Dealing with medical board complaints

Most physicians spend their sleepless nights worrying about malpractice lawsuits but not medical board complaints. However, a complaint to a medical board is a considerable challenge posing as much risk to a physician’s career as a malpractice case.

Such a complaint often can be very trying and potentially damaging to one’s reputation. Some of the reasons behind medical board complaints involve a doctor’s code of ethics. Medical malpractice, misdiagnosis, failure to treat a patient and mismanaging a patient are common allegations in such complaints.

Alex Keoskey, a partner at Mandelbaum Salsburg P.C., a law firm based in Roseland, New Jersey, notes it is essential that legal counsel be retained whenever there is a threat of an adverse action against a physician from any source. “Physicians should take medical board complaints far more seriously than a medical malpractice complaint,” he says. “Physicians need to be aware of the reporting requirements enshrined in state and federal law relating to adverse actions by medical boards.”

Kevin O’Mahony, an attorney at KOMahony Law in Johns Creek, Georgia, notes disciplinary action resulting from a medical board complaint can include a reprimand, restrictions on a physician’s practice, continuing medical education or monitoring requirements, probation and license suspension or revocation. “The adverse consequences of a medical board complaint do not end there,” he says. “Physicians generally are required by contract to report disciplinary actions to their professional liability carriers, managed care plans and patients’ health insurance plans.”

Federal law also requires that discipline be reported to the National Practitioner Data Bank, which hospitals must check before granting or renewing medical staff privileges. “In most states, all public disciplinary actions taken by the medical board are required to be entered on the physician’s profile on the board’s website,” O’Mahony says. “The public board order itself can be viewed online by anyone who wishes.”

Public disciplinary actions are also reported to the Federation of State Medical Boards (FSMB), a national clearinghouse whose membership comprises all state medical boards across the country. The FSMB issues periodic reports to all state medical boards informing them of any public actions taken against a physician by another state’s board.

If a physician licensed in Georgia, Florida and North Carolina is the subject of a disciplinary action by the Georgia Composite Medical Board, the action will be reported to the FSMB. The FSMB will then report that action to the Florida and North Carolina medical boards, which may initiate their own investigations leading to disciplinary actions in those states as well.

Additional collateral effects of a medical board action may include loss of hospital privileges, loss of participation in preferred provider organizations, loss of enrollment with third-party payers, loss of board certifications, loss of Drug Enforcement Administration registration, and exclusion from participation in Medicare, Medicaid and other government programs.

Attorney Keith Roberts, co-chair of litigation at the Brach Eichler firm in Roseland, New Jersey, has been representing physicians with medical board complaints for almost two decades. One of the biggest reasons for complaints lately, he shares, involves physicians overprescribing opioids. Others involve crossing patient boundaries and not communicating effectively.

“Physicians need to maintain a high level of ethics and professionalism,” he says. “They need to adhere to the standard of care. Don’t assume you are up to date. Seek it out. Stay on top of respected journals and attend regional and national conferences — because things evolve.”

Avoiding complaints

Medical board complaints can be avoided by following protocol and understanding the patient’s expectations. When expectations are not met, empathy and professionalism should be applied.

There are myriad things physicians can do to avoid medical complaints, O’Mahony says, starting with properly training, supervising and utilizing support staff and allied professionals. Other musts include taking time to learn about patients’ individual characteristics; identifying their unique needs and accommodating them where possible; being courteous and respectful; being receptive and responsive to questions and complaints; minimizing delays and communicating about anticipated time frame issues as soon as possible; and ensuring proper and thorough medical recordkeeping and billing documentation.

“It’s also recommended to avoid inappropriate language in medical record and billing documentation, recognizing that any medical record or bill could later be used as evidence in a medical board or legal proceeding,” O’Mahony says.

Additionally, physicians should properly and thoroughly document informed consent, properly refer patients to other qualified health care professionals when appropriate, have a formal policy in place for identifying and resolving complaints, and apologize — without admitting liability or fault — when appropriate.

“Although a physician can take steps to identify and prevent the most common types of complaint, he or she may not be able to avoid a complaint ever being filed,” O’Mahony says. “Despite a physician’s best efforts, he or she may not be able to please all patients or all parties who could be sources of medical board complaints all the time. Even the finest physician may be the subject of a medical board complaint at some point in his or her career.”

