This article is one of MANY we’ve published specific to surviving/addressing Board complaints. Click the links below to read more content related to this important topic. The information presented on this site is for general educational purposes only. It is not specific medical or legal advice. Nothing on this site should be construed as establishing a doctor-patient or attorney-client relationship.
- Surviving Medical Board Complaints Part I – Understanding the Essentials
- Surviving Medical Board Complaints Part II – Navigating the Process
- Dealing with Medical Board Complaints: Part I
- Dealing with Medical Board Complaints: Part II
A Board complaint can feel like a bolt of lightning. But there is one key difference: Medical Board complaints don’t fall from the heavens. They seem to rise from the depths of hell.
Excluding a malpractice lawsuit, Board complaints occupy the top of a list we’ve affectionately dubbed: “The List of Things Doctors Fear the Most.” And we fear Board complaints for good reason. They have the power to permanently alter the trajectory of our careers, and frequently for the worst.
The good news: Solutions and best practices do exist.
This piece will share general tips – best practices useful in navigating a variety of Board complaints. We’ll open with the basics. We’ve also identified six “traps” that doctors can unintentionally spring when preparing a response to a medical Board complaint.
Before we dive deeper, some advice: If you are dealing with a Medical Board complaint, schedule a consultation with our Founder and CEO, Jeff Segal, MD, JD. A little background: Our Founder and CEO, Jeff Segal, MD, JD was sued for a meritless reason. The case was thrown out, but the experience of being sued galvanized him. Dr. Segal acquired his law degree and created Medical Justice – an organization dedicated to protecting doctors from medico-legal threats. And we’ve been at it since 2001. We have experience helping doctors navigate Board complaints.
Without further delay, on to the main event.
Who can file a Medical Board complaint?
Anyone with an ax to grind. If the patient (or a patient’s family) can scrounge together the capital required to put a postage stamp to an envelope ($0.55 as of July 2020), they are equipped to propel a compliant. Electronic mail works just as well. The bar is low. And when the bar is low, it is not shocking when unqualified and frivolous complaints enter the ecosystem.
Our next point: Depending on your situation (and your state), identifying the patient responsible for propelling the complaint can be as challenging as identifying the exact storm cloud responsible for sending a lightning bolt through the roof of your house.
So – take preemptive action. Ask your malpractice carrier about Board complaint coverage BEFORE the worst happens.
It’s a “belt-and suspenders” approach. Your existing malpractice insurance may claim to cover Board complaints, but the coverage present is most likely puddle deep. If you don’t know how (or if) your malpractice insurance covers Board complaints, figure it out. Now. Contact your carrier and determine your level of coverage specific to Board complaints. If your present coverage does not cut it, increase it. It’s not particularly expensive.
And as you may have guessed, Board complaints are triaged prior to investigation. Complaints linked to the following themes receive the highest priority.
Substance abuse…
Sexual harassment or boundary violations…
Severe violations of the standard of care…
If yours is linked to one of the three core themes described above, prepare for an aggressive response.
Now that we’ve addressed the basics, we’ll describe several hypothetical Medical Board complaints, along with several hypothetical solutions. Best practices will be reinforced. Traps and missteps will be spotlighted for your education.
Medical Board Complaint Case Study 1: Doctor’s Case Shredded by His Own Records
A doctor receives a patient complaint. The doctor recognizes the patient propelling the complaint and knows the patient has many unpaid bills. The complaint alleges you have routinely billed him for visits/treatments that never transpired. You know your own records can vindicate you. You assemble these records and share them with the entity investigating the complaint, confident your own “bullet-proof” record keeping protocols will quickly end this farce.
The trap: Supplying too much information is dangerous…
The remedy: Seek qualified counsel as soon as you know there’s a problem
In this scenario, the doctor has created a substantial risk by supplying documentation that is not directly relevant to the original complaint. The Board may conduct a thorough investigation and find evidence of a different issue.
For example, the Board may find out the person responsible for keeping the medical records was routinely dragging his feet. The notes could have been recorded late, or a patient’s informed consent may not have been properly documented.
