Navigating a Medical Board Investigation: Optimize Your Medical Malpractice Coverage

Learning that your patient or someone close to them has complained to the medical board about care you provided can feel like a blow to the gut. Your first instinct might be to comb through the records and replay every interaction to gather the information you think you need to explain what happened to the board’s investigator and, potentially, the board members who have the authority to undertake a formal investigation and impose disciplinary actions against your license.  

Ease off the pedal a bit before acting on your instinct. When you find out a patient has filed a complaint about your care, or you receive a licensing board’s request for medical records, the first thing you should do is notify MICA.   

At MICA, claim management professionals listen to and document your report of what happened, explain what your policy may or may not cover in this situation, including selecting defense counsel on your behalf where applicable, and explaining next steps. 

• There may be coverage for legal and audit expenses, such as payment of your MICA assigned attorney’s bills up to a specified amount. 
  
  
• Likely next steps may include meeting with an attorney with experience helping physicians navigate licensing board investigations and appropriately responding to state medical boards during an emotionally charged time. 

The claim management professional can also explain the pitfalls of going it alone, without legal counsel. 

A common pitfall to trying to manage the complaint and investigation process alone is hastily responding to defend and explain your actions without an experienced attorney’s insight into the medical board investigative process and investigators’ techniques. An uninformed and emotional response to the allegations could negatively affect the strength and effectiveness of your defense, resulting in more severe disciplinary actions such as reprimands, censure, practice probation, and/or license suspension or revocation.  

Medical board investigations are not always straightforward. An investigator may request a meeting, but not fully explain the focus of the investigation, and use meeting notes in the investigation and disciplinary process without sharing them with the physician. A lawyer experienced in licensing board investigations will contact the investigator; ask the right questions to peg the issues; and draft a helpful, protective response.  

Case Study: Dr. James Goes it Alone 

Consider what happened in the case of one family physician. Dr. James received a letter from the medical board explaining that a patient filed a complaint alleging unprofessional conduct and treatment below the standard of care. Dr. James promptly sent a copy of the patient’s medical record pursuant to the investigator’s request.  

Dr. James had been managing the patient’s Type-II diabetes but following the death of the patient’s spouse, the patient stopped complying with Dr. James’ treatment recommendations.  

Dr. James believed that she had done all she could to help the patient through his grief and emphasize the importance of caring for himself. She provided referrals for mental health professionals, grief support groups, and lent an empathetic ear at each of his appointments. She continued to stress the importance of complying with his treatment plan so that he could achieve optimal health. Nonetheless, the patient developed an infection, and his toe was amputated.  

Dr. James felt blindsided, and then angry. She was confident that she provided appropriate care despite the poor outcome, and assumed the investigator would dismiss the complaint outright. She did not contact her MPL insurance company before sending a copy of the patient’s medical record. She later submitted responses to the patient’s allegations, on her own, in the form of a narrative from her perspective, which she thought would show the investigator that this was a baseless complaint. Soon after sending the narrative, the investigator requested an in-person interview.  

Dr. James then called her MPL insurance company in a panic. The company’s claim management staff confirmed the insurance policy would now cover some, but not all, steps in the defense against the patient’s allegations to the board and then talked her through the next steps, emphasizing the importance of the company assigning a qualified attorney to assist from the beginning. Dr. James’ attorney pointed out why her written response raised additional questions and why the investigator may have thought it was “defensive.” Dr. James’ attorney polished the narrative and recommended pre-emptively completing CME courses related to the allegations.  

After the investigator’s interview, Dr. James appeared before the medical board with her attorney by her side. The attorney represented Dr. James in a way, based on extensive experience, that resonated with the board members. The medical board found that Dr. James did not violate the standard of care and was impressed that she proactively completed CME courses.   

Had Dr. James called her MPL insurance company as soon as she learned about the patient’s complaint so the company could assign counsel at the beginning, the attorney would have had time to review the medical records and work with Dr. James to craft a narrative. Reporting to the insurance company and working with an attorney early on may have prevented the interview and hearing.  

Call MICA at the start for coverage review and assignment of counsel where appropriate 

Medical boards dismiss most complaints, but some investigations result in severe licensure actions. Representing yourself before a licensing board would be like an attorney taking out his or her own appendix.  An attorney may generally understand the anatomy and procedure but has no formal training in surgical techniques or how to respond in case of emergency.  

Medical board proceedings are legal proceedings which involve highly trained investigators, a panel of peers, and legal counsel for the board. The outcome can majorly impact your practice. Take advantage of your MICA coverage. You may be entitled to assigned counsel who will work with you to respond in a way that gives you the best chance of a favorable outcome. 

In Arizona and Utah, MICA’s Regulatory Defense Endorsement goes into effect upon 2024 policy renewals. Even if your policy has not yet renewed, it is imperative that you report Board actions as soon as possible so that a claim representative can explain your coverage in these matters. This literature is a summary description of coverage, and is not intended to be a full statement of the terms, conditions and other limitations of the coverage. For complete details about MICA’s Regulatory Defense Endorsement, please refer to Regulatory Defense form number MPL-0160, or contact MICA or your MICA broker. 

Please remember the Risk Team is available to help if you have any questions. You can reach a Risk Consultant Monday – Friday 8:30am – 5pm MST at 800-352-0402 x 2137, 602-808-2137, or rm_info@micainsurance.com.