The Executive Suite: What you need to know about medical board complaints

Thursday, August 29, 2019

What you need to know about medical board complaints

Physicians plan and insure against the possibility of a medical malpractice suit. However, they often overlook another serious threat to their livelihood: a medical board complaint. Here are some common causes of complaints and the risks and process involved.

While most doctors are primarily concerned about a medical malpractice suit, a medical board complaint on its own can significantly disrupt your income — and even end a career. It is vital to have the right coverage at the right limits before a complaint is filed against you.

Unlike an actual medical malpractice suit, a patient can easily file a board complaint at little or no cost. The Federation of State Medical Boards (FSMB) provides significant guidance to physicians and medical boards in all 50 states. It also provides some very specific guidance to patients on when, and how, to file complaints against physicians.

Complaints can result in fines, reputational damage, license suspension or limitations and even complete license revocation. So, while the results may not be as devastating as a seven-figure lawsuit judgment against the wealth you have already amassed, it can take away your future ability to earn more. For many physicians, this is their biggest asset.

A medical board complaint may accompany or precede a more onerous medical malpractice lawsuit. Medical board complaint legal defense costs are not always covered by your medical malpractice insurance. It’s a policy specific question, and I advise physicians to make sure they know, at a minimum, the following important details about their coverage:

If they are actually covered for board complaint defense.
What the dollar limits of that coverage are. It may be a rider that only covers $50,000, for example.
If they have stand-alone coverage or if that coverage shares limits with another policy, thereby potentially reducing the coverage available for a resulting medical malpractice claim.

Causes of medical board complaints

According to the FMSB, medical boards sort and prioritize complaints, fast-tracking adjudication of those complaints that present the possibility of imminent patient harm. Such claims logically include instances of physicians allegedly engaging in sexual misconduct with patients, deviation from the accepted standard of medical care in a state and practicing under the influence of drugs or alcohol.

Some causes common standard-of care complaints include:

Failure to diagnose, also a leading cause of medical malpractice claims;
Inappropriately prescribing and monitoring opioids or other controlled substances;
Incorrectly prescribing medication;
Actionable violations of physician-patient confidentiality;
Inappropriate behavior that interferes with patient care, including interactions with others in the chain of care;
Failure to provide appropriate postoperative care; and
Failure to respond to a call from a hospital to help a patient in a traumatic situation.

What the complaint process looks like

This can be a long and complex process and often involves legal representation. How long a particular case takes depends on how many of the following steps are required to resolve it. Watch the dates carefully, as you have a specific and limited amount of time to respond.

The complaint is assessed for jurisdiction.
The case is prioritized, and the investigation begins. Any indication of risk to patients may allow the board to immediately suspend or otherwise limit the physician out of concern for patient safety.
The state medical board identifies individuals and intuitions with relevant information. Individuals involved in the case are asked to provide statements.

The complainant receives formal notification. The physician also receives formal notice of the complaint as well as any record requests.
The board conducts a medical review to determine if a patient’s medical care has been impacted as a result of the complaint. Same specialty experts may be called to comment on the standard of care provided.
The board rules. Minor or inaccurate complaints may be resolved at this level with the board providing sanctions or conditions.
If not settled by the board ruling, the case is set for an informal hearing. It may be formally settled at this stage. If not, the matter proceeds to a formal hearing.
Cases go to a full hearing for adjudication, similar to a civil lawsuit. There is a formal proceeding, with presentation of evidence and witnesses. The board rules on the evidence presented.
Any disciplinary action imposed by the board is entered into public record. It is then part of the physician’s permanent professional record and is available nationally through the FSMB Physician Data Center. Patients can access this info through their state’s medical board or by accessing docinfo.org.

We’ve covered some basics on the risks, causes of complaints and the resulting complaint process. In our next discussion, an attorney who practices in the area of professional discipline and defends doctors in these proceedings shares some specific tips we hope you never need.