Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
A significant number of physicians will at some point during their careers have a complaint lodged against them before a professional disciplinary board, whether a state licensing board, a medical society ethics committee, or a hospital panel. Dealing with a complaint is a difficult process, made more so if the physician’s attitude and demeanor create or compound problems. Some mistakes are caused by ignorance, but many are caused by the emotions aroused when professional judgment is questioned and professional status is at stake.
Mistake 1 Denying That a Problem Exists
A complaint to a disciplinary board creates a serious problem for a physician. But in wishing it away, the problem can become worse. Putting it aside and forgetting it for awhile, thinking that it can be resolved in a quick conversation with the investigator, or just sending off the medical records that the board is requesting are hasty and ill-considered actions that may
cause harm. A response within a short period of time, often 30 days, is usually required. To retain an attorney and prepare a response take time. The investigator has the role of a detective charged with gathering evidence. The investigation will not be aborted by anything the physician says in a preliminary telephone conversation (but anything the physician says “can and will be used against him or her”). It is best for the physician to have his or her attorney review any request for records, since investigators will sometimes ask for records to which they are not entitled. In any event, it’s best to have a second set of eyes make sure that all of the documentation that is necessary is being sent; to try to add records later to those that were already sent invites an allegation of falsification.
Action Step Physicians should acknowledge that a complaint to a disciplinary board is a problem that requires assistance and must be dealt with promptly and responsibly.
Mistake 2 Acting on Feelings of Panic
“I have heard that disciplinary proceedings are kangaroo courts and are out to get doctors.” “I’m going to be disgraced and publicly humiliated.” “I’m going to lose my profession and livelihood.” Panic is irrational anxiety that feeds on itself. The antidote consists of time, reflection, and consultation. Actions that emanate from panicky feelings are almost invariably counterproductive. Physicians should not telephone and berate the complainant or try to persuade him or her to withdraw the complaint. Such action might be seen as an attempt at coercion, undue influence, or deprivation of a right. And, again, anything the physician says might be used against him or her. Physicians should never change any medical record. Although a physician may be sorely tempted to do so if a record is suggestive of an omission or error, alterations are often discovered and will only make matters worse. Physicians should remember that the majority of complaints are dismissed without disciplinary action being taken.
Action Step Physicians should not act on initial anxiety. They should consult with an attorney to plan a course of action.
Mistake 3 Being Passive
Passivity is caused by feeling overwhelmed and helpless when one is the focus of a potentially punitive legal procedure, and it sometimes takes the form of leaving everything to one’s lawyer. But physicians must play an integral part in planning and executing their defense, which will require their medical expertise as much as their attorney’s legal knowledge. Indeed, the lawyer should insist on the physician’s active participation and, in fact, on the physician taking the lead in some situations (e.g., during the initial interview by the investigator). Good defensive lawyering is creative and active, not only reactive; of course, allegations of wrongdoing must be countered, but an alternative and more compelling “story” must be advanced as well and as early in the process as possible. Fearful passivity may lead to the hiring of an inexperienced and usually overly aggressive attorney. It is incumbent on the physician to find an attorney specifically experienced in handling disciplinary proceedings involving physicians. Experience exclusively with medical malpractice (or any court litigation) does not adequately prepare an attorney to handle an administrative disciplinary proceeding in which rules of evidence are relaxed and at least superficially, a more open, academic, and collegial atmosphere prevails.
Action Step Physicians should be actively involved in their own defense, as well as in finding, choosing, and working with an experienced attorney.
Mistake 4 Looking for Reassurance in the Wrong Places
Physicians should b
e careful in whom they confide about the complaint. In their ignorance, colleagues may assume the worst, gossip, or cease making referrals. If a malpractice lawsuit is also initiated, then anyone in whom the physician confides becomes a potential witness. Physicians should restrict their confidences to their attorney, their spouse (if he or she is not made unduly anxious), and perhaps a trusted mentor. If someone further is needed to help with troubling feelings about the process, physicians should consider consulting a psychotherapist (to whom communications are privileged).
Action Step Physicians should check with their attorney before confiding in anyone about the complaint.
