Subject: Dr McCord writes on Board Complaints

Date: Sun, 4 Mar 2001 23:27:44 -0500

A certified letter in the mail from an attorney is something you never want to see. However, if you do have a complaint lodged against you, this author offers pertinent tips to make the legal process as painless as possible.

By John H. McCord, DPM

If there's any piece of mail that can ruin your day, it's a certified letter from your state medical quality assurance commission or professional licensing board. This is how most state licensing boards notify doctors that a complaint has been filed against them. The complaint could come from a dissatisfied patient, the state pharmacy board (usually pertaining to a prescription of controlled drugs), or be related to a malpractice settlement against you.

Whatever the source, you need to take these complaints seriously since they can lead to suspension or revocation of your professional license and the end of your medical career.

"You can't know the terrible feeling you get from learning that you are the subject of a licensing board investigation until you've experienced it," explains a pediatrician from a small West Coast community. He learned that he was being investigated for sexual misconduct with a teenage female patient. The complaint was made twenty years after the alleged incident took place.

"It felt like a lynch mob was after me," the doctor recalls. "I had been in practice for just a few years and thought I was careful about boundary issues with my patients. I always had a nurse or the mother in the room while examining female patients and I never did pelvic or breast examinations. When that was needed, I referred them to an OB-GYN specialist. This woman, who is now 35 years old, now remembers that I had tried to rape her. Some psychologist helped her 'recover' her memory of the event. Now I have to convince the medical board and the local police of my innocence. It's my word against hers and her 'recovered memory' psychologist."

The pediatrician's case is the most difficult situation a doctor can encounter in dealings with the medical licensing board but it's not impossible for a podiatrist to wind up in a similar dilemma. Be aware that complaints that involve sexual misconduct are given the highest priority with licensing and disciplinary boards.

What You Should Know About Getting Legal Advice

Avoiding confrontations with disciplinary boards is certainly a worthwhile goal. However, no matter how careful you are or how hard you try to be a good doctor, you may, one day, be the focus of a board investigation.

According to Tom Fain, a Seattle attorney who specializes in defending medical professionals in disputes with regulatory boards and commissions, it was rare for the disciplinary boards to become involved in malpractice cases in the late 70's and early 80's, but since then, they have become more aggressive. Be aware that many states require the reporting of settled cases.

While it's your option to use an attorney, given the potential consequences of dealing with a disciplinary board, it would be wise to consult a lawyer as soon as you learn that a complaint has been filed against you. You can always decide whether you want to use an attorney after the facts of the case have been gathered.

Be forewarned. The cost of defending yourself in a disciplinary case is not cheap. Most attorneys with expertise in disciplinary issues charge between $150 and $300 per hour and the eventual total can run into six figures, depending on the complexity of your case.

Ensure Adequate Legal Representation

Also keep in mind that several of the podiatry malpractice insurance companies cover the cost of legal representation against state disciplinary boards. This coverage may have deductibles or limits. You should review your coverage and determine if the insurer allows you to choose counsel. Choosing the right lawyer is as important as choosing the right surgeon. You want someone who is experienced and competent, as well as someone you feel you can communicate with and afford.

Fain believes it is important to find a lawyer with substantial experience in disciplinary issues because disciplinary rules differ from other court rules used in civil trials. Also keep in mind that it helps to pick lawyers who have had experience in dealing with the state licensing boards. They may have personal familiarity with the attorneys, administrators and board members serving the department, which gives your lawyer an advantage in resolving cases that do not need to go through a full trial process.

What The Future May Hold

While Fain says most of the cases he has worked with involved alcohol or substance abuse, sexual misconduct or billing complaints, lately, there have been more complaints from insurance companies involving billing or coding issues. In the future, Fain expects to see more cases coming from payer-based termination of doctors, in which an HMO or insurance company ends a contract with a physician over fraud or abuse issues.

How A Complaint Is Filed

Arlene Robertson, manager of the podiatry program for the Washington State Department of Health, says that the initial complaint goes through an intake and review process and is handled by an administrative assistant. A file is set up and the status of the physician's license is evaluated. A program manager then reviews the file and makes an assessment.

Keep in mind that a lot of complaints never make it any further than this stage. If the complaint is found to be below threshold or outside of jurisdiction, no action is taken. In many of these cases, the doctor never even learns that a complaint was ever made. A typical example is when a patient complains that the doctor was running late and he or she had to wait 45 minutes or that all of the magazines in the waiting room are more than three months old. Believe it or not, these are actual complaints I have reviewed as a board member.

When The Board Proceeds With Further Investigation

However, if the program manager does find that the complaint is significant and within jurisdiction, he or she will forward the complaint to an investigator, who is usually someone with a medical or law enforcement background.

This is usually the point when you would receive that dreaded certified letter, notifying you that a complaint has been made. The letter may also include a request for a copy of the medical record and an explanation from your point of view. At this time, you should decide whether you want to retain an attorney or try to handle it alone. (See "What You Should Know About Getting Legal Advice.")

After the complaint has been investigated or declared to be below threshold, it is passed on to a consulting board member for review. Generally, one of the podiatrist members of the licensing board will function as a reviewing advisor and will not vote on the disposition of the case against you.

