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Surviving a Medical Board Review


Disciplinary actions against physicians are up. Avoiding one is pretty straightforward, but it's still wise to have a plan for dealing with a complaint - and salvaging your career.

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Just what you didn't need: an allegation of misconduct from your state medical board, which has the power to revoke your medical license, among other possible sanctions. Unfortunately, thousands are sent out every year by boards around the country, originating from patients, peers, hospitals, insurers, or directly from the state.

No more than 20 percent of complaints go beyond an informal settlement conference. Still, the 70 medical boards in the United States and its territories took 6,265 disciplinary actions last year - a 20 percent increase over 2003 - according to the Federation of State Medical Boards. Some 88 percent of those actions directly affected physicians' licenses to practice medicine.

How to keep in your medical board's good graces?

Edward Dauer, a radiologist who served on Florida's medical board for 11 years, says the most obvious advice is the best: "Be aware of what can get you into trouble. It just takes common sense. Don't write prescriptions for family members; document all controlled substances that are prescribed; know your limitations; and if you are going to perform surgery, mark the 'wrong' side with an 'X.'"

Physician misconduct: boards' primary concern

That's fair enough. But sometimes a complaint is unavoidable, even when the care you provided was good. So what do you do if it happens?

"You have to remember it's not a civil case but a violation of the Medical Practice Act (which defines unprofessional conduct in each state)," says Joan Jerzak, chief of enforcement for the California state medical board. "A physician either did something or he didn't. It is not an emotionally-driven case."

As David Slawkowski, an attorney with the Chicago-based law firm of Anderson, Razor and Partners LLC says, "The process is not to punish physicians but to demonstrate compliance by licensed professionals."

But not unlike the preparations for a malpractice case in civil court, responding to a medical board complaint demands detailed documentation, legal counsel, open communication and level-headedness, says Bill Spratt, a health lawyer with Kirkpatrick & Lockhart Nicholson Graham LLP in Miami.

"Most physicians are surprised when a complaint is filed," Spratt says. "If there are any adverse outcomes, they expect to hear directly from patients, their families, or an attorney first."

State board actions, though, are often prompted by allegations of professional misconduct, rather than a mere adverse medical outcome that so often triggers a malpractice lawsuit. With the boards, unconventional financial arrangements among physicians, sexual misconduct, unfair billing, and fraud can raise eyebrows, as can a pattern of questionable behavior.

Failure to maintain patient records, falsifying information for a hospital reappointment application, prescribing drugs without conducting a patient exam, sexual abuse of patients, and gross medical inadequacy are some of the behaviors that, according to public records, are likely to result in board actions. Settlements run the gamut from license revocation or suspension, to supervision by a colleague and community service, to five years of probation.

Taking precautions

If you're like most physicians, you probably don't have any formal contingency plans should you be summoned by a state medical board; complaints from the state seem to come out of the blue. It never hurts to take some preventive measures that will stand you in good stead throughout your careers.

Dale Austin, senior vice president and chief operating officer for the Federation of State Medical Boards in Dallas, says it's important to know how to practice within your state's laws. "Become familiar with the medical practice act in your state; pay attention to deadlines for license renewal; stay up to date on CME-required content and how many courses [you must take] over what period of time - and read state medical board newsletters, which often offer guidance on policy matters."

Develop a compliance and risk management program in your office so you stay abreast of regulations and requirements outlined by the state board of medicine.

Recognize the significant relationship between physician and patient. Be above-board and honest in your communications with patients and their families so there will be no misunderstanding about care delivery and anticipated outcomes. Show compassion, but don't step over the physician/patient line. Maintain professionalism in the face of an adverse patient outcome.

Conduct internal audits periodically to ensure nothing slips through the cracks.

And finally, remember the physician mantra: document, document, document.

Due process

Boards' processes for dealing with complaints vary from state to state, but in general, it begins with a board's receipt of a complaint from any of a number of sources, including patients, families, managed-care organizations, hospitals, and other physicians. The complaint is reviewed by an investigative and medical staff. The physician receives notice of this investigation, and has an opportunity to respond to the allegations within a specific time frame.

Spratt recommends that physicians work closely with an attorney to hammer out a response and forward any necessary information, such as evidence-based information supporting the physician's actions, a supplemental letter from a respected colleague, and patient records; other information may be solicited by the investigator. The key is cooperation, Spratt says.

"Don't bang your fists and say, 'I didn't do anything wrong,' but also don't admit wrongdoing," notes Fletcher Brown, president of the Health Law Section of the Austin (Texas) Bar Association and a partner with Davis and Wilkerson PC. "Boards are interested in compliance, so the complaint may be resolved by just taking a specific CME course."

