The threat worse than malpractice

Complaints to the state medical board can cause even more trouble, and still lead to a lawsuit.

By James T. Hilliard, JD

Physicians legitimately fear that a devastating malpractice suit might ruin their reputations and practices. But few doctors realize that a patient's complaint to the state medical board could pose an even greater threat to their careers and livelihoods.

In 2001, state boards took 4,662 disciplinary actions against physicians, including license revocation, suspension, probation, and other restrictions. Every board must report those actions to the National Practitioner Data Bank. In some states, the boards also list them in a monthly newsletter. In others, they may appear on the board's or the state health department's Web site.

In some states, you may be required to report such actions to your hospitals or HMOs. Even if you don't, at renewal time hospitals, HMOs, and insurance carriers will routinely ask: "Have you ever been disciplined by or had your privileges restricted by a professional organization, health care facility, or licensing board for any matter concerning your professional practice?"

Unlike malpractice claims, medical board complaints don't require evidence of an injury. In fact, many complaints don't involve clinical care at all. Any allegation of rudeness, incorrect billing, or inappropriate conduct may prompt an investigation. But even if the complaint seems frivolous, it's worth taking seriously. If you don't, it could grow into a major disaster. Even if the board takes no action at all, the complainant can still file a malpractice claim. If that happens, some of the evidence the board gathered during its investigation may be subject to discovery by a plaintiff's lawyer.

A case that proves how bad it can get

For a graphic illustration of the potential risks involved in medical board complaints, consider what happened to an internist I'll call Barry Lane. (I've changed his name and some personal details to protect his privacy.) Lane had written prescriptions for the sedative zolpidem tartrate for his aunt, who'd complained that she couldn't sleep. He hadn't examined her, and hadn't charted or charged for his service. He believed he was just being a good nephew; after all, she had helped finance his medical school education and had never asked for repayment.

About the same time, Lane's cousin told him he'd been suffering from "anxiety attacks," and asked for "something to settle his nerves." Again without doing a physical exam, Lane prescribed clonazepam.

Over the next year or so, he renewed both prescriptions regularly. In fact, to reduce the cost, he ordered the medications in 100-unit bottles from a wholesale distributor.

Lane didn't see any problem with helping his relatives, until he received a visit from a Drug Enforcement Administration agent. The agent was conducting a routine review of the distributor's records, and noticed that Lane had written regular prescriptions for two local patients with his last name. Naturally, the agent was curious.

Lane admitted he'd provided the drugs to his aunt and cousin. The agent asked to see their medical records, but Lane didn't have charts for them. When asked if they were his patients, Lane replied, "Not really. I was doing this as a favor."

Two weeks later, the state board of medicine notified Lane that the DEA agent had filed a complaint accusing him of violating the state's prescriptive practices statute. Lane responded in writing, and later appeared at a hearing, accompanied by his lawyer. The board eventually issued a formal reprimand and fined him $5,000 for prescribing drugs for patients whom he'd neither examined nor diagnosed. The board informed the Data Bank, and ordered Lane to notify all health care facilities with which he was affiliated.

The case mushrooms, investigations follow

Lane's hospital then initiated a peer review investigation, put him on probation, and ordered a six-month supervision of his prescribing privileges. But that's not the end of the story.

Lane's contracts with five HMOs required him to immediately report any disciplinary action against him by any licensing board. But fearing repercussions, he didn't do so. The contracts also gave the HMOs the right to terminate a provider who's disciplined by a licensing board for matters concerning professional competence or practice.

About the same time, Lane received a letter from his professional society informing him that it was launching an investigation based on the state board's action. The society pursued the matter for several months, but eventually decided not to take further action.

Just when Lane thought things couldn't get worse, the DEA agent showed up at his office again. The agent said that besides violating the state's prescriptive practices statute, Lane had violated DEA regulations by dispensing controlled substances to nonpatients, and by failing to maintain a proper drug inventory. He explained that Lane could avoid a "messy" hearing by voluntarily surrendering his DEA registration certificate. Without consulting a lawyer, Lane agreed. By the time he realized his mistake, he had to hire a lawyer to get recertified.

With his practice in tatters, Lane considered moving to Florida, where he'd kept up his medical license over the years, anticipating semiretirement. He planned to start a new life there as soon as his multiple hearings ended. That's when he received a registered letter from the Florida medical board.

Through a routine check with the NPDB, that board had learned of the action taken by the board in his home state. The letter contained a "show cause" order announcing that the board intended to suspend his license in Florida. Through his lawyer, Lane protested that even his home state's board didn't consider his infraction worthy of a suspension. He was told that he'd have to attend a hearing in Florida to contest the suspension. Already burdened with several other disputes, he voluntarily surrendered his Florida license.

By this time, Lane's mounting problems were battering his practice, finances, professional reputation, and mental health. Losing HMO contacts left him with fewer than a dozen patients a week—half private-pay, half no-pay. He faced about $70,000 in legal fees, and his malpractice insurance covered only $25,000 of that amount. (Some liability policies cover up to $25,000 for legal expenses for such complaints if they could potentially lead to a malpractice claim.)

Unlike malpractice cases, which can drag on for years, most complaints made to state medical boards are resolved swiftly. Once you receive a copy of the complaint, you'll have about 30 days to respond. Failure to do so in a "timely fashion" can create a separate violation and lead to other sanctions.

The good news is that more than 80 percent of the complaints filed against doctors with state medical boards are dismissed after an initial investigation, with no disciplinary action. But board members aren't mind readers; until they complete their investigation, they know only what the complaint alleges. So it's in your best interest to respond promptly and carefully.

The author is a health care attorney with Connor & Hilliard in Walpole, MA, and a lecturer on law at Harvard Medical School.

How to respond to a state board complaint

If your state medical board notifies you of a complaint, follow these steps:

• First consult with an attorney who's experienced at representing doctors before your state medical board. (That's usually not a malpractice attorney.) If you don't know one, ask your colleagues, or your state or county medical society for a referral.

• Review the complaint carefully with your attorney, referring to the patient's chart to refresh your memory.

• With your attorney's guidance, respond to the complaint carefully, focusing on the specific issues raised.

• Refute each allegation in detail, without being argumentative.

• Include relevant portions (copies, not originals) of the patient's chart, but have the patient sign a waiver authorizing its release to the board. (If the patient has filed the complaint, he or she can't refuse to release the records.)

• To establish the standard of care, supply your attorney with supporting documentation, such as articles from medical journals with the relevant passages highlighted.

• If the complaint alleges that you were rude or conducted yourself inappropriately, you may offer your interpretation of the incident. Include any evidence from previous incidents that shows a pattern of such behavior by the complainant.

• If the complaint alleges medical negligence, notify your malpractice insurance carrier, in case the patient later files suit.

James Hilliard. The threat worse than malpractice.

Medical Economics

Feb. 21, 2003;80:38.