Responding to a Medical Board Investigation – Respect the People and the Process

A Note About Your MICA Policy
from Erica J. Krobot, JD, Vice President, MICA Claims

• MICA’s Regulatory Defense coverage will pay Legal Expenses incurred due to a qualified Disciplinary Proceeding. Limits of liability of $25,000 per claim and $25,000 policy aggregate are included with your policy.
  
  
• As of January 1, 2024, based on policy renewal date, MICA began managing these claims in-house, removing a third-party administrator from the process. The Insured is no longer responsible for a deductible or required to pay coinsurance; MICA pays the MICA-assigned attorney directly, removing the prior reimbursement model.
  
  
• To take advantage of your policy, contact MICA first upon receipt of a notice from your professional board, state licensing authority, professional review organization, or the DEA for direction and support. We will review coverage, assign experienced MICA counsel, and pay legal expenses so you can focus on the proceeding.
  
  
• To report a claim, call the MICA Claim Department at 800-352-0402 or log into your MICA account via the website and click “Report a Claim or Potential Claim” at the bottom of the page.
  

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Introduction 

Receiving a notice of a licensing Board¹ investigation probably stands as one of the more anxiety-producing events in most physicians’ professional lives. Part of the anxiety is rational – no one enjoys being the subject of a complaint – but some of the anxiety seems to be the result of a misunderstanding of the Board’s function and motivation. Many physicians who receive a notice of investigation seem to view the Board as a prosecuting agency, and they view the receipt of a notice as evidence that the Board has already determined that the physician has engaged in professional misconduct.

It is true that the Boards are charged with protecting the public,² but that does not mean that they are indifferent to the fates of physicians they regulate. The statute that defines the AMB’s mission makes it clear that part of the mission is the “rehabilitation of the profession.” The statutory articulation of the OMB’s mission is more narrow.³ However, by their comments and conduct, members and staff from both Boards have made it clear that they recognize that supporting physicians – even those who may have made mistakes – is an important aspect of protecting the public.⁴

Many physicians view the initiation of a Board investigation as an analog to a criminal charge, i.e., they feel that the Board has found “probable cause” to believe an offense has been committed. That is not at all the case, however. The Boards have a statutory obligation to investigate complaints relating to conduct within their jurisdiction, regardless of the apparent validity of the complaint. If a patient makes a claim against you that is false on its face, the Board will investigate, and the initiation of the investigation does not mean that anyone at the Board has reached any adverse inferences about your care.

One unfortunate consequence of viewing the Boards as avenging agencies is that it causes inordinate levels of anxiety and stress for physicians who are under investigation. Another adverse consequence is that some of those physicians respond to that anxiety or stress by responding quickly, and taking adversarial, defensive, or offensive postures in their dealings with the Board. This is particularly true for the physician who elects to represent himself or herself in the Board investigation, so before we get to the heart of the matter, a few thoughts on whether you should go it alone, and represent yourself.

Don’t Go It Alone

There is an ancient adage, perhaps originating in an Italian proverb, that “the man who is his own lawyer has a fool for a client.”⁵ The thought behind the adage appears to be that even a very good lawyer might not be able think clearly and dispassionately about how to manage a problem in which that lawyer is personally involved, and might as a result make poor decisions about the best way to resolve the problem. In this case, what is true for lawyers is doubly true for physicians.

The physician who chooses to represent himself or herself has at least two disadvantages over the physician who has legal representation. One is that we are all capable of fooling ourselves about matters in which we are emotionally invested.⁶ Another is that it is likely that your experience with Board investigations is relatively limited, i.e., a sample size of one (or two, etc.), and that is not a sufficient basis to enable you to make good decisions.

An attorney should try to help you avoid fooling yourself, so that you might be willing to admit it if some aspect of your conduct, your documentation for example, was suboptimal. Also, an attorney with experience in handling Board cases is likely to have insights that will help you manage the investigation and your emotions, and obtain the best result possible.

