EXECUTIVE SUMMARY

EPs often are unaware of the serious ramifications of state medical board investigations, which can lead to various forms of disciplinary action. These EP actions frequently result in additional scrutiny:

  • taking an adversarial stance;
  • sparse documentation in the ED chart;
  • placing blame on other providers.

What EPs don’t know about state medical boards can hurt them if they become the target of an investigation.

“Physicians, by and large, pretty much have no concept of what the board does beyond issuing a license, or how to stay off the board’s radar screen,” says Jeffrey D. Lane, a regulatory affairs consultant at Atlanta-based Allen & McCain.

Lisa Robin, the Federation of State Medical Boards’ chief advocacy officer, urges EPs to respond quickly, transparently, and honestly. “The worst thing a physician can do is to ignore the initial letter and fail to respond,” she underscores.

Allan Tobias, MD, JD, principal of Walnut Creek, CA-based Healthcare Consulting and Law, says step one is to contact the malpractice carrier. Some cover representation by attorneys for state medical board investigations. Regardless, Tobias urges EPs to hire an attorney with appropriate expertise.

“Consider how much you make in one year and multiply that by how many years you have left in practice,” Tobias says. “That is what is at stake.”

If licensing discipline is imposed on an EP, it may require reporting to employers, third-party payers, and hospitals in which the physician has privileges — and, in most instances, to the National Practitioner Data Bank (NPDB).

David L. Rogers, an attorney at Rogers & Associates in Farmington Hills, MI, adds, “Sometimes it is a basis for termination of employment. Also, most third-party payers will see the NPDB posting, which can lead to departicipation.”

Each time the EP applies for malpractice insurance, hospital privileges, or employment, the disciplinary action will come up.

“Every question asking about license discipline, on every one of those applications, will have to be checked yes, with an attached explanation,” Rogers says.

Don’t Complicate Matters

Lane, former chief investigator for Georgia’s state medical board, notes that state law requires every complaint to be investigated, “no matter how frivolous it seems on its face.”

Seemingly baseless complaints can become serious once the investigation gets underway. Rogers says, “Sometimes physicians lose cases they should have won.”

Here are some factors that complicate state medical board investigations of EPs:

  • ED charts contain sparse documentation.

An ED chart with a clear picture of the EP’s rationale makes it easier for the board to conclude that the EP practiced within the standard of care. If there’s little or no documentation, “the board has nothing to work with,” Lane says. “The level of detail — or lack of detail — is going to save the ED physician or bury him or her.”

Lane has seen EPs investigated for inappropriate prescribing of narcotics.

“Sometimes, the EP will write a prescription just to get the patient out of there,” Lane says, noting that many times, the ED chart contained virtually no documentation showing the need for the prescription. “That doesn’t necessarily mean the prescription was not legitimate. But if it’s ever questioned, it’s hard for the EP to back it up.”

In another case, an EP was investigated after a successful malpractice litigation alleged missed pulmonary embolism.

“The documentation was cursory at best,” Lane says, recalling that the board concluded that the pulmonary embolism was not recognized early enough due to the EP’s failure to follow up on diagnostic testing. “The EP didn’t lose his license, but was fined and reprimanded.”

The question that the board has to answer, says Lane, is: “Do we have an EP who just made a poor decision? Or do we have an EP who has a chronic habit of this kind of thing?”

“Poor or no documentation to justify your treatment could bring you in before the board for an interview,” Lane warns.

  • The EP under investigation strikes an adversarial tone with investigators.

“We understand they may be indignant and scared,” Lane says. “But one thing the board really doesn’t appreciate is a doctor coming in and talking down to them.”

Lane wishes physicians would realize that investigators aren’t necessarily out to get them.

“The board tries hard to separate the really bad doctor from the good doctor that had a bad day,” he adds.

  • The EP misses timeframes to deliver medical records or respond to subpoenas.

“They delegate it to somebody else to deal with, and then it doesn’t get done,” Lane says. “That can turn into a credibility issue.”

  • The EP tries to go it alone.

A written response submitted by an EP can turn quickly into a multi-page document that is full of incoherent rambling, overly defensive, or full of eyebrow-raising facts.

“A lawyer can help you craft it in a way that’s more helpful than hurtful,” Lane notes.

Once contacted by an investigator, some EPs don’t want to appear “lawyered up.” However, simply stating, “I would like to consult with an attorney before I make any comments to you about this” is a smart move.

