A case brought to the State Medical Licensing Board concerned allegations of professional misconduct and unethical behavior by Dr. Abe. The complaints included serious matters that could affect the safety and quality of medical care for patients. The outcome of Dr. Abe’s case could have lasting impact on the physician’s career. This case emphasizes the importance of adhering to medical standards and ethical principles in medical practice.
Case Summary
Dr. Abe is a 50-year-old male who is board-certified in pain management. He has been practicing by himself for about 20 years and has privileges at a major hospital.
After graduating from medical school, he completed a residency in anesthesia followed by a fellowship in pain management. He is board-certified in both anesthesia and pain management.
He has been sued twice for medical malpractice. One case was dismissed and the second was settled. He has had no prior disciplinary actions.
In 2020, the State Medical Licensing Board received a complaint from a patient and her family member alleging unethical behavior, negligence, and inappropriate prescribing practices related to Dr. Abe’s practice.
The board launched an initial review of the complaint to determine its validity and seriousness. That review involved gathering information from the complainant, medical records, hospital records, and other available evidence.
The complaint appeared to have merit; hence, a formal investigation was launched that involved collecting and reviewing more medical records and interviewing Dr. Abe and other relevant parties. The investigation aimed to establish the facts and determine if the physician’s actions or conduct violated medical standards or ethical principles.
The board requested independent review by experts in Dr. Abe’s specialties. The opinions of the experts were not favorable.
Based on the findings of the investigation, the board initiated legal proceedings against Dr. Abe. The formal charges included inadequate and incomplete medical records, lack of documentation of informed consent, lack of documenting pain management agreement, and unprofessional conduct.
An administrative hearing was scheduled to give Dr. Abe an opportunity to respond to the allegations and present a defense. Legal representation was allowed for both Dr. Abe and the board.
Dr. Abe’s attorney advised him against a formal hearing, which would have involved evidence, witnesses, and expert testimony. Instead, the attorneys for both parties negotiated a settlement, which excluded license suspension, probation, or revocation.
The settlement was submitted to the board and concluded with disciplinary action against the physician: rehabilitation programs in professional ethics, medical record keeping course, as well as additional training in pain management and substance abuse treatment, with periodic monitoring of Dr. Abe’s practice.
INTRODUCTION TO MEDICAL BOARD INVESTIGATIONS
Physicians often are uneasy when faced with the legal and regulatory demands prevalent in today’s healthcare landscape, as their medical education typically does not include extensive legal and regulatory knowledge. Therefore, physicians need a working understanding of healthcare regulations and employment laws, which can significantly impact their medical practice life, potentially leading to the loss of their medical license, harm to their reputation, and civil or criminal penalties.(1)
Components of a Medical Board Investigation
When the medical board receives a complaint, it determines whether the alleged misconduct could subject the licensee to disciplinary actions. If the answer is yes, the medical board notifies the licensee and implements a comprehensive investigation.
The medical board will request additional information from the licensee and other sources, such as the hospital or medical practice where the alleged violation transpired. This information will then be used to guide the investigation.
Some investigations will be handled through informal resolution, which may involve some kind of settlement or corrective action agreement with the medical licensing board. Some investigations will end in formal resolution, including a formal disciplinary hearing and corrective and potentially punitive action.
After these proceedings are completed, the medical board will implement an order or other resolution of the charges. The licensee may then have appeal rights within the licensing medical board or in the court of law.(2)
Medical Board Impact
The number of physicians experiencing board actions annually has remained relatively stable over several years, hovering just more than 4,000 per year since 2008.(2,3) In 2017, 4,081 physicians were subject to board actions in the United States, about 0.4% of the 970,091 physicians with active medical licenses; 248 of these actions resulted in license revocation and 97 in license applications denied.
Less serious alleged offenses result in a fine, reprimand, or additional continuing medical education requirements. About 50% of these investigations result in more serious board actions, such as probation or license restriction, suspension, surrender, or revocation.
