After an ED malpractice claim is filed, additional legal headaches often come in the form of licensing board actions. There are two ways this usually is triggered, according to Nan Gallagher, Esq., a Morristown, NJ-based healthcare attorney.
One, a patient reports the EP to the licensing board, starting an administrative action. Two, the hospital suspends the EP. “This starts a hospital administrative action against him or her — and gets him reported to the NPDB [National Practitioner Data Bank] and the licensing board,” Gallagher explains.
State board investigations against the EP can come at any time — before, during, or after a malpractice lawsuit. “Some patients and their lawyers will test the waters by filing a report to the board before filing suit,” says Ashley Dobbin Calkins, JD, an attorney in the Richmond, VA, office of Hancock Daniel.
Attorneys and potential plaintiffs are allowed to observe the proceedings if there is an informal conference. Based on what they learn about the care the EP provided, “they may develop potential case theories,” Calkins says.
State boards of medicine do not take adverse action against all EPs if a malpractice claim settles. “But they do thoroughly investigate every report. And they do occasionally take adverse action against providers who have settled or lost cases,” Calkins adds.
Depending on the specific conduct at issue, hospitals may be legally obligated to report a sued EP to the board. This triggers a mandatory investigation. “At times, a board of health professions investigation and a malpractice suit will proceed concurrently,” Calkins notes.
Whether a hospital suspends an EP sued for malpractice depends largely on the type of conduct alleged. “I have never seen a provider suspended by a hospital over a typical medical negligence malpractice case,” Calkins reports.
Still, finding out that an EP was named in a malpractice lawsuit could prompt the hospital to initiate an internal investigation, if it has not already. “This could potentially lead to suspension or other disciplinary action, which could itself also prompt reporting obligations to the board,” Calkins says.
In some states, plaintiff attorneys are required to copy the licensing board with a notice of intent to sue. “It is up to the agency as to whether or not they want to investigate the matter,” says Carol Ann Lobacz, LHRM, a claim consultant at Miami-based Claims & Risk Management Services.
Sometimes, the licensing board investigates and closes the file without an EP ever knowing about it. “Once the agency closes their file, it is rare that they will reopen it,” Lobacz says.
Other times, the board waits until the malpractice lawsuit concludes before investigating. “Settlement of a case does not automatically mean that an agency will initiate an investigation,” Lobacz notes.
If a patient files a complaint about an EP with the licensing board, the board is obligated to investigate. The board informs the patient of what they found and what action was taken. However, if the patient decides to sue the EP, he or she will find different standards apply for malpractice cases.
“The standards of evaluating a medical malpractice claim differs from that of a licensing board rendering a decision on the same set of facts and treatment rendered,” Lobacz explains.
In a malpractice case against an EP, the standard of care, causation, and damages are what are considered. “On the other hand, a licensing board is process-driven and focuses on the standard of care,” Lobacz observes.
Some ED providers settle malpractice cases in which the standard of care could not be defended, but face no consequences from the state licensing board. “In some cases, they are investigated by the board, and no disciplinary action is taken,” Calkins says.
It all depends on the facts of the case — and also how the EP responds to the allegations. “If a provider can articulate a reason for an omission and a clear correction, the board does not always discipline a provider, even if there is a technical standard of care violation,” Calkins says.
To avoid issues with state licensing boards in the event of malpractice litigation, Calkins suggests EPs check whether their professional liability insurance covers representation for a board action. Not all policies cover this. “Having an attorney assist with the board investigation can be invaluable, especially if malpractice litigation is expected or ongoing,” Calkins offers.
Also, Calkins says EPs should investigate what hospital bylaws say on the subject. “Some require reporting of a board investigation or informal conference,” she adds.
Regardless of what triggered the investigation, Lobacz says EPs should notify their professional liability carrier immediately. Some EPs try to defend themselves. “The most innocent of comments can be misconstrued,” Lobacz cautions.
Calkins has seen this happen to multiple EPs. “Accidentally providing inaccurate explanations or incomplete records at the outset of an investigation are common issues,” she reports.
Hiring an attorney who is experienced in board investigations right from the start makes a favorable outcome for the EP more likely. “In most states, if no probable cause is found, the case is dismissed, and the investigation remains confidential,” Lobacz explains.