Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Doctors fill out new and renewal applications on a regular basis. Medical licensure. Hospital credentialing. Professional liability coverage. In-network membership for health insurance carriers. The list goes on and on.
I have two active medical licenses. One renews every year. The other renews every other year.
Page after page of questions. The applications cast a wide net.
The only abridged application in my life is the renewal of my DEA license. Paradoxically, it’s the priciest.
One question I’m asked over and over is this. Do I need to include this [you fill in the blank] on the application?
Remember, most authorities have access to a number of databases allowing them to do an independent search. If you’ve been convicted of a crime, it will show up in some database. If you’ve been reported to the National Practitioner Data Bank, many organizations will be able to interrogate your past.
My guiding advice is this. If you are on the fence with an answer, you should generally (but not always) overdisclose. That is, answer “yes” to the question. Then provide an explanation in your own words. In that sense, you will be playing offense. If you answer “no” to a question, you will be rolling the dice whether the organization finds out a different version of your answer. If there’s a disconnect between your answer and the database’s answer, you will be called to task. The organization will want to know why you ostensibly hid the “true” answer.
A phrase that I recommend in your long-form response is this. In an effort to be fully transparent, I am answering “yes.” This is both an honest (subjective) and accurate (objective) answer. Here’s what happened.”
You are answering in your own words. It is the only time you will have total control of a narrative. You may even want to vet the language with an attorney. Words matter.
It’s possible you will be called in for an interview to more broadly explain “what happened.”
It may even be a stressful interview. Odds are high that you will fare better with that approach rather than later receiving a letter which says they believe your answer was inaccurate.
Recently, I spoke with a doctor who was almost 60 years old. He was applying for a medical license on the west coast. He answered “No” to whether he had ever been convicted of a crime. When he was 17 or 18, he had been convicted of petty theft. He could not even remember if he was considered an adult or not at the time of the record. (This actually does matter, because regulatory bodies generally are not allowed to ask questions related to events when the individual was a minor.) The license was granted, but there was a record that the physician failed to disclose a criminal event in an answer. This was published as part of the Board’s public hearings.
Will this matter to the physician’s career? Probably not. The event at issue took place decades ago. Still, the next time a matter comes up before the Medical Board about this physician, the less likely they will be to grant him a pass.
With all of this said, if the answer is truly “No” to a question, by all means answer “No.” You do not have to disclose a narrative to a question that was not asked.
Finally, a word about mental health.
Every state license application is different. In the past, some medical license applications asked probing questions going back, well, quite a way. The Americans with Disabilities Act mandates that license applications cannot probe about anything other than that which would affect your current ability to practice medicine. A typical question, from Massachusetts, asks: “Do you have a medical or physical condition that currently impairs your ability to practice medicine?” This is Kosher.
An article published in 2018 looked at the various state medical license applications in 2018 and divided them into categories. (Jones, et al. Medical Licensure Questions About Mental Illness and Compliance with the Americans with Disabilities Act. J. American Academy Psychiatry and Law. 46:458-471, 2018.)
The impetus for the analysis was a decision related to applications for the Louisiana State Bar:
licensure question that asked: “Have you within the past five years been treated or counseled for any mental, emotional, or nervous disorders?” The plaintiff argued the question was overbroad and not an effective way to identify unfit applicants, citing the APA position against status questions. The court concluded the question was in fact overbroad, ineffective, and had a strong deterrent effect in keeping law students from seeking needed counseling, and the question was invalidated for violating the ADA. A number of other cases in both state and federal courts threw out broad questions. The DOJ’s battle against state bar ADA violations culminated in a Settlement Agreement with the Louisiana Supreme Court that invalidated such overly broad diagnosis and treatment questions. Questions identified as objectionable included:
Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?
In the words of the DOJ:
The settlement agreement ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the . . . [ADA]. It prohibits the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment. It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities.
Overall, the Louisiana Supreme Court accepted the DOJ’s finding that a number of the Court’s practices were contrary to the ADA. It agreed to discontinue these practices and to follow the ADA as interpreted by the DOJ in the future when considering bar admission applications. In addition, the Court agreed to pay a total of $200,000 in compensation to seven individuals for actions alleged to be discriminatory.
The Agreement was considered a major success for both the DOJ and for the disabled applicants protected from the Court’s previous actions that were contrary to the ADA. The Louisiana Settlement Agreement is not a binding precedent in jurisdictions other than Louisiana.
Now back to state medical license applications. Please remember this article was published in 2018 and there may have been changes since.
Members of the first group (7 licensing bodies: Connecticut, Hawaii, Michigan, New York, Pennsylvania, Rhode Island, and West Virginia) asked no mental health questions for licensure.
Members of the second group (11 licensing bodies: Arizona, Delaware, Illinois, Iowa, Massachusetts, Nevada, New Jersey, Ohio, Tennessee, Washington, and Wisconsin) included questions about whether applicants are currently impaired by a psychiatric condition in their ability to exercise the skills and judgment of a medical professional.
