The Black Cloud of a Medical Board Investigation
Leigh Page
|December 23, 2015
Doctors' Worst Nightmare: A Complaint Filed With the Medical Board
When a complaint has been filed against a doctor at the state medical board, it can sometimes be the beginning of a long nightmare. Often, physicians initially aren't told much about the complaint, and even if they think the charges are overblown, they may plead guilty because they fear worse consequences if they insist on a full hearing. But doctors then end up with a black mark on their record, which can lead to more adverse actions.
It sounds like something out of The Trial, the novel by Franz Kafka, which begins this way: "Someone must have falsely accused Josef K., for he was arrested one morning, even though he had done nothing wrong." Josef K. is unable to find out the details of his case. He is never jailed, but having to wait for the decision to come down is punishment in itself—slowly wearing him down and making it hard to focus on work.
To be sure, there are distinct differences between Josef K.'s experience and what doctors go through with a complaint. Kafka's story, like an actual nightmare, gets increasingly surreal, and it ends in murder. A medical board action, on the other hand, follows a clearly laid-out set of rules.
And physicians who are prepared are then able to fight the situation, protect themselves, and take steps to make sure the situation turns out better than it potentially could have. Physicians can hire attorneys to help them at every step of the way, and the vast majority of complaints are dismissed with no action taken against them.
However, a small percentage of complaint investigations can get quite aggressive, according to attorneys who represent physicians in board cases. Over the course of the investigation, the allegation against the physician can completely change, and in some cases, the board can summarily remove the doctor's license without a hearing. The board's final decision has ripple effects, such as a permanent mark on their records, loss of hospital privileges, and potentially being dropped by health insurance carriers.
The attorneys say that bad investigations vary widely, depending on the state and even the individual board members who are involved. But the fact is that all boards have a great deal of potential power over physicians, and their actions can ruin careers. Boards can subpoena records, suspend licenses without a hearing, pressure doctors to sign self-incriminating settlement agreements, and withhold certain information at the hearing.
Legislator Investigates 'Overzealous' Board
Doctors who have gone through the board process often don't want to talk about it publicly, but they have been talking to Michael W. Chippendale, a Republican in the Rhode Island House of Representatives who is chairman of a state commission investigating Rhode Island's medical board.
Chippendale's concerns about the board began more than a year ago, when he showed up at his gastroenterologist's office for a colonoscopy, and the office was closed. He learned that all three doctors were forced to stop work for a week, owing to a complaint filed against one of them. He won’t reveal the details of the complaint, but it "didn’t even have to do with practicing medicine," he says. "It was more of a personal accusation." Chippendale says the police had looked into it and dismissed it within 24 hours because it was "outlandish."
He says the board initially suspended the doctor's license and then reinstated it with restrictions. The doctor is not allowed to perform procedures, which are an essential part of his work. But the investigation still hasn't been closed. The legislator says the physician has undergone three board-ordered psychiatric evaluations and now it wants a fourth one, but he has refused to take it. "His attorney's position has been that the board was sending him to forensic psychiatrists until they got the answer they wanted," Chippendale says, adding that the doctor has started a civil action against the person who filed the complaint.
The Rhode Island board, like all boards, is prevented by law from discussing specific cases, and it has said little about Chippendale's investigation. A statement[1] by a spokesman for the board, provided in October to the Providence Journal, said simply, "We look forward to providing whatever data or other information that the legislative commission needs as it looks at the discipline process."
Chippendale's commission, authorized by the legislature, is starting to hold hearings. After he released a press release on the commission, "I got a deluge of phone calls and emails from doctors," the legislator says. "They're still coming out and letting me know their stories." He says it's beginning to appear that perhaps the board has been "overzealous." He thinks it has become a quality-of-care issue, because intense investigations divert physicians from their work.
"There is this universal and overwhelming fear doctors have toward the board," Chippendale says. "It's the kind of fear that a 4-year-old has about the bogeyman in the closet. At first it seemed irrational to me, but I think I understand it now."
More Dangerous Than Malpractice Lawsuits
Doctors are often more fearful of malpractice lawsuit than a complaint to the medical board, but in fact, a complaint to the board is more common and potentially more dangerous than a malpractice filing, according to William Sullivan, DO, an emergency physician and attorney in suburban Chicago who has represented physicians charged by the Illinois board.
