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Medical Board Maneuvers

From: The Hospitalist, August 2008

Some strategies to use if your care is called into question

by Patrick T. O’Rourke,Kari M. Hershey

There are a few pieces of mail that bring an instant feeling of dread—an audit letter from the IRS, a credit card bill after a Las Vegas vacation, and a letter from the medical board. We have no good solutions for the first two pieces of correspondence, but we have a few suggestions when communicating with the medical board.

1) Understand the medical board’s purpose. Every state regulates the practice of medicine for the same reason: Medicine requires highly specialized knowledge, and the average patient does not have the knowledge or experience to determine which physicians are qualified to practice.

Think of the harm that could result if incompetent physicians could practice medicine without oversight. Even worse, think of the harm that could result if non-physicians could provide medical services without proper education and training. That’s why, in every state, the legislatures have passed laws to regulate and control the practice of medicine so people can be properly protected against the unauthorized, unqualified, and improper practice of medicine. Almost everyone agrees regulation of this nature serves a legitimate public purpose.

We always recommend a physician review the complaint and the proposed response with an attorney.

Consequently, whenever a physician deals with a medical board, they are best served by remembering that the medical board exists to protect the public from the unauthorized, unqualified and improper practice of medicine. The physician’s ultimate goal is to reassure that medical board that their practice is authorized, well-grounded in medicine, and within the standards of professional care. Even if the patient has complained because of a questionable motive, such as attempting to gain an advantage in a billing dispute, a physician cannot use the patient’s motive as grounds for defending poor medical care. Medical boards often distrust physicians who try to shift the focus from the adequacy of their medical care to a patient’s shortcomings.

2) Do I need a lawyer? In most states, the medical board will ask a physician to respond to every patient complaint—even if the complaint is outlandish. Rather than judging the complaint when it arrives, the medical board is more interested in assessing the physician’s response to the complaint. An unhappy patient may lack the acumen to explain the course of treatment and the specifics of their condition, so the medical board relies upon the physician to describe their conduct and the course of care.

Unless the patient’s complaint is in the category of “the doctor placed transmitters in my brain and now the aliens won’t leave me alone,” we always recommend a physician review the complaint and the proposed response with an attorney. In every state, there are attorneys who specialize in representing physicians before medical boards.

Because they’ve dealt with the medical board in many cases throughout a number of years, these attorneys have a good idea of what the medical board expects to see in a response, and, more importantly, what the medical board does not want to see in a response. Investing in an attorney’s services at the outset is money well spent.

Far too often, we see physicians who tried to save a couple of hundred dollars by responding to the medical board, but their response was ineffective. The physician is then faced with spending several thousand dollars defending a disciplinary proceeding. Even worse, if the physician has made a sufficiently serious mistake in the initial response, the physician is going to be stuck with that mistake, severely limiting the attorney’s ability to defend the disciplinary proceeding. Some medical malpractice insurers reimburse physicians for attorney’s fees incurred in responding to a medical board complaint, so check your policy.

3) Candor is your friend. Un­doubt­edly, there are occasions when a patient complains about medical care without justification. Patients have unrealistic expectations and often fail to understand that each patient’s condition presents a unique challenge. Conversely, some complaints absolutely are legitimate. Every physician makes mistakes, and the medical board will react negatively to a physician who defends an unreasonable course of care. In fact, the medical board will view the physician’s defense of unreasonable care as evidence the mistake is not an aberration in the physician’s practice.

When confronted with one of those instances where the patient’s complaint is legitimate, we doubly recommend you confer with an attorney about your response. At a minimum, however, a physician must be able to explain:

  • Why a mistake occurred;
  • What steps the physician took to minimize the consequences of the mistake for the patient;
  • Why the mistake represents an aberration, not a reason for continued concern; and
  • What changes the physician has implemented to ensure the mistake will not reoccur.

In preparing a response to the medical board, we’ve recommended physicians take continuing education in the areas of the patients’ complaints. By taking this remedial measure voluntarily, a physician reduces the likelihood the medical board will impose it as a remedial sanction.

When we first began defending healthcare professionals before their licensing agencies, we thought we’d be spending lots of time dealing with complicated medical issues. We were wrong.

By an overwhelming proportion, the majority of disciplinary actions against physicians arise from three sources:

  • Allegations of improper sexual conduct;
  • Allegations of substance abuse; or
  • Allegations of financial impropriety.

Physicians face the same problems that affect non-physicians—but a physician’s breach of the obligations owed to patients allows a medical board to take disciplinary action. The physician-patient relationship has an inherent disparity of power that makes patients vulnerable to a physician’s abuse of trust. For this reason, medical boards view allegations of this nature quite seriously.

The first question a physician has to ask when accused of these form of misconduct is, “Is it true?” If you are tempted, to answer, “no,” even if the real answer is “yes,” think twice. If you lie to the medical board about one of these issues, you almost certainly will lose your medical license. You will have demonstrated to the board that you not only lack judgment, but that you can’t be trusted. If it even crossed your mind to alter the medical or billing records, don’t. The medical board will probably obtain copies of those records from another source.

If the answer to the question, “Is it true?” is “yes,” the physician faces the prospect that the medical board will revoke or suspend their license. In these situations, we regularly recommend physicians embark on a course of action designed to save the medical license—even if the physician will be subject to arduous probationary terms.

We will recommend the physicians engage practice monitors, seek substance abuse counseling, and repay any wrongfully obtained money. In many states, there are specialized programs that provide mental health and addiction counseling for physicians, and these programs represent potential lifelines for physicians in crisis. Your goal is demonstrate to the medical board that you’ve seen the error of your ways and have committed to a program that will return you to good standing.

Responding to the medical board is a scary proposition. The majority of complaints are dismissed without any disciplinary action against a physician—but no physician should take a complaint lightly. Be thoughtful and candid in your response to maximize the likelihood that the medical board will dismiss the complaint. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.


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