Medical Justice provides free 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. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below. 

An envelope from your state Medical Board arrives in the morning mail.  You open it, assuming that it will just be a ho-hum notice of yet another course the state requires for license renewal, or perhaps a COVID rules update, but as you begin to read it your stomach knots:  you are being investigated because a patient made a complaint about you.

What now?

The short answer is this: you should call YOUR attorney (or AN attorney) and/or malpractice carrier and then do what they tell you. The stakes are high.

However, the reality is that many doctors will not do that. Why? Because, unlike a malpractice case in which they understand that the legal system is unfamiliar territory, they think of a Medical Board complaint as something that they can manage on their own. DIY.

That strategy can be disastrous for the doctor, so in this column, and then in the next one, we will explore how Medical Board complaints are managed procedurally and then how doctors can navigate that process.

Let’s begin.

The first important issue to understand is that although the Medical Board complaint process may superficially resemble or overlap with a case for medical malpractice, the two are fundamentally different in important ways.

The essential difference is that a case for medical malpractice is a personal cause of action, grounded in the legal principle that someone who causes harm should compensate the one they harmed.  A complaint to the Board overseeing the practice of medicine in the state, though, is based on the public policy of keeping everyone safe from poor “or dangerous” practitioners. Further, the state is not obliged to conclude that broadly, the doctor is unsafe. Just that the doctor in the one complaint breached A standard of care or professionalism.

Who can actually bring a case or make a complaint then follows from those predicates. Since a malpractice case is intended to economically compensate an individual, it can only be brought by the patient or their representative or their estate.  Complaints to a Medical Board, though, are supposed to safeguard the public health. So, anyone, including the patient, their family, their friends, or their caregivers, as well as a doctor’s employer or hospital, or competitors, can make a complaint if they know about care or conduct they believe is improper. 

The bar is low.

In fact, some states even allow anonymous complaints.  In a malpractice case, insurers may be required to report cases to the state (for public disclosure) if they pay out more than a threshold amount to settle a malpractice claim (for example, $30,000 in California). And, of course, carriers must report settlements or judgments of even $1 to the federal National Practitioner Data Bank. With Board complaints, if the outcome is any formal disciplinary action (outcome), that will be publicly reported.

A Medical Board complaint, as an administrative matter rather than a legal one, is not subject to the timing restrictions that constrain a malpractice case. A lawsuit for malpractice will be governed by a statute of limitations. Each state has a different statute of limitations – but it generally is between one and three years from the date of injury or the date the patient learned of an injury. (Yes, there are exceptions.)

In contrast, even a remote event can be reported to a Medical Board. And the Board’s Investigators can open additional records from the past if they identify a possible pattern in a current case. What about a complaint triggered by an interaction a decade earlier? Yep. Fair game for the Board to review. Or try to review, given that many practices do not keep medical records forever.

Initiating a malpractice case may also require meeting minimum qualification requirements, such as a Certificate of Merit from a physician or review by a physician panel, which will mean additional expense to the plaintiff.  Making a complaint to a Medical Board, though, has no such barriers because it is specifically intended to be an accessible process. So, it only requires sending a letter or clicking on an online site.  Its merit will be assessed later during the investigative process. Getting started is easier for a patient in a Board case compared to a medical malpractice court case.

A medical malpractice case is intended as a route of compensation, so it must also be grounded in a claim for damages. A Medical Board complaint, however, because it is intended to be a way for the public to let regulators know about potential threats, doesn’t require the reporting individual be harmed in any way or, as we noted above, even be a patient.  This has a critical practical effect.  Plaintiff’s firms often have to turn down meritorious cases in which there really has been a departure from the standard of care because the potential damages are too low to make the case economically viable. 

A malpractice case must have potential damages that will cover expected litigation costs and the lawyer’s fees and still leave enough to adequately compensate the plaintiff. A plaintiff’s attorney will generally only take a case if it pays. A Medical Board complaint is under no such constraint. Patients who are upset over their care but cannot prove damages will often turn to the Board complaint mechanism. Why? Because they can. The state will pick up the tab. In fact, patients with low dollar value claims are not the only groups with the ability to file Board complaints. The patient may have zero damages, and a complaint can still be heard. The Board need only hear about a violation of the standard of care, even with zero damages. Or a violation of professionalism

If a Medical Board complaint progresses to a hearing, that hearing may look superficially the same as a medical malpractice trial because they both involve documentary evidence, witnesses, and experts. But the formal rules of evidence and testimony for a medical malpractice trial, which can be very protective for the doctor, will not apply at a Board hearing and the Board may not be required to share its own information, even if it is exculpatory.

The evidentiary standard that a Board will use if it holds a hearing is also very important. Most states use the same “preponderance of the evidence” that would apply in a medical malpractice trial. However, because a Board review could result in a doctor’s license being struck, which is “quasi-criminal,” some states, such as California, Florida, and Illinois, now use the higher standard of “clear and convincing evidence.” No state, though, uses “proof beyond a reasonable doubt” as would be used in an actual criminal case.

A critical difference between a Medical Board hearing and a medical malpractice trial is that the result of the hearing does not have a built-in option of an appeal to an independent court.  A Medical Board is an administrative agency, and so the courts have no inherent jurisdiction over its action. Some states, like California, have created that by statute, but most have not. There may, as in New York, be the option of appeal to an Administrative Review Board, but the members of that body will also be drawn from the Board itself, a situation that may be more likely to reinforce a finding that a court review might.

To be clear, there are options to access real appellate level courts if a hearing goes against the doctor. But the Board is afforded significant deference. Plus, the process can be long and expensive. If the option is to keep your license with a disciplinary ding (maintaining full employment) versus fighting the noble fight to achieve a complete win, many doctors will make the practical decision to save their money and nurse their wounds. And go back to work. Yes, it’s not a level playing field.