The doctor in this hypothetical scenario supplied more data than was necessary to address the complaint because he believed doing so would afford him an extra layer of protection. This represents a defensive maneuver that could have landed him in a minefield if the stars aligned.
Reduce this risk by seeking qualified counsel first. If you own your own practice, contact your malpractice carrier and set up an appointment with counsel. If you are employed, contact the administration and get in contact with their legal counsel. Meeting with qualified legal counsel eliminates a substantial amount of risk. For one, they’ll review your response and eliminate mistakes. Next, they’ll assess the patient’s initial compliant, study the record requests, and stop you from supplying irrelevant information. If the Board asks for all records, then, of course, send what the Board requests. If they are merely looking for your response, keep it simple.
When responding to Board complaints, do not supply more information than is required. The “weight” of the “paper” you’ve supplied may crush your own head by mistake. Walk alongside seasoned experts instead. Schedule a consultation to learn how we can help.
Medical Board Complaint Case Study 2: Doctor Derails Board Interview By “Bad Mouthing” His Patient
A patient propels a Board complaint against a doctor. The complaint states the doctor accosted a patient with vulgar and sexually explicit language. The doctor supplies a response, and the Board responds by requesting the doctor appear for an interview. The doctor does so, and perceives the entity hosting the interview is “on his side.” Emboldened by the perceived sympathy, the doctor describes the complaining patient as “unhinged”, “hysterical” and a “crazed nut.”
The trap: The doctor has allowed his emotions to flare…
The remedy: Keep cool, no matter what…
The hero of our story has injured his chances of emerging from the complaint unscathed. Recall the nature of the complaint: The doctor was accused of speaking inappropriately to (and about) a patient. The Board’s representative is searching for evidence that supports that allegation. Referring to any patient in a derogatory manner will be perceived as evidence corroborating this patient’s complaint.
Medical Board Complaint Case Study 3: Death by Online Chatroom
Let’s pretend the doctor described above conducts himself perfectly during the interview. He relieves some stress by posting about his experiences online. Much to his delight, the doctors in the private chatroom seems to rally in his favor. Emboldened by the support of strangers, the doctor discusses the event with his friends.
The trap: In pursuit of sympathy, the doctor has revealed private info about the Medical Board complaint to the others…
The remedy: Choose your confidants carefully…
Art has the power to make artists immortal. But the internet has the power to make all of us immortal. Remember these words: If it’s on the internet, it lives forever.
And if it is on the internet, assume it can be retrieved by a third-party and used against you. Posting private information (about a Board complaint) on the internet (even a supposedly private chat room) is like loading a gun, disabling the safety, hiding that weapon somewhere inside of your house, and then forgetting about it.
It may relieve stress in the short-term, but it creates risk in the long-term. If you need support, lean on your spouse or a parent.
Medical Board Complaint Case Study 4: Loose Lips Sink Ships. But Tight Lips Piss Off the Board.
To eliminate the risk of oversharing, a doctor may compensate by answering all questions as concisely as possible. He may limit his vocabulary to: “Yes”, “No”, “I don’t know”, and “The answer can be found in the records.”
The trap: The doctor has, without evidence, convinced himself a tight-lipped approach will protect his best interests…
The remedy: Strike a balance…
The safest option is often the median of two extremes. Volunteering too much information is a problem. Supplying too little information is just as dangerous.
Why? Reflect on the example we described earlier – the one about the doctor who insulted his patient. Why did he do it? Because he thought he befriended the Board’s representative. The doctor in this scenario has done the opposite.
He’s made an enemy of the Board’s representative, when the representative is neither his friend nor his enemy. The interviewer is a go-between. It is his job is extract information (facts) from the doctor and deliver that information to his overseers. Recall the point we just made: The Board exists to protect the best interests of the public. A doctor who supplies muted responses will likely be perceived as arrogant or uncaring.
By making an enemy of the investigator, you make yourself an enemy of the Board, and by extension the public. You don’t want to wear that crown. Schedule a consultation to learn how we can help you prepare for such an interview.
