follows:
Physicians who propose to develop or participate in pilot studies of presumed consent or mandated choice should ensure that the study adheres to the following guidelines:

a) Is scientifically well designed and defines clear, measurable outcomes in a written protocol.
b) Has been developed in consultation with the population among whom it is to be carried out.
c) Has been reviewed and approved by an appropriate oversight body and is carried out in keeping with guidelines for ethical research.

Unless there are data that suggest a positive effect on donation, n Neither presumed consent nor mandated choice for cadaveric organ donation should be widely implemented. (HOD 2024 – 170)

95.966          Public Funding of State and National Elections for the Public Health and Good

MSSNY will advocate for public funding for state legislators’ campaigns, to allow small citizen contributions to be made and be tripled by government funding, to limit campaign spending to get public funding, to identify funding sources for all public information related to campaigns, and to strictly regulate campaign rules for all equally. (HOD 2023-114)

95.967        Truth in Advertising with Regard to Board Certification

The Medical Society of the State of New York will support legislative and regulatory efforts to require that a medical doctor or doctor of osteopathic medicine may not hold oneself out to the public in any manner as being “certified” by a public or private board including, but not limited to a multidisciplinary board, or “board certified,” unless all of the following criteria are satisfied:

1. The advertisement states the full name of the certifying board.
2. The certification is accurate, current and in good standing.
3. The certifying board either:

i. Is a member board of the American Board of Medical Specialties (ABMS), or the American Osteopathic Association (AOA); or

ii.Is an organization that requires successful completion of a postgraduate training program approved by the Accreditation Council for Graduate Medical Education (ACGME) or the AOA that provides complete training in the specialty or subspecialty certified, followed by prerequisite certification by the ABMS or AOA board for that training field and further successful completion of examination in the specialty or subspecialty certified.

iii.The organization must have written proof of a determination by the Internal Revenue Service that the certifying board is tax exempt under the Internal Revenue Code pursuant to Section 501(c)

4. The terms “board eligible”, “board qualified”, or any similar words or phrase calculated to convey the same meaning may not be used in physician advertising.
5. A physician who is not board certified by, or a member, fellow, or diplomate of an organization that meets the above requirements in section (3) may not advertise a field of interest, except that the physician may advertise that his or her practice is “limited to” a certain area of practice.  (HOD 2017-55)

95.968             AMA Policy on American Health Care Act

MSSNY will call on the AMA to engage in negotiations with the current leadership of the United States in crafting healthcare policy that is in keeping with MSSNY and AMA values.  This resolution shall be sent to the AMA Annual 2017 meeting.  (HOD 2017-214)

95.969             Healthcare is a Fundamental Human Good

The Medical Society of the State of New York (MSSNY) will help advance the health and well-being of patients, including their access to medical care; MSSNY will reaffirm its commitment to removing barriers to healthcare; and MSSNY will publicly state that healthcare is a fundamental human good. (HOD 2017-208)

95.970             Increasing Organ Donation

The Medical Society of the State of New York will support educational efforts by the New York State Department of Health to promote organ donation.

MSSNY will support laws and corporate policies allowing employees to use paid sick time to become living organ donors.  (HOD 2015-168)

95.971             A More Ethical Legislature and Advancing Medicine’s Agenda

The Medical Society of the State of New York (MSSNY) will advocate for legislation and regulation to promote improved ethics and transparency in the state legislature including but not limited to:

•  Measures that would sensibly limit all campaign contributions.
•  Measures that would restrict the campaign contributions made by law firms of which a legislator is a member, to that legislator only,
•  Measures to promote greater transparency and accountability with regard to the lawmakers’ professional activities outside the legislature.

MSSNY will pursue collaboration with health care stakeholders as well as key affinity groups to promote legislative accountability by means of

•  Limiting campaign financing,
•  Improved transparency and accountability, and
•  Limiting the outside impact of the relationship between lawmakers and the legal profession, in order to promote unity and more effective advocacy particularly as it relates to medical liability reform.  (HOD 2012-112; Reaffirmed HOD 2022)

95.972             Organ Donation:

MSSNY will:  (1) support efforts to increase education to New York State residents about organ donation; (2) promote physicians’ awareness of the need to discuss organ donation with their patients; and (3) continue its support of the New York State Department of Health’s Organ Donation Registry as a means of increasing organ donation in the state.  (HOD 2010-157 referred and adopted Council 1/20/11; Reaffirmed HOD 2021)

95.973             Physician Involvement in Interrogation and in Torture:

The following definitions are for purposes of this statement:

Torture is defined as the intentional infliction of physical or mental harm for the purpose of gathering information, or to secure control or cooperation of a detainee, or for disciplinary or retaliatory purposes.

