First, a disclaimer: I am not an attorney, and this is not intended to be legal advice. Any specific questions or concerns you may have should be directed to your legal counsel. The recommendations in this article are my own opinions and do not represent those of SHM, McLeod Health, or any other entity.
Few things cause panic in a doctor’s life like a phone call or letter from a state medical board. That initial call or letter can tarnish reputations and threaten and potentially end careers. I recently responded to a post on a popular physician forum on social media concerning a physician who had a complaint filed against her to her state medical board. I mentioned that I review complaints for my state medical board and offered my free advice, which she gladly welcomed. Soon after, I received a handful of requests from other physicians across the country going through similar situations, which led to the realization that this is a large and frequent issue that can be incredibly stressful for the physician in question and their family.
Please keep in mind that state medical boards exist for one specific reason—to protect the citizens of their state from haphazard and/or dangerous medical care. They do not exist to protect physicians. Each state’s medical board operates differently and independently based on its bylaws, which are formed and regulated by the state legislature, not the state medical board. You can usually find your state’s bylaws on its website. The state medical board enforces these laws but cannot create or change them. Some states post physician board orders publicly while others do not.
Recently, there has been a push for more transparency and better communication between different state medical boards, especially after the highly publicized Dr. Christopher Duntsch (aka “Dr. Death”) case in Texas, where a fellowship-trained spine surgeon was eventually arrested and convicted of aggravated assault and injury to an elderly person in 2015, after years of bad patient outcomes, some of which were seemingly intentional. Dr. Duntsch was sentenced to life in prison in 2017. The case received national attention and shined a light on loopholes in medical board processes that allow potentially dangerous physicians to move from one hospital to another unchecked. Some state medical boards have changed their policies and procedures in response to this case to take physician complaints more seriously.
Types of complaints and investigations
Medical board complaints and investigations come in different forms and each category is addressed differently. There are criminal investigations like arrests and DUIs, complaints sent directly to the board—usually from patients, other practitioners, pharmacists, or nurses—and medical malpractice cases where a payout occurred.
If you practice medicine long enough, you’ll likely know another physician who has been arrested. I’ve seen numerous stories unfold among my colleagues over the years, including DUIs, solicitation of prostitution, domestic violence, and failure to pay child support. Some medical boards run daily reports on arrest records within their state, checking names and dates of birth for potential matches to their licensed physicians. If one is found, the board initiates an investigation. However, most states do not actively look for physician misbehavior. Instead, they expect the physician to self-report any arrest. Those who don’t could face serious consequences should the board later discover the infraction. In criminal situations, it is best to hire an attorney and be forthcoming to the medical boards where you are licensed. Typically, physicians’ criminal or behavioral issues are handled by a specific committee on the medical board. Depending on the results of the charges, the medical board will follow their bylaws on how best to proceed.
It’s important to remember that anyone can generate a formal complaint against a physician with a state medical board, including patients, patients’ family members, nurses, pharmacists, colleagues, and hospital medical executive committees. While some states do not accept anonymous complaints, there are several states that either allow them or are heading in that direction.
Most state medical boards follow a similar process once a complaint is filed. Initially, the physician in question will receive notice of the complaint, usually by phone call or letter. They will be given the opportunity to explain themselves via a written letter, a phone call, or a teleconference. Some states end the investigative process altogether and dismiss the complaint based entirely on the physician’s response to the complaint, so the content of the response is crucial.
In this scenario, many physicians consider hiring an attorney. Whether or not legal representation is necessary, in my opinion, depends on the circumstance. If no harm occurred to the patient and the complaint seems trivial, I would not recommend getting an attorney. Instead, if you’re the doctor in question, you should craft a thorough and well-written response letter to the medical board that explains your side of the story. I recommend the response be shared with others, preferably those who are familiar with this process. Also, it’s imperative that a response is error-free, so a good proofreader is essential.
If you feel the complaint has legitimacy or there was harm, whether there was causation or not, I recommend hiring an attorney to help you through this process. Keep in mind that many medical malpractice insurance policies include coverage for this scenario. Also, if you’re employed by a hospital or health care system, they often have in-house legal counsel who would prefer to be involved before you contact your medical malpractice insurer. If you are hesitant to contact your in-house legal counsel for privacy reasons, please realize some medical staff bylaws require you to let your medical executive committee know if you have received any medical board complaints.
It is difficult to estimate how many of these complaints are dismissed without a formal investigation, but it is the majority. If not, the medical board will typically have the case reviewed by one or more peer experts like me. As an internal-medicine-trained hospitalist, I frequently review cases for my medical board that involve the practice of hospital medicine. The medical board will subpoena all relevant records, including prescription history, and send these to the reviewing physician(s) in addition to the written statement of the physician in question and the initial complaint. The reviewing physician will typically focus on three questions:
1. Was there a deviation from the standard of care?
2. Was there harm to the patient because of this deviation?
3. Did the physician’s documentation meet the minimum standard as defined by that state’s medical bylaws?
The reviewer writes a report based on their assessment and sends it to the medical board, where it’s reviewed by the committee that handles complaints. They then vote on how best to proceed. This typically yields three possible results: proceeding with a formal complaint, which is a legal proceeding; issuing a letter of caution, which can be public or confidential depending on the state; or the dismissal of the complaint.
Dismissal is self-explanatory and does not get reported to the federal database or go on your permanent record. A letter of caution might have a different title and be publicly posted depending on the state. This occurs more frequently than a formal complaint and does stay on your record. A formal complaint usually requires additional action by the physician in question. This is where disciplinary action or remediation typically occurs. The physician in question will likely be given the options to either accept the board recommendations regarding education, fines, etc., or proceed with a series of hearings. Some states have a panel hearing available where the physician’s case will be presented to a group, mostly made up of physician peers (like me). This panel will then decide whether the physician is guilty of the claims brought against them. If so, the physician in question will have to either proceed with the board’s recommendations or proceed with a formal hearing in front of the actual medical board.
Decisions at this level include complaint dismissal (which is unlikely if the complaint has made it this far), mandatory education or remediation, license suspension, or license revocation. Some states will not allow doctors who have had their licenses previously revoked to work in their state. It is typically easier for everyone involved if you can resolve the issue without proceeding to a hearing. Keep in mind these steps vary from one state to another, so it’s extremely important to familiarize yourself with your state’s policies and procedures.
Medical malpractice cases are typically referred to your state medical board after the civil proceedings have been completed and if there has been a payout made in your name, whether through a pre-trial settlement or a jury verdict. Some states will require you to disclose when you’re named in a suit, but most only require notification if you’re named in a payout.
Again, it would benefit you to familiarize yourself with your state’s expectations in this scenario. Typically, the same legal counsel that represented you during your malpractice case would also represent you before your medical board.
Medical board complaints and their subsequent investigations can be scary, but remember that everything is reviewed by a peer physician who is not on the medical board. They should give you the benefit of the doubt. Try to use the tips in this article to keep these reviewers—and your state medical board—on your side.
Dr. Craven is the vice president of case management, physician advisor, and hospitalist at McLeod Health, in Florence, S.C. He’s also a member of The Hospitalist’s editorial board.