When I was first contacted by the Medical Board last year I didn’t take it seriously and went through the process without legal representation. This resulted in me showing up to an unnecessary interview and subsequent harassment by the 3 investigators.
After securing legal representation the whole process has been smooth and civil. Not only did the investigators stop contacting me but my lawyer was able to figure out exactly what the case was about.
After a few months of waiting the Medical Board Investigative Committee has contacted my lawyer and we have agreed on an interview date before the Investigative Committee where my lawyer will be present.
State Medical Board Anatomy
My state’s Medical Board of Examiners is responsible for establishing rules and regulations pertaining to the practice of medicine in my state.
Their mission and purpose of any state Medical Board is to protect the public from physician licensees.
The Medical Practice Act is universally accepted as the guidelines by which physicians should interact with the public. Each state can tweak the law individually and the Medical Board of Examiners is in charge of determining whether the Medical Practice Act (MPA) was violated based on a complaint that they receive about a physician.
I might come across as ignorant but I never knew about the Medical Practice Act and I’m licensed in 3 states. I didn’t learn about it in medical school, not in residency, and not told about it by my employer.
The Medical Board doesn’t have the capacity to investigate physicians at random and therefore bases their investigation on complaints which come from:
- patients
- physician peers
- insurance groups (malpractice)
- hospital systems (internal investigation)
- self reported by a physician
The Medical Board is made up of:
- a Medical Board team of 12 individuals
- an Investigative Committee
- an Executive Director
- a Medical Director
- Department of Justice Attorney
1. 12-Member Medical Board
In my state we have a 12-member team who make up the medical board. Supposedly these 12 individuals are volunteers and not paid.
They meet 4x a year and review all the cases which are brought before them by the Investigative Committee.
This group makes the final determination and though they keep documentation of the final decision, they don’t have to keep a log of how they reached their decision among the various team members.
2. Investigative Committee
This committee meets 10x a year and reviews the cases which are presented to them by the Investigative Staff as well as the Medical Director.
They come up with a preliminary determination or judgement and present this to the Medical Board team 4x a year. The Investigative Committee doesn’t make the final judgement.
3. Executive Director
This is the Public Information Officer, providing a bridge between the public and the physicians (licensees). This person attends all the Medical Board meetings.
This is the person in charge of writing those exciting newsletters which you receive from your respective medical board.
4. Medical Director
This is an individual who is involved in all aspects of an investigation and responsible for hiring medical specialists in situations when a case is clinically involved.
5. Department of Justice Attorney
This is a single individual who is the in-house attorney who offers legal advice to the Medical Board members.
My lawyer contacted this person directly to figure out what my case was about since neither of us could figure it out based on what the investigators had shared with me.
The Process
I’ve reviewed this previously in other posts but here is a brief process:
- complaint comes in
- preliminary review done to see if valid
- open investigation started if complaint is deemed valid
- investigators go out to investigate
- information presented to the Investigative Committee
- [*Investigative Committee can interview the physician*]
- facts presented to the Medical Board members
- Medical Board members can dismiss the case or escalate to a notice
- Complaint & Notice sent to physician who needs to reply
- Physician can accept and begin settlement discussions with the Board
- Physician can contest and present supporting facts
- The Medical Board makes a final decision
- Physician can enter Appeals Process
I am about to enter the interview part with the Investigative Committee as I highlighted in the above list.
If at any time during the investigation process the Medical Director believes that no violation of the Medical Practice Act has occurred then the case can be dismissed.
In order to dismiss the case the Investigative Committee would discuss the matter and present the information to the Medical Board members and suggest that the case be closed – all without involving the physician.
The Investigative Committee Interview
I will be interviewed by the members of the Investigative Committee sometime next month and during this process each member can ask me any questions that they think would help them make a better judgment.
Remember that this isn’t a court of law and that anything and everything goes especially when you don’t have legal representation.
However, because I will have a lawyer present with me, not only will I be practicing for this interview but my lawyer can have the Investigative Committee members rephrase the question or refuse for me to answer it.
So if it’s not a court of law and anything goes then how can my lawyer do this? The reason my lawyer can do this is because I may in the future choose to appeal the decisions of the Medical Board and to do so I would petition a higher court and that’s when the members of the Investigative Committee or the Medical Board members may have to show up to testify.
Presenting to the Medical Board Members
So remember that I am still dealing with the Investigative Committee and haven’t yet gotten in front of or dealt with the Medical Board members.
There was no reason for me to be interrogated by 3 individual investigators and had my lawyer known that this was happening he would have refused that initial interview and stated that I will only appear before the Investigative Committee.
