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Responding to the Board of Medicine: Don't Go It Alone

By Paul R. Cirel
Published: Massachusetts Medical Law Report, Autumn 2005

"Who are those guys, anyway?"

Those of us old enough to remember "Butch Cassidy and the Sundance Kid" (yes, I mean the movie), will recall a frustrated Butch posing that question to the Kid, as they tried in vain to shake the pursuit of a posse that seemed capable of tracking them anywhere.

These days, as the Board of Registration in Medicine increases its investigations and disciplinary actions against physicians, I find many of my clients asking the same question. Here is a brief and perhaps sobering primer — with a few observations thrown in along the way — about who "those guys" are, what they do, and how they go about it.

Massachusetts has had a Board of Registration in Medicine for over 100 years. The board has seven gubernatorially appointed members: five physicians and two representatives of the general public — usually, lawyers.

As part of its oversight authority, the board establishes standards for licensure and risk management; serves as the main repository of data for incident reports and malpractice cases; and maintains and publishes physician profiles.

But its primary focus is revealed in the opening lines of the law that describes its duties and responsibilities and makes clear that the board is first and foremost a policing agency, one that also happens to have an awful lot of data about all of its usual suspects.

Complaints and statutory reports
Complaints get to the enforcement division from two main sources: unsolicited communications, usually from patients or their relatives; or, more commonly, from mandated reports initially filed with the board's data repository unit, but then passed on to the enforcement division for investigation.

In the lexicon of the board, only the former are called "complaints"; the latter are termed "statutory reports." While the board investigates both complaints and statutory reports through what it calls its complaint process, the distinction between "complaints" and "statutory reports" is not without a difference.

By law, all investigations remain confidential during their pendency. However, once an investigation is completed — even if the matter is dismissed and the case is closed — complaints become a matter of public record. Statutory reports on the other hand, are always confidential.

The practical effect of that can be seen during the annual routine of recredentialing, which inevitably includes the question: "Has a complaint been filed against you?" A yes answer is a red flag that demands at the very least more disclosure and explanation. Unfortunately, many physicians answer "yes" incorrectly, because they are not advised that what they thought was a complaint was, in reality, a statutory report.

Ironically, complaints tend to be less meritorious than statutory reports. Many are without medical foundation, others are about bedside manner, while still others are, frankly, from chronic complainers.

Statutory reports present a far different story. They come to the board from mandated reporters in specifically identified circumstances. Accordingly, a physician should almost never be surprised that a report has been filed with the board.

Reporting process
The variety of statutory reports that could trigger the complaint process begins with the physicians themselves, who are required to renew their licenses every two years using board prescribed forms.

Those forms require disclosure of, among other things, pending or settled malpractice claims or actions, criminal charges and disciplinary actions, restrictions or limitations regarding the ability to possess or prescribe controlled substances and any non-malpractice lawsuits relating to the practice of medicine. Each of these events is potential fodder for an enforcement division investigation.

Disciplinary action reports from hospitals, other licensed health care facilities, HMOs and professional societies are another prime source for board inquiries. Physicians should be aware that reports of current or ongoing discipline (for example, a period of supervision, or a restriction on the exercise of certain clinical privileges), generally draw the prompt attention of the board.

As a result, special consideration should also be given to documenting and reporting remediation, which will likely have a substantial effect on the board's assessment of whether its intervention is necessary.

Reports of malpractice cases come to the board in ways other than license applications and renewals. The clerk of courts is required to give the board notice of any finding by a malpractice tribunal, along with a copy of the civil complaint. When that case in concluded, whether by judgment, settlement or dismissal, the clerk must notify the board again.

Regardless of the outcome, liability insurers are also required to notify the board upon the final disposition of "any claim or action" that alleged malpractice. The reference to both claims and actions means that insurers are required to report settlements even when no lawsuit was formally filed.

In addition to malpractice actions the clerks of court must also report information on criminal cases to the board. Specifically, the criminal clerks must notify the board any time a physician pleads or is adjudged guilty of any crime. That reporting obligation is independent of whether the crime in question is related to the practice of medicine.

In addition to convictions, the board is also notified of all pleas of nolo contendere or even when a physician accepts a continuance without a finding. In that regard, physicians — and especially their counsel — should expect that the board's prosecuting attorneys will seek to obtain a transcript of the proceedings from the court.

Physicians should also to be aware of their own obligation to report the conduct of colleagues which they reasonably believe violates the board's rules or regulations.

That obligation does, however, provide exceptions for privileged information, such as matters learned in the course of psychotherapy or peer review proceedings. Physicians are also relieved of their obligation to report colleagues who they believe to be impaired by alcohol or substance abuse, if the impaired physician is actively receiving treatment.

All board investigations are conducted with an eye toward determining whether the physician's conduct violates one of the board's myriad disciplinary standards. The board regulations currently identify 18 separate grounds for discipline, with the added caveat that the list is not intended to be exhaustive.

On the non-clinical side, the list includes the fraudulent procurement of a license, conviction of a crime, misconduct, drug or alcohol dependency, practicing medicine fraudulently or with the intent to deceive and failure to respond to the board's request for information. Massachusetts courts have also sustained the board's imposition of discipline for lack of good moral character and conduct that undermines public confidence in the medical profession.

The board's most commonly invoked basis for discipline on the clinical side is conduct which places into question the physician's competence to practice medicine.

