Our recent discussions have centered on the use of asset protection trusts by physicians and we have examined both domestic and offshore options that help defend your wealth against a variety of exposures both personal and practice related. This week we take a look at a separate but equally important issue: the basics of responding to a medical board complaint.
While a lawsuit may threaten your existing physical and financial assets, a board complaint can be equally traumatic as it can affect your malpractice rates, professional reputation and even your very ability to continue to practice medicine and earn a living. This issue affects all licensed healthcare professionals including nurses, therapists, and a variety of other specialties, not just physicians. Board complaints are increasing perhaps in part to the significantly larger number of people who have “standing,” a legal right to file a complaint against you, than have a right to actually file a formal malpractice lawsuit. Patients, employees, patient’s family members and many others in the chain of care including other physicians may file board complaints against you. These complaints must be fully addressed in a timely way through counsel to make sure you are adequately protected and that no procedural mistakes are made that could limit your rights.
I recently spoke about this with a physician with 25 years of practice experience who now practices as an attorney defending a variety of licensed professionals from board complaints: Dr. Steven Perlmutter, M.D., J.D., of Perlmutter Medical Law in Scottsdale, Arizona. Dr. Perlmutter offered the following tips that he shares with his own legal clients. This simple checklist will get you started and to give you an organized way to address a complaint like any other risk-management procedure in your practice.
1. Stay calm and act. Easier said than done, I know, but reacting emotionally often makes the situation worse and creates opportunities for the other side. There is a process to work through and a significant amount of detail you will need to provide your counsel to prevail and being calm and detail oriented will make a substantial difference in the results of your defense. Do not delay or ignore responding and be aware that you will often be operating under specific time frames within you must act, report and etc. or you will be legally precluded from doing so. Not knowing the law or missing deadlines is not a defensible excuse.
2. Stop talking. Don’t discuss the complaint with others, the media, the board and especially not the complainant themselves (including attempts to explain your conduct or to “win” the complaint). Remember the old, “everything you say can and will be used against you…” in this and all other legal proceedings and let your lawyer speak for and with you.
3. Notify your liability carrier (and other parties to whom you have similar obligations) ASAP. Most carriers and many employers and medical service contracts require timely disclosure of any complaint. Failure to do so can jeopardize applicable insurance coverage and may result in serious penalties including the significant exposure of legal fees themselves as well a violation of your contracts.
4. Get professional representation. There are lawyers in most legal markets that specialize in representing these kinds of complaints and licensure proceedings. A specialized attorney that knows the board in questions, your rights and obligations and who can help you determine the limits of your disclosure and reporting obligations should handle this. Be complete and forthright in your disclosures and discussions with your lawyer and share both the good info on what you did and the standard of care delivered and on anything that was not perfect or deficient. Never let your lawyer be surprised by facts you concealed.
5. Document, document, document. Seal the file, avoid altering or destroying records, and keep a log of what happened, including when, how, any witnesses that might reasonably have relevant testimony, either for or against you. Also track any interaction with the complainant and make sure to share all this with counsel.