(This column is the first in a three-part series.)

Question: Which of the following statements about state medical boards is best?

A. They are made up exclusively of doctors.

B. Disciplinary actions are on the rise.

C. They investigate narrowly defined areas of clinical practice.

D. They usually end with physician suspension.

E. They are insufficiently vigilant, according to critics.

Answer: E. The 10th Amendment of the U.S. Constitution authorizes states to establish laws protecting the health, safety, and general welfare of their citizens.

All 50 states have enacted legislation under the Medical Practice Act authorizing medical boards to issue licenses and regulate physician conduct. The structure and authority of these boards vary from state to state, with some retaining all licensing and disciplinary powers, while others are more advisory in nature and report to the department of health.

Medical boards consist primarily of appointed volunteer physicians and may employ an administrative staff that includes an executive officer and support personnel.1

State statutes, rules, and regulations govern the disciplinary function of medical boards, which receive, review, and investigate complaints directly from patients and other sources.

There are six main categories of complaints: substandard patient care, alcohol and substance abuse, fraud and other criminal conduct, dishonesty, sexual misconduct, and failure to meet CME requirements. Whether a board can sanction a physician for misconduct outside the realm of medical practice is frequently at issue.

In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his or her capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the “practice of medicine,” even if there is no issue of the individual’s grasp of particular technical skills.

However, the term “practice of medicine” is liberally construed in most jurisdictions, and both boards and courts tend to take a dim view of physician dishonesty and lack of integrity.

For example, the California Court of Appeals in Windham v. Board of Medical Quality Assurance rejected a defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional standing.2 Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The court stated that it was difficult to “compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients.”

Likewise, the Washington Supreme Court in an older case upheld the suspension of a doctor’s license following his conviction for tax fraud.3 In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

The number of adverse actions taken by boards nationwide appears to be stabilizing. In 2009, they affected some 4,560 errant physicians. In some states, both the number of complaints and actions may even be subsiding.

For example, the 2014 report by the Texas Medical Board showed that the number of complaints had fallen 17% after reaching a peak in 2009. In 2012, the year with the latest published nationwide data, there were 9,219 total board actions affecting 4,479 physicians. However, only a minority – some 275 doctors – faced the most severe disciplinary sanction, i.e., license revocation. The others either saw their licenses denied (170) or suspended (739), or faced lesser sanctions such as reprimands, probations, restrictions, and fines.

Critics have labeled medical boards “a good old boys network” where any private admonition is never made public. A stinging report of medical licensing and discipline in the state of New York, using data from 1982 through 1989, concluded, “the structure and functioning of the process as they now exist are seriously deficient in these areas and that major reforms are urgently needed.”4

The consumer group Public Citizen has bemoaned the fact that most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner. Advocacy groups worry about insufficient vigilance, and cite the case of Dr. Farid Fata, an oncologist whose license was finally removed by the Michigan board in 2013 for giving chemotherapy to healthy patients. The board had received an earlier complaint from a nurse in 2010, but it took no action until federal authorities charged the doctor following a tip from a whistleblower.5

To be sure, there are troubling observations. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. During 2007-2009, for example, Minnesota had the lowest rate per 1,000 physicians (1.07), whereas Alaska had the highest rate of 7.89, some seven times higher. State rankings also change drastically from year to year without apparent good reason.

For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline.

In 1999, Public Citizen began publishing yearly rankings that purportedly showed each board’s effectiveness, based on its number of “serious actions.” The rankings were based on yearly data released by the Federation of State Medical Boards (FSMB), a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories.

The federation protested the way its data were being used, but the rankings apparently caused some board executives to lose their jobs. In 2012, the FSMB stopped reporting state actions, thus ending this type of public disclosure.

To be seen as unbiased guardians of the public trust, boards now have nonphysician members, some of whom are health care attorneys. The state governor who appoints the board members is answerable to the voters for any delay or decision that permits a rogue physician to keep on practicing.

Accordingly, Michigan has instituted a process that allows it to overrule a disciplinary decision by the board, which raises an issue of due process rights. Theoretically, physicians would clear themselves in a formal hearing and be officially exonerated by the board, only to see the decision overruled by an administrative department.

Some medical boards have been accused of going too far. In Rhode Island, state legislator Rep. Michael W. Chippendale (R) is heading a commission to look into its medical board. The controversy arose from an “outlandish” and “personal” accusation against a physician in a gastroenterology group, which was forced to stop work for a week.

All the facts have not been made public, but a civil suit against the complainant is apparently in the works. The accused physician reportedly had to undergo three board-ordered psychiatric evaluations, and a fourth is pending.

Elsewhere, Oklahoma state lawmaker Rep. Richard Morrissette (D) is said to be introducing legislation limiting the powers of Oklahoma’s medical board.6

These are probably isolated events, however, and may not necessarily signal the development of any backlash across the country.

References

1. U.S. Medical Regulatory Trends and Actions, May 2014 .

2. Windham v. Board of Medical Quality Assurance , 104 Cal. App.3d 461 (1980).

3. In Re Kindschi , 52 Wn.2d 8 (1958).

4. Post, J. “ Medical Discipline and Licensing in the State of New York: A Critical Review .” Bull NY Acad Med. 1991;67:66-98.

5. “ One nurse’s gutsy effort to protect patients .” Detroit News, Feb. 6, 2015.

6. “ The Black Cloud of a Medical Board Investigation .” Medscape, Dec. 23, 2015.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. 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 .

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