Investigatory process
Whether initiated by a complaint or by a statutory report, the board generally commences its investigation with a letter to the physician asking for a written response to the conduct or circumstances in question. Responses to such requests are not optional. In fact, as previously noted, failure to reply to the request is itself a sanctionable offense.

The board's investigative methods are hardly limited to seeking responses from licensees. Staff can conduct witness interviews, both at the board's offices and in the field.

More significantly, the board has investigative subpoena authority and can therefore summons recalcitrant witnesses to the board, and require the production of documents. Medical records produced to the board are examined in-house by nurse/investigators and are often sent out for expert review.

As should be evident, the design and execution of the complaint investigation process is adversarial, and no response should be attempted without the advice and assistance of experienced counsel. Indeed, should the physician later be invited to appear before the board, that invitation includes the advice that it might be wise to bring a lawyer.

By then, however, the physician will have missed the opportunity to shape the initial response with an eye towards the legal nuances of the board's disciplinary standards and procedures. Sadly, many physicians submit their initial responses without legal advice, unaware that most malpractice policies include coverage for the board related legal fees of counsel of the physician's own choosing.

After the board's staff completes its investigation, one of its prosecuting attorneys, known as complaint counsel, presents the matter to a subcommittee of at least two members of the board called the complaint committee.

The physician has a right to attend that session, to be represented by counsel and to respond to complaint counsel's presentation. Physicians attending such sessions should also expect to be questioned by complaint committee members.

Prior to the meeting, complaint committee members will have been sent a package that includes the original complaint/statutory report, the physician's response, and complaint counsel's investigative summary and recommendation.

Physician's counsel should give serious consideration to requesting the opportunity to provide a supplementary response to be included in the package that is sent to committee members. That is especially so if counsel was not involved in drafting the initial response.

If the complaint committee determines that disciplinary action is not warranted or that the evidence is and will remain insufficient to justify further proceedings, it has authority under the board's regulations to close the investigation without further review by the board.

However, even when closing a complaint, the committee's notice of dismissal often includes a letter of warning, concern or advice. Although such letters are not disciplinary in nature (and generally need not be disclosed in the course of future credentialing activities), they are in the public record. Also, because they are not disciplinary, they cannot be contested.

If the committee determines that discipline is warranted, it can recommend to the full board that it issue a statement of allegations, which formally charges the physician with misconduct. Such recommendations are rarely rejected.

Before referring a recommendation for discipline to the full board, the complaint committee often suggests that the complaint counsel and the physician's attorney try to resolve the matter by an agreed-upon disposition called a consent order.

In such circumstances the complaint committee identifies the parameters of a settlement that it would find acceptable, and give the lawyers a two or three-week deadline to reach agreement. Like any other plea bargain, the benefits (if any) to the physician lie in the opportunity to limit the nature and scope of the charges that are ultimately brought and admitted and the extent of the discipline imposed.

If an agreement is reached, the proposed consent order is presented to the full board for its review and approval. In the unlikely event the board rejects the proposal, neither the consent order nor the willingness to enter into it is admissible in any subsequent hearing. If accepted, the consent order immediately becomes a public document, and dissemination of its terms through a press release and mandated notices is a certainty.

The board's press policy provides that it will issue a press release for virtually every final disciplinary action. The only — and very rare— exception to that policy is for cases involving alcohol/chemical dependency or mental impairment that do not also involve the violation of any laws or any patient harm, and where the sanction does not include a time out of practice.

Although the press release is not certain to garner press attention, the likelihood is that it will. Regardless, the physician will also be required to provide the board with proof that the consent order was distributed to, among others, every health care facility, medical employer and other licensing authority with which the physician is affiliated.

If a physician is not willing to enter into a consent order, the case will proceed to an adjudicatory hearing. By special act of the Massachusetts Legislature, the board no longer hears its own cases. Instead, its cases are referred to the Division of Administrative Law Appeals (DALA) and assigned to an independent administrative magistrate who presides over the hearing.

Although not as formal as a trial, the hearing process is governed by a specific set of procedural rules that allow for the ordered presentation of evidence and the examination and cross-examination of witnesses. Like a civil trial, the board has the burden of proving its case by a preponderance of the evidence.

At the conclusion of the hearing, the DALA magistrate issues a "recommended decision" to the board. While the board technically has the right to reject that decision, as a legal matter it is difficult to do so and, at least as to the Magistrate's findings of fact, it is rarely done.

If a decision is rendered adverse to the physician, the board must then decide the appropriate sanction. Any sanction the board imposes must also be consistent with its own mandate — which is not to punish the physician, but only to protect the public — and must be based only on the evidence presented at the hearing.

For both of those reasons, it is critically important that evidence of the physician's current ability to practice — as well as any evidence of mitigation — be presented at the hearing. If not, those crucial factors cannot be considered at disposition.

Balance
The foregoing is not intended to suggest that the board is abusing its authority. Indeed, nobody wants to live where physicians are not subject to vigilant oversight.

Rather, the point here is to describe how the Massachusetts board employs both its authority and its skilled and experienced prosecutors to take an aggressive approach to the investigation and adjudication of complaints. Specifically, Massachusetts has adopted an adversarial process, the balance and temper of which comes not from within but from the licensee's ability to recognize the need for the assistance of experienced counsel.

Or, like Butch and Sundance, you can head for Bolivia.

Paul R. Cirel is a partner at Dwyer & Collora in Boston and focuses his practice on the representation of health care professionals including individual practitioners, corporate providers and group practices.

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