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. 

In Part I, we looked at the procedural aspects of a Medical Board complaint.  Now, let’s look at how a doctor can hit a pitfall or, hopefully, use the process for the best outcome.

• Being adequately insured

Doctors sometimes believe that their $1 million / $3 million coverage is sufficient for defense against a Medical Board complaint. But the actual indemnification of a Board complaint can be, and often is, more limited. Much more limited. There may only be a small rider, as low as $25,000 to $50,000.

That modest number can be exhausted rapidly.  The policy may also be set up as shared coverage so that less will be available if there is a later malpractice claim. Doctors must know their policy limits and increase coverage if necessary. (The time to check is BEFORE there’s a claim. Like right now.)

Note, it is possible to purchase higher limits or even a separate policy (as opposed to a rider on an existing professional liability policy).

• Informing

As we discussed in Part I, a doctor faced with a Medical Board complaint should never underestimate the process or try to engage in it going solo.  However, there are also contractual reasons to notify specific entities that the complaint process has been initiated.

Regarding your malpractice carrier, there is likely a clause in the insurance contract requiring prompt notice. The reason for this is that the insurer wants the ability to establish control of the case trajectory quickly. A failure to inform them can allow them to disclaim coverage. Further, where there’s smoke, there’s often fire. A Board complaint may herald a medical malpractice lawsuit.

No one likes a surprise.

The doctor will likely also have a contractual obligation to inform their employer, partners, or hospital.  This may be listed directly or come under terms such as matters that “may limit your ability to practice.” Failure to inform will add breach of contract to the doctor’s problems and could jeopardize their employment and the backing of their group or employer when they need those most. Finally, it’s better to notify those (with an interest in knowing) in your own words, with your narrative, rather than their first read be from the complainant’s point of view. The complainant’s narrative will not get digested any easier.

• Deciding how to react

The doctor must begin with a frank discussion about the events alleged in the complaint with their lawyer. The situation should also be weighed against the Board’s own history on that topic. To put it bluntly, the question will be whether the response will be about vindication or damage control.

The conversation will come under attorney-client privilege, even though this is an administrative matter rather than a legal one, so the doctor should be absolutely truthful with the lawyer – it is the only way that the lawyer can then advise them properly and, if necessary, try to work out a favorable resolution with the Board.

Please be aware of this important fact: not all lawyers, even if they do medical malpractice defense, are experienced in the complaint process and disciplinary actions.  

As we discussed in Part I, an administrative process is very different from litigation. The lawyer should also be familiar with the specific Board and its rulings in similar cases. If the doctor is assigned a lawyer who lacks the needed experience, then they should ask for someone different or hire someone privately before making a determination on what course to take. The skill set required for winning a medical malpractice case is aggressive advocacy (a warrior mindset). The skill set required for winning a Medical Board case is diplomacy.

• Responding

If the doctor and his lawyer conclude they will dispute the allegations, then the next step is to respond to any demands in the notification letter.

The letter will likely include strict time limits for compliance.

Malpractice cases for personal damages are notorious for delays that the parties can agree to, but the Medical Board complaint system is about protecting the public and so strict time limits about responses, with monetary penalties for non-compliance, are the rule. Any demands in the letter, such as for records, should be quickly vetted by the lawyer and a response submitted (unless as mentioned earlier, there are solid reasons to refuse providing the records – and then formal process will need to be implemented with judge making a decision.).

Note, a lawyer can ask the Board for more time to respond. But the Board has the discretion to agree to or deny the request. The more serious the matter, the less likely a delay in responding will be granted.

Responding promptly does not end at this point, by the way.  For example, in New York, a failure to respond to any written communications from the state Health Department and to make available any relevant records in the course of an investigation will itself constitute misconduct. The pile-on continues.

The notification letter will also likely ask for a narrative summary of the care.

This is where a doctor is likely to let their anger come through or to make sweeping statements (“I never do that!”) that they will be hard-pressed to back up if pressed. 

(A tip from marriage counselors – Never say “You always do such and such.” The truth is the other party may generally do such and such. But the other side is rarely the ogre being portrayed. And the side making the accusation is rarely the saint pointing the finger. By analogy, in Medical Board cases, be cautious about using the word “always.” That’s a pro tip.) 

This submission can be invaluable if done well – it will be the first chance for the doctor to directly counter the complaint, rebut the allegations, and, if the case progresses, it will be treated as evidence. 

Some states allow the statement to be submitted from counsel alone and the doctor does not have to sign the document. But even if the lawyer will be doing the drafting, the doctor should work with the lawyer to point out the most medically relevant issues.

And even if a signed personal statement from the doctor is required, the doctor should work with the lawyer in drafting the narrative to ensure it says what should be said and nothing more.

