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
Executive Summary
Licensing board complaints may be filed by patients, their family members, other health care providers, employees, or anyone who interacts with a physician. Increasing awareness of this fact, aided by consumer groups and state laws that require posting patients’ rights in waiting rooms, has led to more medical board complaints being filed and sanctions being imposed. Disciplinary action can include:
- A reprimand
- Restrictions on a physician’s practice
- Continuing medical education or monitoring requirements
- Probation
- License suspension or revocation.
Moreover, the adverse consequences of a board complaint do not necessarily end with a disciplinary action. Doctors generally are required by contract to report disciplinary actions to their professional liability insurers, managed care plans, and patients’ health insurance plans.
Federal law also requires that discipline be reported to the National Practitioner Data Bank, which hospitals must check before granting or renewing medical staff privileges. Thus, a cascade of negative effects may flow from a single board complaint. Depending on the alleged offense and the board’s conclusion, a physician’s reputation and livelihood may be destroyed. The importance of responding properly to a licensing board complaint cannot be overstated. Nonetheless, many physicians make critical mistakes after a board complaint has been filed, needlessly exposing themselves to additional professional risk.
Mistake 1 Taking the Complaint Lightly or Going Into Denial Mode
Upon receiving a licensing board complaint, physicians often dismiss the allegations (regardless of merit) as frivolous, groundless, or the fabrications of a delusional patient. Or, they go into denial mode, pretending nothing has happened. Physicians may be outraged at being wrongly accused of unprofessional conduct. They may assume that once they explain what happened, the medical board will see the complaint as not worth the paper it’s written on. But even in situations in which a complaint lacks merit, physicians are well advised to take any complaint seriously.
Action Step Physicians should treat any formal complaint as a serious matter, warranting immediate and thoughtful action. They should immediately plan a thorough and respectful response.
Mistake 2 Ignoring or Missing the Response Deadline
When a complaint is filed with a licensing board, the board generally sends a notice of the complaint to the physician. In that notice, there almost always is a deadline for the doctor to file a written, narrative response to the allegations, and a deadline to produce all of the patient’s records. Physicians are busy people. Gathering the relevant information, obtaining the necessary advice, and preparing an appropriate response are time-consuming tasks, most of which cannot be delegated. It is also human nature to put off dealing with unpleasant tasks. Consequently, the deadline for producing records and filing a response often creeps up before the physician has done what is necessary to prepare a proper defense. Unfortunately, failure to respond in a timely manner can at best harm the physician’s credibility and at worst result in sanctions being imposed.
Action Step Physicians should immediately make a note of the due date for their response. They should determine as soon as possible whether an extension of time to respond will be needed and if so, request an extension well before the deadline arrives. Physicians should promptly gather and obtain certified copies of all the patient’s records, and see that they are furnished to the medical board on time, consistent with the privacy regulations under the federal Health Insurance Portability and Accountability Act (HIPAA) and under state privacy laws.
Mistake 3 Failing to Consult With Counsel Promptly and to Fully Disclose All Important Facts
It is important for physicians to find an attorney licensed to practice in their state who is familiar with the state’s licensing board procedures. Because of pride, cost concerns, professional rivalry, or a belief that they can handle the matter themselves, physicians often do not consult legal counsel until significant damage has been done to their professional reputations. Knowing how to practice medicine and being superior doctors do not mean physicians are equipped to defend themselves in a licensing board proceeding, where legal rules of procedure and evidence apply. Even attorneys abide by the maxim that “a lawyer who represents himself in a case has a fool for a client.” This is because even the best advocate can fill only so many roles without losing effectiveness. In all but the simplest of cases, it is far better to have someone else defend the physician and if necessary criticize the complainant than it is to have the doctor—who is the target of the complaint—be his or her only advocate. The damage that can be done to a physician’s reputation and livelihood by a professional complaint far outweighs any legitimate concerns the physician may have about retaining the services of an attorney experienced in this area of the law.
Action Step Physicians who know an attorney in their community who has successfully handled these types of cases should call that attorney immediately. If not, they should contact colleagues and physician organizations for referrals. Next, physicians should promptly provide counsel with all pertinent information and documents and any known grounds for defending the allegations. They should not omit any important or potentially damaging information because they hope it will not come out. They should include all facts that may be relevant, so their attorney is fully informed and not unpleasantly surprised by damaging facts when it is too late to minimize their effect. Physicians should consider asking their attorney to retain a consulting expert. Doing so will allow the physicians to get an objective opinion after a full discussion of the matter protected by the attorney-client privilege or work product doctrine.
