The Medical Board generally requests a written response by the physician to the allegations in the complaint. The majority of complaints are resolved during this phase. If the matter involves serious allegations or the resolution of factual disputes (such as alleged sexual misconduct cases), the Medical Board generally “invites” the physician to appear before an investigative committee for questioning. The committee, referred to as the Preliminary Evaluation Committee (“PEC”), is made up of designated physicians and laypersons of the Medical Board.
Legal representation is critical for such an appearance. A Deputy Attorney General, who provides preliminary instructions regarding the proceedings, generally initiates the PEC appearance. Routine questions are then asked about the physician’s training, background, and practice activities. The physician must verify that he or she is current in all CME requirements (which arise from a Medical Board regulation). Following the preliminary matters, any member of the Committee may ask the physician any question on virtually any subject. The format ranges from friendly, collegial exchange to brutal, ongoing cross-examination. The atmosphere cannot be predicted in advance, although it depends to some degree on the personality of the PEC members and the seriousness of the alleged misconduct.
Generally speaking, PEC members are prominent physicians from around the state from various specialties and, in this author’s experience, they generally treat a physician with respect and dignity. There are, however, notable exceptions, and as information is given to the PEC by sworn testimony, which is stenographically recorded, mistakes or inappropriate comments made during difficult cross-examination can make the matter difficult to defend and resolve on a favorable basis.
Following the PEC appearance, the Committee members prepare minutes reflecting findings and recommendations for disposition. Medical Board members have broad discretion in this area. If the PEC finds probable gross negligence or unethical conduct, an effort is often made to resolve the case by offering the doctor a settlement, which is usually structured to address the problem. If the concern is quality of care, retraining or remedial CME may be recommended. In more serious matters, the proposed settlement may include language reprimanding the physician for improper conduct, imposing substantial fines or civil penalties, requiring that a physician practice under direct supervision of another physician, or in some cases, suspension or revocation of the physician’s license to practice medicine.
If the case cannot be resolved by way of settlement, the Medical Board has the option of referring the matter to the Enforcement Bureau of the Attorney General’s Office. For serious misconduct, the Medical Board will recommend the filing of a complaint with the Office of Administrative Law (“OAL”). If this occurs, the complaint is generally assigned for disposition to an Administrative Law Judge for pretrial discovery and trial. Depending on what occurs during the trial, the Judge can recommend a wide variety of remedial measures or sanctions, which include substantial financial penalties and license suspension or revocation.
Most physicians are, not surprisingly, unfamiliar with the procedural mechanics of a Medical Board complaint. Once a complaint is filed, the physician has due process rights such as pretrial discovery, the right to cross-examine adverse witnesses, and the right to serve expert reports in support of his or her position. Unfortunately, the statutes and applicable case law make it very difficult for a physician to prevail in a disciplinary matter once it has been referred to the OAL for disposition. The Medical Board is not bound by the judge’s findings and recommendations; they are only advisory. A physician can go through a protracted and expensive trial and prevail, only to discover that the Medical Board has made separate findings, apart from the judge, and imposed sanctions notwithstanding a favorable judicial recommendation.
Recent case law has demonstrated that appellate courts are willing to give the Medical Board wide discretion and latitude in this area. The courts assume that the Medical Board members are acting in good faith and, as experts, know what they are doing in defining and enforcing applicable practice standards and ethical requirements. The judges, who do not consider themselves to be experts in medical matters, are very reluctant to overturn a Board disposition in the absence of a clear showing that fundamental due process procedures and rules were not followed, and that the proceeding was, therefore, fundamentally unfair. The appellate courts will not overturn a Medical Board decision, including one imposing sanctions, merely because it is different, even contrary, to the findings and recommendations of the Administrative Law Judge.
There are additional procedural disadvantages for the physician. If the Administrative Law Judge or Medical Board finds gross negligence, statutory provisions permit the Medical Board to compel the physician to pay the Medical Board’s legal fees and expenses incurred in the trial. Such fees and expenses are often substantial in contested matters, often in excess of $50,000. The prospect of such an assessment can create great anxiety and concern to a physician who is already faced with the prospect of losing his or her medical license and, in essence, livelihood. This procedural reality makes the Deputy Attorney General and the Medical Board members reluctant to compromise during any settlement negotiations. With statutory discretion and limited appellate review, the effected physician has very limited options and often must accept any terms that are offered.
What to do if you receive an inquiry
Practitioners should be aware of the potential risks and exposure associated with a Medical Board inquiry. As in medicine, the best results come from early diagnosis, appropriate management, and cooperation with the Medical Board. If a case moves from the PEC into the formal complaint stage, it has the tendency to become a “run-away train.” The longer the proceedings go, the more difficult the case can be to resolve. The best strategy is to cooperate with the Medical Board members early in the investigation and influence, to the best degree that you can, their perception of your case.
It is important to be represented early on by an experienced attorney who regularly handles Medical Board matters and is well known to the PEC members and the Deputy Attorneys General who handle licensing board matters. It is critically important to have the right advice and the right strategy, as early information and documentation is provided. Even in a serious matter, significant “damage control” can be achieved through informal negotiations. A solution can be found to almost any type of case. As the Board members serve on an appointed basis, meet infrequently, and have limited enforcement resources, there are generally options for resolving a case short of formal proceedings. The Board members are eager to settle most cases in order to avoid protracted litigation, which ties up personnel and resources.
The good news
These are difficult times for physicians and hospitals. Medical malpractice cases, managed care, increased costs, complex regulations regarding medical records, privacy, and a host of other issues are all coalescing to make the current practice of medicine a difficult and anxiety-producing experience. Most practitioners would be alarmed to learn that there is another component to this picture, that is, their license is issued by what is, in effect, a government agency and the license can be taken away or suspended because of a mistake. A physician facing a Medical Board matter can literally be facing the end of his or her career.
There is a good side to this story, however. Obviously, in a profession as important, complex, and technical as medicine, there has to be some oversight regarding who gets in, what the rules are, and who is punished. Such oversight is inevitable. The medical profession is fortunate, in a sense, that this function is performed by physicians.
In this author’s experience, the members of the Medical Board (and the related agency, the Medical Practitioner Review Board, which screens disciplinary cases for the Medical Board by reviewing malpractice settlements) are, generally speaking, responsible and experienced practitioners from different specialties who understand the current practice environment and the stress and pressure currently facing the medical community. In 25 years of representing physicians before the Medical Board, I have rarely seen an unfair result. The Board must be sensitive to the public’s perception that the medical profession does an inadequate job in policing its own.
The average practitioner need not fear a Medical Board inquiry. With the appropriate advice and counsel, most cases can be managed informally and without protracted or involved legal proceedings. Any physician receiving a Medical Board inquiry should first contact his or her professional liability insurance carrier to determine the scope of coverage and representation. The doctor should retain an experienced lawyer, who will make every reasonable effort to resolve the matter with as little time and associated stress as possible. The overall prognosis is usually good.