A Letter You Never Want to Receive
You’ve received a letter from your state medical board, and you read that a patient has filed a complaint against you. You’re sure the complaint is groundless, and you’re furious that the patient went to the board instead of bringing his concerns to you.
How you respond — or fail to respond — to that initial letter can make a huge difference in the outcome of your case.
There are several approaches to medical board investigations that experts agree can determine whether a complaint is dismissed or is just the beginning of an ordeal that can go well beyond the initial charge.
The investigators found a high consensus that an investigation was “likely” or “very likely” if a doctor cited misleading information about clinical outcomes, used patient images without consent, misrepresented his or her credentials, or inappropriately contacted patients.
The study authors suggested these were “online behaviors” that physicians should never do. They also described “gray areas,” such as violating a patient’s confidentiality; using derogatory speech toward patients; showing alcohol use, with or without intoxication; and providing clinical narratives that didn’t violate a patient’s confidentiality.
With greater awareness of these “gray areas,” the investigators suggested, physicians could reduce their risk of being investigated and improve their online professionalism.
Another area that is receiving broad scrutiny involves prescribing pain medication.
“This is a very critical area, and there’s a lot of pressure on boards,” says Lisa A. Robin, Chief Advocacy Officer at FSMB. “The best thing the physician can do is document evidence of his judgment, thinking, and intent to provide good care — and that he or she actually saw the patient.”
Regardless of the complaint or its source, if you receive that letter from your state board, here are things that are practically guaranteed to make matters worse.
Failing to Act Appropriately to the Initial Letter
“Some physicians don’t reply or reply late,” says IDFPR’s Brian Zachariah. “But this is your livelihood, your career.”
Robin advises, “Take it seriously and respond as quickly, openly, and honestly as possible.”
The best scenario is to be able to end the issue right then, notes Allan Tobias, MD, JD, a healthcare consultant and lawyer in Walnut Creek, California. “A nice letter with an attorney consultation explaining the situation” can quash a potential investigation immediately. Do not fail to respond to the letter in the allotted time.
Trying to Represent Yourself
Does a doctor who tries to represent him- or herself have a fool for a client? Afraid so.
“Get an attorney,” advises Zachariah. “Way too many physicians represent themselves.”
Neville M. Bilimoria, a healthcare lawyer at Duane Morris LLP in Chicago, says, “Too many times, doctors go in on their own and then call me [when they’re] in worse trouble.”
Consider a New Jersey gynecologist who received a letter from her state board. She immediately called her malpractice insurer. She had removed a 6-cm mass from the right pelvic area of a patient who’d said she’d had her left ovary removed 10-15 years ago.
But the patient had misremembered; in fact, it had been her right ovary that had been removed years before, and the pathology report of the mass was granulosa cell tumor, low grade, with cancer potential, which the patient then said was what she’d been told a decade earlier.
“I told her it will come back, and she needed to be followed by a gynecologic oncologist forever,” the gynecologist told her. “She didn’t like the diagnosis, or hearing that.”
Not long after, the patient claimed that another hospital had said that she still had the mass, which the gynecologist surmised was the material she had inserted to stop the bleeding, which had not yet resorbed. The patient claimed the gynecologist hadn’t performed the appropriate surgery.
“I guess I could be faulted for not requesting her previous records,” says the gynecologist, “but she had the operation she should have had.”
The malpractice insurer’s lawyer sent a letter to the board with all the relevant records, and the gynecologist reported, “Two months later, I got a letter saying, ‘Your case has been dismissed.'”
Still, the episode took its toll.
“I felt violated as a doctor. I gave good care and had a good rapport with the patient. It was an unjust accusation, and it made me feel depressed. It was very important for me to know that nothing I did was outside the standard of care.”
The gynecologist’s malpractice insurer provided the attorney; other insurers allot funds for a client doctor to hire an attorney, so it’s good to check with your insurer to see about coverage.
Who Should Represent You?
But even if the insurer provides an attorney, you’re better off with your own advocate, says Zur. “The insurer’s attorney is concerned about the bottom line; your attorney is concerned about you,” he says.
In addition, the attorney should have very specific experience.