Linda Stimmel, a partner with the law firm of Stewart & Stimmel LLP in Dallas, recommends that even if you have made a mistake - which may be due to a "system failure," a confusing drug label, or a colleague's prior error - you should explain the circumstances and indicate ways that they can improve the process in the future. "You should not fold, give up, and plea bargain unless you have no explanation or reasonable defense for a mistake. By offering an explanation, the plea bargain will be less severe," she says.

Once the investigators have all of the information and documentation in hand, they typically will submit the materials to a probable cause panel for review. If substandard medical care is alleged, a physician peer in the same discipline as the licensee might be asked for an opinion.

The probable cause panel has several options: it may simply dismiss the case and close the file; issue a letter of guidance to the physician; initiate an informal settlement conference; or if the physician's actions appear to be a violation of licensure, the panel may issue a formal complaint, which may be heard by an administrative law judge.

In the informal settlement conference, the physician is usually in attendance and may present her case to a panel composed of medical board members, board attorneys, and the lead investigator. That panel's decision must be approved, rejected, or modified by the state board. The physician must also accept the settlement; if she doesn't, a formal hearing is held before an administrative law judge.

Yet even decisions reached at formal hearing must be approved by the state board. If a physician remains unhappy after the board's final decision, she may appeal to the circuit court.

Again, the processes vary by state. Make sure you know your state's rules.

Disciplinary actions and summary suspensions are reported to the Federation of State Medical Boards, local and regional medical societies, the American Medical Association and other agencies, and are often posted on state medical board Web sites in the public domain. Closed claims, dismissed actions, and ongoing investigations remain confidential.

Getting help

In the face of an allegation that could tarnish - or wreck - your career, you should seek counsel - not just any lawyer but one experienced in administrative law and healthcare. "Many physicians think they can handle the complaints on their own because they make critical decisions every day," Spratt says, "but they are too busy and are not thinking like an investigator or lawyer. They may make inconsistent and incorrect statements, providing less credibility to the case."

"Medical boards have their own counsel, so why shouldn't physicians?" asks Brown. "We don't have to act as attorneys but rather help doctors tailor their response to an allegation and better understand the perspective of the board. Physicians may never have to read a statement, but the preparation helps them focus on critical issues so that they can speak on their own behalf if necessary. Physicians are not in their comfort level in the regulatory environment. Success rests on believability, likeability, and trustworthiness."

Just as processes differ by state, so do standard-of-evidence requirements. In California and Florida, the medical boards require "clear and convincing" evidence to prove a physician's wrongdoing, evidence that produces a firm belief or conviction that the allegations are true. Other boards, though, such as those in Texas, Colorado, and Michigan, require only a "preponderance of the evidence" - that is, evidence of greater weight or that is more convincing than the opposing evidence.

Rules of evidence, such as those governing the admissibility of hearsay, only apply to formal administrative hearings, not informal settlement conferences. If physicians are suspected of impaired ability to practice due to alcohol or drug abuse or mental illness, this information is confidential and cannot be used as evidence if they voluntarily participate in a supervised treatment program.

Physicians often select character witnesses and professional experts to support them and their actions. Brown recommends no more than one to two witnesses so that it is affordable for the defendant and does not become a "battle of experts."

Communication, documentation are key

Attorneys and physicians with experience in the medical board complaint process offer a consensus of opinion for responding to an initial complaint, weathering the review, and avoiding a formal hearing:

  • Provide a concise, logical, and clear description of what occurred (usually chronologically), your rationale for what happened, and what you have learned from the experience.

  • Be honest. Fudging the truth could come back to bite you.

  • Don't exaggerate or minimize anything.

  • Explain extenuating circumstances, if they are relevant to what occurred.

  • Don't ignore requests for information by an investigator.

  • Ask questions during the investigation period if you don't understand something.

  • Take the complaint seriously; state medical boards certainly do.

Slawkowski says that poor documentation is often at the root of complaints that progress into a formal hearing; on the other hand, good patient records are also your best evidence.

  • The first line of defense is good charting. Record facts; stay objective.

  • Consider the potential audience of your charts.

  • Ensure the documentation is legible. Don't try to recount patient visits if they are not properly documented; making up information or altering records will only compound the problem.

  • Document good practices - especially as they relate to end-of-life issues and prescribing controlled substances.

Mari Edlin, can be reached via editor@physicianspractice.com

This article originally appeared in the October 2005 issue of Physicians Practice.

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