Medical Board Complaint Case Study 5: The Doctor Who Was Bribed
Let’s pretend the doctor-patient relationship has soured. Why? The doctor caught his patient selling her pain medication – the same medication for which the doctor has written multiple prescriptions for her. In response, he formally terminated his professional relationship with her. In response to his response, the patient flew to the Board with an abandonment complaint.
Just as the doctor starts to sweat, the patient calls his office and attempts to make a deal: “I’ll withdraw the complaint if your practice accepts me as a patient again.” The doctor is a smart cookie and reads between the lines. The patient wants more pain medication. The doctor compares the impending investigation against the comparatively “smaller” headache presented by the patient’s company. He decides she’s less offensive than an investigation and considers allowing her to return to his practice.
The trap: The doctor just allowed himself to be manipulated…
The remedy: Never take an action that could be perceived as trading something of value for the dissolution or withdrawal of a Medical Board complaint…
Put yourself in the shoes of this patient. You know the patient is untrustworthy on a sunny day. Once you prove to the patient that you can be manipulated, expect her behavior to go from bad to worse.
The smoking gun: By allowing the patient to return to your practice in exchange for a withdrawal of her complaint, you’ve engaged in a trade. The Board will not see a doctor who was bullied into a hard decision by a manipulative patient. They’ll see a doctor whose behavior can be bought. And the cost of that action could literally bankrupt you. If you are dealing with a manipulative patient, . We can help.
Medical Board Complaint Case Study 6: What NOT TO DO When the Complaint is Warranted
Pretend a patient has propelled a complaint against you. The complaint specifies an egregious error in the prescription you wrote. Disaster was only averted because the pharmacist recognized the mistake. You know the mistake could easily be characterized as negligence. Your lawyer insists you be honest about this matter, and you agree. He also suggests you volunteer to complete training specific to record-keeping. You can see his point, but fear volunteering for this kind of training is an admission of incompetence.
The trap: The doctor’s ego is preventing him from suggesting remediation…
The remedy: Always be prepared to suggest remediation…
Should you follow your lawyer’s advice?
We say: Yes.
When the investigation eventually adjourns, the Board should look at you and see a doctor, not a potential future problem. That is your goal. Suggesting remediation proves you understand there was a real problem. It demonstrates you are already thinking about what you can do to make things right. Preventing a future problem. Offering such a remedy will likely help your case. And look – in this imaginary scenario, you are already being investigated by the Board. They already have reason to believe something went wrong. Your reputation has already been injured. You are on the defensive by default.
Your goal is not to “preserve” a spotless reputation, but “repair” a reputation that’s already been damaged. Volunteering for additional training demonstrates your commitment to fixing the problem and preventing future problems. What you volunteer to do will often be less painful than what the Board mandates you do.
If the Medical Board complaint levied against you was propelled by a bona fide error, don’t gloss over it. Be honest and suggest remediation.
Regardless of your circumstances, we close with this: When navigating a Medical Board complaint, you don’t have to walk alone.
This article is one of MANY we’ve published specific to surviving/addressing Board complaints. Click the links below to read more content related to this important topic…
Jeff didn’t pose a question, but I’ll answer the one that is on EVERY PHYSICIAN’S mind (unless of course they KNOW they have transgressed, e.g. Case #6, which is the minority) when they receive notice of an investigation from their board. That question is,
“I haven’t done anything wrong, so why shouldn’t I just bare my soul and not risk alienating them by getting a lawyer?” Well, Jeff has answered that question for you. I’ve studied medical boards for two decades now, and I understand them fairly well.
Medical boards are most assuredly NOT there to help you to be a better doctor, but rather, view themselves as being divinely and uniquely empowered by legislatures, and equipped, by virtue of their good professional standing and dedication to regulation, to ensure patient safety. So they will take every shred of potential evidence and interpret it in the way most supportive of the patient. In a way, they MUST do this to justify that what they are doing has merit. Of course they keep disciplinary statistics, and used to openly compete with one another at FSMB meetings to prove to the likes of Sidney Wolfe (Public Citizen) and the plaintiff’s bar that they are doing their jobs by disciplining “bad doctors”. If you are not really bad, well, you can still become a useful statistic, if you are not perfect.
