10 Things Not to Do in a Medical Board Hearing

Leigh Page

February 02, 2022

A Florida doctor told his patient her test result would be available in 3–4 days. When the patient didn't hear back, she called the practice several times, but she didn't receive a return call. So she filed a complaint against the doctor with the medical board.

When the board investigator interviewed the doctor, the physician said he wasn't aware the patient had called. But his staff said otherwise. Because the doctor had not been truthful, the board sent him a letter of guidance and required him to attend a training program in ethics.

Miami attorney William J. Spratt, Jr, who supplied this anecdote about a former client, says that most complaints are dismissed with no action taken, but some complaints don't go away because doctors mishandle them.

The following are some common mistakes that physicians make when dealing with a board complaint.

1. Not Responding to the Complaint

The complaint you get from the board — which often comes with a subpoena and a response deadline — usually asks for medical records pertinent to the case.

You can't disregard the board's letter, says Doug Brocker, an attorney handling board actions in Raleigh, North Carolina. "It's amazing to me that some people just ignore a board complaint," he says. "Sometimes it's because the doctor is just burnt out, which may have gotten the doctor into trouble in the first place."

If you do not respond to a subpoena, "the board can file a court order holding you in contempt and start taking action on your license," says Jeff Segal, MD, a neurosurgeon and attorney in Greensboro, North Carolina. Segal is CEO of Medical Justice Services, which protects physicians' reputations associated with malpractice suits and board actions. "Not responding is not much different from agreeing to all of the charges."

2. Not Recognizing the Seriousness of the Complaint

"The biggest mistake is not taking a complaint seriously," says LindaStimmel, an attorney at Wilson Elser in Dallas, Texas. "Physicians who get a complaint often fire off a brief response stating that the complaint has no merit, without offering any evidence," she says.

According to Stimmel, "It's really important to back up your assertions, such as using excerpts from the medical record, citations of peer-reviewed articles, or a letter of support from a colleague."

"Weigh your answers carefully, because lack of accuracy will complicate your case," Brocker says. "Consult the medical record rather than rely on your memory."

"Present your version of events, in your own words, because that's almost always better than the board's version," says Segal.

Even if there was a bad clinical outcome, Segal says you might point out that the patient was at high risk, or you could show that your clinical outcomes are better than the national average.

3. Thinking the Board Is on Your Side

You may be lulled into a false sense of security because the physicians on the medical board are your peers, but they can be as tough as any medical malpractice judge, says William P. Sullivan, DO, an emergency physician and attorney in Frankfort, Illinois.

As per the National Practitioner Data Bank, physicians are 3–4 times more likely to incur an adverse board action than make a malpractice payout, Sullivan says.

Also, although a malpractice lawsuit rarely involves more than a monetary payment, a board action, like a monitoring plan, can restrict your ability to practice medicine. In fact, any kind of board action against you can make it harder to find employment, Sullivan says.

4. Not Being Honest or Forthcoming

"Lying to the board is the fastest way to turn what would have been a minor infraction into putting your license at risk," Brocker says. This can happen when doctors update a medical record to support their version of events.

As per Sullivan, another way to put your license at risk is to withhold adverse information, which the board can detect by obtaining your application for hospital privileges or for licensure to another state, in which you revealed the adverse information.

Sullivan also advises against claiming you "always" take a certain precautionary measure. "In reality, we doctors don't always do what we would like to have done," he says. "By saying you always do it when you didn't, you appear less than truthful to the board, and boards have a hard time with that."

Similarly, "When doctors don't want to recognize that they could have handled things better, they tend to dance around the issue," Brocker says."This does not sit well with the board." Insisting that you did everything right when it's obvious that you didn't can lead to harsher sanctions, he says, adding, "The board wants to make sure doctors recognize their mistakes and are willing to learn from them."

5. Providing Too Much Information

You may think that providing a great deal of information strengthens your case, but it can actually weaken it, Brocker says. Irrelevant information makes your response hard to follow, and it may contain evidence that could prompt another line of inquiry.

"Less is more," Segal advises. "Present a coherent argument and keep to the most salient points." Being concise, he says, is also good advice if your complaint proceeds to the board and you have to present your case.

