We have a federal system, where states make their own rules regarding the practice of medicine.
One criticism is that doctors can be disciplined in one state, move, then get a fresh start in another. The National Practitioner Data bank was designed to serve as a repository of information to make it harder for such physicians to escape scrutiny.
Still, in many states, one can disclose what triggered some form of discipline, and receive different outcomes, depending upon the underlying “offense”, the actual restriction, and how much time has passed.
A recent Texas statute aimed to limit this discretion by its Medical Board.
HB 1998 reads,
SECTION 6. Section 155.003(e), Occupations Code, is amended to read as follows:
(e) An applicant is not eligible for a license if:
1. the applicant holds a medical license that is currently restricted for cause, canceled for cause, or suspended for cause[, or revoked] by a state, a province of Canada, or a uniformed service of the United States;
2. an investigation or a proceeding is instituted against the applicant for the restriction, cancellation, suspension, or revocation in a state, a province of Canada, or a uniformed service of the United States; [or]
3. a prosecution is pending against the applicant in any state, federal, or Canadian court for any offense that under the laws of this state is a felony or a misdemeanor that involves moral turpitude; or
4. the applicant held a license to practice medicine that has been revoked by the licensing authority in another state or a province of Canada for a reason that would be grounds for the board to revoke a license to practice medicine in this state.
Interestingly, one interpretation is that if a physician loses his license in state X, and THAT state does allow the doctor to reapply for a license after sufficient time has passed, and its Medical Board is assured that the doctor can practice safely, well…
That doctor is still foreclosed from holding a Texas license.
Meaning, a time-limited revocation of a license in one state can amount to lifetime revocation or lifetime ban on applying / receiving a Texas medical license.
California, like many states, allows for “reciprocal discipline.” Meaning professional discipline by one state medical board can translate into parallel discipline by the Medical Board of California. Out of state discipline can still trigger in state California discipline even if the event which triggered out of state discipline would not have triggered in state California discipline.
California Business and Professions Code Section 141 provides:
“(a) For any licensee holding a license issued by a board under the jurisdiction of the department [of Consumer Affairs], a disciplinary action taken by another state, by any agency of the federal government, or by another country for any act substantially related to the practice regulated by the California license, may be a ground for disciplinary action by the respective state licensing board. A certified copy of the record of the disciplinary action taken against the licensee by another state, an agency of the federal government, or another country shall be conclusive evidence of the events related therein.
Even in cases where the out-of-state action would not have been grounds for discipline in California, section 141 permits the Medical Board to impose discipline. In other words, Section 141, is the catchall statute designed precisely for the situation where the out of state misconduct does not mirror the disciplinary scheme in California such that the precise nature of the disciplinary action can be discerned (i.e., simple versus gross negligence). (Medical Board v. Superior Court (Lam) (2001) 88 Cal. App. 4th 1001, 1018-1019.)
California SB 815 which took effect January 1, 2024 includes:
A licensee whose license was surrendered or revoked for unprofessional conduct must wait five years to submit a petition to have their license reinstated, although the Board may specify in the disciplinary order that they may file such a petition after three years.
Arguably, even with reciprocal discipline imposing a lifetime ban on a medical license in one state, California would still entertain an application for a license to practice medicine. That is not to suggest the license would automatically be granted. It wouldn’t. The bar would be high. And California would have discretion to say no. But, at least in theory, at some point, the application could be considered.
Lawyers have considered the matter of lifetime disbarment. In one review article from 2007, Should Permanent Disbarment be Permanent, the article noted each state treats disbarment differently.
According to Black’s Law Dictionary, “disbarment” is “[t]he action of expelling a lawyer from the bar or from the practice of law, usually because of some disciplinary violation.”22 The definition goes on to note that while “disbarment is typically [] permanent…, in some jurisdictions a disbarred attorney may [] petition for readmission.”23 If you were to ask the average, non-lawyer American if disbarments are permanent, they would likely answer “yes.” The public therefore might be surprised to learn that, in the majority of states, disbarments are not permanent. As advocated by the Model Rules for Lawyer Disciplinary Enforcement (Model Disciplinary Rules), 25 most states treat disbarment as something of an indefinite suspension of a license to practice law-i.e., you lose your license but, if you behave and ask for forgiveness, the bar might permit you to return.
In 2007, when this article was written,
California officially became the 14th state to allow for some form of permanent disbarment in September 2006. 27 Courts in the remaining 35 states and the District of Columbia allow disbarred attorneys to apply for readmission in as little as three years. Bank robbers, drug ring participants and “black market baby brokers” have all managed to return from disbarment, but is it wise to allow these individuals to practice?
Five states mandate that all disbarments be treated as permanent. Eight states allow for disbarments to be permanent in some situations. In these states, when disbarment is not permanent, readmittance can either be applied for in seven years, five years or at any time, depending on the jurisdiction. Two states have no official procedure for permanent disbarment, but applications for readmittance are approved so infrequently that they are considered de facto permanent disbarment jurisdictions.
