Responding to Board of Medicine Complaints
By Joel M. McCray and Katherine C. Skilling
Wimbish Gentile McCray & Roeber PLLC

A common question received from psychiatrists involves what to do when a patient files a board of medicine complaint. This article describes what to expect when you receive a board of medicine complaint and offers practical guidance on what to do in that situation. Note, depending on the state where you practice, there may be different informal and formal processes for investigating a board of medicine complaint.

What to Do When You Receive a Board of Medicine Complaint

When a patient files a board of medicine complaint against you, how you respond or fail to respond can significantly impact the outcome of your case. In most instances, after a complaint is filed, you will receive a letter from a board of medicine investigator, enclosing the complaint filed against you and requesting certain documents. The letter will provide a specific date by which you are required to respond to the complaint with a written statement. The time period between receipt of the complaint and the deadline to respond to the complaint is often short, so it is important that you contact your liability insurer immediately to provide notice of the board complaint filed against you. Many liability insurance policies provide coverage for an attorney to represent you and assist you in preparing your response to a board of medicine complaint.

In some instances, you may also receive a telephone call from a board investigator before you receive the complaint. Before responding to the complaint or answering any questions, you should politely request a copy of the complaint and indicate that you would like to retain counsel. It is important to remember that you can request an extension from the board in order to provide additional time to contact your liability insurance carrier and prepare a thorough response to the complaint with the assistance of your attorney. Extensions are routinely granted.

Your first inclination may be to respond to the allegations or contact the investigator to obtain more information. However, it is highly recommended that you contact your liability insurer and retain counsel before responding to the complaint or to any communications from a board investigator. Ideally, you should not have any conversations or any communications with a board investigator without your attorney present. If you are not able to avoid communications with a board investigator, politely convey to the investigator that you would like to contact your liability insurer and retain counsel before speaking with him further.

Once you have contacted your liability insurer, read the complaint, determine what materials the board is requesting, and begin gathering the information requested. You should also send a complete copy of all materials you have received from the board to your liability insurer. Your liability insurer will put you in contact with your attorney and you should discuss the matter with your attorney as soon as possible.

Relationship with the Patient

Although the patient has filed a board of medicine complaint against you, you may formally terminate the doctor-patient relationship in accordance with the laws of your state. It is recommended that you discuss this with an attorney or risk management professional prior to terminating the relationship as the requirements often vary depending upon the jurisdiction where you practice. Typical requirements may include issues such as:

  • providing advance notice to the patient (e.g., 30 days)
  • a list of other providers the patient can call upon for treatment, and
  • an offer to forward the patient’s records to another provider

If the patient does not contact you after filing the complaint, thus making it clear that he or she does not want to continue the doctor-patient relationship, it is recommended that you not contact the patient until the matter with the board of medicine is resolved.

THE PROCESS

Investigation by the Board of Medicine

Your attorney will assist you in preparing a statement in response to the complaint and in gathering all materials requested by the board of medicine. You will then submit your statement and the requested materials to the board investigator. After the board has received these documents, the board investigator may determine that the board needs additional information and may send you supplemental questions, which you will then answer with the assistance of your attorney. The board investigator may also request a telephone interview with you, which is typically coordinated through your attorney, who will attend the telephone interview with you. Keep in mind that all of the information collected by the board is confidential.

Once the board investigator has gathered all of the necessary information and materials, the matter is then submitted to the board to determine if there has been a violation of the law. After the investigation concludes, there are various processes and outcomes depending on the board’s investigation and findings.

First, the board may determine that based on its investigation, it finds no violation and will not investigate the complaint further. Second, the board may find no violation, but it may issue a cautionary letter to you. This letter is confidential and it is not made part of your record. Third, the board may find a violation, but may propose an agreed order in which you admit to the violation, without an informal hearing. The board may also impose modest sanctions through the agreed order, such as a modest fine or continuing education on the subject involved in the violation. Note, if you enter a consent decree and stipulate to the facts, the sanction is public. The consent decree can restrict your practice and license. Additionally, the American Board of Psychiatry and Neurology reviews them which can impact board certification. Further, board certification may be required for hospital privileges and this can also impact whether privileges are impacted.

Based on its investigation, the board may also determine that it will hear the matter at an informal hearing, which you will be required to attend with your attorney. Many states have a two-level system in which you first appear before the board at an informal hearing. If, at the informal hearing, the board finds against you, you then have the right to appeal that determination to a formal hearing of the board. If the board finds against you at the formal hearing, you will then have the right to appeal to your state’s court system.

Informal Hearing

If the board determines that it will convene an informal hearing, you will appear at this hearing with your attorney and present evidence to support your position. However, the rules of evidence that apply in courts of law do not apply at an informal hearing. Whether you appear before the board at an informal or formal hearing, the board will want to know the status of your continuing education. If the board finds against you at the informal hearing it may issue an order detailing its determination and take disciplinary action, such as imposing a fine or ordering continuing education. Such an order is not confidential and is part of your record. However, at the informal hearing level, your license cannot be restricted, suspended or revoked.

Formal Hearing

If the board finds against you at the informal hearing, you have the right to appeal, and if you appeal, the board will convene a formal hearing. At the formal hearing level, the risk is much greater than at the informal hearing level because the board may restrict, suspend or revoke your license and may impose a higher fine. Therefore, you should consult with your attorney before deciding whether to appeal. If the board finds against you at the formal hearing, then you have the right to appeal to your state’s court system.

Conclusion

Regulatory boards that govern healthcare professionals are under increasing pressure from both the public and state legislatures to better police and monitor the healthcare professionals that they regulate. As such, in many states the board is required to investigate every complaint filed against a healthcare professional, even if the complaint seems frivolous or unmeritorious.

Behavioral health providers are especially prone to board complaints. However, do not assume that a board complaint will result in a negative outcome against you. Keep in mind that it is important to obtain guidance from an attorney when you receive a board complaint so that your attorney can assist you and guide you throughout the process.

Risk Management Tips:

  • Notify your liability insurer upon receiving notice of a board of medicine complaint
  • Confer with your attorney prior to responding to a complaint or to any communications from a board investigator
  • Seek advice from your attorney prior to terminating your relationship with a patient who has filed a complaint against you
  • Consult with your attorney to discuss whether to appeal an adverse board decision
JoelMcCray

About the Authors

Joel McCray is a partner at Wimbish Gentile McCray & Roeber in Richmond, Virginia. Joel’s practice is devoted to representing psychiatrists and other healthcare providers in courts and before administrative tribunals. Joel received his B.A. from the University of Tennessee and his J.D. from Vanderbilt University School of Law.

Katherine Skilling is an associate at Wimbish Gentile McCray & Roeber in Richmond, Virginia. Katherine focuses her practice on representing physicians, hospitals, and other health care providers in state and federal courts throughout Virginia. Katherine received her B.A. from Bucknell University and her J.D. from Washington and Lee University School of Law.

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