Batya Swift Yasgur, MA, LMSW
When endocrinologist Francine Fitzhugh (not her real name) opened her mailbox, the last thing she expected was a letter from her state's Medical Board. "An obese patient filed a complaint against me, stating that I was responsible for her 36-pound weight gain."
Dr. Fitzhugh wasn’t worried at first. “The claim was ridiculous. I had provided appropriate care, but the patient had refused to follow my instructions. So when the board requested the patient’s records, I said, ‘Sure, why not?’” But that was when her problems started. “I didn’t realize what a Pandora’s box I’d opened. I had to defend every comma of my record-keeping. Then the Board began reviewing the charts of my other patients and finding all sorts of supposed ‘flaws.’”
Eventually, the board dismissed the original complaint, but the story didn’t end there. “They required a practice monitor to inspect my patient records for another 2 years. To add insult to injury, I had to pay the monitor out of my own pocket, which drained me financially."
Dr. Fitzhugh's story isn't uncommon. "Many of my physician clients were naive in their responses to that first letter from the Medical Board," says Steven L. Simas, Esq, Founding Member of Simas and Associates, LTD, a Sacramento-based law firm with a specialty in healthcare law. "They walked right into a mine field."
The Medical Board investigation was one of the most stressful periods of my life," Dr. Fitzhugh recalls. "Although I knew I had done nothing wrong, I still felt embarrassed. I lost self-confidence and became anxious about my career."
The Power and Structure of the Medical Board
Every state has a Medical Board, defined by the Federation of State Medical Boards (FSMB) as "a group of volunteers who are charged with...[protecting] the public from unprofessional, improper and incompetent practice of medicine." In some states, Medical Boards are independent entities, while in others they operate under a larger umbrella agency, such as the Department of Health or the Office of the Professions. Board members are typically appointed by the state's governor. Nonphysicians have recently been included, partially to dispel the notion that Medical Boards are "old boys' clubs," according to David Herlihy, Esq, Executive Director of the Vermont Board of Medical Practice. Boards also contract with attorneys and call in expert consultants.
The Medical Board investigates clinical and nonclinical misconduct (eg, inappropriate sexual or financial practices, boundary violations, unethical behavior, failure to properly maintain patient records, improper prescribing of drugs, or criminal activity). It has the power to revoke or suspend licenses, place the physician on probation, mandate that a physician practice only under the supervision of another physician (a "practice monitor"), or mete out other forms of disciplinary action.
"Your license, career, and future are in their hands," observes Ofer Zur, PhD, author of When the Board Comes Knocking: How to Respond to a Licensing Board Investigation and Protect Your License, Professional Career, and Livelihood.
Steps in the Process
The investigative process is complex, and procedures differ from state to state. In Vermont, for example, "we respond to a complaint by appointing a small investigative committee," Herlihy says. "If the investigators feel that there has been misconduct, then charges are filed with the Assistant Attorney General. A new Medical Board panel is convened to further the investigation."
In California, the process is different, says Simas. The initial investigators are peace officers -- and not even necessarily physicians -- who use an "expert" physician consultant to assist them in reviewing the case. Frequently, the "expert" has no expertise in the discipline of the licensee under investigation.
If the physician's actions are deemed to be in violation of the Medical Practice Act, the investigators refer the case to the Office of the Attorney General where an "accusation" is drafted and the case will be adjudicated by an administrative judge. "In Vermont, a physician who's been disciplined has a right to appeal the administrative court's decision, by taking it to the state's Supreme Court," Herlihy says. In other states, a district or circuit court might be the appropriate venue for the appeal.
Danger: Shrugging Off "Silly" Complaints or Board Requests
When a complaint has been received and an investigation launched, you'll receive a letter notifying you of the complaint and requesting a response within a specified time frame. "Take the Board's letters seriously," warns Dennis Hursh, Esq, founder and managing partner of Hursh and Hursh, PC, a Pennsylvania-based law firm specializing in physician-related legal issues. One common way that doctors get themselves in trouble is by ignoring Medical Board letters, or deciding that a complaint against them is so trumped up, they can't be bothered dealing with it. Hursh describes physician clients who have "simply stuffed the letter into their drawers. By the time they got around to dealing with the Board, there was disciplinary action against them."
Gary Sastow, Esq, a Harrison, New York-based lawyer with a specialty in healthcare law, adds, "Even 'housekeeping' matters, such as deficient CME credits, must be addressed immediately."
Never regard a complaint as too petty for attention. "We on the Board have to take any complaint seriously, even if it's as 'trivial' as, 'I was kept waiting too long in the doctor's office,'" says Gregory Adams, MD, a family practice physician based in Newark, Delaware, and a member of the Delaware Board of Medical Licensure and Discipline. "It can be tempting to be dismissive of a complaint that appears frivolous or has been filed by someone a physician regards as a 'crackpot' or unreliable. We recognize that some complaints are unreasonable, but even in those cases, we expect that physicians will respond appropriately," Dr. Adams advises.
Get Legal Advice Before Responding to the Letter
"Beware when the Board wants to talk to you, either in person or by phone," Simas warns. "This meeting might be presented as an informal 'fireside chat,' but in reality, everything you say is admissible and might be used against you in ways you can't anticipate, especially if it's recorded."
