(This column is the third of a three-part series.)
Question: The state medical board is requesting the medical records of an angry patient who has filed a formal complaint alleging incompetent care. Your immediate impulse is to rush off a letter defending your treatment – and to include a sarcastic remark about ingratitude.
However, you decided not to respond, choosing to await the scheduled interview with the board investigator. To your surprise, he turned out to be warm and friendly, and his relative youth reminded you of your son. Letting your guard down, you spoke freely during the meeting and showed him the medical records. Later, you appeared at the formal board hearing without legal counsel, as the complainant had not suffered any injury while under your care. Under this scenario, which of the following statements is best?
A. You must never respond in writing to any board inquiry.
B. You should have called your insurance carrier immediately.
C. You trusted the investigator because what you told him could not be introduced as evidence.
D. You correctly assumed that, without injuries, there is no liability.
E. You did not insist on having an attorney, because this is not part of your due process rights.
Answer: B. Who gets into trouble with medical disciplinary boards? In a California study,1 the authors concluded that male physicians were nearly three times as likely to as women physicians, and those who were non–board certified twice as likely to as their board-certified counterparts. Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk.
It is true that many board complaints are dismissed and never investigated, but the number of state licensure actions in 2013 was almost four times greater than the number of malpractice payouts. Moreover, board actions against a doctor, unlike a malpractice lawsuit, are premised on substandard or unethical conduct, and do not require a showing of actual patient harm.
A recent news article bemoans the travails of a medical board encounter.2 According to a 2009 report, one of every eight physicians in California was being reported to the board each year, with a quarter of complaints leading to an investigation. In turn, a quarter of investigated complaints led to disciplinary proceedings against the physician.
A medical board investigation begins with a complaint lodged by a patient or some other party such as a pharmacist, nurse, or hospital peer review committee. Some states – e.g., California, Georgia, and Maryland – allow complaints to be anonymous, and many states now allow online submissions, whose ease may be expected to increase the number of filings. Oklahoma, for example, saw its board complaints rise by 40% in the 2 years after permitting this option.
Some complaints such as rudeness and disputes over fees may seem like a minor nuisance, but they can mushroom into new and more serious charges. The medical records may reveal other potential misconduct, such as delinquent record keeping or failure to obtain informed consent.
It is therefore prudent to treat all complaints seriously. A written response is necessary, but it must be cowritten with your attorney. Immediately contact your malpractice insurance carrier once an investigator approaches you, or upon notification by the medical board. Most malpractice policies include coverage for medical board investigations.
The simple rule is not to discuss with anyone – including (especially) the complainant – and await a call from the attorney assigned to you. Better yet, ask for an attorney whose skills you are aware of. Make sure he/she is experienced with board proceedings and not just malpractice litigation. There are legal technicalities that may be of importance, such as statutes of limitations barring board actions or the timely filing of an appeal. Everything should flow from here. The lawyer’s advice will most likely be: “Don’t speak to anyone, including your colleagues; don’t contact the patient or family; and don’t release any records without first consulting me.”
You should together draft a response letter. Whereas the attorney will be attentive to the legal ramifications, only you as the doctor can provide the clinical knowledge, context, and empathy. In formulating any written response where patient care is at issue, heed the following principles:
1. Be honest. Truth always surfaces in due course. Candor and trustworthiness are virtues expected of all doctors.
2. Be accurate. Review carefully all relevant medical records. Pay compulsive attention to factual accuracy.
3. Be focused. Do not ramble on and on regarding unrelated or tangential issues. Focus on what the complaint is about. No one is interested in your views regarding your philosophy of medical practice or the health care system – they do not belong in a complaint response letter.
4. Be humble. Arrogance at this stage may prove disastrous. Adopt a contrite and humble tone. Blame no one, especially the patient.
5. Be a patient advocate. Show that patient well-being is always your first and last concern.
In the preliminary stages, a board investigator may call the doctor, typically taking a friendly and casual approach, and this may lull the physician into saying more than is necessary or releasing the medical records. The shared information can come back to haunt the doctor when it is disclosed in a subsequent hearing.
In some situations, the board may offer an informal settlement conference to resolve the issue and obtain a “consent agreement” from the doctor. Depending on the facts – and the proposed settlement terms – your attorney may instead advise proceeding to a formal hearing to present exculpatory evidence and to confront the complainant.
Physicians are guaranteed the right of due process during an investigation. Timely notice, the right to a hearing, to confront the evidence, and to have legal representation are the basic due process rights. And boards must treat the physician fairly and reasonably.
However, where public harm is an imminent risk, boards have the power to immediately institute a temporary suspension of the doctor’s right to practice. Examples warranting such summary suspensions may include sexual misconduct, inappropriate opioid prescriptions, egregious negligent conduct, or impairment from alcohol or drug abuse.
Boards face a dilemma over these cases, because they need to balance depriving a doctor of due process rights, albeit temporarily, against allowing a bad doctor to pose a clear and present threat to the public. In Texas, 32 summary suspensions took place in 2011, a figure that fell to 13 in 2014.
The aggrieved physician typically has the right to appeal an adverse board decision to the courts, although “courts have no inherent appellate jurisdiction over official acts of administrative agencies except where the legislature has made some statutory provision for judicial review.”3
For example, under California’s Code of Civil Procedure section 1094.5 , one has the right to have a Superior Court judge review the board’s decision to determine if there has been an abuse of discretion.
Despite the fact that board administrative proceedings are quasi criminal in nature, most states require only a “preponderance of evidence” to find the doctor guilty. This is the evidentiary standard used in civil cases where only monetary damages are at stake, yet it is used in determining whether a doctor would lose the liberty to practice his or her profession.
However, some jurisdictions – such as California, Florida, and Illinois – call for a higher threshold of guilt, requiring proof with “clear and convincing evidence.”
Finally, in the United Kingdom and countries such as Singapore, a guilty decision requires even more evidence – i.e., proof “beyond reasonable doubt” – which is the threshold required in criminal prosecutions.
References
1. Arch Intern Med. 2004 Mar 22;164(6):653-8 .
2. Leigh Page. The Black Cloud of a Medical Board Investigation . Medscape, Dec 23, 2015.
3. Crane v. Cont’l Tel. Co. of Cal. , 775 P.2d 705 (Nev. 1989).
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at siang@hawaii.edu.
