Risk Management: Licensing Board Complaints—What You Need to Know

by Ann McNary, JD

Ms. McNary is Senior Risk Manager at PRMS, Inc. in Arlington, Virginia.

Reprinted with permission from Innov Clin Neurosci. 2018;15(7–8):35–37. © Copyright Matrix Medical Communications, 2018.

Funding: No funding was provided for this article.

Disclosures: The authors reports no conflicts of interest relevant to the content of this article.

This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice.

Answers in this column are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.

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Question

I recently received notice that a patient’s father had filed a complaint against me with my licensing board. It is completely frivolous and since he has no standing to make a complaint as he is not the patient, I plan to write to the board, answer their questions, and let them know what a jerk this guy has been. I don’t see any need to go to the expense of hiring an attorney, do you?

Question

I work very hard to provide excellent care to my patients and most have been very satisfied with the results of my treatment. Recently, however, I encountered a patient whom I did not feel was the right candidate for a bariatric procedure and was upset when I told him I did not feel it to be clinically appropriate in his case. The next thing I knew, he had filed a board complaint against me accusing me of abandonment. How do I avoid this type of thing in the future?

Answer

While all physicians appreciate the seriousness of receiving notice of a lawsuit, physicians receiving notice of a complaint from their licensing board do not always recognize the need for the same level of concern and the potential impact upon their professional license. In fact, a board complaint might be far more serious than a lawsuit as discipline imposed may include fines, public reprimands, suspension, or revocation of a license.  Physicians might also be required to receive special training or complete programs before returning to practice.

In an effort to ensure that the public is protected from clinicians who practice incompetently, state licensing boards have made it easier for complaints to be made against healthcare providers. While this is good in theory, an unfortunate result is that it is now also easier for frivolous and even false complaints to be made against good doctors. All one need do is search “physician complaint” and the name of their state on the internet, and seconds later they will be taken to the state medical board’s website and an online form with instructions on how to submit their complaint. California’s medical board even provides a tutorial.¹

One thing that may come as a surprise is that a licensing board complaint may be filed by anyone: a patient, a patient’s family member, a next-door-neighbor, or another clinician or healthcare organization. As an example, per the North Carolina Board of Medicine: “Complaint forms are accepted from patients, family members and other members of the public, as well as from medical professionals and health care organizations such as hospitals, pharmacies, insurance companies, health care agencies or other entities.”² And, unlike with lawsuits, there typically is no statute of limitations; thus, a complaint may be filed years after you treated the patient. Furthermore, there is no need for a complainant to establish that a patient was actually harmed by your care; they need only allege that it was inappropriate or unethical.

Licensing boards are required to evaluate all complaints to determine whether investigation is needed. Although an individual’s claim against you may be completely without merit, your board may have no way of knowing this without further inquiry, and thus it is essential that your response to their requests within the requisite time-frame and that the matter be taken seriously—no matter how ridiculous the allegations. In many states, your failure to respond to a request for information from your medical board is itself an act of professional misconduct.

Although such a claim may not seem to merit the cost and time associated with retaining an attorney, responding on your own without the assistance of counsel is ill-advised. Many a physician has mistakenly assumed that all he or she had to do was tell their side of the story and the complaint would be dismissed, only to discover that in doing so, they inadvertently opened themselves up to further investigation. 

Be aware that negative findings by a licensing board may typically be used as evidence against you in a related malpractice lawsuit. In fact, plaintiff attorneys will often encourage patients to file board complaints prior to the filing of a lawsuit for this very purpose. In addition, your licensing board must report certain findings to the National Practitioner Data Bank, which could impact future credentialing. Per NPDB, actions that must be reported include:

“…any negative action or finding by the State licensing or certification authority that, under the State’s law, is publicly available information, including, but not limited to, limitations on the scope of practice, liquidations, injunctions, and forfeitures. This definition also includes final adverse actions rendered by a State licensing or certification authority—such as exclusions, revocations, or suspension of license or certification—that occur in conjunction with settlements in which no finding of liability has been made (although such a settlement itself is not reportable). This definition excludes administrative fines or citations and corrective action plans and other personnel actions, unless 1) the underlying activity is connected to the delivery of health care services, 2) the action is taken in conjunction with other adverse licensure or certification actions, such as revocation, suspension, censure, reprimand, probation, or surrender.³

If you have malpractice insurance, the cost of hiring an attorney to represent you in administrative matters might be part of your coverage thus a call to your carrier should be made immediately upon receiving notice of a complaint. Rather than writing a response on your own and sending it the board, you can use that energy to make notes for your attorney to use in your defense. 