Interrogation is defined as questioning related to law enforcement or to military and national security intelligence gathering, designed to prevent harm or danger to individuals, the public or national security. Interrogations are distinct from questioning used by physicians to assess the physical or mental condition of an individual.

Coercive is defined as threatening to cause harm through physical injury or mental suffering.

Detainee is defined as a criminal suspect, prisoner of war, enemy combatant, or any other individual who is being held involuntarily.

Physicians who engage in any activity that relies on their medical knowledge and skills, regardless of jurisdiction or location, must continue to uphold principles of medical ethics. Physicians must not engage, directly or indirectly, in torture or in interrogations. Questions about the propriety of physician participation in interrogations and in the development of interrogation strategies may be addressed by balancing obligations to individuals with obligations to protect the public interest, e.g. from terrorist attack. Precedent for this may be found in public health ethics in which physicians’ expertise inform guidelines, policies, and procedure that lead to the imposition of relatively minor hardships on individuals for public welfare. However, when a physician is directly and clinically involved with an individual, the physician’s obligations to the individual take precedent over public interests.

Physician involvement with interrogations during law enforcement or intelligence gathering should be guided by the following:

1. Physicians must not directly or indirectly participate in torture or in the development of techniques of torture.
2. Physicians may perform physical and mental assessments of detainees to determine the need for and to provide medical care. When so doing, physicians must disclose to the detainee the extent to which others has access to information included in medical record. Treatment must never be conditional on a patient’s participation in an interrogation.
3. Physicians must neither conduct nor directly participate in an interrogation, because a role as physician-interrogator undermines the physician’s role as healer and thereby erodes trust in the individual physician-interrogator and in the medical profession.
4. Physicians must not monitor an interrogation with the intention of intervening in the interrogation, because this constitutes direct participation in interrogation.
5. Physicians may participate in developing effective interrogation strategies for general training purposes. These strategies must be humane, respect the rights of individuals, and must not be coercive, for example, threaten or cause physical injury or mental suffering.
6. When a physician has sound reason to believe that an interrogation constitutes torture, he or she must report this concern to the appropriate authorities. If the authorities are aware of the inappropriate interrogation but have not intervened to either stop the interrogation or prevent further inappropriate interrogations, physicians are ethically obligated to report such interrogations to independent authorities that have the power to investigate and/or adjudicate such allegations. (Council 11/19/09; Reaffirmed HOD 2015-167; Reaffirmed HOD 2024 in lieu of 169)

95.974             Discourage Gifts from Pharmaceutical and Device Companies:

MSSNY will affirm its support for American Medical Association Council on Ethical and Judicial Affairs (CEJA) Opinion No. 8.061 and disseminate this opinion to the membership so that it guides them in their contacts with industry.  (HOD 2009-203; Reaffirmed HOD 2019)

95.975             Politics Should Not Over Rule FDA Scientific Findings: Sunset HOD 2016)

95.976             No Place for Vicarious Liability:

MSSNY seeks legislation, regulation or other appropriate means to assure that settlements or judgments vicarious in nature, as determined by the liability carrier, NOT be posted, listed or utilized by the Department of Health for any physician public Website profile.  (HOD 2006-62; Reaffirmed HOD 2016)

95.977             Health Care Proxies:

MSSNY urges all physicians to complete their own Health Care Proxies and encourage their families and their patients to do the same.(Council 3/14/05; Reaffirmed HOD 2015)

95.978             Moratorium on Capital Punishment: Sunset HOD 2011

95.979             Testimony in Professional Liability Cases:

MSSNY takes the position that a physician who provides expert medical testimony in bad faith and/or who provides expert medical testimony that has no recognized scientific validity, is guilty of professional misconduct, and should be reported to the appropriate Office of Professional Medical Conduct.