Given the above, one purpose of this article is to suggest that you pause before responding to an investigation on your own; rather, take advantage of your insurance coverage, and contact your insurance company so counsel can be assigned to represent you. Another purpose of the article is to offer some suggestions about the best approach to dealing with a Board investigation, so you have some insights that will allow you to assist your attorney in responding to the investigation. The key insight is that you should treat the process and all of the Board participants with professionalism and respect. Whatever the range of possible outcomes a physician faces in an investigation, it seems clear that following this approach offers the best chance for the best outcome.

Respect the Patient

Most investigations are triggered by complaints by patients or family members.⁷ In some cases, the physician believes – perhaps rightly – that the patient’s complaint is unfounded, overblown, or based on fabrication; sometimes the physician believes that the patient was the primary cause of the condition that is the subject of the patient’s complaint. This attitude often gives rise to a desire to attack the patient. That approach rarely, if ever, yields positive results. In fact, in many cases, it can lead to negative inferences about the physician, and those inferences can be very damaging, particularly in cases involving allegations of poor communication or a disregard for the patient’s expressed concerns.

If the patient’s complaint is layered with vitriol or piled high with fabricated allegations, your attorney can help you prepare a response in which you rise above the fray, and respond to the complaint with a dispassionate and deliberate rebuttal, based on the facts.

Respect the Investigators and Other Board Staff

The primary Board contact in the initial stages of an investigation will be the Investigator assigned to manage the complaint. The Investigator is an extension of the Board, and he or she should be treated with the same respect and courtesy that you would show to a Board Member. The Investigators are uniformly polite and professional, and they can be helpful to you if you treat them in the same manner.

One important way to show respect to the Investigator is to work with your attorney to comply with the Investigator’s requests in a timely fashion. Get a complete, well-organized set of records to your attorney in a timely fashion, and work closely with your attorney on preparing a comprehensive and timely response to the complaint.

Absent exigent circumstances, the Investigators are very reasonable about granting extensions on initial deadlines. If you and your attorney think you may not be able to comply with a request prior to a specified deadline, your attorney can request and will likely receive an extension; this should be done well before the deadline comes and goes.

Similarly, make sure you provide your attorney with the complete medical record on the patient. The complete file includes documents that would traditionally be viewed as medical records, but it also includes intake and health insurance documentation, digital or hard copies of medical imaging, billing records, text messages and emails, portal entries, and any other modes of communication you have with the patient.

Many electronic medical record systems make it difficult to generate a complete and well-organized copy of your chart, and many physicians delegate the task of creating a copy of the chart to an entry level employee. If you do that, spend the necessary time to review the copy prepared by the employee to ensure that you are providing a complete set of records to your attorney. Doing that will make life easier for Board personnel, and save you time and trouble later in the process.

“Another way to demonstrate respect is for your attorney to ensure that the records you produce are well-organized so your attorney, the Board staff, and the Board’s medical consultant can review the records efficiently.” Both the AMB⁸ and the OMB⁹ have expressed preferences relating to the organization of records, and both Boards prefer to have the records submitted in electronic format. Work closely with your attorney to adhere to those protocols when you submit your records. In a very real sense, your records are a reflection of you: a complete, well-organized set of records creates a positive impression; an incomplete, disorganized jumble creates a negative impression. Additional benefits of a complete well-organized chart are discussed in the following section.

One final thought on records: if you have paper records relating to a patient, never provide the originals to the Board; provide legible copies. The Boards do not want to be responsible for the custody of your original patient records.

Respect the Board’s Consultants

Cases involving clinical issues typically undergo review by a Board Medical Consultant. Depending on the nature of the clinical issue and the specialty or subspecialty of the physician whose care is being evaluated, the review may be done by a physician employed by the Board, or by an Outside Medical Consultant. Like the Investigators and other staff, the Consultants are an extension of the Boards. Consequently, showing respect for the Consultant is important on many levels.