How to Avoid Being the Subject of a Board Complaint

Ignorance of the law is not a defense so make certain that you know your state’s laws regarding the practice of medicine. This information is often located on the website of your state licensing board. Although state laws and regulations will vary greatly on what topics are addressed, the following is a list of topics about which laws are often found:

• Actions (or inactions) that constitute professional misconduct
• Documentation requirements
• Record retention
• Advertising laws
• Informed consent
• Prescribing controlled and non-controlled substances
• Requirements regarding access to the state prescription monitoring program
• Patient access to medical records
• Reporting requirements—child abuse, abuse of vulnerable persons/elder abuse, domestic partner abuse, dangerous patients, impaired providers
• Supervision of non-physician providers
• Telemedicine
• Continuing medical education (CME)

Risk Management Suggestions

1. Remember to timely renew your license and United States Drug Enforcement Agency (DEA) certificate and to keep current on CME requirements.
2. Ensure that you are meeting all requirements (e.g., examination, documentation, prescription monitoring program [PMP] access) when prescribing controlled substances.
3. Train staff regarding the need for patient confidentiality and have them sign confidentiality agreements.
4. Establish a policy within your office to ensure the timely release of patient records when presented with appropriate authorization to do so.
5. Avoid the appearance of unprofessionalism. Use tight privacy controls on your social media accounts and do not allow others to tag you without your permission. Ask friends and family members not to post any photos of or references to you that could reflect poorly on you. One survey of state medical and osteopathic boards found that of the 71 percent of boards responding, 73 percent indicated a likelihood of investigating postings depicting alcohol intoxication and 60 percent reported a likelihood of investigating postings containing discriminatory speech.
6. Do not violate other laws unrelated to the practice of medicine which may trigger a board investigation for example, convictions for tax fraud or driving under the influence (DUI).
7. Be selective about the patients you accept into your practice and take steps to discourage those who are purely drug-seekers. For example, you might make it known that you do not prescribe medication at the first visit or that you check the prescription monitoring program prior to prescribing.
8. Make certain that you provide sufficient notice (typically 30 days) when terminating a treatment relationship with a patient to avoid allegations of abandonment.
9. Manage expectations regarding your prescribing practices: how frequently a patient must be seen in the office and what labs are required.
10. Ensure patients are made aware of fees and your expectations of payment at the onset of treatment. Licensing boards typically will not take action against physicians with regard to matters that appear to be mere fee disputes. However, patients who are upset about fees will often also find something about your care to complain about.
11. Maintain appropriate boundaries with patients and their family members.
12. Obtain informed consent when prescribing medication and educate patient on possible risks, likelihood of efficacy, and how long it may be necessary to be on the medication.
13. And remember, as with avoiding malpractice lawsuits, the very best risk management tool is to focus on providing good care to your patients which includes clear communication and managing expectations.

References

1. Medical Board of California site. www.mbc.ca.gov. Accessed 27 Aug 2018.
2. North Carolina Medical Board site. www.ncmedboard.org. Accessed 27 Aug 2018.
3. Reporting state licensure and certification actions. National Practitioner Data Bank site. https://www.npdb.hrsa.gov/guidebook/EStateLicensureActions.jsp. Accessed 27 Aug 2018.
4. Greysen SR, Johnson, D, Kind T, et al. Online professionalism investigations by state medical boards: first, do no harm. Ann Intern Med. 2013;158(2):124–130. 

Tags: Risk Management

Category: Past Articles, Risk Management