“It’s not looked at as a negative. The board understands that physicians have a right to counsel,” Lane says.

  • The EP discusses the investigation with colleagues.

“Those people may become witnesses. And those conversations are not protected by attorney/client privilege,” Lane explains.

  • The EP hides, alters, or destroys records.

“That’s a good way to lose your license pretty quick,” Lane warns. “The truth is a lot easier to deal with, even if it’s ugly.”

One physician client, under investigation for improper prescribing practices, fabricated a fax containing information pertinent to the investigation.

“The fax was dated two days before our meeting, but the events it portrayed had allegedly occurred a year ago,” Lane recalls. “At that point, we suggested that he seek counsel elsewhere.”

Rogers has seen physicians add something to a chart before submitting copies to a licensing agency. Much to their surprise, an unaltered version of the record exists, either because they’d been submitted previously in response to a subpoena in a malpractice case, or because the patient or EMS requested a copy. Eventually, someone compares the copies and sees the alterations.

“Altering records is almost always worse than whatever the physician was trying to hide and leads to serious licensing and criminal penalties,” Rogers says.

  • The EP blames others for bad outcomes.

John Bedolla, MD, FACEP, assistant director of research education and assistant professor of emergency medicine at the Dell Medical School at The University of Texas, advises EPs to “be very neutral with how you present the information.”

For instance, if it took 30 minutes to deliver a tracheotomy kit, and the delay harmed a patient, the EP will be tempted to respond, “It took them over 30 minutes to deliver that damn thing!” A better approach is to state simply, “I had to do a tracheotomy. I called for a kit, and two minutes later I called again. I called until the kit was delivered. All the times are documented in the chart.”

As for who’s at fault, Bedolla says, “someone else has to explain that piece.” He suggests this language: “I asked the nurse for the kit. The kit arrived 30 minutes later. For further information, you have to ask the nurse.”

Is the request to participate in an interview an invitation the EP can’t refuse? State laws vary on this. Rogers notes, “Even where it’s not required, the letter or phone call from the investigator usually makes it sound like the interview is required.”

If the interview is optional, the EP has an important decision to make.

“It should be made carefully,” Rogers stresses. “An interview during an investigation is a very important event.”

Some EPs jump at the chance to explain things, assuming (sometimes falsely) that the board surely will see the complaint has no merit.

If the investigator will accept written answers to questions, Rogers says, “in some cases, this is a more reliable way to be sure the correct answers make their way into the investigation file.”

Since EPs generally are not allowed to review reports during active investigations, it’s impossible to correct mistakes or misunderstandings.

“This is important, because if a formal complaint is later filed and the case goes to a full hearing, the physician may well have to testify at the hearing,” Rogers explains. If the EP’s testimony conflicts with the report, the investigator can be called as a rebuttal witness.

“The investigator will testify that he or she conducts many interviews and doesn’t specifically remember what the physician said, but then can read from the report that was prepared at the time,” Rogers notes. The investigator then testifies that the report correctly states what the EP stated.

“Who does the administrative law judge believe? Maybe the physician, maybe the investigator,” Rogers adds. For this reason, agreeing to a non-mandatory interview could backfire.

“The EP may end up with an inaccurate report that leads to a formal complaint and ultimately to a hearing where the report is used against the physician,” Rogers concludes.

After the interview, the EP may receive a letter saying all is well. “Or you may receive a notice from the state attorney general who is tasked with the prosecution of physicians,” Tobias says.

Either way, Tobias urges physicians to, “involve your attorney at all phases of the investigation and hearing — and above all, listen to him or her.”

SOURCES

  • John Bedolla, MD, FACEP, Assistant Director of Research Education, Assistant Professor of Emergency Medicine, Dell Medical School, The University of Texas. Email: jbedollamd@gmail.com.
  • Jeffrey D. Lane, Regulatory Affairs Consultant, Allen & McCain, Atlanta. Phone: (404) 874-1700. Email: jlane@amolawfirm.com.
  • David L. Rogers, Rogers & Associates, Farmington Hills, MI. Phone: (248) 702-6350 (Ext. 104). Fax: (248) 246-2280. Email: drogers@healthlex.com.
  • Allan Tobias, MD, JD, Healthcare Consulting and Law. Phone: (925) 935-5517. Fax: (925) 932-2741. Email: altoby@aol.com.