We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.
In Part One, published last week, we went over high-level issues related to board complaints. Now, let’s look at specific scenarios.
You receive notice of a complaint by a patient and a request for all their records. You recognize that this is a patient with a large unpaid bill. You sent this account to collections after the patient reneged on a payment plan. The patient is now falsely accusing you of billing for visits that never occurred. You know that every billing is matched to a note that shows an appropriate examination and testing, so you just send in copies of those with a short letter stating the billing records show the actual facts. Right or wrong?
You are probably correct that this is a matter that will be solved with no further investigation based on the records…but perhaps not. Doctors are unpleasantly surprised when a board investigator detects another issue – one that was not the subject of the complaint – in submitted records, such as notes being completed late or a failure to document informed consent.
Your first step will depend on whether you are employed or not:
If you are employed, you should immediately notify your practice or hospital administration so that they can set you up with their own counsel. Failing to do so can actually breach your employment contract.
If you are in your own practice, you should contact your malpractice carrier immediately so that they can advise you and set you up with a lawyer. This is important to avoid making mistakes in your response. Also, there is a good chance that the policy requires you to notify the carrier as soon as you are aware of an issue. Early notification prevents the carrier from later denying coverage for failing to timely notify.
In your contact with the insurer, make sure to emphasize that this is not a malpractice action and that the attorney they assign should be experienced in board matters and administrative law, not solely in litigation.
If you do not have coverage, then personally engage an attorney who is experienced in disciplinary issues – it will be money well spent considering what is at stake.
The lawyer will assist you in writing your response statement and will also review the records request, which may be inappropriately broad. They will also be in on the ground floor of what must be a seamless response through any potential interview or hearing.
From the start – and even if the complaint seems minor or frankly outlandish – bear in mind that boards are very powerful in their scope and can be very aggressive in how they apply that power. You want a practiced advocate on your side at every step.
A complaint alleges you used both rude and sexually inappropriate language to a patient. After sending in your response, the board requests you come in for an interview. Your attorney will not be able to attend. You do not attempt to reschedule. At the interview, the investigator seems very sympathetic, so you open up about your frustration with the complaining patient, who was non-compliant and manipulative. At one point you refer to the patient as “The kind of ass who makes it hard to be a decent doctor.” Right or wrong?
This may indeed turn out just as you perceived it – the investigator is fully on your side…but it may also have just started your circling of the drain. The investigator might have been leading you and you just sounded exactly like someone who could speak inappropriately to a patient because you just spoke inappropriately about a patient.
Whether you are responding in writing or in a phone call or at an investigation meeting, your standard should be calm candor, focusing on the specific facts of the complaint. These should be invariant, no matter the demeanor of the examiner.
…and another thing: Be humble. Even if you are absolutely in the right. Remember that you are in a venue that was created to protect the public against poor medical care and the investigators see that as their mission. Remember that the investigator is approaching the complaint understanding there is a significant disparity of power in the doctor-patient relationship. You are a fiduciary, bound by the highest standards of conduct for your patients. They will want to see that you understand that as well. When they start sniffing arrogance it makes them want to dig further. This does not mean that you have to be a saint, but it does mean that your responses should be framed under the premise you are always willing to improve because patient care is your priority.
A patient complains that you used both rude and sexually inappropriate language. After your statement and records are sent in, the board requests you come in for an interview. Your attorney will not be able to attend. At the interview, to avoid any slips, you stick to “Yes”, “No”, “I don’t know” and “It’s in the records.” Right or wrong?
This is the flip side of the situation above and it goes to the same issue: the proper approach is to keep in mind that the investigator is not your friend or your enemy – they are a conduit for the best version of your case. In this scenario you denied yourself the chance to give real context to the matter. You also likely came off as hostile to the process and since the purpose of the board is to act in the interests of the public, that is unlikely to sit well with the investigator.
In both situations, you should have let the investigator ask what they needed to and then, if they had not touched on the patient’s conduct, simply said something like “I really appreciate the chance to go over this. I would just like to add that this is a patient with whom there have been difficulties regarding compliance with care. I have done my best to work with her on this issue but without much success. I think that this may have created animosity on her part and contributed to the current matter.” In other words, you put the issue out there as the very reasonable and caring physician, and then let it go. Investigators are well aware of the possibility of patients acting in retaliation so this is enough, while florid tales would more likely boomerang on you.
An investigation is going on because a patient made a false allegation of sexual misconduct against you. You are disgusted and enraged and you decompress to friends and even post on physician chat sites and get a lot of support. Right or wrong?
Any of those friends may eventually be a witness and you cannot predict what they will say. That post may be recognizable as coming from you and be sent over to the board by someone who is not on your side.
Your lawyer probably told you to say nothing to anyone except perhaps a spouse or parent and they meant it. If you need support, then just tell trusted friends that there is a serious matter going on and so you may be distracted or down for a while and that you may give them some details when it is over but that you are glad to have them as a friend.
You terminated the doctor-patient relationship after the patient broke her pain management contract by selling the controlled medication you prescribed. She complained of abandonment to the board. Now she is calling your office and saying she will withdraw the complaint if you take her back into the practice. It seems like it may be the less worse of two bad outcomes because the board in your state is notoriously harsh, so you are considering it. Right or wrong?
