It’s difficult to imagine most emergency physicians (EPs) choosing to defend themselves in a malpractice lawsuit. However, many respond to state medical board investigations without legal representation. “Many medical board complaints end up being more serious than medical malpractice lawsuits,” says Ellen M. Voss, JD, a medical malpractice defense attorney at Williams Kastner in Portland, OR.
This is because state medical boards have the power not only to suspend or revoke licenses but also to restrict or place conditions on the practice of medicine. “Furthermore, a medical board complaint can quickly expand to areas well beyond the subject of the initial complaint, similar to an ‘incidental finding’ in medicine,” says Voss.
If during the course of its investigation, the medical board identifies anything that may violate the applicable medical practice act, it will delve into the issue. For example, the original complaint against an EP may involve a failure to diagnose a certain condition. “But if the medical board becomes concerned about documentation or inappropriate prescribing practices while reviewing the patient chart, the investigation will expand to include the new issue or issues,” says Voss.
This often entails review of additional patients’ charts. “There are many instances where a complaint by, or on behalf of, one patient led to disciplinary action based on the physician’s care of several patients,” says Voss.
A physician may request an evidentiary hearing before final disciplinary action is taken by the board; at the hearing, the board will present its case. “The record of the hearing is available to the public. It could influence a patient’s decision to file a civil medical malpractice case,” says Joseph J. Feltes, JD, a partner in the Canton, OH, office of Buckingham, Doolittle & Burroughs.
While the record itself would not be admissible into evidence at trial, it would be discoverable in a civil case. “This could give the plaintiff’s attorney a ‘road map’ for cross-examining the physician at deposition or at trial,” says Feltes.
Lawsuits Trigger Investigations
State board investigations can trigger or bolster medical malpractice lawsuits. Conversely, civil medical negligence lawsuits often trigger state board investigations. “The boards are very interested in pleadings in the civil actions,” says Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO. Volpi practices medical negligence defense primarily in Missouri and Kansas.
A few years ago, the Missouri Board of Registration for the Healing Arts adopted a policy that the Board would review the care and treatment at issue in every medical negligence case filed in the state. “In other words, in 100% of the medical negligence cases that I defend in Missouri, there is a simultaneous board review occurring,” says Volpi, adding that this occurs for about a third of cases in Kansas.
The board reviews are similar in both states. They begin with the physician receiving a cover letter and subpoena for all medical records in the physician’s control regarding the plaintiff and a narrative summary of the physician’s care and treatment.
“In both states, everything provided to the boards by the defendant physicians is afforded broad statutory privilege,” Volpi notes. Thus, there is no concern that a physician’s communication with the board will be discovered in the corollary medical negligence lawsuit.
“But the opposite is not true,” says Volpi. “The boards have broad subpoena power, and can gain access to anything filed or submitted in the civil lawsuit.” Volpi recently accompanied an EP during a board review of a case alleging failure to timely diagnose compartment syndrome and vascular injury. Six months before the hearing, the EP submitted a narrative response to the board; in the interim, the EP was deposed in the civil lawsuit.
After the EP’s deposition, plaintiff’s counsel filed a motion, including quoted portions of the physician’s deposition testimony. “During the board hearing, a board member asked the physician some questions on the same issue as the quoted deposition testimony,” says Volpi. “It was clear that the board member had reviewed the motion that the plaintiff filed.”
A good plaintiff’s attorney is skilled at cross examination and knows the right questions to ask. “This is not the skill set of an average board member,” says Volpi. “So it makes sense that the boards will allow attorneys to ask the tough questions, and then review the testimony to aid the board’s investigations.”
EP Lacked Legal Representation
Usually, the initial letter the EP receives from the board includes a request for medical records or other pertinent information, followed by an interview by a board investigator. “The emergency physician should involve counsel even at these preliminary phases, and should not participate in the interview without counsel,” advises Feltes.
A recent state board investigation was triggered by a family’s complaint that an EP’s negligent care resulted in their mother’s death. A representative from the state medical board asked the EP to come down for an informal conversation and a “chat” about the patient’s care. “Lo and behold, this so-called ‘chatting’ was suddenly under oath, just like a legal proceeding. The emergency physician proceeded to tie his noose and put it around his neck,” says Jonathan D. Lawrence, MD, JD, FACEP, an EP and medical staff risk management liaison at St. Mary Medical Center in Long Beach.
The complaint involved a patient who presented with chest pain; after a thorough workup, the EP concluded it was non-cardiac. The EP diagnosed pneumonia, after consulting with the patient’s primary care physician, and discharged the patient from the ED with instructions to continue the antibiotic she was currently taking.
“The woman began having trouble breathing and died two days later,” says Lawrence. During the ensuing investigation, the state medical board asked the EP detailed questions about angina and cardiac disease. “They were making the assumption that she must have died of cardiac causes, when there was no such assumption to be made,” says Lawrence. The EP quickly became defensive, complicating the situation further.
“This never would have happened if he had had counsel there, who would not have let him answer self-incriminating questions,” notes Lawrence. The proceeding was followed by a formal hearing, after which the EP was exonerated. “But it took a lot of money and time to extricate him from the ammunition that he gave the attorney general,” says Lawrence. “He’s really a poster child for, ‘Don’t go it alone.’”
Feltes underscores the importance of the EP, guided by legal advice, cooperating with the board, especially during the initial phases of the investigation. “Failing to cooperate, or worse yet, adopting a belligerent or disrespectful attitude, will only compound the problem,” he says.
Information Is Possibly Discoverable
Most state medical boards will do whatever is necessary to avoid institutional embarrassment for failure to protect the public from problematic licensees, says Voss. “By nature, state medical boards are suspicious. They see a lot of bad behavior, and their objective is to protect the safety of the public,” she explains. “Thus, medical boards conduct aggressive investigations.”
Unless a state has a law prohibiting discovery or use of medical board documents in civil suits, it is possible that the information collected by the medical board could be used against the EP in a malpractice suit. “If the medical board investigation leads to discipline, that information most likely will be publicly available,” adds Voss.
The disciplinary information, in turn, may give rise to questions from plaintiff attorneys in future medical malpractice lawsuits. “Also, a patient may use a medical board complaint as a trial balloon,” says Voss. If a state medical board disciplines an EP as a result of his or her care of the patient, it is likely that a plaintiff attorney will file a medical malpractice lawsuit on behalf of the patient.
“Conversely, if the state medical board closes its investigation without discipline, the likelihood of a lawsuit being filed decreases,” says Voss. Rules about admissibility of evidence in medical malpractice cases vary by state. “But it is always best to be careful about the evidence developed in the medical board investigation as it might give rise to, or affect the defense of, a potential medical malpractice lawsuit,” says Voss.
This is one reason to get an attorney involved early on in the medical board investigative process. “Not only does legal representation benefit the physician during the medical board investigation, it may also result in fewer issues to defend in any subsequent medical malpractice lawsuit,” says Voss.
• Joseph J. Feltes, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. Fax: (330) 252-5225. E-mail: email@example.com.
• Jonathan D. Lawrence, MD, JD, FACEP, Emergency Department, St. Mary Medical Center, Long Beach, CA. Phone: (562) 491-9090. E-mail: firstname.lastname@example.org.
• Keith C. Volpi, JD, Polsinelli, Kansas City, MO. Phone: (816) 395-0663. Fax: (816) 817-0210. E-mail: email@example.com.
• Ellen M. Voss, JD, Williams Kastner, Portland, OR. Phone: (503) 944-6964. Fax: (503) 222-7261. E-mail: firstname.lastname@example.org.