Segal says the board will stop paying attention to long-winded presentations. He tells his clients to imagine the board is watching a movie. "If your presentation is tedious or hard to follow, you will lose them," he says.

6. Trying to Contact the Complainant

Complaints are kept anonymous, but in many cases, the doctor has an idea who the complainant was and may try to contact that person. "It's natural to wonder why a patient would file a complaint against you," Brocker says, but if you reach out to the patient to ask why, "it could look like you're trying to persuade the patient to drop the complaint."

Doctors who are involved in a practice breakup or a divorce can be victims of false and malicious complaints, but Beth Y. Collis, a partner at the law firm of Dinsmore & Shohl in Columbus, Ohio, says boards are onto this tactic and usually reject these complaints.

The doctor may be tempted to sue the complainant, but Brocker says this won't stop the complaint and could strengthen it. "Most statements to the medical board are protected from defamation lawsuits, and any lawsuit could appear to be intimidation." he says.

7. Simply Signing a Consent Agreement

A small minority of complaints may result in the board taking action against the doctor. Typically, this involves getting the doctor to sign a consent agreement stating that he or she agrees with the board's decision and its remedy, such as continuing education, a fine, or being placed under another doctor's supervision.

"When the board sends you a consent agreement, it's usually about something fairly minor," Collis says. "You can make a counteroffer and see if they accept that. But once you enter into the agreement, you waive any right to appeal the board's decision."

8. Not Hiring an Attorney

Although some doctors manage to deal with a board complaint on their own, many will need to get an attorney, Brocker says. "An experienced attorney can help you navigate the board's process," he adds.

Clients often look for attorneys at the end of the process, when formal charges have already been filed, Brocker says. At that point, "it's harder to get things moving in the right direction," he says. "You can't un-ring the bell."

Even if you don't think you need an attorney throughout the case, "it helps to get advice from an attorney at the beginning," Segal says. Doctors may think they can't afford an attorney, but Sullivan says many malpractice carriers pay attorneys' fees in medical board investigations.

Brocker advises finding an attorney who is familiar with licensing boards. "Malpractice attorneys may think they can deal with medical boards, but boards are quite different," he says. For example, "malpractice cases involve an adversarial approach, but licensing boards normally require working collaboratively."

9. Not Requesting a Hearing

When the board takes action against you, it can be tempting to just accept the allegations and move on with your life, but it may be possible to undo the action, Sullivan says. "The board still has to prove its allegations, and it may not have a strong case against you," he continues.

In some states, the medical board has to meet a very high standard of proof, Sullivan says. In Illinois, for example, the board must show "clear and convincing evidence," while a malpractice plaintiff must only prove that it's "more likely than not" that a physician violated the standard of care.

A hearing can especially help doctors facing harsh sanctions for minor offenses. For example, in a case handled by the law firm of Ray & Bishop in Newport Beach, California, a doctor who was stopped by police while driving home after having wine at a family gathering was found to have a blood alcohol level of 0.11%. Noting that the physician was on call at the time, the Medical Board of California decided to give him 5 years of probation.

Ray & Bishop asked for a judicial hearing to contest the decision. At the hearing, the physician noted that other physicians were also available to take call that night, and an expert stated that the doctor was not an alcohol abuser. The judge ruled that the board's action was unduly harsh. The physician received a public reprimand with no further penalties.

10. Getting Upset With Board Officials

A board investigator may show up at your office uninvited and ask you to answer some questions, but you aren't required to answer then and there, says Collis.

In fact, Collis notes, it's never a good idea to let investigators into your office. "They can walk around, look through your records, and find more things to investigate," she says. For this reason, Collis makes it a point to schedule meetings with investigators at her office.

When you have to interact with board officials, such as during hearings, expressing anger is a mistake. "Some board members may raise their voices and make untrue assertions about your medical care," Sullivan says. "You may wish you could respond in kind, but that will not help you." Instead, calmly provide studies or guidelines supporting the care you provided, he says.

Taking board investigators to task is also a mistake, Brocker points out. In his words, "Investigators have to follow the rules. Getting mad at them will only make your case more difficult. Even if you believe the complaint against you is totally without merit, the process needs to run its course."

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