Complaints are omnipresent. According to a 2009 report[2] about the California board, 1 of every 8 physicians in the state was being reported to the board each year. About one quarter of complaints to the board were investigated, and about one quarter of investigated complaints led to disciplinary proceedings against the physician, the report added. Adverse actions by medical boards are reported to the National Practitioner Data Bank (NPDB), and their number is almost four times greater than the number of malpractice payouts that are reported, Sullivan says.
It’s Easy for People to File Complaints
Unlike malpractice claims, board complaints don't require an injury to take place and they're simple to file. The complainant just has to fill out a form and send it in.
Moreover, many states have begun allowing people to submit complaints online, further boosting the number. For example, the Oklahoma board began allowing online filings in January 2013. In the 2 years after the change, the number of complaints was 40% higher than in the 2 years beforehand, according to figures provided by an Oklahoma board official.
Making it easier to file has made complaints less reliable, according to Jeffrey Lane, who worked for 31 years as an investigator at the Georgia board and now is a consultant at the Atlanta law firm of Allen, McCain & O'Mahony. Medical board investigators triage each complaint the board receives. With online access, "patients can just fire up the computer and send in complaints that don't meet the board criteria." Examples include unhelpful staff or having to wait 3 hours to see the doctor, he says.
Whereas filing a complaint gets easier, filing a malpractice lawsuit still remains challenging. The patient has to find a plaintiff's attorney who agrees to take the case and spend money gathering evidence and hiring expert witnesses to make a case, Dr Sullivan says.
In contrast, people who file complaints won't get any money for "winning" the case, but the board will do the investigating for them. Dr Sullivan reports that some complaints actually start as malpractice cases. For example, when he requested records to answer a complaint, he noticed that several plaintiff's attorneys had asked for the same files.
There are other differences between a complaint and a malpractice case. In such states as Georgia and Maryland, complaints can still be filed anonymously. Many states have stopped accepting anonymous complaints, but even these states withhold the complainant's identity from the physician at least until the hearing stage.
Of course, a physician will know which patient filed a complaint when the board subpoenas the patient's records. But when a pharmacist, nurse, or another healthcare worker files a complaint, the physician may not know who it is. And in any case, physicians won't be able to confront the complainant unless the case goes to a hearing, and that may never take place because physicians often settle the charge in a so-called "informal conference" with board officials.
Another difference from malpractice cases is that a complaint can morph into a totally new charge. When the board subpoenas the medical records, investigators may decide they have no evidence to support the original complaint. But in the documents, "they may find some other potential violation and open an investigation on that," says Andre D'Souza, an attorney at Leichter Law Firm in Austin, Texas. The new charge might be sloppy record-keeping or failure to obtain informed consent from the patient. "There are no statutory limits on this power, which potentially leaves it open to abuse," D'Souza says.
In Rhode Island, Chippendale says his commission has found instances of the board coming up with a whole new set of charges against a doctor that can bring new life to a failing case. "It appears that the board doesn't like to lose a case," he says.
Once the board determines the charges against a physician, it will announce them to the public, Even though the case has not yet reached the hearing stage, physicians will begin to feel the consequences, says Tracy Green, a Los Angeles attorney who defends physicians in board actions. The charges are announced to the public, which "puts insurance carriers and hospitals are in a difficult position," she says. They don't want to look like they are protecting physicians who might lose their licenses. So even without a hearing, "you may be dropped by certain insurance plans, and your hospital privileges may also be affected," she says.
Minor Complaints Can Snowball
Many complaints involve relatively minor issues—such as alleged rudeness, fee issues, and inadequate explanations of care—and the board usually dismisses them without opening an investigation. At the Texas board,[3] for example, 26% of complaints were dismissed without an investigation in fiscal year 2014.
But once the file is assigned to an investigator, and the investigator contacts the doctor, the situation can begin to snowball, according to Ronald W. Chapman II, an attorney in Bloomfield Hills, Michigan. "When the investigator contacts them, most physicians don't realize that this could be the beginning of a long investigation, and their licenses could be on the line," he says.
Chapman says the investigator might call the doctor up and tell him there's a small matter he wants to clear up, and proposes a casual meeting at a local coffee shop. Chapman says many doctors agree to discuss everything, because they want to demonstrate that they have nothing to hide, but even statements that seem innocent could end up being used against them. The best thing to do, he says, is to decline to provide a statement and contact an attorney. "Most doctors don't realize that you don't need to say anything at all," he says.