The remaining 35 states and the District of Columbia have no procedure for deploying permanent disbarment. 43 There is, however, some variance in the length of time before a disbarred lawyer may apply for readmission. Massachusetts is the strictest jurisdiction, requiring that the disbarred lawyer wait at least ten years. Colorado has the second longest period at eight years, followed by New York at seven, and Washington at six. The majority of the remaining states require a five year waiting period, while a few states require three, or have not established any pre-determined length of time. While states have established many different standards for readmission, California is the most recent to adopt permanent disbarment.
As noted, the review article was published in 2007, and it’s likely the details have changed. Still, the article addressed the reasons, pro and con, for a lifetime disbarment.
In favor of permanent disbarment:
a. Permanent disbarment prevents misleading the public.
“The legal system exists largely on trust. The general public, while finding individual lawyers somewhat distasteful, has trust that the legal system as a whole is not an elaborate swindle. The use of permanent disbarment helps to strengthen this trust. The general public already assumes that disbarment is permanent.”
b. Permanent disbarment helps improve the public perception of lawyers.
“Lawyers traditionally rank low in public opinion surveys. As a profession, lawyers are not perceived to be honest or ethical. The lack of severe punishment for extreme wrongdoing only helps solidify that perception. A public awareness that unethical misconduct is punished severely will encourage a more positive perception of practicing lawyers.”
c. Permanent disbarment helps prevent danger to the general public.
“The recidivism rate for disbarred attorneys is distressingly high. Louisiana, for example, reported that 10 out of 23, or 44%, of lawyers who had been readmitted to the bar after disbarment found themselves facing new disciplinary charges. These numbers, while taken from a small sample, indicate that not every lawyer who is given a second chance deserves it. Furthermore, these readmitted lawyers are a more significant risk to the financial and legal security of the unsuspecting public than the remainder of the bar. The legal profession may be better served by prohibiting these disbarred lawyers from reentering the bar than by taking the chance that 50% of them might fail to live up to their ethical standards. The cost of this recidivism to the profession as a whole is simply too high.”
Against permanent disbarment:
a. Redemption.
If a person makes a mistake, and later makes it right, they should not be punished for life.
b. The possibility of return encourages good behavior.
“Once a lawyer has been disbarred, he may encounter a sense of hopelessness. These lawyers have often been practicing law for their entire adult lives and may not have viable career alternatives open to them. If this is the case, and there is no hope for return, the possibility of that person obtaining an equally valid and valued position in society is low. Permanent disbarment could push such a lawyer into criminal activities, especially those to which his education may make him particularly well suited.”
c. Applicants for reinstatement already face a heavy burden.
“Every state bar that allows for reinstatement maintains discretion over which lawyers are readmitted. The state bars look at a variety of factors before approving a candidate for readmission, including whether underlying causes for the misconduct have been rectified, whether debts have been repaid, and the likelihood of future misconduct. In California, 97% of disbarred lawyers are denied readmittance. If permanent disbarment is meant to protect the reputation of the profession as well as to protect the public in general, why not simply allow judges to use their discretion to serve this goal? If a lawyer can prove that he is no longer a threat to the profession or to the public, there is no gain from forbidding him to practice. If judges have this discretion, permanent disbarment may be too inflexible a solution for the problem of lawyer misconduct.”
Being granted a license to practice medicine means the physician has been entrusted by society to properly serve the public. The state has an interest in protecting public health.
Still, a lifetime ban is a heavy bar.
What do you think?
Medicare Boards are in a severe “public relations crunch” regarding permitting previous revocations permission to practice (in any other state). There are often associate members who are not licensed, but still sit on the Medical Board to voice an opinion regarding any attempt for re-licensure. They serve as a policing function.
In most cases it is just “easier” to deny permission to get a license than to permit it. The cause of the revocation is an issue. For example, issues of moral turpitude are more seriously regarded, particularly if the original revocation was due to an “inappropriate” patient contact/boundary issue.
Drug/alcohol offenses are usually considered less serious. Loss of license for Medicare fraud varies between state boards. Some are more severe than others. The National Practitioner Data Bank was originally designed to limit re-licensure. But physicians can get reported to the NPDB for spurious, non-practice, non-competency reasons.
There is literally NO downside for hospitals to report to NPDB. It can be used as a cudgel to attack and control any situation, irrespective of alleged physician misconduct. When Senator Ron Wyden set it up, it was allegedly designed for prevention of bad doctors to practice elsewhere.
I think it is also reasonable to assume that Wyden also wanted to punish doctors who might not vote for his political party. Most private practice doctors do not typically vote for his party. Almost all of the physician control issues in Congress started and ended with Democrats. That remains true to this day.
Michael M. Rosenblatt, DPM
If the question is, ” can a doctor “data banked” in a state or in another state, “move on” successfully? This is a huge question but I will attempt to give a rule of thumb based in 24 years of experience.