"It's easy to inadvertently incriminate yourself," Dr. Zur agrees. "Healthcare laws are intricate, and physicians don't always know their rights." For example, "you don't have to answer every question, and a lawyer can instruct you when to keep silent."
"A lawyer can help make sure that the issue being investigated doesn't mushroom into a larger investigation of unrelated issues, and that it gets defended as vigorously as possible," notes Dr. Zur. "A lawyer can interject when irrelevant subjects are introduced, can offer countervailing opinions or precedents, or can rephrase a question so that the client answers only with the pertinent information."
What Can Be Included in the Investigation?
"Boards have a right to investigate everything about you," Dr. Zur notes. "The Board's investigator may not find what they were originally looking for, but that doesn't mean they won't find something else amiss," Sastow observes. "You may innocently invite them to your office to look at your patient records, thinking, 'I have nothing to hide.' But it's not a good idea to have them snooping around."
Hursh notes that experts in healthcare law can spot potential problems in the chart that might implicate the physician. "By preparing the physician to address them, we can preempt a lot of problems."
Simas concurs. "One of my clients, an orthopedic surgeon, was accused by a patient of negligence after surgery in which he repaired an ankle that had been smashed in an automobile accident. She had expected to return to her hobby as a marathon runner and was angry that she was 'only' able to walk but not to run."
When the complaint was investigated, the Board noticed that, in his informational brochure, the surgeon had claimed to be in practice for 17 years, when in reality he had been in practice for 7 years. "It was a typo and the printer took responsibility for it, but this 'misrepresentation' became the crux of the investigation. The Board wanted to revoke his license." "By the time I got involved, the case had progressed to a formal administrative hearing in which he ultimately received a reprimand, although the complaint had been groundless," Simas recalls. "The Board's lawyer said, 'If your client had brought you to the first interview, we wouldn't be here today.'"
What Else Will Having Legal Representation Accomplish?
Other than helping with the initial response to the letter, a lawyer can represent you at every juncture and hopefully get the charges against you dismissed. But "if the physician has been found guilty of wrongdoing, we can help 'scale down' the Board's action by suggesting less-serious disciplinary actions," Hursh says. Additionally, lawyers can steer physicians away from making mistakes with far-reaching consequences. For example, "never admit guilt when it's not necessary," Hursh warns.
Sastow agrees. "I had a client who consented to a minor 'slap on the wrist,' rather than facing a long, drawn-out defense process, even though he knew he was innocent and would prevail in the end. But that slap on the wrist had a major ripple effect." When the physician tried to recertify, his specialty's board refused to renew his certification because of the disciplinary action. When he lost board certification, he also lost his ability to participate with certain insurance plans, so he lost patients who were covered by those plans." "We fought vigorously," Sastow recounts, "and finally the organization reinstated the certification. He got back onto the insurance plans, but the bad publicity and financial loss lingered." Had he consulted with legal counsel before agreeing, he could have avoided these negative consequences
Dr. Adams concurs that legal advice or representation is often necessary. "Issues such as licensure renewal or CME credits probably don't need the involvement of a lawyer. But for anything substantive, such as a clinical complaint, legal representation is a good idea."
Does It Have to Be a Lawyer?
For facing a Medical Board, a knowledgeable expert should be a lawyer, but there are exceptions. "In a court of law, legal representation must be provided by a member of the bar, but this isn't true of an administrative hearing," observes Laura Mackie, a paralegal and lay legal representative. Mackie, who is based in Yuba City, California, works as an advocate for physicians who are being investigated by the state's Medical Board. "Costs of a lengthy investigation can become prohibitive, and many of my clients come to me because they can no longer afford an attorney. I charge approximately a third of what attorneys in my area are charging."
"You also need to find out whether your state allows representation by someone who isn't a member of the bar," Mackie says. She adds that nonlawyer advocates may be difficult to locate, but it may be worth considering in some situations if money is an issue. Dr. Zur disagrees. "Remember that your license and entire career are at stake," he warns. "Don't be penny wise and pound foolish." Mr. Simas adds, "Physicians cannot take shortcuts when their livelihoods are on the line."
Dr. Zur notes that it also helps to hire your own expert consultant to work with your attorney. "Make sure to get a physician who's conversant in your field's standard of care as it applies to your case," he emphasizes. "And do it right away; don't delay. The earlier the involvement, the better your chances that the case will be dismissed."
Medical Board Members Say That They're Impartial
While caution is indicated, dread and suspicion aren't warranted, according to Dr. Adams. "We're not on a witch hunt. What do we gain by penalizing our colleagues?" Herlihy concurs. "Our board takes very seriously its task to do justice, not only for complainants, but also for licensees to have an unbiased examination of the allegation against them."
Hursh agrees that the board doesn't necessarily consist of "bad guys" who have already made up their minds. "In my experience, the board isn't out to 'get' anyone and will be fair when the physician responds appropriately. Board members are also aware of today's physician shortage and don't want to revoke anyone's license unnecessarily."
"If handled correctly, a Medical Board investigation doesn't have to derail your career," Hursh says. "Taking it seriously and getting good help are the best ways to ensure a positive outcome."
Reprinted with permission from Medscape News and Features (http://www.medscape.com/), 2013, available at http://www.medscape.com/viewarticle/777661