State professional medical licensing boards receive and review thousands of complaints each year regarding licensed healthcare medical professionals from patients, patients’ friends and family members, healthcare organizations, other individual healthcare medical providers, out-of-state licensing boards, and related government entities. State licensing boards have the authority to investigate these complaints and take disciplinary action on a professional’s license for violating practice statutes or board regulations, which can include permanent restriction or revocation of a license.(2)
The consequences of a disciplinary proceeding by a medical licensing board can be career-damaging or career-ending. However, courts have considered a professional license a property right that cannot be taken away without the due process of law.(4)
Consequently, physicians usually are entitled to procedural due process protection (adequate notice and a fair hearing) before a state medical licensing board can deprive them of their medical license.(5) The statute evidences the legislative intent that there should be notice and a hearing in any case where a medical license is to be revoked.
Although physicians are afforded these due process protections, disciplinary investigations and the proceedings are demanding, stressful, and emotionally draining. Each medical licensing board adopts its own process and rules for conducting investigations with varying levels of intricacy and complexity.
Given the proper preparation, however, physicians can protect their medical licensure and due process rights during a state licensure medical board investigation.
The state practice act governing a professional medical licensee outlines the types of actions that constitute misconduct and subject a licensee to discipline. When a medical licensing board receives a complaint or other information indicating that there has been an alleged violation, the medical board will investigate the information, conduct in-depth disciplinary proceedings, and determine and administer a disciplinary action as appropriate under the prevailing governing law.
Examples of disciplinable offenses include sexual misconduct, felony conviction, substance abuse, improper prescribing practices, and failure to conform to the prevailing standard of care.(6)
PREPARING FOR A MEDICAL BOARD INVESTIGATION
Physicians can prepare themselves for the possibility of a disciplinary investigation for an alleged disciplinable transgression. For example, physicians should maintain thorough and detailed medical records. Robust documentation may help a physician show why or how certain medical decisions were made or actions were taken, and why or how those actions comply with the applicable standard of care.
Further, physicians can obtain malpractice coverage that covers medical licensing board investigations. If the provider’s employer or healthcare system provides malpractice coverage, then providers should ascertain whether this coverage includes medical board investigations. If that coverage is not available through the employment contract the physician should add this coverage.(6,7)
UNDERSTANDING REPORTING OBLIGATIONS
If an employer or other healthcare entity affiliated with a physician knows of disciplinable misconduct and also has a reporting obligation to the medical board, the physician and healthcare entity should comply with their respective reporting obligations.
Most medical boards require self-reporting and peer reporting of conduct that may be subject to medical board discipline.(7) If a professional licensee determines that he or she has taken an action that may violate the applicable state practice act or board regulations, then the licensee should consult an attorney to determine whether to self-report the action.
Physicians can ask the healthcare entities to abstain from reporting until the physician has had an opportunity to self-report, so that the physician can be the first to communicate to the medical board when the alleged misconduct is first brought to the attention of the physician and the employer.(7)
If a physician does not self-report conduct that is later reported by an employer, patient, or other source, then the physician may be subject to harsher discipline for failing to comply with the state’s medical board self-reporting obligations.
Additionally, self-reporting evidences a physician’s willingness to take corrective action regarding the disciplinable conduct and cooperate with the board.(8)
BOARD INVESTIGATIONS AND PATIENT PRIVACY LAWS
Medical boards may have the authority to issue administrative subpoenas or other legal processes to obtain medical records and patient information relevant to a disciplinary investigation.
HIPAA law prohibits physicians from disclosing patient information without the patient’s authorization, subject to certain exceptions.(1,7) One of these exceptions allows for disclosure of patient information without authorization to a “health oversight agency” for “health oversight activities.”(8)
A health oversight agency includes a state agency, such as a medical professional licensing board, “that is authorized by law to oversee the health care system.”(9) Health oversight activities specifically include “licensure or disciplinary actions.”(9)
Restricted Information Disclosure
Courts allow a physician to provide medical records to a health professional medical licensing board as part of a disciplinary investigation without obtaining a patient’s authorization. However, a disclosure of patient information must still be limited to the minimum necessary medical data to comply with the request.
To prevent liability for a HIPAA violation, a request from a medical licensing board should be thoroughly reviewed to ensure that the HIPAA exception for disclosures to health oversight agencies or some other exception applies.
