Tuesday, November 24, 2020

Dangers of a medical board investigation

Cynthia H. Moran, MD, has a medical degree, a passion for treating the elderly, and a desire to work. What she doesn't have is a job or hopes of getting one anytime soon. 

The Houston physician has never been charged with a crime, but she did run afoul of the Texas Medical Board, an experience she said has left her destitute and virtually unemployable in the medical field. 

"By the time the board gets through with you, you will be bankrupt and have nothing," she said. 

Moran has a long, tangled history with the board involving self-prescribing, opioid abuse, depression, and unprofessional conduct. After years of license suspension, drug testing, additional CME, substance abuse treatment, and work restrictions, her supervision by the board ended in 2019, but she has been largely unable to find work as a physician. 

"I feel like a felon. I really understand what it's like to be someone who does their time but then can't get a job, can't get an apartment. It's in your record and there's nothing you can do about it," she said. 

Although Moran largely created her own troubles, her experience shows the power state medical licensing boards have when it comes to disciplining physicians. 

Reprimands to Revocations

Many physicians think of their state medical boards as simply the bodies that issue their medical licenses, but the boards have other functions, including investigating complaints against licensed medical professionals and, sometimes, disciplining them. 

According to 2017 statistics from the Federation of State Medical Boards (FSMB) (the most recent available), state boards took 8813 actions that year. These included 796 suspensions, 764 probations, 570 surrendered licenses, and 264 revoked licenses. 

Boards also can order doctors to enter state-run physician health plans to receive treatment for substance abuse, or they can allow physicians to practice only under the supervision of colleagues. 

Although they vary by state, the boards are fundamentally similar. Members are appointed by the governor. A majority of them are physicians, and the remainder are nonmedical professionals. Their investigators, often retired law enforcement officials, have broad powers to collect evidence, including medical records. Their authority is backed by the state attorney general. 

Although physicians tend to worry more about being sued for malpractice, a medical board investigation can be more worrisome, said William Sullivan, DO, JD, an emergency department physician and attorney in Illinois who has represented doctors before that state's board. Board disciplinary actions outnumber malpractice awards by four to one in that state, he estimated. 

"The gravity of this is something that many physicians don't understand," he said.

You Can Be the Subject of Anonymous Complaints and Investigations

Anyone can file a complaint against a physician with a state board. The grievances can be about anything from a crowded waiting room to physician impairment. 

Of course, the most trivial complaints (out-of-date magazines in the waiting room) are dismissed out of hand, but boards have the authority to investigate whatever it chooses. The most common investigations center around complaints of impairment, substance abuse, improper prescribing, faulty medical records, mental and physical health problems, and standard of care. Boards also will act if a physician is found guilty of a crime or misconduct unrelated to his or her medical practice. 

"There are a lot of ways doctors get into trouble," said Edward Dauer, MD, a radiologist who served on the Florida board for 11 years. 

Investigations often expand beyond their original scope into all aspects of a practice. "Once you're on their radar, they can find something," Sullivan said. 

All punitive actions taken by state boards are reported to the Department of Health and Human Services' National Practitioner Data Bank, which is accessible to all state boards. Sanctioned physicians who set up practice in another state often find that their new home has adopted the sanctions leveled by the original state, something boards can do without conducting their own investigations. 

"For doctors, discipline is forever. It never goes off your record," Dauer said. 

In addition, Medicare, Medicaid, and private insurers can exclude disciplined physicians, which can cripple a practice's finances. So what can doctors do to avoid problems with the boards? 

Don't Do Anything Wrong

That sounds glib and obvious, but many physicians get into trouble by unwittingly violating state medical regulations regarding such things as CME, insurance requirements, failure to notify the board of address changes, and personal relationships with current or former patients. 

"The best advice to avoid these issues is to do a Google search for the Medical Practice Act in the state in which they practice," said Sullivan. He noted that doctors should regularly check for changes in regulations. 

Keeping on good terms with colleagues and patients also helps, he said. He noted that many complaints stem from personal disputes and grievances. 

But what if a physician becomes the subject of an investigation? What should they do? 

Take Any Complaint Seriously

Too many physicians dismiss investigations initially. "Some people have the wrong idea that if they ignore it, it will go away. It won't go away," Sullivan said. 