MSSNY shall encourage all national specialty organizations to enact rules and disciplinary methods, utilizing the American Association of Neurological Surgeons as a model, to promote fair and honest expert testimony.  (HOD 2000-82; Reaffirmed HOD 2014; Reaffirmed HOD 2024)

95.980             Use of Percentage-of-Fee Based Compensation Arrangements:

The Medical Society reaffirms its support for the underlying principle that a physician’s dedication to providing competent medical service for his or her patient is paramount.  Moreover, we also support the opinion that the physician’s control over clinical decision-making must remain unencumbered and independent from non-clinical influence.  The Medical Society recognizes that the continuation of the corporate practice of medicine doctrine’s prohibition against an unlicensed person or entity’s influence in the practice of medicine is necessary to uphold these principles and to protect against potential abuses and fraudulent activity.  Physicians must remain knowledgeable of and in control of the business aspects of their practice and should not relinquish such authority to non-physician business entities.  In our opinion, the following “business” decisions and activities involving control over the physician’s individual practice of medicine should be made by a physician and not by a non-physician or entity:

• ownership and control of a patient’s medical records, including determining the contents thereof;
• selection (hiring/firing as it relates to clinical competency or proficiency) of professional, physician extender and allied health staff;
• set the parameters under which the physician will enter into contractual relationships with third party payors
• decisions regarding coding and billing procedures for patient care services; and
• approval of the selection of medical equipment.

Moreover, the following health care decisions should be made by a physician only and would constitute the unlicensed practice of medicine if performed by an unlicensed person:

• determining what diagnostic tests are appropriate for a particular condition;
• determining the need for referrals to or consultation with another physician/specialist; responsibility for the ultimate over-all care of the patient including treatment options available to the patient; and
• determining how much attention to devote to address a patient’s needs.

As a result of the foregoing, the Medical Society supports the continuation of the corporate practice of medicine doctrine.

Additional information on this position is on file at MSSNY Headquarters, Office of the Executive Vice-President, ext. 397, E-mail:  [email protected].  This information addresses the following topics:

1) Use of credit cards to pay medical bills (percentage commission to bank or credit card company).

2) Use of collection agencies for a percentage of the medical fee collected.

3) Use of a practice management company on a percentage-of-fee basis, under any circumstances, including practice enhancement or marketing of the practice.

4) Use of a practice management company on a percentage-of-fee basis for non-clinical services where no patient referral or practice enhancement is involved, compared with use of “fair market value” as the basis for determining charges and maintaining the same restrictions.

5) Use of a billing service on a percentage-of- fee basis, compared to charges based on “fair market value,” with periodic negotiation of the charges. What would be the effect of not permitting certain activities, such as referral of patients by the billing company to the practice?

6) Leasing/renting space, services or equipment to a physician (by another physician, for example) on a percentage-of-fee basis without restriction, compared to a situation where cost of the lease/rent is based on fair market value and there are restrictions, such as not allowing cross-referrals between the landlord and tenant physicians.

7) Sale of a practice for a percentage of future income by the widow(er) of a physician, or by him or herself, without restriction, compared to a sale where the seller severs all connections with the practice, including referrals.

8) Accepting or paying a fee for a patient referral to or from any source.

9) Receiving payment in return for ordering lab tests, prescription drugs, medical appliances etc.  (Council 3/18/99; Reaffirmed HOD 2014)

95.981             Cloning:

It is the policy of MSSNY that there should be a moratorium by the medical and research communities on cloning a human being.  Congress should permit human, animal or cellular cloning related research that is not directed at producing a human being.  (Council 5/21/98; Modified and reaffirmed HOD 2014; Reaffirmed HOD 2024)

95.982             Gerald Einaugler, MD Full Pardon by Governor Pataki:  SUNSET HOD 2014

95.983             Physician-Assisted Suicide  SUNSET HOD 2014

95.984             Health Care Proxy Identifier: SUNSET HOD 2014

95.985             Physician Participation in Capital Punishment: 

MSSNY has adopted the following policy statement relative to Physician Participation in Capital Punishment:

(1) An individual’s opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life, when there is hope of doing so, should not be a participant in a state execution. “Physician participation in execution” is defined generally as actions which would fall into one or more of the following categories: (a) An action which could automatically cause an execution to be carried out on a condemned prisoner; (b) An action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (c) An action which could automatically cause an execution to be carried out on a condemned prisoner.

(2) Physician participation in an execution includes but is no limited to the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications which are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.

