Medical Board Investigations

A recent article in Medscape by Yasgur reminded me that I had not written on this subject.  This is becoming more important to the practicing physician, especially those in solo private practice.  They have the least protection and the least negotiating power.

The first thing to happen is there is a report to the Medical Board about the physician.  Most of the time it is about being rude or charging too much, neither of which the Medical Board controls.  Many of the complaints are of a more serious nature and come from either insurance companies regarding medical malpractice claims paid or hospitals that have disciplined a physician for either drug use or quality issues.  Occasionally a patient complaint of sexual touching or over prescribing come to the Board's attention.

The next thing is a decision by the Board to investigate to see if there is any truth to the claim or if the claim is just the tip of the iceberg.  It needs to be known that the medical board is a political organization.  The members are appointed by the Governor or the legislature and maybe from those with large political clout.  The function of the board is to protect the public from physicians that are either incompetent or a danger in other ways.  They may be swayed by outside forces such as an organization that ranks medical boards by how many disciplines they hand out.  This is a false number and if the board is smart, they will ignore this type of complaint.  

The board will send a letter to the physician asking for medical records.  DO NOT IGNORE THIS LETTER.  If you have any chance at quickly getting rid of a complaint this is the time.  Do not try to answer the letter that accompanies the request on your own.  This is when you need to contact an attorney that has worked with the board.  Remember, your entire career is at stake from this time forward.  If you think that the amount of money an attorney charges is too much and you can do it just as well yourself, think about how much money you make a year in the medical profession and then multiply it by the years you have left to practice.  This is what is at stake. The usual amount to defend a physician through a full hearing is between $15,000 and $50,000.  There are some medical malpractice companies that will pay up to $25,000 to defend you in administrative hearing either before a hospital or the medical board.

The attorney and you should go over the board's letter and your medical records.  Both are important.  If your records are not up to what the board thinks they should be you may be required to hire at your expense a medical record monitor and/or be required to attend a very expensive seminar on medical records.  You should never change your records but you can explain them in the original letter to the board.

After the board or it's investigating arm reviews the records and your letter, the investigation may be dropped.  The next step if the case is not dropped is a meeting with the board or its investigators.  DO NOT GO TO THIS MEETING WITHOUT COUNSEL.  Some investigators are licensed officers and are permitted to carry firearms.  They make sure you see them to throw you off your stride.  The attorney can make sure that no firearms are at the meeting and can defuse any situation.  The attorney should go over the items to be covered at the meeting and make sure your answers are truthful and answer all concerns.  They will also attempt to make sure your anger at being called before the investigators does not show at the meeting. Another thing an attorney may do is to suggest the hiring of an expert at this stage who will either write a report to be entered in the record or actually come to the hearing to testify in your behalf.  Again, this is the next best opportunity to close the investigation.

If the board investigators believe that further investigation should be done they will refer the matter to the full board who will then decide to further investigate by sending the physician's original answers and the investigators report to a "expert" in the physician's field who gets paid a nominal amount to go over the case, write a report to the board and if necessary testify against the physician in the administrative hearing and any further legal proceedings.  If the "expert" decides there is or may be a problem the board may then ask the legal arm of the state, the attorney general office, to prosecute the physician and the board is the judge and jury.  It would be unusual to come away unscathed at this point but it could occur.  The physician will probably get either a probation with time out of practice or just probation and/or going to a course on one or more items the board believe the physician is deficient.  These courses are taught at specific places around the country and are very expensive from both the actual cost and the time away from the practice.  Seldom, in cases that are heard before the board, will there be immediate removal of the license unless the problems are so multiple and egregious that is the only thing that can be done.  Almost all cases where the physician does not show up to a board meeting they will have their license revoked at that time.  

The attorney will play a major role in the above by having the physician take the course in advance to show that the physician wants to improve and should not have the license revoked.  The attorney may also help with lessening the time of probation and what is written by the board on the web site.  The attorney should also explain to the physician what the long term ramifications might be if they plead no contest or are "convicted" by the board.  They can also explain the appeal or judicial process to get the board's decision overturned and the odds of that happening.  

What happens next is judicial and here the expenses rise quickly.  The usual is an administrative hearing before an administrative law judge who makes a recommendation to the board.  The board may or may not accept this recommendation and do what it wants.  Then it really gets expensive since court action is necessary to reverse the board's judgment.  This is usually an exercise in futility since courts usually give great deference and weight to the judgment of the board. 

Please remember that your most important times to quash the questions are when you are first notified of a potential problem and it is at this point that attorney help should be obtained.