Ask doctors what they fear the most and almost all will say being sued for malpractice, but another challenge poses no less a risk to their careers: a complaint to a state medical board.
Filing a complaint requires no more from an aggrieved patient or family member penning their beef and finding a postage stamp or tapping the “Send” button.
Understanding the process and being appropriately insured against a board complaint are vital for any practicing physician.
Let’s deal with the second issue first since it is actually the simpler one.
Most doctors assume that board complaint legal defense is covered by their medical malpractice insurance. That coverage may be functionally very shallow. $50,000 from a rider will be eaten up very quickly. There may also be a shared coverage with a larger group that then reduces coverage available for a malpractice claim.
The first step is to clarify with your carrier exactly what coverage you have and increase your limits if they are inadequate.
Now, let’s move onto the process, since that is where doctors can often be their own worst enemies.
When a complaint is received by the board it is first screened for jurisdiction and then set a priority for investigation. Complaints that present the possibility of imminent patient harm, such as egregious departures from the standard of care, sexual misconduct and substance abuse receive the most immediate attention and may result in summary license suspension. In most cases, though, the doctor and the complainant will just be notified formally that the matter is in process.
However, unlike litigation, in which the plaintiff is known from the start, the doctor may not even be informed of who the complainant is. Some states, like Georgia and Maryland, still accept anonymous complaints, and even though most states no longer do, they may withhold the complainant’s identity unless there is a hearing. This is based on the public policy that people should feel free to come forward on matters that affect the health of the community, but in a practical sense, it leaves the doctor at a disadvantage unless they recognize who complainant is from the stated facts.
The investigators will then identify individuals and institutions with relevant information and request statements and records. This can be done by subpoena if necessary. HIPAA and state confidentiality laws permit the records to be provided without the patient’s authorization and boards can actually obtain records even if the patient refuses, again on the basis of public health policy. There are exceptions. For example, if the doctor has sensitive psychiatric records and the patient does not want to give their records to the board, the doctor can (and often must) force the board to obtain a judge-signed subpoena and even work to quash that subpoena. That is the exception to the rule, though.
After receipt of documentation, the board conducts its review. This may end the matter for minor or obviously false complaints. For more complicated matters, it may bring in experts. It may hold a hearing, with the presentation of evidence and witnesses. The formal rules of evidence and testimony that apply in a court will not bind the board and the board is not required to share its own information, even if it is exculpatory.
The board may offer a Consent Agreement to the doctor. That permits the doctor to acknowledge malfeasance and accept specified sanctions. Whether or not to accept this offer or request a hearing to present evidence and confront witnesses depends on the strength of the case.
The evidentiary standard that the board will ultimately use is likely to be “preponderance of the evidence.” This standard is often criticized because it is the standard used in civil cases where all that is at stake is monetary damages, while in cases that can affect a doctor’s license, the board, while solely administrative, is still acting in a quasi-criminal capacity. Some states, such as California, Florida, and Illinois, therefore use the higher threshold of “clear and convincing evidence.” No jurisdiction, though, requires “proof beyond a reasonable doubt.”
The board’s final ruling may be an exoneration of the doctor, a letter of concern, a fine, a requirement for corrective action, a license limitation as to certain areas of practice, a license suspension or a license revocation.
Whether a doctor can appeal a board’s decision depends on the state. Courts generally have no inherent appellate jurisdiction over what administrative agencies – which a medical board is – do. However, some states, like California, have created that option through separate statutes.
Rulings in the physician’s favor are not publicized – the entire matter is closed internally and never reaches the public at all. Disciplinary actions, though, will be available through the FSMB Physician Data Center. Patients can access this information through their state’s medical board or through docinfo.org. An adverse board action and any penumbral effects that it has on matters like privileges are also reportable to the National Practitioner Data Bank.
Medical Justice Comments
…so there is a lot at risk here and within an apparently straightforward process there are actually very significant potential pitfalls for a doctor. In Part II, we examine some of those processes with a few sample scenarios.
How a doctor answers a medical board complaint will affect the course of his career – for better or for worse. During such critical junctures, it pays to have the advice of seasoned experts informing your decisions. Medical Justice has developed strategies for responding to medical board complaints professionally and completely – our objective is to guide you towards a favorable outcome.
The first inclination a doctor thinks when confronted by a medical board/hospital board complaint is:”I’ll sue the bastards!” Historically, most efforts along that line fail miserably and successfully denude your estate to potential bankruptcy.
Lawyers are used to using that “solution” because they are used to Constitutional rights. But you have no Constitutional rights to practice medicine. Medical practice is a state granted privilege. States have been free to manage that as they see fit.
The very first thing you need to do is identify whether the complaint is describing you as being a “disruptive physician.” The next thing is to stifle the urge to call the Board President and start screaming at him/her.
There are some specialists who can help you. NOT ALL ARE ATTORNEYS. Rather, they work behind the scene with the Board to “show signs of your impending co-operation,” and at the same time help to identify those who have a vendetta against you.
