What Can Be Included in the Investigation?
"Boards have a right to investigate everything about you," Dr. Zur notes.
"The Board's investigator may not find what they were originally looking for, but that doesn't mean they won't find something else amiss," Sastow observes. "You may innocently invite them to your office to look at your patient records, thinking, 'I have nothing to hide.' But it's not a good idea to have them snooping around."
Hursh notes that experts in healthcare law can spot potential problems in the chart that might implicate the physician. "By preparing the physician to address them, we can preempt a lot of problems."
Simas concurs. "One of my clients, an orthopedic surgeon, was accused by a patient of negligence after surgery in which he repaired an ankle that had been smashed in an automobile accident. She had expected to return to her hobby as a marathon runner and was angry that she was 'only' able to walk but not to run."
When the complaint was investigated, the Board noticed that, in his informational brochure, the surgeon had claimed to be in practice for 17 years, when in reality he had been in practice for 7 years. "It was a typo and the printer took responsibility for it, but this 'misrepresentation' became the crux of the investigation. The Board wanted to revoke his license."
"By the time I got involved, the case had progressed to a formal administrative hearing in which he ultimately received a reprimand, although the complaint had been groundless," Simas recalls. "The Board's lawyer said, 'If your client had brought you to the first interview, we wouldn't be here today.'"
What Else Will Having Legal Representation Accomplish?
Other than helping with the initial response to the letter, a lawyer can represent you at every juncture and hopefully get the charges against you dismissed.
But "if the physician has been found guilty of wrongdoing, we can help 'scale down' the Board's action by suggesting less-serious disciplinary actions," Hursh says.
Additionally, lawyers can steer physicians away from making mistakes with far-reaching consequences. For example, "never admit guilt when it's not necessary," Hursh warns.
Sastow agrees. "I had a client who consented to a minor 'slap on the wrist,' rather than facing a long, drawn-out defense process, even though he knew he was innocent and would prevail in the end. But that slap on the wrist had a major ripple effect."
When the physician tried to recertify, his specialty's board refused to renew his certification because of the disciplinary action. When he lost board certification, he also lost his ability to participate with certain insurance plans, so he lost patients who were covered by those plans."
"We fought vigorously," Sastow recounts, "and finally the organization reinstated the certification. He got back onto the insurance plans, but the bad publicity and financial loss lingered." Had he consulted with legal counsel before agreeing, he could have avoided these negative consequences
Dr. Adams concurs that legal advice or representation is often necessary. "Issues such as licensure renewal or CME credits probably don't need the involvement of a lawyer. But for anything substantive, such as a clinical complaint, legal representation is a good idea."
Medscape Business of Medicine © 2013
Cite this: Never Face a Medical Board Investigation Alone - Medscape - Jan 17, 2013.