Physicians plan and insure against the possibility of a medical malpractice suit, but often overlook another serious threat to their livelihood, a medical board complaint. We examine the common causes of complaints and the risks and process involved.
While most doctors are primarily concerned about a medical malpractice suit, a medical board complaint on its own can significantly disrupt your income and even end a career. Unlike an actual medical malpractice suit, a board complaint can easily be filed by a patient at little or no cost. The Federation of State Medical Boards (FSMB) that provides significant to guidance to physicians and medical boards in all 50 states also provides some very specific guidance to patients on when and how to file complaints against physicians.
How Bad Can It Be?
Complaints can result in fines, license suspension or limitations or even complete license revocation. So, while the results may not be as devastating as a seven-figure lawsuit judgment that takes the wealth you already have, it can take away your future ability to earn more, for many physicians, this is their biggest asset.
Are You Properly Insured?
A medical board complaint may accompany or precede a more onerous medical malpractice lawsuit. Having the right coverage at the right limits before you have a complaint against you is vital. Medical board complaint legal defense costs are not always covered by your medical malpractice insurance. It's a policy specific question and I advise that physicians make sure they know the following important details about their coverage, among others:
1. If they are actually covered for board complaint defense at all;
2. What the dollar limits of that coverage are. It may be a “rider” that only covers $50K, as one example.
3. If they have “stand-alone” coverage or if that coverage “shares limits” with another policy, thereby potentially reducing the coverage available for a resulting medical malpractice claim.
What Are Causes of Medical Board Complaints?
According to the FMSB, medical boards sort and prioritize complaints, fast-tracking adjudication of those complaints that present the possibility imminent patient harm. Such claims logically include instances of physicians allegedly engaging in sexual misconduct with patients, deviation from the accepted standard of medical care in a state (the most common cause of complaints) or practicing under the influence of drugs or alcohol.
Some causes common standard-of care complaints:
· Failure to diagnose (also a leading cause of medical malpractice claims)
· Inappropriately prescribing and monitoring opioids and other controlled substances
· Incorrectly prescribing medication
· Actionable violations of physician-patient confidentiality
· Inappropriate behavior that interferes with patient care including interactions with others in the chain of care
· Failure to provide appropriate post-operative care
· Failure to respond to a call from a hospital to help a patient in a traumatic situation
What Does The Complaint Process Look like?
1. The complaint is assessed for jurisdiction.
2. The case is prioritized, investigation begins. Any indication of immediate harm may allow the board to immediately suspend or otherwise limit the physician for patient safety.
3. The state medical board identifies individuals and intuitions with relevant information. Individuals involved in the case are asked provide statements.
4. The physician and complainant receive formal notification. The physician receives formal notice of the complaint and record requests.
5. Medical review. The board determines if a patient's medical care has been impacted as a result of the complaint. Same specialty experts may be called to comment on the standard of care provided.
6. The board Rules. Minor or inaccurate complaints may be resolved at this level with the board providing sanctions or conditions. More serious issues proceed to formal hearing.
7. The case is set for a hearing: It may be formally settled at this stage, if not, the matter proceeds to a formal hearing.
8. Adjudication. Cases go to a full hearing, similar to a court trial. There is a formal proceeding, with presentation of evidence and witnesses. The board rules on the evidence presented.
9. Public notice. Any disciplinary action imposed by the board is entered into public record. It is then part of the physician's permanent professional record and is available nationally through the FSMB Physician Data Center. Patients can access this info through their state's medical board or by accessing www.docinfo.org.
Yes, You Should Have Legal Representation
The number of steps in the process and the need to respond and defend your license indicate that it's a good idea to be professionally represented by an attorney. For more detail on this representation I turned to attorney David Williams* with Davis Miles McGuire Gardner in Tempe, Arizona. Williams' litigation practice includes defense in front or a variety of medical, dental and professional licensing boards.
Williams first tip was simple, be represented. “While representation by an attorney is not required by any sate's board, this is a complex process that requires you respond in a complete and timely way at each step. Missing a deadline can stop your defense cold and cost you dearly. Your responses need to be complete and your ability to practice is at stake. Treat it as seriously as a med-mal lawsuit and make sure you are putting your best foot forward in those responses with a professional's help”.
David also warned against the temptation to avoid the costs of representation by representing yourself if you are not adequately insured as I've previously suggested you should be. “While you are likely high skilled in your area of practice, that area is not the practice and interpretation of applicable law and Board regulations in a way that ensures your due process rights. Get help in ending this process as early as possible”.
Williams further cautioned on the importance of stopping to take a breath and regroup if you get surprised with a complaint. “It's important that you understand the possible steps the Board can take in the process, how your responses fit into the larger context of those steps and the very specific timeframes and requirements of those responses. This is where I think professional representation makes the biggest difference".
Avoid These Common Physician Mistakes With Medical Board Complaints
1. Being un-insured or underinsured for the costs of medical board complaint defense. These costs can be six figures during a time your income may also be disrupted by the complaint.
2. Not being represented by experienced legal counsel in a medical board complaint. Your counsel should be experienced in dealing with your local board's process, members and the applicable issues.
3. Failing to timely inform your insurance carrier about the complaint. This can cause your coverage to be reduced or denied.
4. Not timely reposing to a complaint by either not responding at all, responding incompletely to charges against you by or not responding quickly enough to identify qualified counsel and gather evidence required to mount a complete defense.
5. Failing to inform your employer, partners, organization etc. about the complaint as you may be contractually required to do. This reporting violation can jeopardize your employment or ownership interest, compounding your problems.
6. Panicking and responding emotionally to the complaint instead of in an organized, tactical way. This includes communication and debate with the complaining patient.
7. Destroying or concealing evidence or conversely, talking about the case to third parties, answering questions or producing evidence without counsel.
8. Making statements or admissions that may be used against you or that may negate your attorney-client privilege with your counsel.
9. Failure to have an asset protection plan in place before the compliant. Acting after the compliant is received to protect your assets from a related medical malpractice lawsuit would almost certainly be considered a fraudulent conveyance/voidable transaction.
Ike Devji For Physicians Practice This article originally appeared at www.PhysicansPractice.com were Ike Devji has been a columnist for 8 years and has authored several hundred articles on asset protection, wealth preservation and risk management for doctors.
*Full disclosure, David Williams is part of my law firm and handles this issue for some of my own clients.