Liana Casusi, M.D., a general physician and consultant, notes that medical board complaints and medical malpractice lawsuits stem from almost the same cause — failure to perform primary physician duties within the expected competencies. “Before practicing your medical profession, plan the dynamics thoroughly,” she says. “How do you receive a patient? How do you create and keep medical records? How do you issue prescriptions? How do you advise follow-up? And these are just a few considerations. Prepare all your record form templates and have your counsel check them for any missing information.”

Her biggest tip for avoiding complaints is to review the rules of one’s medical board and let them guide their lifestyle. “On the actual practice aspect, be thorough before arriving at a diagnosis — and, of equal importance, record everything in the chart,” Casusi says. “Check and double-check prescriptions before issuing them, to eliminate any errors. Always keep private all information about the patient unless you are legally obliged to share it.”

Some practical advice from Roberts involves becoming engaged in billing practices. “Having to ask the billing department is not an advisable position,” he says. “Physicians should know what they’re billing (and) why they’re billing it, and they should be regularly auditing medical charts on a quarterly basis to make sure they are properly documenting codes.”

Dealing with complaints

Whenever a medical board complaint is filed, a physician should consult with qualified legal counsel as soon as possible. “Most physicians are not equipped to represent and defend themselves in a medical board proceeding without the assistance of qualified legal counsel,” O’Mahony says. “The damage that can be done to a physician’s reputation and livelihood by a professional complaint far outweighs any legitimate concerns he or she may have about retaining the services of an attorney experienced in this area of the law.”

Elizabeth Greene, a partner in Mirick O’Connell’s litigation and health law groups, Westborough, Massachusetts, notes physicians should check their malpractice insurance to see whether they have coverage for legal counsel for licensing board complaints. Even if they do not have coverage, it is prudent to engage experienced board counsel.

“With the assistance of counsel, physicians are better equipped to protect their license and avoid responding emotionally or inappropriately to a complaint or investigation,” she says. “Physicians should never alter or destroy records, including when they are faced with a board complaint or investigation, and they must remember the EMR (electronic medical record) leaves a footprint of all actions—the metadata.”

If a physician receives a letter or phone call from a medical board investigator, it is crucial that they not procrastinate or ignore the notice. It is almost never advisable for a physician to meet with or be questioned by a medical board investigator without legal counsel present or on the phone. Once a lawyer has been retained, it is critical that they be promptly provided with all pertinent documents and information, as well asany known grounds for defending the allegations.

“It is important that the physician provide the attorney with all information relating to the complaint, including the good, the bad and any ‘ugly’ facts which may be relevant,” O’Mahony says. “A physician does not want his or her lawyer to be unpleasantly surprised by damaging evidence when it is too late for the attorney to consider how best to minimize or deal with its impact.”

If the medical board conducts a thorough investigation, all relevant information will almost certainly come to light. Withholding important or potentially damaging evidence from their lawyer because the physician hopes it will not come out will impair the attorney’s ability to prepare — or assist the physician in preparing — an appropriate response or defense. Therefore, physicians can best handle medical board complaints by having an experienced lawyer, upholding the code of ethics and behaving professionally.

Casusi recommends keeping all information about the complaint private. “It is actually unnecessary and dangerous for us to share information — especially through letters, SMS or online platforms — because these may be easily leaked and made into evidence in favor of the complainant,” she says. “Another tip, trivial as it seems, is to remain calm. Yes, it is human nature to react with anger, and that is valid. However, avoid impulsive acts of rage that may aggravate the condition.” Examples are badmouthing the complainant or blaming others.

Resolving a problem

Every case is different, and each case must be examined and evaluated based upon its own facts and circumstances. But a key to resolving medical board complaints successfully — or on terms as favorable as possible — starts with taking the complaint seriously from the get-go.

Roberts notes a physician should never try to take matters into their own hands and contact the complaining party to try to talk them out of it. This will almost always lead to failure and further problems down the line.

If disciplinary action is unavoidable, O’Mahony notes negotiating the most favorable or least damaging resolution possible. Fully complying with all agreed-upon or ordered terms must be accomplished.