“The burdens of proof and standards of evidence are different from those of malpractice cases,” says Zachariah. “You need an attorney who specializes in board complaints and regularly appears before boards.”
Providing Inadequate Documentation
If the board requests documents, be careful and selective in what you send.
“We’ll receive 5 boxes of records from a physician, and only a small part will be relevant,” says Zachariah, who recommends that you include a clear synopsis and timeline. “Facts are important, but so are judgment calls. You need to say what happened in this case and why you made the decisions you made.”
Notes Zur, “Sometimes they’ll just ask for your records. It’s your records against the patient’s word, so good record-keeping is really important.”
Tobias adds that if you know you made a mess of your record-keeping, sign up for a medical record-keeping course even before you appear before the board. Then you can say, “I’ve taken a course, and I passed it,” which will mitigate the damage.
Blowing Your Cool Before the Board
If you get called before the board and you’re really upset, “park your anger somewhere; don’t bring it with you,” says Tobias.
He once represented a radiologist who had 10 cases against him and did a nice job of explaining them all, so it was reasonable to assume that the board would be satisfied with his responses.
“When he finished, he went on a rant, complaining of the ‘Gestapo hearing.’ I couldn’t shut him up,” Tobias recalls. “So guess what? He got a ding on his license, had to take a refresher course, and got 2 years’ probation.”
Similarly, Tobias warns against “foot-in-mouth disease.” “You say something and then think, ‘Why did I say that?’ Once it’s out there, you can’t bring it back in.”
Answer questions posed to you directly, and don’t provide narratives, says Duane Morris’s Neville Bilimoria. “And if you don’t know, say that. Don’t speculate. It’s hard for doctors to understand that they’re allowed not to have the right answer.”
Speculation can lead to more questions, he points out — and to doubts about the physician’s credibility.
It’s also important not to assume that the board doesn’t know your practice, Bilimoria adds. “Doctors think they know more than the medical board, but these doctors on the boards are very savvy — they usually do their research and know how to address the specialty.”
Never be condescending, and don’t be defensive. “It’s OK to say, ‘It wasn’t negligence, but I could have done better,'” Bilimoria says. “The board wants you to understand the gravity of why you’re before them. If they determine quickly that you’re not sorry or in some way don’t want to improve, they’ll think you’re arrogant and hit you with a bigger fine or suspension.”
Above all, says Bilimoria, “I say to my client, ‘We are going in to tell the truth. Don’t be evasive.’ The department has investigators who are talking to a lot of people. Board members know when a physician is honest and when he or she is dishonest.”
In sum, says Zachariah, “Answer promptly, properly, thoroughly, and professionally.”
Minimizing Your Chances of a Board Summons
“One of the major things is to keep doctors from going before the board at all,” says Zachariah. “If you don’t know your own state’s medical practices act — advertising rules, what and when to delegate — you can get in trouble.”
In Illinois, he points out, you need both state and federal licenses to prescribe narcotics. “One doctor moved from another state, and she didn’t know that,” Zachariah recalls. “If you can find continuing medical education (CME) courses on the relevant state laws, take them, as well as periodic updates as the laws change,” he advises.
Communication is key, says Lisa Robin of FSMB. “Try to communicate well with your patients and their families,” she says. Make sure they understand informed consent — “what the treatment will be, how to comply, and the risks and benefits of the procedures and medications. Do it — and then document that you did it.”
Be sensitive to issues of privacy and confidentiality.
“People go crazy when it comes to medical privacy, whether or not there’s been an adverse effect,” says Bilimoria. “I tell my clients to be privacy advocates. Hold your patient’s hand, tell them you’ll improve your HIPAA policy, and assure them it won’t happen again. Don’t say or act as though it’s not a big deal.”
One useful source of materials is the FSMB Website, which offers guides on prescribing opioids and use of social media, among others; a new policy on professional issues with electronic health records is in draft form for consideration in April.
Lisa Robin advises that physicians do some self-reflection.
“If some physical, mental, or knowledge problem is affecting your practice, address that,” she advises. And keep in mind that board members’ first goal is to protect the public — not, she says, to take the physician out of practice.
“They’d rather monitor, recommend CME, or refer to a physician health program,” she says, “so they can keep the individual as a resource in the community.”