Further, the physician should disclose only the medical information necessary to comply with the medical board’s request, ensuring that unrelated or unrequested medical records are not improperly disclosed in violation of HIPAA.(1,10)
OPTIONS FOR IMPAIRED PHYSICIANS
Research indicates that up to 12% of physicians will suffer with drug or alcohol abuse at some time in their career.(11) Some medical licensing boards, in addition to general misconduct reporting, impose reporting requirements on healthcare providers and their peers who suspect that a medical licensee has a substance abuse problem.
At the same time, conversely, medical boards also facilitate treatment programs for impaired physicians so that they can get help instead of facing disciplinary actions by the medical board. Some medical boards even offer immunity from discipline for physicians who voluntarily request medical and psychological treatment for substance abuse.(11)
Physicians and their colleagues who suspect substance abuse should follow the applicable medical licensing board reporting choices to help these physicians seek treatment for substance addiction.
Substance addiction is a sensitive subject, but self-reporting and taking advantage of a medical licensing board’s treatment resources may help a physician avoid disciplinary actions and, most importantly, prevent harm to patients.(11)
PEARLS OF WISDOM
Responding to a medical licensing board investigation may be onerous, overwhelming, time-consuming, and intimidating, and may eventually subject a physician to serious sanctions. Physicians should abide by self-reporting requirements, cooperate with medical board investigations, and certainly not ignore a licensing board request.
Failing to comply and cooperate with a medical licensing board investigation can subject a physician to harsher disciplinary actions by the medical board. State laws are designed to allow physicians due process rights before revoking or restricting a professional license. Medical board investigations and the subsequent disciplinary proceedings may destroy a physician’s medical career and personal well-being.
Physicians should ensure that their due process rights are respected, take advantage of any right to counsel, and ensure that the provision of patient information to the board complies with patient privacy laws as outlined in HIPAA.
REFERENCES
Patrick TE. Physician Leadership Matters: The Importance of Understanding the Regulatory and Legal Aspects of Healthcare. Washington, DC: American Association for Physician Leadership; 2023. https://www.physicianleaders.org/publications/books/physician-leadership-matters-understanding-regulatory-legal-aspects-healthcare-paterick?v=42375122845876
Young A, Chaudhry HJ, Pei X, Arnhart K, Dugan M, Snyder GB. A Census of Actively Licensed Physicians in the United States. J Med Regulation 2017;103(2):7–21. https://doi.org/10.30770/2572-1852-103.2.7
Landess J. State Medical Boards, Licensure, and Discipline in the United States. FOCUS: The Journal of Lifelong Learning in Psychiatry. 2019;17(4):337–342. https://doi.org/10.1176/appi.focus.20190020
Murphy A. Preponderance Plus: The Procedure Due to Professional Licensees in in Sate Revocation Hearings. Connecticut Law Review. 2022;473. https://opencommons.uconn.edu/law_review/473?utm_source=opencommons.uconn.edu%2Flaw_review%2F473&utm_medium=PDF&utm_campaign=PDFCoverPages
Morrison J, Wickersham P. Physicians Disciplined by a State Medical Board. JAMA. 1998; 279(23):1889–1893. https://doi.org/10.1001/jama.279.23.1889
Loria K. Dealing with Medical Board Complaints. Medical Economics. 2022;99(10).
National Practitioner Data Bank. https://www.npdb.hrsa.gov/
U.S. Department of Health and Human Services. HIPAA Transactions Rules 45 C.F.R. Pact 162. https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/combined/hipaa-simplification-201303.pdf
Mossman D. Physician Impairment: When Should You Report? Current Psychiatry. 2011;10(9):67–71.
Ross S. Identifying an Impaired Physician. Virtual Mentor. 2003;5(12):568-571. https://doi.org/10.1001/virtualmentor.2003.5.12.cprl1-0312
Hendin H, Reynolds C, Fox D, et al. Licensing and Physician Mental Health: Problems and Possibilities. J Med Reg. 2007;93(2):6–11. https://doi.org/10.30770/2572-1852-93.2.6