Mistake 4 Failing to Notify the Malpractice Insurer or Risk Manager
When a complaint is filed, most physicians are not anxious to broadcast that fact. Especially if the charges include serious or embarrassing allegations, doctors may avoid notifying even those who may help them. Doing so can be a serious mistake for several reasons. First, under most malpractice insurance policies, physicians have a duty to notify the insurer of any claim or potential claim that might require coverage. Second, unless the physician is a sole practitioner, he or she often is required by contract, bylaws, or organization policy to notify a risk manager or someone within the organization about the claim, no matter how embarrassing or meritless the charge. Failure to provide timely notice of formal complaints to such parties can jeopardize insurance coverage, a physician’s employment, ownership interest in an organization, and the physician’s career. Moreover, the malpractice insurer or entity with which the physician is affiliated may provide or pay for assistance, including experienced counsel to represent the physician before the board. Therefore, keeping a board complaint secret from these parties is not in the physician’s best interest, professionally or economically.
Action Step Physicians should review their malpractice insurance policy. They should also determine whether they have a duty to notify the insurer, and whether there is coverage for board complaints. If so, they should notify their carrier of the complaint as soon as possible. They should also notify appropriate risk management personnel where they practice and provide pertinent documents. In addition, they should request any legal and other assistance that may be available under the policy, contract, or organization bylaws.
Mistake 5 Trying to Dissuade the Complaining Party From Pursuing the Complaint
Trying to dissuade the complaining party from pursuing the complaint is a tactic that almost never works. Worse, it can lead to damaging evidence being admitted against the physician. And the physician may be portrayed as having tried to intimidate the complaining party. After getting a telephone call from a seemingly friendly investigator, physicians should not assume that they can simply explain away the complaint. Although some complaints can be resolved quickly without adverse action, physicians shouldn’t be lulled into a false sense of security by what may initially be a friendly or supportive approach by a board investigator. Often, the investigator’s attitude will change. And statements the physician made at the outset, without adequate reflection, can become a problem later. Physicians should avoid having conversations with third parties, including potential witnesses, that may damage their defense and are not protected from disclosure by the attorney-client privilege or some other legally recognized privilege. In short, saying the wrong thing or something in the wrong way to anyone (except the physician’s attorney) can significantly inhibit a physician’s defense and lead to unfavorable consequences.
Action Step Physicians should involve legal counsel in all substantive discussions about the case. If asked, they should politely decline to discuss the matter with anyone without their attorney present. Doing so will help ensure that their counsel is fully informed, and that their conversations are protected under the attorney-client privilege or work product doctrine.
Mistake 6 Responding Angrily or Emotionally
A physician’s first reaction to a complaint may be to respond angrily or emotionally either as a result of righteous indignation or fear about the effects such a complaint may have on the practice. Another reaction may involve blaming other health care providers for less than optimal outcomes or for getting the physician involved in a complaint.
Action Step Before writing or speaking to the medical board, physicians should think, take several deep breaths, and think again. They should remember that board members are medical professionals; they know that many complaints are brought without merit and that physicians can be falsely accused, regardless of their competence or ethics. On the other hand, licensing boards are under increased scrutiny by the media and consumer groups and are often graded on the percentage of doctors they discipline. Their job is to police the medical profession and to protect the public. Thus, while they should not be predisposed to find against the physician, board members are unlikely to be impressed by shrill or emotional protestations of persecution or by a physician who blames the patient or other providers for problems. Physicians should resist any temptation in that direction, and omit extraneous information and personal attacks. Physicians should take the high road, no matter how infuriating the allegations. They should, if appropriate, indicate how the patient or complaining party might be mistaken (rather than be mean-spirited or deranged), and demonstrate sympathy or understanding for how such a mistaken impression might be formed. Physicians should be factual, responsive, and persuasive, addressing the board’s concerns, expressing a willingness to cooperate, and reaffirming their intention to comply fully with all applicable laws and ethical rules. In short, physicians should show complete respect for the board and the important job it does.
