Your state medical board contacts you? Don't go it alone

Obtain legal representation immediately

According to the most recent data from the National Practitioner Data Bank, the number of medical malpractice suit payments has steadily declined from 2001 to 2011 while the number of adverse actions taken against physicians by state medical boards has steadily increased.

Once a patient files a complaint with the state medical board, the physician involved might welcome the chance to explain why his or her care was indeed medically appropriate. However, just as with medical malpractice cases, physicians must be careful when responding to state medical board inquiries.

Don't do so without retaining, or at least consulting with, an attorney who concentrates their practice in representing physicians before the medical board, warns Alan M. Schneider, JD, an attorney with Cheshire Parker Schneider & Bryan, PLLC in Raleigh, NC. "The damage that can be done to a physician's reputation and livelihood by a disciplinary action is significant," he says. "Not only might the physician's competence or integrity be called into question, but sometimes, depending on the seriousness of the allegations, the physician's license to practice medicine may be jeopardized."

Schneider says he has seen physicians make matters much worse for themselves by panicking and making false statements or submitting fabricated records in response to a board investigation. "This is a big mistake for many reasons," he says. "Most of the time, the cover-up or the false statement is much more serious than the issue being investigated."

While the number of medical malpractice suit payments decreased from 15,898 to 8,419 in 2001-2011, the number of adverse actions taken by state medical boards increased from 5,009 to 5,622 over the same time period, according to data from the National Practitioner Data Bank (NPDB).

"We've seen cases where a patient makes a complaint to the medical board and also files a lawsuit at the same time," says Lizabeth Brott, JD, regional vice president of risk management in the Okemos, MI, office of ProAssurance, a writer of medical professional liability insurance. "Coordinating the defense of the licensing action and the professional liability claim can be helpful."

Physicians facing a disciplinary complaint should immediately notify their carrier, says Schneider. Notification of the carrier might be contractually required under the policy, regardless of whether the policy offers coverage for medical board complaints, and many malpractice insurance policies contain a supplemental payment provision for disciplinary defense costs, he adds. "The dollar amounts available for these disciplinary defense provisions vary significantly. I have seen policies that provide for as little as $5,000 and as much as $25,000," says Schneider. "Certain other policy details tend to vary, such as who gets to choose counsel to represent the physician." (See story on when to seek legal representation, below.)

Take these actions

Here is how a state medical board investigation typically progresses:

• Prior to the initial contact with a physician, the investigator usually has conducted a preliminary investigation into the facts and circumstances of the allegations.

"Many board investigators have state bureau of investigation or other investigative experience," says Lori Meyerhoffer, MD, JD, a partner with Yates, McLamb & Weyher in Raleigh, NC. "The investigator's role is that of a fact finder."

• The state medical board contacts the physician directly.

"During that interview, the investigator will ask specific questions, based on information already obtained through their investigation," Meyerhoffer says.

The investigator might produce documents for the physician's review and might have specific questions regarding those documents, she adds.

• Medical records might be requested for a specific patient.

"Sometimes the investigator shows up at the door unannounced with a subpoena," says Brott. "You certainly have the right to say, 'I will check with my attorney, and we'll get back to you.'"

Records generally should be provided to the board upon request, advises Meyerhoffer. "However, if there is any doubt concerning production of medical records and other requested documents, notify the board you need to obtain legal counsel, and counsel will produce the medical records, if appropriate," she advises.

• After interviewing the physician, reviewing any documents and, if necessary, interviewing other individuals with knowledge of the events, the investigator will assimilate all information obtained though the entire investigation.

"The investigator will compile a summary report that is submitted to the board and/or the board's attorneys," says Meyerhoffer.

• A settlement conference might be held.

"Basically, they are looking to see if they can settle this, short of taking it to a hearing," says Brott. "The physician may consider settling just to make it go away. Sometimes, it is in the physician's best interest to negotiate a settlement."

However, physicians might not realize the repercussions of settlement. "If the settlement involves some type of disciplinary action against their license, and oftentimes they do, the settlement may have negative ramifications for a physician's practice," says Brott.

Any settlement agreement involving licensure disciplinary action must be reported to the National Practitioner Data Bank (NPDB), which is queried frequently by licensing boards, credentialing committees, hospitals, and other third-party payers. A settlement could impact the ability to obtain professional liability insurance, participation with third-party payers, and result in termination or nonrenewal of hospital privileges.

• An administrative hearing might be held.

This hearing is similar to a medical malpractice trial. Each side can call and examine witnesses, introduce evidence, and the hearing is conducted by an administrative law judge, says Brott. However, the hearing is held without a jury, and in many states the administrative law judge's findings must be reviewed by the board of medicine before they're enforced. Possible outcomes include the physician being reprimanded or put on probation; or his or her license being restricted, suspended, or revoked, all of which are reportable to the NPDB, she adds.

"It's a mark against them that will follow them for the rest of their lives," says Brott. "That's why it's so important to have an attorney."

Sources

For more information on state medical board investigations, contact:

  • Lizabeth Brott, JD, Regional Vice President, Risk Management, ProAssurance, Okemos, MI. Phone: (800) 292-1036 or (205) 877-4400. Fax: (205) 414-2806. Email: lbrott@proassurance.com.
  • Lori Meyerhoffer, MD, JD, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6010. Fax: (919) 582-2510. Email: lmeyerhoffer@ymwlaw.com.
  • Alan M. Schneider, JD, Cheshire Parker Schneider & Bryan, PLLC, Raleigh, NC. Phone: (919) 833-3114. Fax: (919) 832-0739. Email: Alan.Schneider@cheshirepark.comAlan.Schneider@cheshirepark.com

Don't wait too long to obtain legal counsel

If a state board medical investigator is asking to interview a physician in person or over the phone, "that's a pretty good indication that the physician needs representation," says Lizabeth Brott, JD, regional vice president of risk management in the Okemos, MI, office of ProAssurance, a writer of medical professional liability insurance.

Brott advises physicians to ask the investigators' names and the reason they are calling. The physicians should indicate courteously that they will be happy to talk to them once they have consulted with attorneys.

Attorneys have experience interacting with the medical board, says Lori Meyerhoffer, MD, JD, a partner with Yates, McLamb & Weyher in Raleigh, NC. They are familiar with the process of an investigation and possible subsequent actions, and they can provide insight as to potential outcomes based on prior board actions, Meyerhoffer says.

"It is often difficult to impossible to reverse statements or admissions made by the physician prior to retaining representation," she says. "The attorney's experience will assist the physician in navigating unchartered territory, provide anticipatory guidance, and assist in negotiating with the board itself."

Coverage varies

While some carriers cover representation for state medical board investigations, the coverage is usually limited, says Brott. Still, physicians often don't realize that the coverage is available to them or might think it makes them appear guilty to be represented by an attorney.

"Oftentimes, physicians don't feel they did anything wrong, and they're very comfortable in trying to handle it themselves," Brott says. "But, for example, if it's a standard-of-care issue, things aren't always black and white. It starts getting grayer." Also, the physician might not anticipate that the patient might make completely inaccurate statements.

Coverage for medical board matters varies by insurer, says Meyerhoffer, and the expenses associated with defending a board investigation can be significant, depending on the allegations and whether formal charges are filed.

"If insurance for representation of medical board matters is optional, physicians should add this coverage to their existing malpractice coverage," she advises.