Disciplinary review standards and procedures
A significant amount of the Medical Board’s resources are committed to investigating and, in certain instances, prosecuting complaints against physicians for alleged professional misconduct, substandard treatment, or ethical violations. Complaints are referred to the Medical Board by a wide variety of sources, and these sources are kept confidential by statute and not revealed to a physician under investigation. While disgruntled patients account for a large percentage of the complaints filed, physicians would be surprised to learn that complaints come from many other sources, as well, including other physicians, nurses, former employees, and hospital administrators. The Medical Board regulations require that any physician or healthcare provider with knowledge of alleged improper conduct has an affirmative obligation to report such a matter to the Medical Board.
The Medical Board also investigates physicians even in the absence of a complaint, and relies on its own investigative techniques, such as pharmacy surveys, medical chart review, and, in rare cases, the placement of undercover investigative agents in a physician’s office. These agents often pose as “new” patients in an effort to investigate physicians who are suspected of engaging in ongoing and serious inappropriate conduct such as prescription abuse, insurance fraud, or sexual misconduct.
The subject matter of complaints is varied, but typically include patients or family members upset with untoward outcomes, chronic pain patients treated with narcotics or other controlled medications, allegations of patient abandonment or improper/inadequate referral, insurance and third-party reimbursement improprieties, physician substance abuse, and alleged sexual misconduct.
Methods
The typical complaint is referred to the Medical Board by the filing of a written complaint form. To facilitate patient complaints, allegations can now be made by an “on-line” filing system. Once a complaint has been received, the Medical Board is obligated to conduct an investigation of the physician. The investigation is generally limited to the allegations in the complaint, but not always so. The Board has the discretion and authority to conduct a broad-ranging inquiry into any aspect of the physician’s practice or professional life during the course of subsequent proceedings. New Jersey courts have held that a physician responding to such an investigative inquiry has virtually no “due process” rights and, therefore, is usually unable to learn, in advance, information about the scope of the inquiry. Many cases that start as a simple patient complaint over what appears to be a minor matter often develop into a more serious and extensive inquiry, involving issues completely unrelated to the initial complaint.
During this initial phase of the process, physicians often feel intimidated as they find themselves in an entirely new professional arena, with less due process rights and procedures than a defendant has in a criminal investigation. Even though the role of counsel during this initial phase is limited by statute and case law, a physician in such a circumstance should always rely upon the informal guidance and strategy recommendations of an attorney with Medical Board experience. A physician should never have any contact or provide any information to the Medical Board in an investigation without the guidance of an attorney.