One way to respect the Consultant is, as noted above, to make sure you provide your attorney with a complete and well-organized set of your records relating to the patient. No one wants to hunt through a chaotic jumble of documents trying to determine what you did or did not do, and there is no good reason to aggravate the person who is charged with reviewing your care. This problem may be particularly acute for Outside Medical Consultants: given the very nominal compensation paid to them for reviewing records and preparing reports, they are essentially functioning as volunteers. If you believe your care was appropriate, help your attorney make it as easy as possible for the Outside Medical Consultant to review your records, so they can understand the care you provided, and the reasons you did or did not do certain things.

Another way to respect the Consultant is to work closely with your attorney to provide a thoughtful, well-organized narrative explaining your care. If there are certain documents in your chart that are particularly important to your treatment decisions, consider attaching those to your narrative. If your care involved a decision or action that is the subject of conflicting viewpoints, provide the Consultant with the literature that supports your approach.

Depending on how the case unfolds, at some point you may be provided with the Consultant’s evaluation of your care, and the Consultant may have criticisms of the care. Your initial reaction to the criticisms may be emotional. Tell your attorney how you feel, but work with the attorney on a dispassionate, professional response that does not castigate the Consultant.

Finally, if you want to make sure the Consultant, Board staff, and Board Members can understand your care and treatment, never submit a handwritten narrative. Never.

Respect the Board Members

Depending on the evaluation of your care, at some point you may need to appear before the Board to discuss your care. If so, comport yourself in a manner that demonstrates that you respect the Board Members, other Board personnel, and the Board process. You can do this in several ways.

Appearances, count, so one way to show respect is to dress accordingly: scrubs, sweatshirts, a rumpled appearance and an unkempt air are likely to create a negative impression; they might also suggest that you are a person who is not attentive to details, which has other negative implications. A decent rule of thumb is to dress as you might for a funeral – not because things will go badly at the meeting with the Board, but because this is a somber and serious proceeding.

While it is a serious proceeding, it is a mistake to view it as an adversarial proceeding. Remember that the Boards are made up largely of physicians, i.e., your professional peers. If you take some time to observe a few Board meetings¹⁰, it will become clear to you that the physicians and other Board members are trying to gain an understanding of the facts, the different perspectives, and your decision-making process. They are not looking to play “gotcha.” In cases where it appears that there were things the physician could and should have been done better, the Board Members demonstrate a sincere interest in helping the physicians who come before them to see and take advantage of opportunities for improvement.

As part of the interview process, you will be given an opportunity to make a presentation about your case. That presentation should demonstrate that you care enough about the Board’s time to have spent the necessary effort and attention to address the important issues in an efficient and effective manner.

Also, while having an attorney is important, the Board members will want to hear from you regarding why you did what you did. Your attorney may also choose to speak on your behalf, but that is not a substitute for a well-reasoned presentation from you. Your attorney can assist you in preparing your remarks to the Board.

Another way to respect the Board Members, from the beginning of the investigation to the end, is to seek to develop insight about the case that is the subject of the investigation. Some physicians fear that if they admit that they could have handled some aspect of the patient’s care in a better manner, they are “pleading guilty.” That is an understandable concern. However, given the Boards’ obligation to protect the public, and the fact that everyone makes mistakes on occasion, a lack of insight about a mistake might be among the worst problems that a physician can have.

In addition to giving a presentation, you also will be asked questions about your care. When that happens, don’t interrupt the Board member asking the question. Listen carefully to the entire question; think about the answer; and then answer the question. Don’t be evasive: think about how you feel when a politician who is asked a difficult question provides an evasive non-answer. If the honest answer to a difficult question is that you could have handled something better, say so.

Finally, if you know that there was something you could or should have done better, don’t wait for the Board to order you to do something about it. For example, if you realize your documentation is subpar, sign up for some meaningful CME hours on documentation, and provide the CME certificates to the Board early in the process. If, on a more serious note, you recognize that your management of the patient’s clinical problem reflects some deficiencies in your fund of knowledge about that problem, take some meaningful education about the problem, and provide evidence that you have done so. Chances are, the more you do to improve your care, the less the Board members will feel a need to do.