Medical/surgical practice is lined with differences of opinion. It is possible for those who wish to end your practice to look for and identify “departures from standard of care” by cherry-picking through your chart notes. The best way to avoid this problem is detailed, highly explanatory records. That consumes enormous time and cuts into your ability to see more patients as well as taking away personal time.
Make no mistake. This highly invasive phenomenon is caused by regulators, and has been considerably worsened by their election to Congress.
Be careful whom you vote for. If you vote for more regulators, that is what you will get. Your vote in the next election may put people into power who will take away your license to practice.
Michael M. Rosenblatt, DPM
Boards of Medicine have been sued by physicians (AAPS vs Texas Board of Medicine) among other boards.
There is a long list of outrageous behavior on the part of medical boards.
Even misdemeanor violations can result in license revocation.
But that is compounded because all boards report to each other, and all act in unison (collusion), to eliminate physicians whose license is affected in one jurisdiction by all jurisdictions.
Also one cannot just resign or surrender a license from a board.
The boards will not allow that if there is action pending against a license in another jurisdiction because they have to mete out punishment.
Moreover, even if there is no action against one’s license, failure to renew doesn’t eliminate the licensure. Though rules are different in many jurisdictions the unified licensing that is now available can result in one action removing licensure in all jurisdictions applied to.
The outrageous behavior of some attorneys on the boards of medicine, has caused them to persuade medical boards that non violent physicians with no patient care issues should be permanently excluded from medicine. There is no recourse. The board of medicine decision is final, because legislatures have given the boards broad discretionary powers to oversee medical practice. But board attorneys in a number of jurisdictions are notorious for their enmity against physicians. Some select board attorneys will overrule other board attorneys to be more punitive against physicians.
Over the past 30 years as medicine has been criminalized, and as more physicians have been ensnared in a legal web, boards of medicine have to prove how aggressively they are eliminating physicians from practice or face public scrutiny. So board public performance is directly related to the number of licensees they can remove from practice. This has been crowed about in numerous board newsletters. Fewer license removals translates to the board being easy on physicians.
The fact that the boards of medicine are judge, jury, and executioner (since the end of the medical professional career is attached to the end of licensure). This may have affected relatively few physicians 30 years ago. Now hundreds of physician licenses are removed per year. Many of these license revocations involve no patient harm. This seems inherently unfair in the US system of jurisprudence since physicians never get to face their accuser, nor do they get to have a hearing in front of an impartial jury of their peers. The board attorneys tell medical boards what to do, and they do it.
No one has computed how many additional medical graduates are required to replace knowledgeable physicians that have been subject to this process and removed from practice.
Since this is a relatively newer phenomenon over the past 30 years due to the criminalization of medicine, it is time to revisit the underlying causes of why physicians have been so ensnared.
In days past, there was an attempt to educate and train for errant physician behavior. Now, the process is all legal without education.
The only carve out is the impaired physician who seems to obtain favored treatment from the medical boards if they go through rehabilitation, no matter how many times they relapse. In many of those cases patient harm was an issue, but those physicians retain favorable consideration from medical boards.
The entire process from the criminalization of medicine, to the board actions against physicians as a measure of board success. must be reviewed and changed.
my favorite part of the process is the investigator who plays the “good cop” and just wants to ask a few “simple questions”, ” just to put this all behind you”- NOT!– what you say can and will be used against you and the best advice is to ask for questions in writing and get a lawyer who specializes in medical board issues – these specialists are available through contact with your state medical society- jmk
JMK makes a recommendation you contact your state medical society to obtain names of attorneys who specialize in board defense issues.
It is possible to concede that some of these attorneys have various connections with board members and can ride shotgun for your defense.
It is also possible to view some of them as shills for the Board and be more interested in obtaining enormous fees from you, only to leave you rotting like a dead trout on a sun-drenched dock.
Attorneys sue. That’s what they do, after collecting a 25,000 dollar retainer from you, a direct line to your estate. Once you start on that road, as you continue, their demands become insatiable, and in order to not just drop the whole thing…you go into bankruptcy.
To me, it makes sense to allow attorneys to help represent you through any procedural events, stopping short at threats to sue the board.
But working through the attorneys’ adversarial stance can and will close the door to a negotiated settlement.
The boards have unlimited funds. You can never compete with endless deep pockets.
Maybe you should look outside. I have worked as a consultant to a person, a non-Attorney who has vast experience working on the inside.
I won’t advertise his name openly, but if you’re interested, I can disclose his name privately.
Michael M.Rosenblatt, DPM
Here is the thing. If you have a hearing, you are guilty until and unless a miracle happens. They will not believe you even when the complainant is unhinged and showing an excellent result. In Texas, you want to take it to an administrative judge? Go ahead but understand thet #1. The Board will threaten you with even more offenses, and #2, you can prevail in court but The Board is under no obligation to accept the administrative judges findings.
So, of course, get yourself a lawyer, and even if you did nothing wrong, be prepared to take a hit. Going to court seems like more time away from your life and more time to agonize over a losing proposition.