Some boards expressly state that they don't handle complaints about rudeness, whereas others handle quite a few of them. "I get a ton of these cases," says Ryan Wozny, a Dallas lawyer who defends physicians in board matters. He adds that they can actually be harder to defend than a clinical matter. "Then you have a debate over what is rude vs what is necessary for good patient care," Wozny says. For example, a doctor asking the patient's family to leave the room so that he can conduct an examination on the patient may receive a complaint about rudeness, filed by a family member.
Some boards can be hard-nosed about minor cases, especially if the physician is uncooperative. They may take action against these physicians and post the action on their website and in press releases for the media. In 2012, the Maine board issued a press release[4] announcing that it had placed a 72-year-old neurologist on probation, on the basis of a complaint about rudeness to an adolescent patient. The neurologist "must attend classes in medical ethics, boundaries and patient communication," the board reported.
The release stated that the elderly doctor "acted in an unprofessional manner by being rude, condescending, and throwing a tissue box at a patient who was crying." But according to the release, the doctor's own version of the events was slightly different. Rather than throwing the tissue box "at" the patient, he simply admitted that he "tossed the box of tissues onto the patient’s lap." He also admitted that he "might have told the patient to stop crying in an inappropriate way and that he may have been 'emotional' in his discussion with the patient and his parent," the release said.
The board's interaction with the physician is unknown because boards don't discuss cases and the neurologist did not respond to requests for an interview. But the wording of the release suggests the physician was reluctant to admit to the charges. Also, it took more than 1 year after the complaint was filed for him to sign the consent agreement in an informal conference.
According to some attorneys, physicians can get a better deal if they push for a full hearing instead of signing a consent agreement. "The board members and attorneys attending an informal conference could be completely uninformed about the medicine," according to D'Souza, the Austin attorney. But at a formal hearing, doctors can present evidence and may have a chance to confront the complainant, which could bolster their case.
Board defense attorneys say it helps to have them present at the informal conference, because they know what the board is looking for and can often negotiate a lower penalty, or even have the charges dropped completely. Wozny, the Dallas attorney, estimates that about one fifth of the proposed sanctions are dismissed at the settlement conference with the Texas board, but almost none of them are dismissed when the doctor doesn’t have an attorney present.
However, the situation is quite different at the Michigan board. "Once a formal complaint has been authorized, it is very, very difficult to get a complaint dismissed during the informal conference," says Chapman II. To get the case dropped, "you would need to produce actual proof that you did not violate the public health code."
Major Complaints Can Prompt Immediate Loss of License
One example of a medical board's immense power is its ability to temporarily suspend doctors' licenses if the board finds that they are an "imminent threat" to public safety. This action is sometimes triggered by complaints that would make headlines, such as improper prescribing of opioids from a pharmacist or sexual offenses.
Such cases are a dilemma for boards. Waiting for a hearing would ensure that the physician hasn't been falsely charged, but during that time, the physician might be a threat if he's guilty and the board would be accused of harboring a threat to the public safety. In these cases, the board is empowered to act immediately and temporarily suspend the physician's license before the hearing can be held.
But temporarily suspensions can create some Kafkaesque experiences for innocent physicians caught in this process. D'Souza says a temporary suspension in Texas can last for years. Meanwhile, the action has already been reported to the NPDB, and it's well nigh impossible to undo the listing. However, D'Souza says temporary suspension are very rare and getting rarer. According to Texas board statistics supplied by D'Souza, 13 such cases were allowed in 2014, down from 32 in 2011.
Chapman says the Michigan board provides for a similar action, called a "summary suspension," but the board is required to expedite a hearing. Viewing the seriousness of the charges, you might assume that the Michigan board has an open-and-shut case against these doctors. But Chapman, who has defended several of these cases, says he has always been able to overturn the suspension.
Public Pressure on Boards
State medical boards were conceived as a form of peer review wholly operated by physicians, who still serve without pay. Even a couple of decades ago, Wozny says, the Texas board was widely seen as running "a good-old-boys network" of physicians. "A physician would be privately reprimanded, and the public would never know," he says. But those cozy relationships, if they ever truly existed, have long gone.
Today, boards are increasingly seen as guardians of the public trust. Although boards are still dominated by physicians, they now have two or three nonphysician members—often attorneys involved in health law. All members are appointed by the governor, who has a political stake in a board decision that allows a suspected rogue physician to keep practicing. Such cases make headlines.