Respect the Board’s Decision

Finally, if an investigation leads to a disciplinary action or some other unfavorable result, demonstrate respect for the decision, even if you disagree with it. There are administrative and judicial avenues for seeking review of adverse Board actions, and you should feel free to explore those. Do not, however, allow your dissatisfaction with the Board’s decision to lead you to make discourteous or disrespectful comments, or to engage in inappropriate behavior.

Don’t Despair

One final misconception about Board investigations is that they invariably result in discipline or some form of adverse action. Information provided by the Board, and reviews of the Boards’ meeting minutes, provide good evidence that that is not the case.¹¹ If after subjecting your care of the patient to honest insight, you believe that you conformed to the standard of care, and if you treat the Boards’ people and processes with respect, you should have a high degree of optimism that the outcome will be favorable.

From the author: I would like to thank Melina Macchiavelli for her assistance in developing this article. I would also like to thank Patricia McSorley, Executive Director, and Raquel Rivera, Investigations Manager of the Arizona Medical Board, and Justin Bohall, Executive Director of the Arizona Board of Osteopathic Examiners in Medicine and Surgery, for the information they were kind enough to provide in support of this article. Any inaccuracies in the article are the result of my output, not their input.

^{[1] For Allopathic physicians, the Arizona Medical Board (“AMB”); for Osteopathic physicians, Arizona Board of Osteopathic Examiners in Medicine and Surgery (“OMB”). Both Boards provide a significant amount of information about their respective governing statutes, rules, policies, meetings, and operations on their websites: https://www.azmd.gov/, and https://azdo.gov/. Unless otherwise specified, both are referred to in this article as “the Board.”}

^{[2] Under ARS 32-1403, the AMB’s mission is to “to protect the public from unlawful, incompetent, unqualified, impaired or unprofessional practitioners of allopathic medicine through licensure, regulation and rehabilitation of the profession in this state.”}

^{[3] ARS 32-1803 states that “[t]he board shall “[p]rotect the public from unlawful, incompetent, unqualified, impaired and unprofessional practitioners of osteopathic medicine.”}

^{[4] This aspect of the Boards’ roles becomes increasingly salient in the era of widespread physician shortages. Revoking the license of a physician who could be rehabilitated harms both the physician and the public.}

^{[5] British Catalogue, in 11 The British Critic: A New Review 302, 310 (1795)}

^{[6] As the Nobel Prize winning physicist Richard Feynman said, “The first principle is that you must not fool yourself and you are the easiest person to fool.”}

^{[7] A not insignificant number of cases are initiated based on complaints from other physicians, or health insurance companies. Regardless of the source of the complaint, a collegial and respectful tone is appropriate.}

^{[8] For the AMB, the preferred organizational sections, in chronological order, are: Provider progress notes and logs; office communications; phone encounters; orders and referrals; labs, imaging reports; medications; other provider records; billing records; and, miscellaneous, including insurance and other intake information.}

^{[9] The OMB notice letter regarding an investigation typically contains the following paragraph: “Please provide one (1) copy of all medical and billing records related to this patient. We prefer records to be sent in electronic format. An index of all records must be included, and the records must be provided in chronological order. If sending a paper copy, do not use staples, folders, or any kind of binding or tab system. Please do not fax a paper copy unless the record is less than 25 pages.”}

^{[10] For Arizona Medical Board meeting recordings, go to https://www.azmd.gov/BoardOps/BoardOps, and click on “Meeting Recordings.” For the Arizona Osteopathic Board, go to https://azdo.gov/consumer-resources/board-meeting-schedule, click on the date of a meeting, and then click on the recording icon; some meetings may not have the recording posted.}

^{[11] A good rule of thumb is that, on average across both Boards, approximately eighty percent or more of the Board cases result in dismissals, and a significant number of the remaining cases result in nondisciplinary actions.}