Avoiding Medical Board Complaints

For many physicians, a Medical Board complaint is more concerning than a medical malpractice lawsuit and with good reason. A lawsuit is designed to financially compensate an individual for damages sustained. The chances are very good that the physician will prevail. If not, the insurance company will generally cover the entire cost of the proceedings, including the settlement or verdict. On the other hand, when a patient files a Board complaint against a physician, the intent is to punish, ostracize, or humiliate the physician. The result may be disciplinary action against the physician, which often leads to interference with the physician’s ability to practice medicine or, in the worst-case scenario, the end of a medical career. The complaint is an affront to the physician’s competency, integrity, and livelihood.

Most Board complaints are resolved without disciplinary action to the physician, i.e., most complaints are dismissed or conclude with an Advisory Letter (a warning). Even so, there is no way to compensate the physician for the anxiety, sleepless nights, time expended, and costs that are part and parcel of a Board complaint. In the final analysis, Board complaints are best avoided. The purpose of this short article is to consider some practical ways to decrease the likelihood of receiving that Board letter in the first place. Note that this is not legal advice and may not directly apply to any individual or circumstance (the usual disclaimer).

1. Behavior

Physicians know they must behave professionally and conscientiously when dealing with any matters related to medicine. But what about behaviors during off hours when the physician is not on duty and has no professional commitments? Sorry, but the expectations regarding physician behavior do not change very much whether you are working or not. The bottom line is that your conduct is held to a higher standard. That is the price of being a professional - the price we pay for being granted the privilege of practicing medicine.

First, do not drink and drive. Not a drop. You do not want to have alcohol on your breath when you drive. Most people believe their blood alcohol must equal or exceed 0.08 to be convicted of DUI. That is incorrect. The combination of impairment and almost any level of blood alcohol is likely to precipitate an arrest and charge for DUI because the law is unforgiving, “impaired to the slightest degree.” 1 Once charged, the physician has 10 business days to report the infraction to the Medical Board. And do not forget to report because failure to do so creates an act of unprofessional conduct by itself. The self-report leads to a Board complaint and an investigation. The physician may be sent for a local evaluation or an expensive multi-day stay in an out-of-state facility. The case can result in a practice restriction or required monitoring and testing for two to five years. My solution is to drink absolutely no alcohol if I am going to drive. Or have a designated driver. Having seen the pain that physicians endure after a DUI case, I stay away from alcohol entirely when I drive. And you should too.

Here are a few other behaviors to avoid. Refrain from physical assault or domestic violence. Your neighbors could call the police. Be very careful about dating or engaging in sexual conduct with former or current patients. Take a close look at the Medical Board’s rules before you do. 2

Avoid unprofessional conduct in your medical practice. Keep patient confidences and limit storytelling in the staff lounge. Do not ignore your patients. If you are going to discharge a patient, be careful to take the appropriate steps or risk charges of patient abandonment. Do not let incomplete or unsigned charts pile up at the hospital or the surgery center to avoid restrictions on your staff privileges. Those restrictions may be report able to the Board.

Your medical records do not have to be works of art, but they should be reasonably complete and decipherable. Electronic medical records have a habit of repopulating the record with old information at every visit. Make sure the information is up to date, including current medications. And did you know that, at the patient’s request, you are required to send medical records to physician assistants, nurse practitioners, podiatrists, chiropractors, naturopathic physicians, and homeopathic physicians?

2. Bills

It is unprofessional conduct to charge or collect a clearly excessive fee. For a costly service not covered by insurance, it may be advisable to have a written contract with your patient that clearly specifies the fee and the service to be rendered.

In general, patients change physicians for three reasons: they move, they change insurance, or they become dissatisfied with their care. I have never seen a billing complaint filed by a satisfied patient - only dissatisfied patients file complaints. Here are two billing suggestions to consider when dealing with dissatisfied patients. First, think long and hard before you send a patient, who has encountered a medical or surgical complication, to collections. If you decide to do it, think about it some more. The risk of a complaint from an angry patient may not justify the revenue. Second, while you may legally charge a patient a reasonable fee for reproducing medical records in certain circumstances, I do not believe it is worth it. It makes mad patients even madder, and I have seen a $25 or $35 fee precipitate a Medical Board complaint on several occasions. If the patient’s record is lengthy, put it on a CD, and mail it.

3. Opioids

Do you have an interest in pain management? Have you taken extensive training or continuing education on opioids? Are you willing to navigate the labyrinth of requirements and documentation that chronic pain management requires? If your answer is “no” to any of these questions, I strongly suggest you avoid prescribing opioids for anything other than the occasional acute problem. Having defended a significant number of complaints related to opioid prescribing, including seven opioid–related death cases, it is rare in my experience for a physician to have dotted all the I’s and crossed all the T’s. Most physicians do not seem to find pain management engaging or satisfying. The patients are difficult, the care is time-consuming when done appropriately, and the financial remuneration is typically inadequate. Practice the kind of medicine you enjoy.

4. Informed consent

There is more to informed consent than having the patient sign a carefully drafted, legally airtight, encyclopedic recitation of the risks, benefits, and alternatives of a medical intervention. Make sure that someone in your

office, preferably you but possibly a staff member, explains in simple terms that all medical interventions have risks, and results can never be guaranteed. It is better to under promise and over perform. Without that conversation, many patients will expect perfection and miracles. Setbacks, delays, side effects, and surgical complications may be interpreted to be a result of negligence, incompetence, or distraction.

This question always comes up, so I am going to give you my take on it. Do you need a lawyer when you get a Board complaint? Yes. Enough said.

1 Ariz. Rev. Stat. § 28-1381(A)(1); See https://www.azleg.gov/ ars/28/01381.htm 2 Unprofessional conduct includes “engaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation unless the patient was the licensee’s spouse at the time of the contact or, immediately preceding the physician-patient relationship, was in a dating or engagement relationship with the licensee.” Ariz. Rev. Stat. § 32-1401(27)(aa)

By Steve Perlmutter, MD, JD, LLM at Perlmutter Medical Law, steve@healthcaredefender.com