Boards are under increasing pressure to go after "bad doctors." In 1999, the consumer group Public Citizen began publishing yearly rankings that purportedly showed each board's effectiveness, based on its number of "serious actions" per 1000 physicians. The rankings[5] were based on yearly data released by the Federation of State Medical Boards (FSMB). The federation protested about the way in which Public Citizen was using its data, but the rankings had a powerful effect, according to Lane, the medical claims consultant who used to work for the Georgia board. He recalls that some board executives around the country lost their jobs owing to low rankings from Public Citizen.
Still Pressure on Medical Boards
In 2012, the FSMB stopped reporting state actions and the Public Citizen rankings came to a halt, but public pressure on medical boards hasn't let up. This became clear in 2013, when the Michigan board stripped the license of oncologist Farid Fata, MD, after it was shown that he had been giving chemotherapy to healthy patients so that he could bill them more. A Medscape article[6] on Dr Fata's sentencing received more than 300 comments from readers.
However, it wasn’t the board that exposed Dr Fata. He was charged by federal authorities on a tip from a whistleblower. In fact, the board had received a complaint about Dr Fata in 2010 that never led to any actions against him. The Detroit Newsreported[7] that the nurse who filed the complaint said she had never even been interviewed by the board, though state officials claimed otherwise. In any case, Fata was allowed to operate for more than 2 more years after the complaint was filed.
Chapman thinks the board has gotten tougher since the Fata debacle. "There is less benefit of the doubt than before," he says. Considering that the board was left with a considerable amount of egg on its face from the Fata case, "I don't fault the board for looking more thoroughly into complaints, but what happens is that more doctors get caught up in this increased scrutiny," he says.
That isn't the only possible fallout from the Fata case. Last year, the Michigan department that oversees the board instituted rules that allow it to overrule a disciplinary decision by the board. Basically, the department can overrule the board if it obtains agreement from the board chairman, who serves at the pleasure of the governor, that the public health and welfare would be in jeopardy if the decision was allowed to stand.
David Rogers, an attorney in Farmington Hills, Michigan, knows of no cases where this new right has been exercised yet, but thinks it's a setback for physicians. Physicians would clear themselves in a full-blown hearing, and the board would officially exonerate them, only to see the decision overruled by the department. This is not only a very Kafkaesque scenario, but Rogers says it would also violate a physician's right to due process.
Conclusion
What is happening in Michigan, however, may be running against the general trend around the country. In the past, state legislators often spearheaded efforts to make physicians more accountable to the public, but now some lawmakers are pressuring boards to be more accountable to doctors.
In addition to Chippendale in Rhode Island, Rep Richard Morrissette, a Democrat in the Oklahoma legislature, is investigating his state board. In January, he held hearings on the board's action and then introduced[8] legislation that would limit its powers. "Long overdue, the people and physicians of the state now will have faith in a system that oversees doctors’ behavior which is fair and important," Morrissette said of his bill.
Both the number of complaints and actions taken by boards seems to be subsiding in some states. The 2014 report by the Texas Medical Board showed that the number of complaints filed with the board had fallen 17% after reaching a peak of 8182 in 2009. And the FSMB reported[9] that the number of adverse actions by boards nationwide reached a peak of 4560 in 2009 and has been declining up to 2012, the last reported year.
But even though the numbers are down a little, board actions can still be a nightmare for the small number of physicians who get caught up in them. "Going through the process can be quite stressful, and there aren't a lot of resources for physicians who go through this," Dr Sullivan says. "Many doctors just internalize their feelings." A recent British study[10] of physicians who had complaints filed against them found they experienced unusually high rates of serious depression, anxiety, and suicidal thoughts.
Sullivan added that it's hard for the public to understand what physicians go through. "It's not the same as getting fired," he says. "If you get fired, you can always get another job, and no one may know what happened. But an adverse action by a medical board follows you wherever you go."
References
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Bourne T, Wynants L, Peters M, et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open. 2015;5:e006687.
http://bmjopen.bmj.com/content/5/1/e006687 Accessed November 2, 2015.
https://www.saleeby.net
https://www.CarolinaHolisticMedicine.com
medical advisory board member UK's LDN Research Trust
As you know, the Medical Board’s mission is to protect the public. One of the most important ways it does this is by intervening to protect unsuspecting patients from treatments that are outside accepted standards of care and, at times, risky.