Leave aside the obvious issue that this is a patient who was untrustworthy to start with and who will be even moreso now that she knows that she can manipulate you. The critical problem here is that such action would be seen by the board as giving something of value to a complainant to get them to drop a complaint. That is a very severe infraction.
You could go from a situation that you would win on based on the original facts to having your license hit. What you perceived as blackmail victimizing you would be interpreted by the board as bribery and a subversion of the public interest.
All that you should do in this case is say “If you need to discuss anything, my lawyer is Amy Attorney and her number is 555-1234567” and hang up and then e-mail the lawyer (so you have proof) and relate what happened, using as many specific quotes as you can or attaching a recording if you happen to have one. The lawyer will use the new facts appropriately with the board.
This would also apply if someone contacts you to provide dirt on the complainant or who says that they can influence them to drop the matter. Once you are represented, everything must pass through your lawyer.
Your office manager, who has worked with you since you opened your practice and thinks of you almost as a son, calls a patient who filed a complaint against you and says, “How could you do this to him? You should be ashamed!” You find out about this from your MA later. You tell the office manager that as much as you appreciate her concern for you that she cannot do this. You say nothing further about it. Right or wrong?
The right of the public to inform the board of issues that may pertain to the public health, such as a doctor rendering substandard care or engaging in misconduct, is protected, and if you are seen to be interfering with that by pressuring a complainant -a situation that you could have won on the facts will become one in which you are disciplined.
There should be no informal contact from you or your office to the complainant. Even you saying “I just don’t understand. This never happened. Why did you say this?” will be seen as you attempting to get the complainant to recant and, when viewed by the board in the setting of the power disparity between doctor and patient, will be seen as coercive.
In this case, you were personally acting correctly by not contacting the complainant. But the action of your office manager – which the complainant will make sure to tell the board about – will be deemed the action of your agent and ascribed to you . The board will either believe that you put her up to it or that you at least did not act to prevent it by informing your staff of proper conduct.
This is a matter that your attorney must be informed of immediately so he can contact the board pre-emptively to explain.
The best stopgap against inappropriate contact for yourself and your staff during an emotionally fraught time is the same rule as stated above regarding contacts from or about the complainant: everything must go through the attorney.
A patient filed a complaint about a very serious medication error that was only averted because the pharmacist caught it. You know this occurred because you got behind in your charting and did not update the patient’s medication listing. You have discussed this with your lawyer and he says you must be honest on this matter with the board and you agree. He also advises that you voluntarily offer to undergo training in records administration but you are concerned that this is an admission that you are generally incompetent in this area. Right or wrong?
Wrong…or, more specifically, the attorney is right.
Your goal is to have the board come away from the situation believing that there is no matter of ongoing concern about you. If you are admitting an error, part of your response should therefore be an explanation of why the mistake was an aberration and part of it should then be an explanation of what steps you are implementing to prevent the mistake from happening again.
Again, remember that the purpose of a board inquiry is protecting the public from substandard medical care. A doctor who has admitted an error should therefore, in his own best interests, come forward with his own offer of remediation. In the most extreme cases this can be something like voluntary entry into rehab, while in your case it would be some certified CME.
Not only will your lawyer’s suggestion sit well with the board as a general ethical matter on your behalf, it may steer the board to a lighter requirement of its own. In either case, it is very good advice.
You have a lawyer whom you trust so you just put the matter of the complaint in your mental attic and assume that he will call you when needed. Right or wrong?
Even the best lawyer is not your sole lawyer and your case could slip through a crack. While extensions are usually given as to the first deadline to respond (generally 30 days) because it is understood that a physician may need some additional time to gather necessary materials, beyond that point, failure to meet specific response dates will be interpreted as willful lack of cooperation.
It is absolutely essential to not let the complaint become an obsession or an impediment to focusing on the rest of your life, but following along on dates and contacting the lawyer at intervals to make sure that all milestones are hit is acting in your own best interest.
In summary: All actions by a state medical board should be treated with utmost seriousness because they can have profound effects on a doctor’s life, but when handled systematically and mindful of pitfalls they can often be resolved satisfactorily.
Medical Justice Comments:
There are times that is does make sense to approach the patient while a board complaint is pending. When? When the patient has a problem with your practice that you can now solve. For example, the patient has complained to the Board that you did not timely send records to another doctor even though he signed a proper HIPAA authorization. You should quickly send the records – in other words – solve the problem. Then, it is reasonable to notify the patient you have done so. You are not telling the patient to drop the complaint. But, solving the patient’s reason for the complaint will likely make the outcome against you less onerous. And the patient should not have to guess whether or not their problem was solved.
These examples prove it is impossible to avoid conflicts with patients at some point in your career. What you cannot avoid, you must prepare to manage. De-escalating patient conflict is one of our specialties. Member physicians enjoy access to our educational Medico-Legal hotline. When they smell trouble, they call – and we dispense solutions. And, when appropriate, member physicians invoke our DISAPPEAR program – a system of tested strategies designed to put both doctor and patient on the path to an amicable solution.
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