Finally, the penalty for a “loss” in the two settings is completely different. Malpractice actions are about compensation, about a losing doctor paying money to the plaintiff or their estate, and a settlement or verdict in a case will be covered by the doctor’s professional liability insurance. A complaint to a Medical Board, though, because it is about protecting the public, can reach a doctor’s practice, with the Board limiting the scope of what the doctor may do, burdening their license with restrictions or even revocation. Meaning, a medical malpractice case is about adjudicating that one case. A Medical Board case may adjudicate the doctor’s ability to practice.

So, what we see is that a Medical Board complaint is easier to propel than bringing a case for malpractice, is not subject to time-barring, can be initiated by anyone, may result in a hearing with fewer protections than a trial would provide, and can have dire consequences. Yes, a Medical Board complaint is a serious matter.

With those frankly intimidating points in mind, let’s now take a look at the general procedural process of a Medical Board complaint.  This will differ somewhat between the states, but the principles will pertain generally.

When a complaint comes in, it will be processed by a central unit to first determine if the Board even has jurisdiction. For example, complaints regarding fees will not be considered unless they involve fraud. And complaints about a doctor’s dismissive attitude generally will not be investigated unless it rises to harassment or intimidation, or arguably, patient safety.  If a matter is outside the Board’s jurisdiction, it can be referred to a different but appropriate agency.

If the matter is one that the Board can consider, then the case will be assigned a priority. If determined there is an imminent threat to patients, the doctor’s license can be summarily suspended while the investigation proceeds. That situation is fortunately rare. In most cases, a letter will be sent informing the doctor and the complainant that a case has been opened.

Because of the public policy that anyone with knowledge of poor medical practice should feel free to report, sometimes the name of the complainant is not revealed to the doctor. Of course, if the complaint provides details about specific patient interactions, it might be obvious who the patient is. And if the Board requests records, it will identify the patient by name.

The letter will likely request a narrative summary of the patient’s care by the doctor. In general, it is a good idea to craft such a letter with the assistance of counsel. Actually, make that a “great idea.” Once the narrative is crafted and sent, it cannot be withdrawn. The toothpaste stays out of the tube. So, what is included in the narrative should be crisp, concise, and careful. The tone should not appear defensive. The people reading the narratives are just doing their job. They do not want to be told “how stupid the complaint is” and why the “Board is operating like fascists.” Just the facts.

The complainant may provide releases for their records, but both HIPAA and state privacy laws permit records to be provided to the Board without the patient’s authorization.  There are rare exceptions to this blanket statement. But if you don’t want to send specific records to the Board, you will need to go through a very formal process to quash the subpoena. And a judge will need to rule.  To continue, a Board can also go further and obtain records even if the patient refuses. 

For example, in a case in which a doctor was being investigated for possible harmful alternative medicine practices, some patients, who were very loyal to the doctor, refused to authorize the release of their records to the Board, but the Board was able to override that objection on the basis of public health policy.

Can the doctor object to sending records? Yes, but you will need to persuade a judge, formally, that the patient’s privacy interests outweigh the public safety interest. Has that ever been done? Yes. Is it easy? No. In some cases where the lower court ruled favorably for the doctor, the Board appealed, and that court overruled the lower court’s decision. And, in some rare cases, even after getting skunked at both the lower court and appellate court, the Board appealed yet again to the state supreme court. The Board has the resources to go long.

During the investigation phase, the doctor may be contacted for an interview. This may be done without notice, but the doctor should only agree if they have time to prepare and arrange for their counsel to participate. Read that sentence again.

The next step will be a review of the collected evidence, conducted by an investigation committee or a physician consultant. A committee will likely include physicians and lay Board members.  The consultant may or may not be in the same specialty as the doctor who is the subject of the complaint.

This is where the decision is made to dismiss the case, investigate further, issue a non-disciplinary warning, hold a hearing (including whether to summarily suspend the doctor’s license pending the hearing even though it wasn’t suspended initially), or offer the doctor a Consent Agreement in which they admit fault and agree to corrections or sanctions as a way to avoid a hearing.

Even if the matter is closed, a record of the investigation may be kept in the Board files for future reference. The cobwebs can be dusted off, and the matter revisited.

A hearing would be held by a committee, likely made up of physicians and lay members of the Board.  The state will be represented by counsel. The doctor should be represented by counsel. Each side will present evidence and call and question witnesses. The doctor will likely testify.

The final result of the process can be the exoneration of the doctor, a letter of concern about the doctor’s care or conduct, a public reprimand, a fine, a requirement that the doctor take a corrective action such as training or supervision, a license limitation as to certain areas of practice, a license suspension, or a license revocation. The list is long.

If the Board rules early in the doctor’s favor, that result is not publicized – the investigation was not made public, and so the favorable outcome will not be publicized – because it could indirectly indicate that there had been a possible problem. A disciplinary result, though, will be available to the public through the FSMB Physician Data Center and will also be reported to the National Practitioner Data Bank. And states report their own disciplinary actions on their websites.

In summary:

A Medical Board complaint is grounded differently than a medical malpractice action and may have more dire consequences. The individual steps of the process are sequential layers of evaluation including assessment of records, a possible interview, and the input of a medical consultant or committee.  A hearing may be held or may be averted by the doctor entering into a Consent Agreement. Outcomes can range from dismissal to license revocation. Negative outcomes will be published in venues accessible to patients and hospitals.  For all of these reasons, the Medical Board complaint process should never be addressed without the advice and guidance of counsel. And it should be addressed by an attorney experienced in handling Medical Board complaints.

Medical Justice provides free 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. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.