Malpractice lawsuits are a major concern for most physicians, but medical board investigations are more common and more dangerous, says a recent Medscape report. Medical boards are required by law to investigate every complaint against a physician, no matter how frivolous they appear. These investigations can lead to new allegations, many of them unrelated to the initial complaint.
Nor are medical board investigations limited only to a doctor’s professional judgement and patient care. Although most investigations center around standard-of-care issues and allegations of negligence, any physician behavior can be fuel for the fire. “A Facebook post or a YouTube video depicting you acting inappropriately can lead to an investigation” says David L. Adelson, a healthcare attorney in Bridgewater, New Jersey, in an interview with Medscape.
Medicals boards have sweeping powers, which -- according to some attorneys -- they sometimes abuse. They can suspend a doctor’s license without a hearing as they review a case, for example, or they can subpoena multiple patient records without divulging why. Even when the subpoenaed records don’t support the initial claim, problems can arise if other issues are found. If, for example, the physician's record keeping is sloppy or he is out of compliance with informed-consent laws, new charges may result.
The process of filing a complaint with a state medical board has become easier in recent years because complainants in many states can file online. Oklahoma, for example, instituted an online system in 2013, and the number of complaints received increased 40 percent in two years.
Online complaints also tend to be more frivolous, according to Jeffrey Lane, a former investigator with the Georgia state medical board. “Patients can just fire up the computer and send in complaints that don't meet the board criteria,” such as long wait times or unhelpful staff. Many of these complaints are triaged out of the system, but some lead to investigations, he says.
Even minor complaints can have serious consequences, attorneys claim.. In a 2012 case involving a 72 year-old Michigan neurologist accused of acting rudely to a patient, the board forced the doctor to attend classes in medical ethics, boundaries and patient communication, and reported its findings in a press release. The physician’s crime? He tossed a box of tissues at a distraught adolescent and told him to stop crying, he says.
Even more concerning than sanctions for minor infractions, perhaps, is the fact that serious allegations are often overlooked. In 2013, the Michigan state medical board revoked the license of Dr. Farid Fata after finding that he was giving chemotherapy to healthy patients in order to pad their bills. The case was highly publicized, but little mention was given to the fact that the board had received a complaint from a nurse about Dr. Fata’s actions three years earlier and failed to act. In fact, the investigation that led to to revocation of Fata’s license arose not from the state medical board, but from a federal whistle blower complaint.
Most experts agree that the worst thing a physician can do when they are notified of a medical board investigation is nothing. No matter how insignificant the allegation may seem, it is important to respond.
Typically, the board will send a letter notifying the doctor of the complaint and requesting the medical records of the patient(s) involved. At that point, it’s a good idea to contact a law firm that specializes in these complaints, says healthcare attorney Ronald W. Chapman. An experienced attorney will have a good idea of what the board is looking for, and can contact them on your behalf.
The investigator may also request an “informal” meeting at an unofficial location, such as a restaurant or coffee shop. Although many doctors want to respond to this request -- just to “clear the air” -- showing up without representation is usually a mistake, Chapman warns. “The investigator will take notes of the meeting, which can be used against you. If you hire an attorney, he or she will contact the investigator and try to pin down the specific issue so that you can provide a stronger written response."
Of course, hiring an attorney can be an expensive proposition, but many malpractice insurance policies cover the cost of representation in medical board complaints. What’s more, failing to respond appropriately to a medical board investigation can have far-reaching effects. If the investigation ends with any form of discipline, it can impact your hospital privileges, the insurers you can participate with and your licensure in other states.
At the Physician Guard, we work with you to develop risk management strategies that help protect you against allegations of wrongdoing, no matter where they arise. We also offer a wide array of insurance products to protect you in the event you are investigated or sued. Contact us at 516-292-3780 for a free risk management consultation, or, if you prefer, contact us online and we’ll get back to you right away.