The Investigative Committee will interview me and then either do a further investigation or present their preliminary decision to the Medical Board members.
The Investigative Committee can recommend one of the following to the Medical Board members:
- disciplinary action (revocation, suspension, probation)
- dismiss the case
- request further investigation
- write a non-public letter of concern to the physician and then close case
Discipling a Physician
If a violation of the Medical Practice Act has occurred then the Medical Board members will decide on the disciplinary action among themselves.
This is often referred to as Complaint & Notice and it’s a formal process where the Medical Board will issue their disciplinary action in writing to the physician licensee. From this point the physician has 2 options which we’ll delve into more:
- The findings of the Medical Board and the disciplinary action can be accepted without contesting it or,
- The physician licensee can request a Contested Hearing.
1. Accepting Disciplinary Action
This is option 1 where the physician will fully accept the disciplinary action by the Medical Board members. This is when the Medical Board will issue a ‘Stipulated Order’ as you may have seen in the medical board newsletters.
A Stipulated Order can be any of the following:
- license revoked
- license suspended
- license restricted
- monetary fines
- Diversion Program referral
- public reprimand
- physician sent for further training
- physician to surrender their license
- forced retirement of license
The last few are obviously much more favorable though not desired actions which the Medical Board members can impose.
2. Contesting The Final Decision
A Contested Hearing can be requested by the physician licensee and their lawyer if they don’t agree with the Medical Board’s disciplinary actions.
Here you and your lawyer and the Medical Board’s lawyer (the Department of Justice attorney) will present before an Impartial Hearing Officer to re-hear the facts from both sides.
All this information is then packaged up nicely and sent back to the Medical Board members for a Final Order. The Final Order is … the final order and the physician is notified of their individual mandated disciplinary action.
If you as a physician disagree yet again with this Final Order then you can use your lawyer to appeal to your state’s Court of Appeals. Estimated costs for this is somewhere in the $40k range along with having to pay for the Appellate’s legal fees for another $40k.
Finally, if you don’t receive a favorable judgement at the Appellate Court level then you can escalate your case to the final step which is your state’s Supreme Court. Depending on complexity this process will set you back another $100k at minimum and is in addition to what you have spent so far.
Public Reporting
I’m sure I’ll write more on this in the future but once you accept the final disciplinary action by the Medical Board then you will be dealing with the wording of the public notice which.
After a final decision by the Medical Board is reached your disciplinary action decision is reported to:
- National Practitioners Data Bank
- Federation of State Medical Boards
These are public databases which are discoverable and mandatory for you to report under perjury to any future employer or entity who asks you about it.
The Statistics
In my state we have 21,000 active licenses. Unfortunately I don’t know how many of these are MD’s and DO’s and how many are PA’s, acupuncturists and Podiatrists.
About 5,000 complaints are received by my state’s Medical Board every year for these 21,000 licensees. That’s a rate of nearly 25% which is already pretty concerning. With this high level of complaints I wonder where the disconnect is between clinician and consumer.
About 350 of these complaints are opened each year and about that many are also closed each year. So 7% of physicians are investigated by my state’s Medical Board annually. Doesn’t that seem like a lot?
The Investigative Committee requests interviews for 20% of the licensees who have open investigations. And a very small percentage of the final decision is contested by the physician licensee.
The largest source of complaints are from:
- patients
- other providers
- malpractice case lawyers
- pharmacists
- self reporting
I’m shocked by the number of complaints files with the Medical Board by other providers which is believed to be due to local competition – not sure I buy that.
The types of cases that are reported are as follows by order of volume:
- incompetent patient care
- unprofessional behavior
- inappropriate medication prescribing
- violation of laws
- sexual misconduct
- mental illness
- substance abuse
- violation of probation
My Case
Because I suggested to the nurse to get a test on my friend who would have otherwise left the Urgent Care, I indirectly entered the patient-doctor relationship with my friend.
By becoming her doctor and not documenting on her then of course I was 100% in the wrong.
One could argue that the nurse should have made sure that the patient get properly checked in and that an order placed in the chart before doing the test which is the standard of care. But because I am in the position of power, the nurse can argue that she had no choice but to do what I suggested.
The boundary of friend/patient was crossed when I did something that only a physician can do. Whether it’s making a diagnosis, writing a work note, reviewing a friend’s lab report, ordering a medication for them, or ordering a study – such actions will make me her physician and I will own this patient for the rest of my life.
After sharing all this with one of my friends she still asked me if I thought it would be okay for her to provide a work order to her friend to get an ergonomic evaluation for a standing desk – I hope to the rest of the readers this would appear as a clear violation of the doctor-friend boundary and Medical Practice Act.