Usually, a doc is screwed if data banked. However, there ARE exceptions to this rule. There IS hope !!!!
There IS hope !!!!
Usually at this stage, the doc does almost everything wrong when he reaches this obstacle. And that is really sad considering doctoring is his/her life.
Richard B Willner
The Center for Peer Review Justice
The TBME is a terrible organization hidden in the shroud of secrecy.
This discussion ignores the interstate compact Federation of Medical Licensure Boards. This body assures that any action against a physician in one state is immediately communicated to all other boards.
This is completely independent of the National Practitioner Data Bank.
The NPDB has served to permanently punish physicians and assign them a scarlet letter such that they will never be able to practice again. The NPDB doesn’t make any distinguishment between hospital political issues, actual bad practice, a one time mistake, a malpractice case that was not deserved, or any of the several other reasons that reports may be generated.
Hospital political issues which are clothed in false allegations should be easily seen through based on the paperwork documentation. But the NPDB doesn’t make such determinations, they just accept them as fact.
Most malpractice claims (in the past this number approached 80%) were decided on the side of the physician. These were reportable even if they were decided in favor of the doctor.
Some specialties are known to be high risk, ie neurosurgery and OB. Does the NPDB make any distinction for this? NO.
Who files these malpractice claims. Attorneys. Why do they do so? The bar for malpractice filings is pretty low. The attorney’s take these on the basis of contingency. The lottery ticket for a win is enormous for the attorney. There is an enormous cost to the system for this.
Indiana used to have a malpractice physician panel that would review cases to decide if there was merit to the malpractice claim or not. If not, the case did not proceed.
However, it has been well studied in the literature that there is significant outcome bias.
In other words, if there was an adverse outcome there was significant likelihood of finding malpractice, by the physician reviewer. In a similar case with no adverse event, even though the care WAS THE SAME, no finding of malpractice was judged.
Do the attorneys know this. Yes. Do they care? No.
Does the NPDB know this? Yes. Do they care? No.
Do the Medical Licensure boards know this? Yes. Do they care? no.
Why is this? Well the NPDB and the Medical Licensure Boards consider themselves to be doing well by how many physicians they punish.
We also know that about 30 years ago many previously civil issues were reclassified as criminal by the justice system.
Could we easily characterize the difference between major and minor issues? Of course. Should we? Yes. We have too large a shortage of physicians to be taking physicians off the field for minor issues. Could we have a more nuanced system that treats issues differently, based on individual circumstances, and history of the physician? Of course!
Why don’t we?
Currently the system simply exists to punish as many physicians as possible, where civil penalties would be more appropriate or re-education would be more appropriate.
What about issues like the federal government weighing in, in the 1990s creating pain as the 5th vital sign? That led to many physicians over prescribing because if they did not, and a patient complained about not having their pain treated adequately, the doctor would be sanctioned and sued.
Prior columns have frequently described circumstances where it would be impossible for a physician, without a lawyer present, to know what was the appropriate thing to do. That is how convoluted the laws have become. Does that allow attorneys to litigate against physicians? Of course? Should it be allowed, when the laws are contradictory, confusing and not in plain language? No.
Where does this leave us? Physicians (dentists, podiatrists, etc) have a target painted on their backs. I have discouraged my kids from going into medicine. But who is going to care for us? Has the care declined, with less time to speak to a physician, physician extenders in place to substitute for a shortage of physicians, scribes present (compromising physician patient privacy), etc.? Yes of course. Is there a solution on the horizon? No. Not until there is a significantly higher bar to protect physicians.
One understands the need to protect patients.
However in most cases it is the physician that needs protection from the patient that is aided and abetted by unscrupulous attorneys.
How many times in one year does one need to see an attorney?
For most of us, once per year or less.
How many times in one year does one need to see a physician?
For most of us, several times per year.
So why is it that there are more attorneys in the US. 1.3 million, versus physicians 1.1 million?
Our system is broken and expensive and needs to be fixed.
We also need laws of equivalence so that attorneys are held to the same legal standards, as physicians are in medicine, and as would be true for any profession, since we are all supposed to be equal under the law. Clearly these are not equal between the professions, but they should be.
Jeffrey you are providing an excellent service. Thank you so much for your passion and education on the fine points between how lawyers and doctors are treated by their licensing boards. You should be speaking at all medical school and residency orientations. Our young docs just getting started have ZERO medicolegal educational resources and are in harms way and completely ill-prepared for the violations they may face. Prevention is key. Having a great attorney who gets it is invaluable. I’d love to hear your take on what could have been done to prevent the destruction of Jacob Neufeld MD (suicide victim under care of PHP at time of his demise after enduring character assassination). More here: “Whistleblower’s Wish: Dr. J’s Last Words” https://www.idealmedicalcare.org/whistleblowers-wish-dr-js-last-words/ (he left a 7-minute suicide selfie video with very specific instructions for his still-living peers to seek justice).