And NO ONE regulates medical boards, there are very limited rights to appeal, and once you start down the rabbit hole you are not likely to emerge unscathed, if at all.
So no matter how sure you are that you are blameless, I can’t stress too strongly that you are risking your livelihood if you gamely take on this deck of cards stacked firmly against you, alone. Far too many good doctors have realized this only too late. Furthermore, when seeking counsel, DO NOT rely on the board’s suggested list. Those they recommend may very often be former board counsel, and although yes, they may know the ropes, they may also not be willing to risk loss of such easy business referrals by challenging their former colleagues too effectively. Get a consultant who can direct you to effective counsel (some of these may be former board counsel, but you need to find out which). An excellent place to start would be Jeff.
The other key mistake I see in physicians, also mentioned, is the failure to know UP FRONT how much coverage you have for regulatory challenges, and to top it up EVEN IF YOU ARE QUITE CERTAIN YOU WILL NEVER NEED IT BECAUSE YOU ARE UPSTANDING. It is cheap, and may be hard to get after someone has implied that you are not. I would like to ask Jeff how much coverage he would recommend as a rider to your liability policy so as to have a lake, and not a puddle.
I have no COI, incidentally, as I do not represent legal clients. I help get docs deal with the stress of any kind of litigation, including board challenges.
Many professional liabilty policies add a $25 to $50k rider to address Medical Board complaints. While this is better than nothing, doctors would be well served to have 100k to 250k of coverage. It does not take much for a medical board complaint defense to exceed what is provided gratis from med mal carrier. After that point you’d be digging in your pocket to pay bills. Purchasing extra coverage is generally a bargain.
There is a another can of worms regarding boards of medicine, that I have read a lot about. That involves requests for psychiatric evaluations, etc. While this can start out from sham peer review proceedings at hospitals it can proceed to the board level. The costs to go to approved psychiatry practices or facilities can run to the thousands and may not be covered by health insurance. Failure to cooperate with the psych eval or facility because of perceived bias (which often is the case in order to keep those board referrals coming), can be devastating for one’s career. But even a cooperative physician may find that additional treatment is recommended even when there is no pathology (again the psych facility is feathering their own nest. Restrictions or prohibitions to one’s practice continue almost endlessly from the horror stories I have read about.
The bottom line is that the board investigators are trained to try to gain your confidence and admissions against interest. They are not your friends. They are there to sink you as a physician, so you can be on their trophy wall. The competition among boards to see who is toughest on physicians is real, and has existed for more than 20 years. This monopoly on control of medical practices should be abolished because of numerous board abuses written about across the country. AAPS successfully sued the Texas Board of Medical Licensing because of its egregious behavior, and abuses. The Boards of Medicines are not defenders of physicians. In fact in most cases the boards are not even run or controlled by physicians. They are often run or controlled by the chief legal counsel. In one particular state that I am aware of the lead counsel allegedly terrorized the board and the state’s physicians, for decades. Then left for a southern state and fulfilled a similar role in that state board of medicine. He lasted there for 1.5 years and was thrown out for alleged sexual abuse of employees as I recall the story. Since most physicians are now employed, they are powerless to do anything but go along with sham peer review, and board dictates even if not reasonable. Physicians have targets on their backs and should consider themselves as targets. Most physicians even after decades of discussions pf these issues, feel that they could never be a victim of board persecution until it happens to them. These can be career ending events. Most board – physician events do not end well.
Just a question regarding case/situation #4. Is confidentiality out the window once a complaint is made–regarding giving information to the Board? I assume that a patient can’t really expect information regarding him to remain privileged, right? I assume that a physician can use whatever information is relevant to the case to defend himself.
Or am I mistaken?
The Board generally asks for the full medical record, and you can use the full medical record to defend
This was a very well written article, and Louise’s comments are right on point. In my experience, most cases include elements of more than one of the case studies above, which significantly increases the complexity of the management of these cases.
I completely agree that these are not “do-it-yourself” cases for doctors, and lawyers are essential to their defense. However, I cannot claim no conflict of interest because my legal practice is limited to the defense of healthcare professional licensing complaints, i.e., board complaints.