The 10 Biggest Legal Mistakes Physicians Make in Responding to a Notice of Disciplinary Investigation

Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them

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Executive Summary

Receiving a formal notice of an investigation is one of the most stressful events in a physician’s career. Although in some cases, the physician may have an inkling that he or she may be the subject of an investigation, in many cases, such notices come as a total surprise. The shock of being notified of a pending investigation and possible disciplinary action may result in a hasty and unprepared response.

Mistake 1 Failing to Respond

Not responding is a form of response. In some cases, the nonresponse is due to the fact that the physician has moved and not updated his or her address with the appropriate agency. In many jurisdictions, failing to maintain a current practice or residence address on file may itself constitute grounds for disciplinary action. Whether intentionally or unintentionally, not filing a response creates the appearance of carelessness or disregard for the possible consequences of the action. Even in the worst possible scenario, a brief response that simply acknowledges receipt of the notice of investigation is preferable to no response.

Action Step Physicians should maintain a current practice and/or residence address with the regulatory board at all times. Any notice of investigation should be reviewed and timely responded to.

Mistake 2 Filing a Handwritten Response

Coming second to not filing a response, a handwritten response also creates the appearance of carelessness and disregard for the seriousness of the proceedings. It immediately sets the wrong tone.

Action Step Any response submitted by a physician should be typewritten, and if submitted directly by the physician, on his or her letterhead.

Mistake 3 Not Being Familiar With Applicable Laws and Regulations

Physicians are too often unaware of the applicable statutes and regulations relating to disciplinary actions and investigations. Such statutes and regulations may control the time allowed to submit a response, the availability and timing of subsequent or supplemental responses, and the ability to obtain copies of the documents and related information that caused the investigation. The opportunity to provide a response or to receive the benefit of procedural safeguards may be waived or lost.

Action Step Physicians should become familiar with the laws and regulations that govern investigations and disciplinary actions in their jurisdiction.

Mistake 4 Failing to Thoroughly Investigate Before Providing a Response

Depending on the jurisdiction, the applicable statutes and regulations relating to disciplinary investigations may provide certain due process rights, including the right to obtain copies of documents related to the investigation. In some jurisdictions, the physician may have the right to obtain copies of the expert reports and opinions used by the agency to support a finding of negligence or failure to meet applicable standards of practice, as well as witness statements. The physician may have the opportunity to submit his or her own expert’s opinion in rebuttal.

Action Step All available documentation should be examined closely before formulating a response.

Mistake 5 Failing to Take Advantage of Available Impairment Programs

Most jurisdictions have impaired practitioner programs to assist physicians with substance abuse and other impairment issues. In some cases, a physician who voluntarily reports to and abides by the requirements of such a program has the right to an alternative disposition under the disciplinary statutes. If the matter under investigation concerns impairment, voluntarily entering into the impaired practitioner program may result in an alternative disposition, and can always be cited as a mitigating factor. Physicians must understand that entry into such programs carries significant burdens of compliance, and before taking such a step they should consult with counsel.

Action Step Physicians should be familiar with the impaired practitioner programs in their jurisdiction.

Mistake 6 Attacking the Complainant, Agency, or Process in the Response

The tone of the response is an important factor. Any flaws in the complainant’s version of the events should be pointed out factually, but without gratuitous speculation as to bias or motives. Those matters may be developed and pursued at the appropriate time. A response that takes issue with the agency conducting the investigation or the process is simply unprofessional. The threshold for sufficiency of a complaint is very low (i.e., if the allegation is true, would it constitute a violation?). Although a significant number of complaints end up being unfounded, the process requires that they be investigated. Antagonistic responses or those that point out that “everybody does it” are not conducive to an early resolution.

Action Step Physicians should avoid gratuitous attacks on the complainant or the investigating agency in their response.

Mistake 7 Failing to Pursue and Implement Remedial Measures

The proper response at the right time may make the difference between a formal administrative action and a lesser disposition, such as a letter of caution. In many “borderline” cases, a significant deciding factor in the lesser disposition is implementing remedial measures and describing them in the response. For example, if the investigation concerns an allegation of deficient recordkeeping or a minor error, the response should describe the steps taken to improve recordkeeping or reduce the possibility of the error, such as additional continuing education in the subject area, enactment or amendment of written operating procedures, and/or training of staff.

Action Step Physicians should consider any possible remedial measures and either implement them or commit to their implementation as part of their response.

Mistake 8 Talking to Investigators

The notice of investigation is often accompanied by a request for an interview by the investigator. In many cases the nature of the investigation or its full scope are not clearly defined at this stage. The investigator is not required to advise the physician that any statements provided during such interview may be used against him or her. Such interviews do not allow for the opportunity to carefully consider the question or review pertinent documentation before providing a response. Physicians may reveal incriminating matters inadvertently, or without comprehending the full scope of potential ramifications.

Action Step Physicians should decline requests for interviews with investigators.

Mistake 9 “Correcting” Records or Creating Exculpatory Documentation

In the stress resulting from a notice of investigation, a physician may be tempted to “correct” a patient record or to add a notation regarding the recommendations the physician clearly recalls having made to the patient during a visit but which were not written down. In just about every case, the potential disciplinary penalties for such actions greatly exceed those available for the underlying problem.

Action Step No alteration should be made to any document once the physician has been notified that there is a pending investigation.

Mistake 10 Consulting Counsel Too Late

Not making this mistake should ensure that the other nine mistakes are not made. Investigations that may result in a disciplinary action are “penal” in nature, and the subject of the investigation has due process rights that are similar to (but less extensive than) those of a criminal defendant. Although the investigating agency has the burden of proving matters that are grounds for a disciplinary action, a response that is hasty or not well thought out may result in the admission of critical elements, thereby making any possible disciplinary action far easier to prove. By consulting counsel too late in the process, a physician may have given up significant substantive and procedural rights. Furthermore, having counsel involved at the beginning of the investigatory process increases the chances that the case may be resolved at the investigatory stage, or in a reduction in the number of eventual charges pursued.

Action Step Physicians should consult with experienced counsel before they respond to a notice of investigation.