Helpful Information

MASSACHUSETTS PHYSICIANS: Defending Your License

THE IMPLICATIONS OF A BOARD COMPLAINT

As an experienced physician, you may have personal experience receiving a letter from the Board of Registration in Medicine, requiring you to respond to a complaint about you professional conduct or your practice. If you are a newly licensed physician, you may not have had your practice questioned by the Board at this early time in your career. In either case, you may find this article informative and helpful if you ever find yourself staring down an investigatory letter from the Board.

Normally, after you receive a letter requiring information about a patient you treated at some time in the past, you will not remember the patient or the specific event that triggered the investigation. However, if the patient had an unexpected outcome as a result of your treatment, that event may be as clear in your mind as the day it happened. In either case, your first inclination will be to look up the patients records to refresh your memory of the details. As much as you might like to call the patient and talk to her directly, resist the impulse. Do not call the patient. Call a lawyer, instead.

To find a lawyer with expertise in this area of the law, call your insurer. Your insurance most likely will cover expenses of your defense. Even before you need a lawyer, look carefully at your liability insurance policy to determine if your coverage includes legal representation for Board investigations. Just as you would retain legal counsel to represent you in a malpractice suit, it is equally, if not more, important to be represented before the Board of Medicine. After all, if you lose a malpractice action against you, the burden is only financial. If you lose before the Board, it is your profession, your livelihood, and your life as you know it that is at risk.

From a legal point of view, your professional license is considered a protected right or interest, affording you procedural and substantive fairness. It includes an opportunity for a full and fair hearing under the due process standards of both the United States and Massachusetts Constitutions. Therefore, your license cannot be taken away easily or arbitrarily. However, this does not mean that you should treat such Board complaints and their ensuing investigations in a casual manner. Any investigation about your professional conduct should be taken very seriously, no matter how unwarranted you may think it is.

This article will provide you with valuable information so that you can know how to proceed, should you receive a complaint letter. It will also provide you with tools to protect yourself and your practice from unwarranted disciplinary action in the future.

RESPONDING TO A COMPLAINT

Despite your best efforts, you may receive a notice from the Board, requiring you to respond to the allegations within a patient's complaint. Often the grounds for the complaint will be based on your patients notion that your treatment was improper, or that you performed treatment that was not expected, and therefore without consent. Patient abandonment is often claimed along with other complaints, and can include the allegation that you would not prescribe needed medication. Other, more serious allegations such as misconduct, fraud, practice beyond the scope of your profession, and practicing while impaired, have also been filed.

While complaints against your license may be brought by patients, the Board is entitled to raise an inquiry about your practice on its own accord if notice is given by another source. For example, a report may be submitted by the Massachusetts Department of Public Health about an incident involving a hospitalized patient under your care.

Regardless of the source of the complaint, a compliance officer at the Board sends a letter to you, identifying the general issue or issues of concern. The compliance officer requires your response to the complaint within a short period of time, usually 15 days. In addition, the compliance officer will provide you with a list of information needed that you must supply within the same 15-day period. While the Board requires documents from you depending on the nature of the complaint, most likely you will be required to produce the following information:

1. Current residential address and telephone number;

2. Updated Curriculum Vitae or resume;

3. Copies of all licenses in-state, or out-of-state;

4. Copies of attendance records at educational seminars and conferences, indicating the number of Continuing Education Units earned in the last complete license period; and,

5. Additional certifications, if any.

The Board always includes a statement that you are entitled to legal representation to assist you in responding to the complaint and defending your position. At first, you may think that if you have done nothing wrong, you are capable of handling an adequate response on your own. However, nothing could be further from the truth. Because the Board has the power to revoke or suspend your license, issue a reprimand or place you on probation, it is unwise to try to go it alone. Again, this is your license to practice in question.

Your next task will be to gather the documents requested by the Board. Bring all requested documents with you when you meet with your attorney. Some attorneys will request that you write down a draft of your response to the Board. Others will interview you, write a draft response, and ask you to edit it. Whatever the method, it is essential that you understand that the letter to the Board will be signed by you, and by signing the letter, its words become your words. Therefore, even though you and your attorney will develop the letter together, your signature will indicate that you have attested to the truth of its contents once it is signed by you. Your attorney may also consult a medical expert within your specialty to review the case and give an opinion about the patients claim and your treatment of her. This expert can provide valuable information to the Board about the appropriate standard of care and how you met them. To summarize, if you receive a complaint from the Board:

Once your response is submitted to the Board, the waiting begins. It may be several weeks before you receive any further correspondence from the Board. Your attorney will continue to represent you during this time and will call the Board on your behalf to determine the status of your case. The compliance officer will review all the information you submitted. The person who made the complaint may also be interviewed by the compliance officer. The Board will obtain the patient medical records to determine your role in the patients care and will present this information before the full Board at an open meeting. It is here that an initial decision is made on the merits of the complaint.

