Every state manages Medical Board complaints differently. It often starts with a patient submitting a complaint. But not always. Sometimes, it’s a hospital, an insurance carrier, or another doctor who took care of your patient. The list is endless.
Most complaints do NOT end in discipline for a doctor.
But if a case evolves to an investigation and continues to gather steam, it can be referred to the Board or Deputy Attorney General for consideration of discipline. Due process is implicated. You will get a chance to defend.
You may also be given an opportunity to cut a deal. A Stipulated Agreement…or a Consent Agreement. It goes by different names in different states.
Most of you are familiar with a similar process in criminal cases – the plea bargain. There, a defendant has been charged with a serious offense; say second degree murder. The case is headed to trial. Each side has “risk.” The district attorney will need to prosecute the case and convince a jury beyond a reasonable doubt that the defendant intended to commit that crime and the evidence supports that all elements of the crime were committed. The defendant does not need to take the stand. But if the DA proves the case, the defendant may burn. Still, proving a case “beyond a reasonable doubt” and getting all jurors to agree is no easy task.
For the defendant, it’s possible there were mitigating events for the event, such as self-defense. Or one of the elements of murder was not met, such as no intent to commit homicide. Or something else.
The defendant does not want to just roll the dice. He is open to agreeing to lesser offense and serving a shorter sentence.
The two sides cut a deal; in this case, perhaps for manslaughter. A less serious offense. Shorter jail time. The judge accepts the agreement both sides have negotiated. The case never goes to court.
Uncertainty is traded for certainty.
With license defense cases, the worst-case scenario is license revocation. Or onerous restrictions making it functionally impossible to practice day to day. In such situations, it is no surprise doctors will fight tooth and nail to prevail. Their professional viability depends upon it.
Still, there are situations short of each side going to “court” – which would otherwise culminate in a Board hearing or trial with administrative law judge.
The two adversarial parties can negotiate a stipulated agreement. It may include terms where the doctor has to take specific CME classes. Or a medical record keeping course. Or professional ethics class. Or clinical competence evaluation. Or more. With each of these terms, the doctor can continue practicing. They can go to work the next day, just as they did the day before. The list of terms looks scary, but they pale in comparison to license revocation.
Now to the preamble of prototypical consent agreements.
It is hereby ordered that License No. 123456789 issued to Respondent John Doe, MD, is revoked. However, the revocation is stayed and Respondent is placed on probation for four (4) years on the following terms and conditions: Blah, blah, blah.
This looks scary.
On first blush, it appears the physician’s license was revoked. Or would have to be reported as revoked.
Was it? I do not believe so.
If one’s license is revoked, you cannot practice medicine in that state. Period.
An order which is stayed is more of a future possibility. A stayed order is frozen and of no current import. It only gets vivified if the terms of the license probation are not satisfied.
Why does a Board of Medicine include such a preamble? To give the Agreement teeth. It’s true that there is a sword of Damocles hanging over a licensee’s head if the terms are ignored. If you agreed to take a medical record keeping class and you fail to register and blow it off, the Board can then enforce the agreement. In a sense, they are merely “suing” for breach of contract. You said you would do X. You didn’t do X. The Board will now take serious action.
If such a preamble (stayed revocation) is in your Consent Agreement, is it reportable to the National Practitioner Data Bank (NPDB)? It shouldn’t be. From the Data Bank’s website below.
A licensure or certification action imposed with a stay should not be reported to the NPDB as long as the entire action is stayed. In instances where only part of the action is stayed, the part of the action that is not stayed must be reported. For example, if a practitioner’s license is placed on probation for 6 months, but 4 months are stayed, the remaining 2 months of the probation must be reported.
In addition, if a stayed action is accompanied by another reportable action, the reportable action that accompanied the stayed action must be reported. For example, a practitioner’s license is suspended for 6 months, the suspension is stayed, and the practitioner is placed on probation with terms and conditions for 1 year. The suspension should not be reported to the NPDB because it was stayed, but the probation must be reported to the NPDB.
In other words, a stayed revocation of license, in it of itself, is not reportable to the NPDB. The more modest terms of the probation in a Consent Agreement likely is reportable, though.
In summary, a Stipulated Agreement or Consent Agreement is one way physicians can negotiate a certain type of disciplinary outcome with Board of Medicine. It trades uncertainty for certainty. Is it still unpleasant? Yes, it is. Are the terms often better than may be delivered if one goes to a hearing or court? They may be. If you defend until the very end, you may be exonerated. Or you may lose big. That’s why being open to a Stipulated Agreement or Consent Agreement is not unreasonable. Particularly, if you CAN go back to work the next day, just as you did the day before.
One final word. Is it true justice if you didn’t do anything wrong? Or if the terms the Agreement are wildly unproportional to the stated offense? No, it isn’t. Just a means to ending a protracted fight that could otherwise lead to an even worse outcome for the doctor.
What do you think?
Most boards of medicine are not lenient. They will take the most aggressive course of action they can. The reason that they do so is that they want to appear tough on policing physicians. Boards used to compare statistics from different boards, of how many physicians were punished in the course of a year. The boards with higher numbers were viewed as doing a good job.
But what boards no longer distinguish, between those violations that cause patient harm and those that do not.
Given that laws and regulations have gotten so much tighter, more and more physicians can fall under the gun, for violating some arcane statute. Whether that arcane statute is applied depends upon whether the physician is in a class, (let’s say pain physicians) that are not favored, and the prosecuting entity is interested in punishing. Or an investigator simply doesn’t like the physician and compiles statistics showing that the physician is a “bad” physician, and presents them to the prosecution for action. Prosecutors and state AGs take great glee in public pronouncements about prosecuting physicians.
Then the board acts. But the board never looks at any of the circumstances of the prosecution case, they just look at the charges (not even necessarily if the charges were pled down). They do not look at the issue of patient harm, versus not. There is one exception.
Impaired physicians due to addiction are given great leniency on the part of boards in some states. They are given chance after chance to straighten out. The question of whether or not they harmed patients during their periods of being high is not factored in.
If we were redesigning a board system, would we want to have attorneys running or directing the boards of medicine? That is the current state.
Do boards ever have compassion for individual circumstances of physicians?
Based on looking at board newsletters from different states, compassion is not part of the board equation. Punishment of physicians is the board’s raison d’être. Their attitude is that if they don’t punish physicians the legislature will step and make it even tougher on physicians.
Somehow that never rang true, because legislatures will act regardless of what the board does, depending upon the passions of the day. Ex. having to take HIV education focused on treatment of HIV which most physicians never do. But every practicing physician in some states, must take continuing education on HIV treatment either ever re license cycle or every 10 years for example. Whether they have ever treated an HIV patient is irrelevant.
One physician that I know of, in active specialty practice many years ago, failed to take his required CME course credits. but attested that he had. The board found out, due to an audit, and that physician was significantly fined, and given a very limited period to comply. Not a warning with a grace period. So even minor infractions are treated harshly by state boards.
Boards of medicine simply stated are there to grant licenses, and punish physicians,
In some states boards exist to keep out competition by requiring a physician to practice within that state for several years, upon granting of a license.
Expect boards of medicine to deliver harsh treatment to physicians in most cases, with little compassion or understanding of the circumstances that may have led a physician to afoul of a law for whatever reason.
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