Proceedings before a state board can be as stressful as a malpractice trial.
Mr. D, 45, had worked as a physician assistant in an emergency department for five years, while going through a turbulent marriage, divorce, and subsequent personal relationships. Although his co-workers understood his personal life might have been distracting, they questioned his basic clinical skills. Their confidential complaints—coupled with grievances from the public—led to disciplinary action by the state licensing board.
Mr. D first realized he was in trouble when he received a phone call from his hospital’s chief of emergency services. The chief said he had been contacted by an assistant investigator from the licensing board, who asked for the medical records of patients whom Mr. D had seen for the last three months. “I don’t know what this is about,” the chief said, “but it doesn’t sound good.”
The investigation proceeded slowly. Mr. D continued to work in the ED, and, in his own mind at least, did a good job. He spoke every week with the chief, who reassured him that he was competent but warned that “not everyone felt the same way.”
Eventually, Mr. D received a certified letter informing him that he was under investigation for “grossly negligent, incompetent, and fraudulent practice of medicine.”
An investigator, who turned out to be an ex-detective, interviewed Mr. D several times. He had the rough manner of someone used to dealing with criminals and seemed to assume that everyone was guilty. After the interviews, he produced an “agreed board order,” the licensure equivalent of a plea bargain, and demanded that Mr. D sign it. “It will save you a lot of trouble,” the investigator said with a knowing smile.
Mr. D took the order to a lawyer who advertised in the local medical journal as specializing in licensure hearings. After an initial free consultation, the attorney agreed to take the case for $25,000, with $10,000 down. Mr. D swallowed hard and borrowed money against his house to pay the fee.
Then the sparring started.
First, the defense lawyer demanded to see the evidence the investigator had collected and to review the expert’s reports that had been filed. After some initial resistance, the investigator produced most of the requested material.
The defense lawyer studied the materials closely and went over the criticisms with Mr. D. “The only way you’re going to win this is to get your own experts — and they don’t come cheap,” he advised. “You’ll need another $15,000 for two experts, unless you can come up with an expert on your own.”
Mr. D could not come up with that kind of money. “I’ll see if my supervising physician can do it,” he replied.The next day, the supervising physician agreed to review the charts and evaluate the care the patients received. His reports were submitted to the investigator, who recommended that Mr. D’s license be suspended for one year. Mr. D frantically called his lawyer and told him to get the best settlement of the case that he could. But after several months of negotiations, Mr. D concluded that the investigator wanted to see blood and that his best chance to keep his license would be a formal hearing. He was to be disappointed.
The hearing was set for a Monday morning before a three-member panel composed of a physician, an optometrist, and a lawyer. They listened to the testimony from the investigator and his two experts before asking Mr. D for his account. Mr. D began strongly but was disconcerted when the optometrist seemed to be dozing off during the testimony.
The panel voted 3-0 to discipline Mr. D. They accepted the investigator’s recommendation for a one-year license suspension and sent their decision to the full board for approval. The board adopted the panel’s findings and suspended the license.
Mr. D was devastated. The suspension meant professional and financial ruin. Although he was down to his last $25,000, he felt that he had to appeal the board’s decision in civil court. He paid his lawyer another $15,000 retainer and hoped for the best. He was again disappointed.
The judge ruled in favor of the licensing board. He summarized his reasoning this way: “The presumption is in favor of the licensing board, and a review of the record shows that [Mr. D’s] practice of medicine poses a threat to public health, based on a preponderance of the evidence. As far as the allegation that [the optometrist] was asleep during the proceedings, a review of the record shows that he asked several questions. Thus I conclude that he was awake during the proceedings.”
Mr. D did not understand the half of it, but he understood that he had lost his livelihood, his savings, and probably his house. He changed fields and became a very successful builder.
Newspaper accounts of tragic medical errors have induced state legislatures to give licensing boards more power, more funding (paid partly through higher licensing fees), and more clout.
Licensing boards now commonly measure their success by the number of providers disciplined and have a mandate from the legislatures to take this approach. Many board investigators are ex-detectives tired of chasing down drug dealers, and many board lawyers are ex-prosecutors who have an innate drive to “get tough” on “bad providers.”
Providers can appeal in civil courts, if they feel justice was not done at a hearing, but short of gross malfeasance, judges generally will not overturn board decisions.
Understanding the disciplinary process is important in dealing with a licensing board. Complaints from the public often involve nonlicensing issues, such as long waits or rude behavior. An investigative assistant screens the complaints and dismisses many of them. Those with disciplinary potential are passed up to the legal department, which then works with the investigator to build a case against the provider.
Medical records are called for and testimony taken from providers and patients. When the investigator thinks he has enough evidence for a disciplinary hearing, he calls the provider in and suggests an “agreed board order,” or a plea bargain. This document recommends penalties for misconduct, such as remedial education, probation, or license suspension.
At this point, negotiation becomes important. The provider essentially must choose whether to fight or surrender and sign. As Mr. D found, expert witnesses are both essential and expensive. Be prepared to mortgage the house.Because of the disparity of resources between the government and the provider, the provider usually caves in and signs the agreed board order. An accumulation of these easy victories over the years gives the prosecutors a feeling that they are near to omnipotent, and they can be hard for providers to deal with.