The good news is that the vast majority of complaints are dismissed at this level. Normally the Board finds that the explanations in your response letter, if consistent with the documentation in the patient's record, will be sufficient to close the case. However, occasionally, the Board will continue the case if its investigation suggests any possible misconduct. If patient care problems are identified, remedial courses may be required, a probation period may be instituted, or other possible discipline may be levied by the Board. If this occurs, you have the right to be heard, as a matter of law. The Board will notify you of the hearing. It is essential that you are represented by an attorney at the hearing.

HEARING OR NO HEARING

Often the Board will determine that an informal hearing is the appropriate next step. The informal hearing is like an interview. Both you and the patient who filed the complaint will be present to explain the circumstances of the complaint to the Board members. After hearing from both parties, the Board will notify you in writing whether it finds grounds for a formal hearing or whether any further action will be taken.

In many cases the Board may attempt to meet with you and your attorney and the person who issued the complaint against you in an effort to resolve the case without a formal hearing. If this occurs, your attorney is best suited to assist you in negotiating a reasonable settlement. If the Board offers you this option, it most likely means that the discipline required will be something less punitive than the loss of your license. If the Board determines that a formal hearing is warranted, it will issue you an Order to Show Cause why the Board should not revoke or suspend your license. Notify your attorney as soon as possible in this event.

The formal hearing is for your protection. You are entitled by law to a formal hearing before any discipline is levied that will impact your license, your practice, your career. The formal hearing is like a trial in many aspects. You and your attorney may call witnesses, you may testify on your own behalf and you may provide additional evidence.

DISCIPLINE

Disciplinary action will be taken only if the Board finds that the evidence presented at the formal hearing proves misconduct on your part. Discipline may be as mild as a reprimand, or an order to comply with Board regulations. If the offense is serious, a suspension or a revocation of your license is a possibility, but only after the evidence presented proves the allegations of the complaint and only if the misconduct is deemed sufficiently serious or dangerous. Disciplinary actions vary and may include one or a number of the following:

PREVENTIVE STRATEGIES

If we are to put ourselves in the patient's shoes, it helps imagine what might make a person file a complaint. Almost universally, a patient who doesn't know you very well is more likely to complain about you rather than one who has an ongoing relationship with you. For instance, pediatricians and general practitioners are less likely to be sued or have a complaint filed against them because they usually enjoy an ongoing professional relationship with clients and their families. Conversely, specialists such as radiologists, surgeons and emergency physicians are more likely to receive a complaint or a summons. Most likely, the patient will not come in direct contact with the radiologist who interprets the CT scan she had. The physician whom she encounters in an emergency is not her primary care physician, and she will most likely be under stress. Surgeons in all specialties also may not have the same opportunity to develop a close relationship with many of their patients. Considering all these factors, the risk is higher if the patient with a serious condition has complications from the treatment she received, and she has not established a good relationship with you. In these situations, she or her family may seek retribution by taking legal action.

It cannot be stated strongly enough that the immediate establishment of a respectful collaborative relationship with each patient and the family members is the single most important goal to achieve in your day-to-day practice. The decision not to complain about your conduct, even if it may be warranted, is based on the level of trust you have established and whether the patient likes you, not on how long you have known her. Consequently, if your patient perceives that you are a caring and trustworthy individual, who treated her with respect, you have minimized your risk.

While it is more challenging to develop a trusting relationship with patients in the high risk areas of Emergency Room, Operating Rooms, and ICUs, it is not impossible. Knowing that the patients and family members will be under heightened stress, it is never enough to demonstrate your competence. Sitting down with a patient, establishing eye contact and showing that you are genuinely concerned about each patient makes it easier for a patient to trust you. In providing this level of care for your patient, you will have created a bond that will lessen the possibility that the patient will file a complaint about you, should something go wrong. Conversely, if a patient feels slighted in any way, she may find reason to complain about your practice to the Board, even when you did nothing wrong. For example, if she feels that you were rushed when you cared for her, or if she felt misunderstood, she may take action against you.

