Medical Board Investigations: Legitimate or Kangaroo Courts?

Neil Chesanow

Disclosures

March 15, 2016

The Black Cloud of a Medical Board Investigation

When doctors are given unchecked authority over other doctors—be it through hospital peer-review committees, physician health programs, maintenance of certification exams, or state medical licensing boards, the focus of a recent Medscape article the results often aren't pretty.

As the article pointed out, a complaint filed with a medical board can be a doctor's worst nightmare. "Often, physicians initially aren't told much about the complaint, and even if they think the charges are overblown, they may plead guilty because they fear worse consequences if they insist on a full hearing," the article observed. "But doctors then end up with a black mark on their record, which can lead to more adverse actions."

A medical board action follows a clearly laid-out set of rules, physicians can hire an attorney to help them at every step of the way, and the vast majority of complaints are dismissed with no action taken against them.

However, a small percentage of complaint investigations can get quite aggressive, according to attorneys who represent physicians in board cases, the article noted. Over the course of the investigation, the allegation against the physician can completely change, and in some cases, the board can summarily remove the doctor's license without a hearing. The board's final decision has ripple effects, such as a permanent mark on their records, loss of hospital privileges, and potentially being dropped by health insurance carriers.

In at least one state, Rhode Island, a legislator is investigating the medical board for being "overzealous" in suspending doctors' licenses as a result of complaints that may not even have to do with the practice of medicine. And some attorneys contend that a complaint to a medical board is more common and potentially more dangerous than a malpractice filing. Moreover, in some states, complaints can be made anonymously, making it difficult for a doctor to defend against them. And in some states, complaints can be made online, making them easy to file.

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. But once the file is assigned to an investigator, and the investigator contacts the doctor, the situation can begin to snowball. 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. A major complaint can prompt an immediate loss of license if a board finds that the doctor is an "imminent threat" to public safety.

The article elicited dozens of responses from physicians, many of whom recounted at length their own harrowing experiences with being brought up on medical board charges.

"I read this article with much interest, having undergone a state medical board investigation for the first time in my nearly 30-year career earlier in 2015," one doctor wrote. "The case involved a substance-seeking and -abusing individual and his non–drug-abusing wife, who jointly alleged that I had managed his acute respiratory failure incorrectly, had performed procedures upon him without his consent (or his wife's knowledge), and that my request for psychiatric consultation had permanently damaged him by stigmatizing him as mentally ill and unstable. The investigation's outcome, albeit slow to arrive, was ultimately a happy ending for me, but unsatisfactory or at least unsatisfying."

"My preliminary board hearing was very prejudicial and unjust," a surgeon asserted. "I was reviewed by a civilian and an elderly internist who basically admitted that because an adverse event had occurred, he had to rule against me even if the evidence clearly showed no culpability. According to these individuals, someone had to be punished. Of course, I turned down their decision and had to submit to a full hearing. It was more of a kangaroo court, and in spite of overwhelming evidence to the contrary, they ruled against me. Some of these boards pursue retribution, which is anathema to justice and medical facts. They follow their own warped sense of what is acceptable."

"I had a complaint made about me to the state board by a patient who did not like my advice," another doctor recalled. "They called me and said, 'Send the records and don't adulterate them, because if you do we will be able to tell.' I asked what the problem was, and why would I adulterate records anyway? They said, 'We can't tell you what it is. Just send the records and don't tamper with them.' Then I asked what would happen next and how long would it take. They said, 'We'll let you know in about 3 months if you have to come in for a hearing. I said, 'Do I need a lawyer?' They said, 'Probably. And don't forget that this is not covered by your malpractice policy.' Three months later they called and said, 'You don't have to come in.' The case was dropped. I wrote my state congressmen and told them this system was no better than what the Nazis did in Germany."

"The Texas Medical Board is one of the worst," a physician opined. One attorney for the board wrote email to me stating that this is not a threat, but if I did not admit to the validity of the informal complaint, she would post all the complaints ever made against me on the board's website and add additional complaints. Which she did, even though they were never able to prove anything. It cost me a job and professional reputation. The state medical boards are out of control, without any oversight or due process for physicians."

"Physicians should be able to face their accusers from the onset as in any malpractice actions," a doctor contended. "The rights of both the accusers and the physicians should be equally protected until a final decision is reached and no public statements issued prior to this time."

"The doctor-punishment industry, whether it be from state medical boards as the source of the infliction of injustice or physician health programs, has gotten way out of hand, to the detriment of welfare of all American citizens/patients," a doctor believed. "It is driven by greed and the desire for power by the lawyers in the systems, whether for the defense or the prosecution. There is no accountability. The drive is only to produce numbers to show off."

"Most of medical boards are nothing but kangaroo courts, with no regard for the standards of law and justice in this country," a doctor insisted. "Board members are trained doctors who have made themselves into quasi-prosecution lawyers and judges rolled into one. A medical license is the doctor's property. As the 14th Amendment to the Constitution states: '...nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws....'"

"I am an expert reviewer for the Medical Board of California," a psychiatrist wrote. "Our nonphysician investigators are very professional and attempt to be fair. There is due process. Not all physicians require correction. However, there are addicted physicians, physicians with psychiatric disorders, and physicians with significant polypharmacy prescribing habits who endanger the public. Should these issues be ignored?"

"Boards have a necessary function in those instances when the hospital boards and credential committees don't have the courage to censure obvious problem doctors," a doctor observed. "They can have economic interests and/or be afraid of lawsuits. Medical boards are more insulated from the threat of lawsuits. I have seen good results from their investigations."

"State medical boards have important roles to play both in the life of a doctor and patient alike," a doctor conceded. "But there have to be better ways of reaching fair and accurate decisions for all parties. The process seems to be highly anxiety-provoking. To be honest, just reading about it makes me nervous."

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