Mistake 5 Acting Arrogant
It’s uncomfortable for professionals to have their judgment questioned. Most private practitioners are their own overseers. As professionals, physicians sometimes have to operate “by the seat of their pants” without the opportunity to fully plan and reflect, a luxury that academics, by contrast, usually have. So being closely questioned, especially by academically oriented practitioners who usually populate disciplinary boards, may lead to defensiveness that sounds like arrogance. Arrogance is anathema to disciplinary board members because it suggests an inability to learn from mistakes. Penalties are harsher when a respondent-doctor appears unable to question his or her actions and acknowledge the possibility that an error might have been made.
Action Step Physicians should avoid acting arrogant and defensive; they should acknowledge by their attitude that they know they are not perfect and are willing to objectively examine their conduct.
Mistake 6 Expressing Anger Toward or Insulting the Complainant
Sometimes the complainant is unknown to the physician, other times the source of the complaint is clear or can be easily surmised. Complainants have a right under law to complain about the conduct of professionals. They also have either an absolute or a qualified privilege when they do so (i.e., they are protected from prosecution for libel unless they knowingly lie). The purpose of licensing laws and disciplinary proceedings is to protect the public (collectively, complainants). Anger or insults directed toward a complainant reflect badly on the physician (the respondent). If the complainant is lying or distorting the truth, has malicious or hidden motivations, or had unrealistic expectations, then the physician’s factual statements can counter them. (Factual statements are corroborated and made credible by supporting documentation; there is no substitute for a well-maintained medical record in building a defense.)
Action Step Physicians should avoid ad hominem attacks on the complainant.
Mistake 7 Expressing Anger Toward or Insulting Investigators, Board Members, or the Disciplinary Process
Investigators and board members are generally hard working, responsible, and honest. They take seriously their role as public guardians. Their job is a necessary one. To suggest that they are incompetent or biased can only hurt the physician. (This does not preclude the physician’s attorney from ensuring that investigators and board members have no conflicts and possess the appropriate credentials for the case.) To suggest that the system of which they are a part is unnecessary or prejudiced can only hurt the physician. If the physician wants fairness from them, his or her best chance of getting it is to expect it. It may be especially hard to act in a civil manner toward the prosecutor because if the case goes to a hearing, then the prosecutor will be advocating for the physician’s guilt; therefore it’s best for the physician to avoid any direct contact with the prosecutor.
Action Step Physicians should not attack the disciplinary system or its agents.
Mistake 8 Becoming Confessional
While not being defensive (see Mistake 5), physicians also must try to avoid giving too much information. This approach is sometimes taken by respondents who have an overly trusting, deferential, or timid attitude toward authority. They may be overly harsh in criticizing themselves, perhaps to forestall criticism from authority figures. Physicians can avoid taking this approach by anticipating questions and reviewing with their attorney how best to phrase and limit their responses.
Action Step With their attorney, physicians should anticipate questions and the content and limitations of their responses.
Mistake 9 Trying to Hurry the Process
Some physicians, usually out of anxiety about the uncertainty involved, will press their attorneys to try to resolve the investigation and charges, if any, as quickly as possible. Most often when charges are brought following an investigation, the matter is resolved through negotiations. The party most desirous of a quick resolution is usually at a disadvantage in negotiations. In legal proceedings, delay is almost always beneficial to the defense. Complainants can lose interest or become unavailable, emotions abate, a record of rehabilitation or lack of risk to patients can be established, and so on.
Action Step Physicians should let their attorney, not their anxiety, set a schedule for resolution of the legal process.
Mistake 10 Losing Faith
is sometimes hard to avoid in a system of justice that depends on fallible human beings and at times may appear inefficient and even arbitrary. Some of the safeguards afforded to criminal defendants and even civil litigants are lacking in administrative proceedings. As a respondent (defendant), facing the power of a state, professional society, or hospital is daunting. Losing faith may lead to prematurely accepting an overly severe penalty. Resignation may be mistaken by the board for culpability, and cynicism for hostility. With the physician’s cooperation and an experienced competent attorney as an advocate, a physician will have the best chance of being treated fairly and as leniently as possible. Most often the system does result in some approximation of justice.
Action Step Physicians should not despair of a fair result being achieved.
Having the proper attitude and demeanor goes a long way toward resolving a disciplinary complaint successfully.
Bruce V. Hillowe, Esq.
Peer reviewed by:
Christine Dolan, RN, Esq.
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