• Communicating outside the formal process

In the medical malpractice setting, doctors know that no matter how enraged they are because a case has been filed or how easy they think it would be to clarify the situation, they should not deal directly with the plaintiff, except under careful and controlled situations. 

In the Medical Board complaint setting, however, doctors too often pick up a phone or send a message, and the process backfires.

The likelihood of persuading someone angry enough to file a complaint is low, but the risk of escalating the claim is high. 

That is because of the public policy that underlies the Medical Board complaint process – namely, that people have the right to communicate with the body that governs the practice of medicine in their state about quality-of-care issues. 

An attempt to convince the complainant to drop the complaint will be viewed by the Board as attempting to pressure them. And a frivolous claim that would have been disposed of can be converted into a predicate for harsh discipline for what the Board sees as intimidation. Not the outcome you want.

The flip side of this is the complainant contacting the doctor. If the doctor suspects that they are being shaken down or that the complainant is trying to record them, then they should simply say that they are represented by counsel and so they cannot talk, and should then report the situation to the lawyer.

If someone contacts the doctor to offer potentially useful information, then the doctor should only offer the lawyer’s information because any impact that the doctor may have could reduce the value of that information as evidence.

(Finally, if a patient makes a threat stating they want money or they’ll file a Board complaint, sometimes it makes sense to pre-emptively notify the Board of the shake-down. This would alert the Board that any follow-up Board complaint by the patient is framed for what it was, a veiled act of extortion. To state the obvious, this should only be considered with the advice of experienced counsel.)

• Waiting

Patience may generally be a virtue but in the Medical Board complaint setting it is a necessity. Although the doctor will be under strict time limitations, the Board is not. (Or usually not. Some states impose a time limit on when the doctor can expect a response.) A doctor who hectors the investigating Board for its response is doing their case no good.

• The interview

The next step at which the doctor may shape the outcome of the case will be if they are called for an interview.

A Board Investigator may do this very precipitously, including on the phone or even showing up in person without advance warning. 

This is to keep the doctor off-balance – phone calls are seen as less threatening, and the doctor will lower his guard. In contrast, an Investigator arriving at the doctor’s office or home is meant to be intimidating and to get them to agree to an unprotected setting for the questioning. 

However, this is a situation where the input of counsel is absolutely essential, and the doctor should never agree to what may be presented as just an “informal chat” or to any interview they have not prepared for. With the Board, there is no such thing as “an informal chat.”

Most critically, the doctor must bear in mind that they have the right to be represented in these interviews and should be prepared to cite that, even if it means that an Investigator who has just shown up is barred (politely) from entering the premises. 

The general advice is often to say that you are willing to meet but only with counsel present. But since the lawyer may ultimately not want the doctor to take the interview. it is probably better to just say that you need to contact your lawyer – in other words, the doctor should not pre-agree to an interview.

The doctor should just take the Investigator’s contact information and then give that to the lawyer. (If an Investigator comes in with a warrant, you should still call your lawyer, but they will be able to access your premises. This situation is NOT common.)

As in preparation for a deposition in a malpractice case, the doctor should review the records and should go over any standard of care or professional conduct issues with their lawyer.

The doctor should also expect that because this is a case about their fitness as a licensed practitioner, they will be asked intrusive questions, including about their physical and mental health, any use of alcohol, illegal drugs, and prescribed medications, any criminal history, any disciplinary history, and their hospital credentialing and employment history, so if there are any issues in these areas, the doctor should discuss them with the lawyer.

(Without getting too technical, if some of these questions are overly intrusive and arguably do not have anything to do with your fitness to practice safely, your attorney may object. For example, if you have a remote history of a mental illness and you were treated and currently have no current issues, arguably that private matter is of no concern to the Board. Your attorney would need to formally object. A seasoned attorney can even defend against more recent diagnosis/treatment, citing your being fully functional, and under the ADA, cannot be discriminated against. This is a tightwire act and should only be addressed by counsel familiar with both license defense AND the Americans with Disabilities Act and equivalent state antidiscrimination laws.)

A Medical Board interview differs from a medical malpractice deposition in a very critical way – the Board’s concerns may go beyond the particular case to future public health. The doctor should therefore work with their lawyer to craft a presentation that casts the specific issue within the larger context of public safety. In a medical malpractice case, if the doctor changed his process and procedures to what he now does (after experiencing a bad outcome), remedial action cannot be held against him.

In contrast, in the Medical Board setting, such remedial action may actually be interpreted as a net positive. Boards sometimes require corrective measures, so if a doctor already made a change in his practice, then disclosing that detail goes directly to the correction issue. Get credit for anticipating the remedy. How to explain this should be carefully worked out with counsel before the interview so that it is medically on-point but also sounds, frankly, humble.