Whether the initial contact comes through a letter or a visit from a board investigator, it should be treated with urgency. Ohio attorney Beth Collis said one client angrily scrawled one-word answers with a Sharpie on the questionnaire he was mailed — answers he was stuck defending throughout the rest of the investigation. Other doctors have ordered investigators out of their offices — another mistake. Failure to cooperate can result in an immediate license suspension. 

"They should be speaking to these investigators like they were talking to a highway patrolman on the side of the road. They hold all the cards," said Collis, who specializes in representing professionals before licensing boards. 

Some physicians mistakenly assume that because their state board is made up mostly of fellow doctors, they will be able to make a complaint go away with some collegial chat. 

Not so. "Medical board members see themselves as protecting the public. They're very punitive," Collis said. 

At one time, state boards might have been lax in their supervision of physicians, but that changed in the 1980s when the watchdog group Public Citizen began ranking state medical boards by how effective they were in policing doctors.

Public Citizen used FSMB data on serious disciplinary actions per 1000 doctors in each state to calculate its rankings, a practice that FSMB called incomplete and a misuse of its statistics. Nonetheless, the annual rankings generated a lot of publicity critical of state boards and might have spurred a tougher approach by regulators. 

Public Citizen stopped publishing its annual rankings in 2013 after FSMB ceased supplying the data, but the get-tough approach remains, lawyers said. 

About 95% of complaints are dismissed with nothing more serious than a letter to the doctor, but boards don't hesitate to act when the misconduct is serious, said Dauer, the former Florida board member. "I felt it was my obligation to protect the public," he said. 

Don't Try to Fix It Yourself

Although many complaints are anonymous, doctors can often figure out what or who it involves. Their impulse might be to contact a patient who complained, correct a medical record, or otherwise try to resolve the matter personally. 

It's better to leave things alone, the experts said. Don't contact a patient. Give the board access to whatever information it asks for, but don't alter anything, particularly medical records. "That's how you're going to get your license revoked," Dauer said. He noted that when doctors add notations to records, they must date them. 

Hire a Lawyer

Many physicians assume they can resolve the complaint easily by explaining themselves to the board or investigators, or they don't realize their license or practice could be at stake. 

They're better off letting a lawyer speak for them. Attorneys knowledgeable in this realm specialize in representing licensed professionals before regulatory boards and have the greatest knowledge of administrative law and how to negotiate the hearings and procedures. 

Typically, a hearing is held before a subcommittee of the board, which can recommend a settlement to the full panel. Cases in which a settlement is not reached can go before the entire board. 

Although full hearings can be similar to a trial, there are crucial differences regarding evidentiary rules and other matters, Collis said. For example, in Ohio, defendant physicians do not get to see the board's full case against them before the hearing, which can make preparing a defense difficult. And the standard for burden of proof is a preponderance of evidence, as in civil suits, not evidence beyond a reasonable doubt, as in a criminal trial. 

Cases that go to full hearings and beyond to appeals in state courts can take years to resolve, and a physician's license can be suspended for the duration. 

Get Help Before It's Too Late

Physicians looking for support and advice can turn to organizations such as the Coalition for Physician Rights (CPR), an organization formed in 2018 by Kernan Manion, MD, a former psychiatrist who was forced to deactivate his license after an investigation by the North Carolina medical board. 

CPR has advised hundreds of physicians, most of whom he said come to him once they realize they're in over their heads. "Almost everyone comes in too late," Manion said. "They're sitting ducks. They don't know how to respond." 

In addition to offering advice and support, CPR lobbies for reform in how boards operate. A number of states, including Oklahoma, have made reforms in recent years. 

The appointed boards are too reliant on their administration and staff and usually rubber-stamp disciplinary recommendations, Manion said. He also criticized the boards' lack of accountability: "A board operates without external or internal oversight. It is an autonomous entity operating on its own." 

As for Moran, the Houston doctor sanctioned by the board, at age 61, she's interviewing for physician jobs around the country, refusing to give up medicine. 

"What else can I do?" she said. "It's what I've done my entire life. It's what I went to school for. I don't know how to do anything else." 

James F. Sweeney is a freelance healthcare writer based in Cleveland, Ohio.


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