Second, make an effort to include family members in your discussions with your patients. Although the HIPAA regulations are written to protect a patient's privacy, it will be important to communicate with others if your patient cannot understand, for whatever reason. When having a discussion with a patient, you may include family members if you ask the patient's permission. It's best to document the permission granted in your progress note. This will protect you as well as establish that you are protecting your patients interests. However, you should not discuss a patient's medical condition or her treatment with a family member when the patient is not present.

If it's a question of your patient's incompetence, it's essential that the procedure for activating the patient's health care proxy be carried out carefully. Most patients and their families do not fully understand the significance of a Health Care Proxy. This may need to be explained in detail when and if your patient can't make decisions for herself. The essential element for family members to understand is that the health care proxy, designated by the patient, can only make decisions for the patient when and if you, her physician, has determined that she is not able to make decisions for herself. Not before. Also, it only remains in effect as long as your patient remains incompetent. Patients or family members have a valid complaint against a physician who allows someone other than the designated health care proxy to make decisions for the patient. Patients also have valid complaints if you allow a person to make decisions for the patient when the patient has not been deemed incompetent, or has become competent once again.

Regardless of the condition of your patient, your primary responsibility to family members is to support them as they support their ailing family member. Your support for each of these visitors can be instrumental to the development of a relationship not only with each of them, but with the patient. A welcoming attitude will help to show them that they are included and that you realize their importance to the well-being of the patient. If you can show your concern for the patient while showing a genuine concern for visitors, you will be well on your way to forming a respectful rapport with those under your care. While you may think that you don't have the time, it is not about the quantity of time spent with each patient and family member. Instead it is about the quality of time you spend with them. Using each moment to its fullest, your patients will like you better and they will be less likely to have reason to complain.

When a patient appears to be demanding, it may be the result of overwhelming anxiety. Their anxiety may impact their ability to take in difficult information. It may be necessary to explain proposed procedures again, at least once. Make certain that you give the anxious or demanding patient ample opportunity to ask questions so that you can evaluate her level of understanding. No matter how calm a patient may appear, anticipate that she is anxious. Under the circumstances, a rushed instruction is no better than no instruction. Whatever the reason for a patient's misunderstanding, expect that she doesn't fully understand your instruction. Don't proceed until and unless the patient has shown that she understands and agrees to proceed.

Unfortunately it is virtually impossible to predict what a patient is thinking or feeling about you and what their expectations may be. Sometimes no matter what you do, their expectations cannot be satisfied. It is not feasible to direct any of your time attempting to identify potential patients who might take action against you. Instead, you can make it your personal policy to ask your patients what they need before you leave them, to ask if they understand your directions or your explanations and to answer their questions in a way that they can understand. They will welcome your thoughtfulness.

While you may not be able to know what a patient thinks about you and your practice, you can be sure that every patient wants to feel respected. One of the simplest ways to show your respect is to make the patient feel welcome at every visit, give the patient eye contact when talking to her, and give her a small amount of extra time. You would be surprised how little actual time this can take. It can be as little as 30 seconds. If you establish an unhurried approach, and if you ask if the patient has any questions or concerns, you will be showing your respect for her. To recap:

Cultivate a relationship with your patient that begins with mutual respect;

Develop/maintain an unhurried approach with each patient;

Take interest in them, i.e. ask about their family, etc;

Give eye contact when explaining care and treatment plans;

Ask if the patient understands;

Make family members feel welcome and include them in patient care when appropriate; and,

Recognize and acknowledge that each patient and family is anxious.

A FEW LAST WORDS

Because the Board is responsible for the safety of the consumers of health care, it is the Board's prerogative to request all relevant documents from you. Because you are never certain who may find fault with you, it behooves you to be prepared at all times. You can be best prepared to respond to a Board complaint if you follow the principles listed below:

This article is designed to provide you with helpful information about the complaint process carried out by the Massachusetts Board of Registration in Medicine. Because a complaint has the potential to place your career at risk, all complaints, no matter how frivolous they may appear to you, should be handled with the utmost care and seriousness. In order to proceed in defending yourself against any complaint, it is the wise professional who consults with a knowledgeable attorney who is experienced in representing professionals like you and who can provide you with the best defense possible.

 

Marc Gervais, J.D., Senior Partner of Gervais & Davenport, P.C., is an attorney who has been defending health-care providers for more than 25 years.


This article is presented solely to provide you with helpful information about the complaint process. It is not intended to be construed as legal advice for any specific situation.

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