The consulting board member reviews documents from both sides and recommends further action or that the case be closed. If he or she recommends further action, a statement of charges is drafted, usually by an assistant attorney general, and is subsequently forwarded to you.

What You Should Know About A STID

If you get this letter, it may include an offer for a settlement conference, which gives you and the board an opportunity to agree on certain facts of the case and establish a stipulation to informal disposition (STID). The STID may include a monetary penalty and requirements for additional continuing education. Be aware that this STID may allow investigators to monitor your practice or possibly lead to a temporary suspension of license.

Entering a STID is a crucial step because then your case becomes public knowledge, possibly even part of the national practitioners' data bank. Most doctors should consult an attorney before signing this type of agreement.

What The Compliance Order Will Say

If you decline the STID, you must have a formal hearing before the board and a judge from the Office of Professional Standards. After hearing your case, the board goes into closed session, evaluates the evidence presented by both sides and then drafts a final order, which is always publicly disclosed.

The final order lists the violation with references to the state law, the penalty (which may include a monetary fine), and whether your license has been suspended or revoked.

Be aware that compliance orders are also listed and can include continuing education or monitoring of your practice activities. If there has been a substance abuse problem, the compliance order may also include monitoring by your health program. This order will also outline the provisions that need to be met in order to get your license fully reinstated. At this point, you can still appeal.

Also keep in mind that, in my experience as a state licensing board member, it is a long and difficult process to separate a medical professional from his or her license and means of livelihood. The courts tend to frown on permanent revocation of a medical license and frequently stand in the way of such attempts by state boards.

Why You Would Be The Last To Know

In many cases, you only learn that a complaint has been filed, but given the whistleblower laws, you won't always learn the name of the complainant or the nature of the complaint. All too often, you're the last to know when a complaint has been filed against you, according to Tom Fain, a Seattle attorney who specializes in defending medical professionals in disputes with regulatory boards and commissions.

This was the case with the pediatrician that I mentioned earlier. He had been nominated to an advisory board for the state agency that investigates child abuse. The agency learned that he was under investigation by the medical quality assurance commission while conducting a routine background check. The agency contacted the pediatrician and asked that he withdraw his application for the position. This is how he first heard that a complaint had been filed and that he was under investigation by the medical board and the local police. A year after that, he was notified in writing by the state with the dreaded certified letter.

What you do after being notified of a complaint can profoundly effect the outcome of your case. According to Fain, the first thing you should do is to notify your attorney and your malpractice insurance company. You should let them know the nature of the complaint and the name of the complainant, if you have that information. Proceed to gather the relevant medical records. If the complaint originated from a disgruntled former employee, gather the relevant employment records.

How To Avoid Complaints Entirely

Certainly, it is easier to avoid complaints than going through the whole process of a licensing board investigation.

Attorney Tom Fain warns that once a complaint against you is investigated, it is a matter of public record and is nearly impossible to get rid of. Here are some tips Fain offers to help you avoid complaints.

1. Maintain the highest level of competency. Maintain your skills and stay current on the state of your profession.

2. Be caring and compassionate toward your patients (even the obnoxious one). Remember that compassion is one of the reasons you are a doctor.

3. Spend time communicating with your patients. Don't give short thrift to bedside manner.

What You Shouldn't Do If The Letter Arrives

Fain also emphasizes that there are things you should not do after learning of a complaint. Never change or alter records in any way. An altered medical record will ruin any chance you have of prevailing in the case.

Also avoid contacting the investigator to try to "talk it out." This will not work. If anything, it will work against you. You should also avoid contacting the complainant to try to talk him or her into dropping the complaint. Likewise, you should not contact the complainant's attorney. Avoid all of these knee-jerk reactions and come to grips with the fact that your license may be at stake.

In my own experience as a state licensing board member, the worst thing you can do is to call members of the state podiatry board to tell your side of the story. By doing this, you will just cause the board member to recuse him- or herself from the case and report the ex-parte communications, a fact that will be added to the statement of charges against you. I still get calls occasionally from podiatrist friends who want me to hear their side of the story before it comes before the board. They end up losing their only friend on the board and generally their cases.

Forget about intimidation. If you're named in a complaint, don't even think about threatening the patient, his or her attorney, the investigator or board members. Keep in mind that the staff of the licensing board has likely heard it all and their resolve has been hardened by time, not to mention the fact that they have the resources of the state behind them. Intimidation simply will not work with state licensing and disciplinary boards.

According to Fain, the board members are going to be your judge and jury, and you'll only end up digging your own grave if you try to intimidate them. If your case does go to trial before the disciplinary board, the last thing you want to have come out in evidence is that you were trying to intimidate the complaining witness into abandoning his or her claim.

Final Notes

Once your case is settled or a judgment goes against you, it does become a matter of public record. This information will end up in the practitioner's data base and will come out every time you try to gain credentials for hospital privileges or apply to participate in an HMO or insurance plan. A bruise on your record becomes permanent. It is nearly impossible to get the records of your case "sealed" or pulled from the databases. Therefore, if you become the target of an investigation, it is important to take the proper steps to defend your good name

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