Minor Complaints Can Snowball
Many complaints involve relatively minor issues—such as alleged rudeness, fee issues, and inadequate explanations of care—and the board usually dismisses them without opening an investigation. At the Texas board, for example, 26% of complaints were dismissed without an investigation in fiscal year 2014.
But once the file is assigned to an investigator, and the investigator contacts the doctor, the situation can begin to snowball, according to Ronald W. Chapman II, an attorney in Bloomfield Hills, Michigan. "When the investigator contacts them, most physicians don't realize that this could be the beginning of a long investigation, and their licenses could be on the line," he says.
Chapman says the investigator might call the doctor up and tell him there's a small matter he wants to clear up, and proposes a casual meeting at a local coffee shop. Chapman says many doctors agree to discuss everything, because they want to demonstrate that they have nothing to hide, but even statements that seem innocent could end up being used against them. The best thing to do, he says, is to decline to provide a statement and contact an attorney. "Most doctors don't realize that you don't need to say anything at all," he says.
Some boards expressly state that they don't handle complaints about rudeness, whereas others handle quite a few of them. "I get a ton of these cases," says Ryan Wozny, a Dallas lawyer who defends physicians in board matters. He adds that they can actually be harder to defend than a clinical matter. "Then you have a debate over what is rude vs what is necessary for good patient care," Wozny says. For example, a doctor asking the patient's family to leave the room so that he can conduct an examination on the patient may receive a complaint about rudeness, filed by a family member.
Some boards can be hard-nosed about minor cases, especially if the physician is uncooperative. They may take action against these physicians and post the action on their website and in press releases for the media. In 2012, the Maine board issued a press release announcing that it had placed a 72-year-old neurologist on probation, on the basis of a complaint about rudeness to an adolescent patient. The neurologist "must attend classes in medical ethics, boundaries and patient communication," the board reported.
The release stated that the elderly doctor "acted in an unprofessional manner by being rude, condescending, and throwing a tissue box at a patient who was crying." But according to the release, the doctor's own version of the events was slightly different. Rather than throwing the tissue box "at" the patient, he simply admitted that he "tossed the box of tissues onto the patient’s lap." He also admitted that he "might have told the patient to stop crying in an inappropriate way and that he may have been 'emotional' in his discussion with the patient and his parent," the release said.
The board's interaction with the physician is unknown because boards don't discuss cases and the neurologist did not respond to requests for an interview. But the wording of the release suggests the physician was reluctant to admit to the charges. Also, it took more than 1 year after the complaint was filed for him to sign the consent agreement in an informal conference.
According to some attorneys, physicians can get a better deal if they push for a full hearing instead of signing a consent agreement. "The board members and attorneys attending an informal conference could be completely uninformed about the medicine," according to D'Souza, the Austin attorney. But at a formal hearing, doctors can present evidence and may have a chance to confront the complainant, which could bolster their case.
Board defense attorneys say it helps to have them present at the informal conference, because they know what the board is looking for and can often negotiate a lower penalty, or even have the charges dropped completely. Wozny, the Dallas attorney, estimates that about one fifth of the proposed sanctions are dismissed at the settlement conference with the Texas board, but almost none of them are dismissed when the doctor doesn’t have an attorney present.
However, the situation is quite different at the Michigan board. "Once a formal complaint has been authorized, it is very, very difficult to get a complaint dismissed during the informal conference," says Chapman II. To get the case dropped, "you would need to produce actual proof that you did not violate the public health code."
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Cite this: Leigh Page. The Black Cloud of a Medical Board Investigation - Medscape - Dec 23, 2015.