(3) In the case where the method of execution is lethal injection the following actions by the physicians would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; consulting with or supervising lethal injection personnel.  (4) The following actions do not constitute physician participation in execution:

(a)  Testifying as to competence to stand trial testifying as to relevant medical evidence during trial, or testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital case; (b)  Certifying death provided that the condemned has been declared dead by another person;  (c)  Witnessing an execution in a totally non-professional capacity; (d)  Witnessing an execution at the specific voluntary request of the condemned person, providing that the physician observes the execution in a non-physician capacity and takes no action which would constitute physician participation in an execution; and (e)  Relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to relieve pain or anxiety in anticipation of the execution.  (HOD 1995-71; Modified and reaffirmed HOD 2014; Reaffirmed HOD 2024)

95.986             DNR Within New York State Correctional Facilities: SUNSET HOD 2014

95.987             Expert Medical Witness – Ethical Guidelines of MSSNY Members: 

MSSNY declares as an “Ethical Consideration” that physicians should aspire to the following objectives in providing expert medical testimony: (1) In order to have the requisite skill, knowledge and expertise to offer expert medical testimony, medical experts should devote the greater part of their professional activities to practicing their specialties rather that testifying in litigation cases;  (2) That when medical experts do offer testimony in litigation cases, their testimony should be objective, represent generally accepted facts reflecting the consensus of the scientific community, consist of verifiable scientific truths and be limited to testimony in his/her sphere of professional medical expertise.

MSSNY defines an “Ethical Consideration” as a principle intended to be aspirational in character and which represents objectives toward which every member of the profession should strive.  An Ethical Consideration is intended to provide principles upon which a physician can rely for guidance in specific situations.  Being aspirational in character, while every member of the profession should strive toward the attainment of the objective, the failure to attain the objectives of the Ethical Consideration does not subject the individual to disciplinary action.  MSSNY will seek appropriate legislation that would require individuals to satisfy the requirements of paragraphs 1 and 2 above in order to be qualified to provide expert medical testimony.  (Council 9/22/94; Reaffirmed HOD 2000-82; Reaffirmed HOD 2014; Reaffirmed HOD 2024)

95.988             Ownership of Medical Facilities and Self-Referral:  SUNSET HOD 2014

95.989           Physician-Assisted Suicide and Euthanasia:

(Council 5/14/92; Reaffirmed HOD 1995-80; Modified and reaffirmed HOD 2014; Replaced by HOD 2015-162;  Rescinded HOD 2024)

95.990             Futile Cardio-Pulmonary (CPR) Resuscitation Therapy:  SUNSET HOD 2014

95.991             Gender Disparities in Medical Care and Research:  SUNSET HOD 2014

95.992             Capital Punishment – Physician Participation:  SUNSET HOD 2014

95.993             Advance Directives:

MSSNY endorses the right of an individual to make an informed decision in advance of incapacity in order to guide surrogates and providers with treatment decisions.  (HOD 1988-40; Modified and Reaffirmed HOD 2013; Reaffirmed HOD 2023)

95.994             Pharmaceutical Companies – Compensation for Specified Prescribing Practices: SUNSET HOD 2013

95.995             Terminal Care – Directives For: SUNSET HOD 2013

95.996             Life Sustaining Apparatus, Withholding and Terminating: SUNSET HOD 2013

95.997             DNR – Do Not Resuscitate – Guidelines for Physicians, Hospitals, and Nursing Homes:. SUNSET HOD 2013

95.998             Neonates – Decision Making for Treatment of Disabled:  SUNSET HOD 2013

95.999             Euthanasia:  SUNSET HOD 2013

[1] Note by General Counsel – Article 29C of the Public Health Law, which became law on July 27, 1990, establishes a procedure for individuals to appoint health care agents to make health care decisions in the event the individual loses capacity to make such decisions. [2]  At this point, this remains MSSNY position and the policy in whole states: 95.989 Physician-Assisted Suicide and Euthanasia: Patients, with terminal illness, uncommonly approach their physicians for assistance in dying including assisted suicide and euthanasia. Their motivations are most often concerns of loss of autonomy, concerns of loss of dignity, and physical symptoms which are refractory and distressing. Despite shifts in favor of physician assisted suicide as evidenced by its legality in an increasing number of states, physician-assisted suicide and euthanasia have not been part of the normative practice of modern medicine. Compelling arguments have not been made for medicine to change its footing and to incorporate the active shortening of life into the norms of medical practice. Although relief of suffering has always been a 4 fundamental duty in medical practice, relief of suffering through shortening of life has not. Moreover, the social and societal implications of such a fundamental change cann