The Black Cloud of a Medical Board Investigation

Leigh Page

Disclosures

December 23, 2015

In This Article

It’s Easy for People to File Complaints

Unlike malpractice claims, board complaints don't require an injury to take place and they're simple to file. The complainant just has to fill out a form and send it in.

Moreover, many states have begun allowing people to submit complaints online, further boosting the number. For example, the Oklahoma board began allowing online filings in January 2013. In the 2 years after the change, the number of complaints was 40% higher than in the 2 years beforehand, according to figures provided by an Oklahoma board official.

Making it easier to file has made complaints less reliable, according to Jeffrey Lane, who worked for 31 years as an investigator at the Georgia board and now is a consultant at the Atlanta law firm of Allen, McCain & O'Mahony. Medical board investigators triage each complaint the board receives. With online access, "patients can just fire up the computer and send in complaints that don't meet the board criteria." Examples include unhelpful staff or having to wait 3 hours to see the doctor, he says.

Whereas filing a complaint gets easier, filing a malpractice lawsuit still remains challenging. The patient has to find a plaintiff's attorney who agrees to take the case and spend money gathering evidence and hiring expert witnesses to make a case, Dr Sullivan says.

In contrast, people who file complaints won't get any money for "winning" the case, but the board will do the investigating for them. Dr Sullivan reports that some complaints actually start as malpractice cases. For example, when he requested records to answer a complaint, he noticed that several plaintiff's attorneys had asked for the same files.

There are other differences between a complaint and a malpractice case. In such states as Georgia and Maryland, complaints can still be filed anonymously. Many states have stopped accepting anonymous complaints, but even these states withhold the complainant's identity from the physician at least until the hearing stage.

Of course, a physician will know which patient filed a complaint when the board subpoenas the patient's records. But when a pharmacist, nurse, or another healthcare worker files a complaint, the physician may not know who it is. And in any case, physicians won't be able to confront the complainant unless the case goes to a hearing, and that may never take place because physicians often settle the charge in a so-called "informal conference" with board officials.

Another difference from malpractice cases is that a complaint can morph into a totally new charge. When the board subpoenas the medical records, investigators may decide they have no evidence to support the original complaint. But in the documents, "they may find some other potential violation and open an investigation on that," says Andre D'Souza, an attorney at Leichter Law Firm in Austin, Texas. The new charge might be sloppy record-keeping or failure to obtain informed consent from the patient. "There are no statutory limits on this power, which potentially leaves it open to abuse," D'Souza says.

In Rhode Island, Chippendale says his commission has found instances of the board coming up with a whole new set of charges against a doctor that can bring new life to a failing case. "It appears that the board doesn't like to lose a case," he says.

Once the board determines the charges against a physician, it will announce them to the public, Even though the case has not yet reached the hearing stage, physicians will begin to feel the consequences, says Tracy Green, a Los Angeles attorney who defends physicians in board actions. The charges are announced to the public, which "puts insurance carriers and hospitals are in a difficult position," she says. They don't want to look like they are protecting physicians who might lose their licenses. So even without a hearing, "you may be dropped by certain insurance plans, and your hospital privileges may also be affected," she says.

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