Members of the third group (22 licensing bodies: Alabama, Arkansas, California, Colorado, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Vermont, and Virginia, Wyoming, and the District of Columbia) also asked about impairment because of mental and/or physical disability by inserting a hypothetical determination in their questions. For example, Kansas asks, “Do you presently have any physical or mental problems or disabilities which could affect your ability to competently practice your particular branch of the healing arts or your particular specialty?”
The other three groups arguably strayed into territory not allowed by the Americans with Disabilities Act:
Members of the fourth group (15 licensing bodies: Alaska, Florida, Georgia, Maine, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oregon, South Dakota, Texas, Utah, and Wyoming) asked specifically about any past impairment from mental illness, including illness that may have occurred many years prior to the licensure application, ranging from the past five years to as far back as age 18 or even at any time in the applicant’s life.
Members of the fifth group (9 licensing bodies: Alaska, Florida, Georgia, Kentucky, Missouri, North Dakota, Oregon, Utah, and Wyoming) asked about the history of hospitalization, commitment, and incompetence determination for mental illness. The time frame includes the last five years to as far back as age 18 or even at any time in the applicant’s life.
Members of the sixth group (9 licensing bodies: Alabama, Alaska, Colorado, Mississippi, Missouri, Montana, South Carolina, South Dakota, and Texas) broadly inquired about diagnosis or treatment for psychiatric illness or other mental health conditions. For example, Colorado asks about a diagnosis of “bipolar disorder, severe major depression, schizophrenia or other major psychotic disorder, a neurological illness, or sleep disorder,” rather than on conduct as required by the Louisiana Settlement Agreement for law examiners.
Importantly, the AMA and the American Psychological Association ask medical license boards not to ask applicants about a history of mental illness.
And it goes on.
There are related concerns about the requirements of many licensing bodies for residency training directors to include information about any psychiatric history of applicants in reference letters.
Bill Goren, one of the country’s leading authorities on the ADA had this to say about the Federation State Medical Board policy on physician impairment.
The FSMB policy is physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them.
Of course, if a physician is a direct threat to patient safety, that does need attention. But whether or not a physician sought treatment for depression 15 years ago is none of the Board’s business.
Back to the original question. How much to disclose? Other than questions related to mental illness (and I suggest you vet such questions with an attorney, particularly one who understands the ADA), you are generally better off over-disclosing if you are on the fence. And then providing an explanation, in your own words, again often with the assistance of an attorney.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
Related:
In most cases, it has become “unwise” to seek medical attention for any illness or condition that you may have to report. A larger number of physicians are now experiencing clinical depression for a variety of reasons. Clinical depression can be disabling and result in a form of “exhaustion” that is difficult to connect with active medical practice. Yet, if you acknowledge it publicly, it will run afoul with your required professional disclosures. If you have clinical depression in your family history, this too requires “awareness.”
You can get help by learning the “Karpman Drama Triangle”, which helps instruct you on how NOT to become a victim. Best of all, you can do this privately without anyone knowing you are studying it.
Recently with the new Middle East War, many Jewish people who were not politically involved or even agnostic are seeing a re-awakening of unexpected feelings of vulnerability and angst. No doubt this has surprised many of them. I don’t believe this will be a passing episode that will diminish with more political stability. In my opinion it will remain. And get worse.
In the past, I have suggested a skeletal presentation for preparation for “untimely retirement.” Now is the time to reconsider that option. For many physicians, and especially surgeons, their income provides a substrate to prepare for untimely retirement. This means controlling spending, saving anew, and family discussions disclosing your professional vulnerability.
You have choices most Americans do not have. A basic substrate of 3-5 million dollars carefully invested will allow you to retire quite well in a red state without a high basic expense level. It’s not what you expected. I understand. Financing personal healthcare before Medicare is always a challenge.
Then, you can always consider retirement in Mexico, where the lower cost of living provides high flexibility. You are more than capable of learning basic Spanish, which is the key to low cost living there.
At some point the Medical Board may simply refuse your renewal. Or install difficult burdens for you to climb. Or restrict your hospital privileges. Or report you to the NPDB. This is where personal planning, started 4 years before, shines. The more prepared you are the more your options to simply say: “No, I will not comply.” And walk away peacefully and confidently.
We need physicians in our Country. However, it is no longer your personal responsibility.
Michael M. Rosenblatt, DPM
In the physician’s high stress world, if a doc really feels that he/she “needs help”, he has an obligation to get that help. It’s easy to fantasize that one is bullet proof. You are not. You are a human being with the same “crap” in your life like everyone else AND the crap that you put up with because you are a Doctor.
Now, HOW to get that help is the issue. I will not make my thoughts public for obvious reasons, but I can be emailed or called and I will share with you some ideas I have learned over the last 23 years in listening to surgeons and physicians as the director of the Center for Peer Review Justice. Please understand that this is not a “free ad” and self promotion. This is absolutely an unique time in our lives. The telephone calls I have gotten in the last month really concern me that there are plenty others “out there” that needs a trusted friend. My number is 504-621-1670, surgeonsConsultant@yahoo.com .