The Hunted Physician 

By Sharon B. Kime and Robert J. Sullivan 

Physician discipline is a lot like hunting gazelles in Africa. Recall the wildlife movies you've watched. A herd of thousands of gazelles graze peacefully across the vast African plain. Creeping undetected in the grass to the right are several lionesses studying the herd, waiting for the opportune moment to lunge full speed after their chosen prey. Suddenly, the chase erupts. The drama is riveting. The surprised victim, now at full alert, breaks into a run. With few exceptions, the surrounding gazelles seem undisturbed. Most continue grazing, unconcerned with the intense life- and-death struggle going on about them. 

Physician discipline is very similar. The strategy and power of the hunter, the hapless innocence of the hunted, and the apathy of the group all visually represent what occurs in most cases of physician discipline. Unfortunately, the scenario is repeating with increasing frequency in California. 

Social pressures for change in health care drive increased regulation. In the past, physicians were revered as a resource and friend of the community. Now, due to the increases in health care costs, they are viewed with suspicion. Current estimates of health care costs are $939.9 billion per year. Although direct physician costs account for only 18.6 percent of this figure, it is estimated that physicians spend 85 percent of the health care dollar with their pens through prescriptions for drugs, devices and hospitalizations. Because health care costs are seen as a threat to the economic health of the nation, physicians have been cast in the role of the enemy rather than cherished professional. Expect increased regulation by federal and state agencies 
These economic pressures and changes in the social status of the physician have resulted in reforms not only to decrease costs in health care but also to increase physician discipline. Responding to public perception consumer protection in medical care was lax, legislation passed in 1991 (SB 2375-Presley) revamped the physician disciplinary system. The BMQA, renamed the Medical Board of California, mandated tougher actions on bad doctors, a reduction in
case backlogs and slashed investigation time. Prior to this legislation, approximately 175-200 Medical Board accusations were filed per year against California physicians. Following this reform, the number of accusations rose to 1,000 the first year. At first, this was explained
as a correction due to the backlog. Now, however, the continued increase has been attributed to an increased number of complaints against physicians (6,000 - 8,000/year), and to increased force of investigators and prosecuting deputy attorneys general. The 1991 legislation created a new Attorney General Health Quality Enforcement section for the purpose of prosecuting Medical Board cases. Between approximately 5060 full-time deputy attorneys general are employee~ to prosecute the approximately 60,000 practicing physicians in the state. This ratio of attorney general prosecutors to physicians exceeds the ratio of district attorneys per county population to prosecute criminals in any county in the state.  

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are
arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but not specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline. Competent physicians may become subjects of Medical Board actions. 

Case in point: Physician A was a model physician. 

He was competent, compassionate, hard-working and devoted to his patients and family. He had practiced  almost 20 years in the same community. No one had ever made a malpractice claim against him. He had  never been censored or disciplined. He held a record of unblemished privileges at three local hospitals. He had been Chief of the Family Practice Department at the hospital and served as utilization Chairman of the  county's IPA. He was well-respected by his colleagues. 

When we saw him in our offices, he was facing a Medical Board action to revoke his medical license. He had seen a young mother as a new patient, performed a physical exam and listened to the patient's litany of problems, which focused on stress and insomnia. He prescribed Xanax and referred her for psychiatric help. 

One problem the patient briefly mentioned among the multitude of problems was the 11-year- old neighbor boy: He had damaged her 6-year-old daughter's bike and, just the night before, the daughter told her he had raped her some time in the past. Dr. A. told the patient that, if she believed a rape had occurred, she could  report it to Child Protective Services. Dr. A. did not see
the child as a patient, nor did he believe a rape had actually occurred. 

The patient not only reported the incident to Child Protective Services, she complained to the Medical Board that Dr. A. failed to report child abuse. Several months later, the Medical Board sent the mother and child with a hidden tape recorder to visit Dr. A. Although Dr. A. reiterated his advice to the mother, he still did not report the rape; he still did not believe a rape had occurred. Nonetheless, the district attorney brought criminal charges against the physician for failing to report child abuse. Dr. A. did not obtain legal representation. He could have easily defended the failure to report based on his reasonable belief that no abuse had occurred. Instead, he took the advice of the district attorney to plead nolo contendere, pay the~ fine, take probation for a short period, and eventually have the entire incident expunged. Although the DA was aware this plea would be grounds for revocation of his medical license, the DA did not inform Dr. A. of that fact. 

Subsequently, the Medical Board brought an action to revoke Dr.A.'s medical license on the basis of a conviction of a crime substantially related to the practice of medicine. The sole issue in such a case is whether or not the conviction occurred and its relation to the practice of medicine. Despite intense negotiations with the attorney general, Dr. A.'s license was revoked, stayed and he was put on probation for one year. 

There are things you can do to avoid disciplinary action or minimize its impact: 

A. To prevent disciplinary action, take constructive steps:

  1. Denude your mind of the concept it could never happen to you, it could. At the current rate of enforcement, in 10 years a significant percentage of the physicians in California Will have been disciplined. Considering the effort and resources expended to obtain a medical education, a little effort spent to preserve it is only rational. 
  2. Purchase insurance for administrative actions. Legal representation for a Medical Board action can easily run $50,000 -$100,000. Administrative Insurance will cover disciplinary proceedings initiated by the Medical Board, a hospital medical staff,
    HMO, PPO, Medicare Professional Review Organization (PRO), as well as Medicare /Medicaid reimbursement disputes. This form of insurance is not usually covered by your malpractice insurance; however, with the increasing demand, a few malpractice carriers
    have added Administrative coverage. You should check your policy or call your agent for information. If it is available to you, it is well worth the small additional premium. 
  3. Maintain constructive relationships with your professional colleagues.  Poor interpersonal skills subject the physician to an increased likelihood of receiving discipline. Abusive behavior to colleagues or nurses creates enemies who will be unforgiving for any infraction in quality of care, however minor. Many disciplinary actions are the result of poor relationships with either coworkers or colleagues, not poor medical care. 
  4. Don't isolate yourself from the medical community.  Stay involved in your physician organizations and participate in the hospital committees. Isolation breeds suspicion. Gone are the days of the brilliant loner physician who gains recognition on the sheer strength of his own ideas. Staying in the community with your colleagues reduces the risk of unnecessary criticism, gives evidence that your practice is compatible with others and offers an opportunity to exchange information and stay informed.
  5. Practice within the community standard. This may sound obvious, but there are those who think they are above the standard. Unless other physicians are persuaded this practice is superior, physicians who practice differently, no matter how pure their motivation, risk discipline. 
  6. Keep good medical records. The burden is on the physician to demonstrate medical indications for treatment and prescriptions. Adequate documentation is essential evidence to demonstrate medical indication. Without it, the physician's care may be misinterpreted by medical experts who review his records or distorted by poor memories or hostile motives
    of former patients. 
  7. Bill carefully and conservatively.  Insurance fraud is the kiss of death. Simple errors in billing by improperly supervised subordinates can balloon into enormous legal battles. Supervise well-trained staff and randomly check billing-procedures to make sure they are in compliance with your requirements.

B. To survive discipline, get competent legal representation.

Generally, the sooner a cancer patient obtains competent medical care, the better the outcome. The same can be said, as a general rule, for the physician's career once disciplinary action has been initiated. Disciplinary actions should be handled by an attorney experienced in Administrative law. The forum and procedures in administrative hearings are different from those in civil court. It is not wise to turn over an administrative case to a business or estate attorney no matter how trusted. An attorney with inadequate experience in administrative matters can min a Physician's career.

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