Medical Misconduct, Part III: Handling the Consequences

Physician's Money Digest, July 2007, Volume 14, Issue 7

Medical school loans looming, young Sid Billings* answered a newspaper ad to work parttime in Dr. Mammon’s* clinic, proffering physical therapy, chiropractic services, acupuncture, the works. When Dr. Mammon retired, Dr. Billings seized an opportunity to grab the brass ring and bought the entire operation. Only then did he discover the staff wasn’t generating much revenue. Furthermore, they’d been billing for patients Dr. Billings hadn’t seen under Dr. Billings’ name. Since staff used the stamp with Dr. Billings’ signature, it was difficult for the medical board to determine which patients Dr. Billings had and hadn’t evaluated.

*Names and details changed.

If a letter arrives on official letterhead notifying you that you're under investigation for alleged misconduct, you may ask yourself: How did this happen and how should I deal with it? Investigations are sown with a complaint or referral from another agency. These sprout from patients, hospitals, clinical personnel, insurance companies, or malpractice cases. Complaints not falling under the board's purview or rising to the level of investigation are closed.

For opened cases, in routine background checking, investigators might speak with others involved, track down your prior National Practitioner Data Bank, malpractice, substance abuse, licensing, and quality assurance histories, and check information with educational institutions and hospitals. Confidentiality prevents investigators from unmasking complaint sources, so don’t whine and waste energy.

Some Helpful Suggestions

There's a reason why women ask someone else, "Does this dress make me look fat?" You wouldn't wield a scalpel to your own gallbladder. Don't shackle your attorney by serving as his consultant. You're too close for objectivity.

It's also worth every cent to retain a renowned expert early in the proceedings. Ask the expert to indicate where you might have strayed and don't argue.

Furthermore, your mother was right when she told you to dress up and play nicely with the other children. Everyone understands you're hurt, scared, angry, and offended. Misconduct decisions aren't based on personality. But muzzle your arrogance and belligerence. When preparing for an interview or hearing, dress professionally. Omit sandals, shorts, and T-shirts that advertise where you spent your last vacation.

In the movie Love Story, Ali MacGraw says, "Love means never having to say you’re sorry," and she ends up dead. If you honestly feel remorseful, communicate constructively what you’ve learned, what courses have been taken, and how you have restructured your practice to prevent future occurrences.

Dealing with the Repercussions

The review board protects public safety. You must demonstrate that it's safe to allow you to practice. If you are unable to do so, the consequences may be severe. Actions vary according to state, usually falling under the following categories:

  • Letter/in-person warning
  • Attending courses in medical ethics or medical record-keeping
  • Medical/psychiatric treatment
  • Fine/monetary penalty
  • Probation and monitoring: Practice monitored for predetermined period
  • Suspension: Physician cannot practice for predetermined period
  • Voluntary surrender: Physician surrenders license to avoid disciplinary proceedings
  • Revocation: License terminated, physician cannot practice medicine.

Given the complexities of contemporary medical practice, no physician is immune from potential misconduct. Be assured the process strives simultaneously to provide physicians with opportunities to respond to allegations and to protect the profession's integrity.

What to Expect and How to React During a Hearing

  • Find an attorney with misconduct experience. Some doctors represent themselves. This is a bad idea. Hearings comprise technical legal proceedings. Would you want patients interpreting their own MRIs?
  • You might be contacted for an interview, either by telephone or in person. Your attorney may be present. Answer all questions honestly. Never lie. Regard the interview as your opportunity to explain information.
  • After the interview, charges might be dropped. If factual evidence of misconduct exists, the board must prove that the facts fit legal definitions of misconduct. A hearing or negotiation will determine subsequent actions.
  • Following the hearing, the panel issues an order of the board. Some actions may not be public. Decisions are sent to the full board for final action. Physicians, however, may appeal the board's action.

J. Thalia Cunningham, MD, FACEP practices emergency medicine. She welcomes questions and comments at thalia@nycap.rr.com.