The interview may be conducted by the Investigator, or he may turn it over to a medical consultant who may not be in the same specialty as the doctor in the crosshairs.

As at a deposition, proper attire at the interview is business or business casual.  Outside a clinical setting, scrubs or a white coat become a “costume” and so will likely be seen as a distraction. You don’t get a second chance to make a first impression. Dress the part.

Proper demeanor at the interview is, as at a deposition, this: be calm and polite. Unlike a deposition, which is usually only transcribed, a Medical Board interview will be recorded, so voice tone actually matters. Steadiness has to be maintained even if the questioning is intense or even if the questioner seems sympathetic. 

Clarity and courtesy will give nothing away to an Investigator or consultant who is being manipulative and will not antagonize one who is actually supportive. If a consultant is doing the questioning and makes an error because this is not his area of specialization, it should be corrected on the facts and phrased collegially.

As at a deposition, the doctor should take a one-breath pause before answering to allow the lawyer to object to a question, but the doctor should also be personally alert for questions that need clarification or that incorrectly re-phrase a prior statement they made. Also, the doctor should never guess about any detail they actually do not know.

The doctor should also not forget that the Board interviewer is approaching the complaint as deriving from a situation in which there is a great disparity of power between the doctor and the patient and the doctor. As a fiduciary, the doctor is bound by the highest standards to act only for the good of the patient.

The doctor, therefore, wants to show that they understand that principle and should frame their responses in the context of patient care being the priority. 

The doctor is entitled to a copy of the recording of the interview and should request it.

• Offering a compromise

The purpose of a Board investigation into a complaint is to maintain the quality of medical care in the state. This detail can actually be used to the doctor’s advantage if it appears that the result is going in the wrong direction.

How?

The objective would be to have the lawyer negotiate a penalty that goes to improvement rather than punishment.  For example, if a pain medicine doctor has not been compliant in his record-keeping, then CME on that topic and re-assessment by the Board in several months would be a welcome alternative to a suspension. Right?

• Consent Agreements

Unlike a compromise that the doctor offers to the Board, under a Consent Agreement the Board offers the doctor the chance to admit fault and agree to sanctions or corrective actions to avoid a hearing.

The allegations that the Board considers “verified” and the specific measures directed to them will be laid out so the doctor can, in consultation with his lawyer, evaluate where they actually stand.

The case only reached this point because the doctor and their lawyer considered that they had a basis for contesting the complaint. But now, in this chess match, it’s possible a hearing could end poorly. If the Consent Agreement is basically congruent with the facts, the original calculus that this was a righteous fight to endure should probably shift to thinking about a softer landing, either by accepting the Consent Agreement as is or having the lawyer negotiate on its terms.

Of course, if the Consent Agreement is truly unfounded or it is clear that there was clear prejudice against the doctor, then refusing the Consent Agreement in favor of a hearing is an option.  Whether the state allows a Board decision to be directly appealed, and whether that would be to a court or still within the administrative framework, should also be factored in.

Finally, an important detail. Sometimes your lawyer can negotiate the language in a Consent Agreement. Such an Agreement is accessible by the public, so if the “facts” can be portrayed as less worrisome, then, by all means, have counsel work on that. This document will live on the Board’s website for far longer than the complaint process. It will be part of the fossil record of what happened.

• The hearing

The same principles apply as at the interview, now applied to multiple questioners with different backgrounds.

An important point for the doctor to remember when they testify is that, as in a malpractice trial, if they refuse to testify on questioning, including by citing the Fifth Amendment, then an adverse inference can be drawn against them if there is independent proof of the facts.  

What this means is this: The Board members can consider and even conclude that the doctor’s silence is at odds with the independent proof of facts. This becomes even trickier when there’s the potential for a parallel criminal accusation. A criminal lawyer will generally advise “Don’t talk.” Because the government has the burden of proof to persuade the judge or jury. In a Board defense case, speaking – under the advice of counsel- may very well help your cause.

If you are in the crosshairs with both the Board and the criminal justice system, you may just have to yield to the more important defense – keeping your freedom at the expense of your license. Some choices are about damage control.

• The ruling

As we noted in Part I, a final ruling may be exoneration, a letter of concern, a public reprimand, a fine, a requirement that the doctor takes corrective action, a license limitation, a license suspension, or a license revocation. 

If there is a negative result and the state allows appeals, the doctor and their lawyer should have an honest conversation about the likely value of that step.

In summary:  The process of a Medical Board complaint will cover document discovery, may cover questioning in an interview, and will cover a resolution that can range widely in severity. The doctor, working with his lawyer, should therefore make sure to comply with specific demands and view every step strategically. It took years to earn your license. Protect it as the valuable asset it is.