Mistake 7 Needlessly Admitting Fault
In medicine, as in everything else, things do not always happen as they should. In some cases, a frank acknowledgment that a mistake was made, an apology or an expression of remorse, and a promise to do better next time is the best response. In most cases, however, the issue of fault is not clear. Rare is the case in which a physician’s conduct cannot be explained, or at least cast in a better light than is done in a complaint or an investigator’s report. Therefore, except in irrefutable cases, it is a mistake for a physician simply to admit fault and hope the board will reward the doctor’s candor with a slap on the wrist or a minor sanction. In general, unqualified admissions are likely to lead to more severe sanctions being imposed, greater exposure to malpractice liability, and fewer career options.
Action Step Physicians should be candid and forthright with the board. They should express concern for the patient’s problem, if appropriate. They should not needlessly accept blame, however, when their conduct is defensible, can be explained, or can be characterized in a less blameworthy fashion. Consistent with the truth, a physician and his counsel should carefully analyze all possible ways of defending or explaining the doctor’s conduct before simply admitting fault. Even if an admission is the only credible option, the best possible terms should be sought before conceding.
Mistake 8 Responding as If Speaking to Physicians Fully Versed in the Specialty
Although medical board members are usually physicians or health care professionals, they are not trained in every medical specialty. Therefore, an individual member or panel may know little about the particular medical specialty in which the physician who is the subject of the complaint practices. Consequently, the physician responding to a board complaint should not respond in so technical a manner or with such specialized jargon that only an expert in the particular field would understand the response. Conversely, the physician should not respond as if educating an audience with no medical training or background whatsoever or in a condescending manner that insults the board.
Action Step Physicians should strive to achieve a middle ground between these two extremes. They should respectfully inform or educate board members about unique or peculiar aspects that may be involved in their particular practice, specialty, or the procedure at issue. In cases in which medical records are voluminous, it is best to cite key portions that support the physician’s defense. If the medical records do not clearly and obviously support their position, they should consider retaining an expert witness to render an opinion. To demonstrate that other authorities support their position, physicians should cite medical treatises, other treating or consulting physicians, and experts whose findings or opinions support the diagnosis, care, or treatment at issue.
Mistake 9 Failing to Respond to Every Charge in the Complaint
Often, a physician’s written response will address some, but not all, of the charges made in a patient’s complaint. While the response should be no longer than necessary, it is a mistake to ignore an allegation or assume the board will, on its own, deem a charge so lacking in merit that it does not warrant even a denial by the responding physician.
Action Step A physician’s narrative response should address each allegation or charge made in the complaint. Otherwise, the board may infer that the allegation or charge is true. Conversely, a physician’s narrative response should involve no more than is necessary to address each allegation and the board’s stated concerns.
Mistake 10 Hiding, Altering, or Destroying Records
Revising or destroying records is perhaps the easiest way for physicians to lose their license. Under no circumstances should a health care provider ever hide, alter, or destroy a medical record even if he or she believes such an alteration would make the record more accurate.
Action Step Physicians should never revise records after the fact. Instead, they should promptly gather or obtain certified copies of all the requested records, and see that they are furnished to the medical board in a manner consistent with the Health Insurance Portability and Accountability Act’s federal privacy rules and state privacy laws. To the extent there may be material errors or omissions in an original record, the record should be supplemented—but only in accordance with previously established record-keeping policies. Physicians should produce the original record in its unamended form and clearly note the date and reason for any supplementation, amendment, or addendum. Physicians and their counsel must be prepared to explain the reasons for any omission or error in a record, and any amendment, supplementation, or addendum.
Conclusion
Physicians who avoid the mistakes discussed in this chapter and take the steps suggested will be best able to ward off disciplinary action and other adverse consequences that may result from a licensing board complaint.
Additional Resources
- Lindgard, “Licensure Discipline,” Jacksonville Medicine (April 1997)
- Perrin, “What to Do If You Receive a Licensing Board Complaint,” North Carolina Psychologist (Jan./Feb. 2003)
- Welch, “Defending a Licensing Board Complaint: Financial Devastation?” Insight (edition 1, 2002)
- Zeder, “Defending Doctors in Disciplinary Proceedings,” Arizona Attorney (Jan. 2004)
Written by:
Kevin O’Mahony, Esq.
Peer reviewed by:
Joseph Chancey, Esq.
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them