Medicine, Law and Policy
The Best Defense
A Guide to Disciplinary Proceedings before the Minnesota Board of Medical Practice
The way to attain the most favorable outcome possible is to understand the investigation and disciplinary process.
By Gregory Merz, J.D.
The Minnesota Board of Medical Practice (BMP) is responsible for protecting the public from the “unprofessional, improper, incompetent, and unlawful practice of medicine.”1 One of the board’s chief responsibilities is investigating complaints regarding licensed health care professionals (physicians, physician assistants, respiratory care practitioners, certified athletic trainers, acupuncturists, and nurse midwives), and, when warranted, taking appropriate disciplinary action.
As a matter of statistics, it is unlikely that anyone reading this article will ever be the subject of a complaint, and it is even less likely that you will be the subject of serious disciplinary action. That said, the board investigates individuals, not statistics, and statistics will provide little comfort if you ever receive notice that you are the subject of an investigation. Understanding the investigation and disciplinary process is important to attaining the most favorable outcome possible. This article describes the processes the board uses to investigate and resolve complaints.
The Board’s Enforcement Authority
The Minnesota BMP is composed of 16 members—10 medical doctors, one doctor of osteopathy, and five nonphysician public members who are appointed by the governor. Enforcement of the Medical Practice Act is complaint-driven, meaning that the board undertakes enforcement activity in response to a complaint of specific misconduct. A proceeding must be initiated before the board within seven years of the date that some portion of the alleged misconduct occurred.2 The BMP is required by statute to investigate all timely complaints alleging a violation of the Medical Practice Act.
The board has two complaint-review committees, each consisting of two physician members and one public member, which are responsible for investigating complaints. Data regarding pending investigations is treated as confidential unless a complaint alleges that a physician has engaged in sexual conduct with a patient. In such cases, a separate probable cause hearing is held, and if the administrative law judge presiding at the hearing determines that there is sufficient cause to believe that the physician engaged in the improper conduct alleged, then the factual allegations constituting the violation are made public.
The Medical Practice Act describes 25 separate grounds for discipline, including revealing privileged communications, fee splitting, engaging in fraudulent billing practices, false advertising, engaging in sexual conduct with a patient, and impairment resulting from substance abuse or mental illness. Some of the prohibitions are very specific, such as failure to repay student loans secured by the state or federal government, and some are very broad, such as the prohibition on engaging in unprofessional conduct, which includes departing from minimal standards of acceptable and prevailing medical practice. These prohibitions form the basis of the board’s jurisdiction.
Initiation of the Investigation
If you are the subject of a complaint, you will receive a letter notifying you of the pending investigation and describing the allegations of the complaint. The letter may or may not identify the party making the complaint.
The letter may ask you to provide a written response to the allegations. When a complaint alleges some deviation from the standard of care or other unprofessional conduct (by far, the most common reasons for complaints) you frequently will be asked to produce patient records. When the request for records is not accompanied by written consent from the patient releasing the records, you will be required to delete any identifying information before producing them.3 The complaint-review committee may retain a third party to engage in a peer review of pertinent medical records. In cases alleging that you are unable to practice because of an impairment, you may be asked to sign a consent form releasing your own treatment records or undergo a psychiatric or other medical evaluation. Often, you will be asked to take part in an interview with an investigator.
Any physician who is the subject of an investigation has a statutory duty to cooperate fully with the investigation. Failure to cooperate may be grounds for disciplinary action,4 and any behavior perceived as being uncooperative will almost certainly lead to increased suspicion.
The BMP also has authority to temporarily suspend a physician’s license pending the completion of its investigation, when it finds that the physician’s continued practice would create a serious risk of harm to the public. As a practical matter, the board rarely takes this extreme step: It used the temporary suspension mechanism only once in 2006 and not at all in 2007, the most recent years for which data are available.
The Conference Process
The committee uses the interview, any written response to the complaint, and any follow-up investigation such as a review of patient records to screen out claims that clearly lack merit. If it is determined, based on the complaint and your response, that there is a reason to investigate further, you will likely be asked to attend a conference with the complaint-review committee. You will receive a notice that includes a detailed recitation of the alleged facts and identification of the specific provisions of the Medical Practice Act that are said to have been violated. The notice will specify a date for the conference. When there is a good reason, it is possible to reschedule the conference for the complaint-review committee’s next regularly scheduled meeting, but further extensions likely will not be given.
The notice for the conference will almost always ask you to provide a written response to the allegations by a certain date. It is important that you respond in a timely manner so that the committee has an opportunity to review your response before the conference. Complaints often arise as a result of a misunderstanding between a physician and a patient. The written response can shed light on the interaction and misunderstanding. Therefore, you should take great care when preparing your written response. If facts claimed in the written response are later found to be untrue, it can damage your credibility and your ability to effectively defend yourself against the allegations of the complaint.
The overwhelming majority of complaints that are not dismissed following the initial investigation are resolved at the conference stage. Conferences typically last an hour and provide an opportunity for dialogue between the physician and members of the committee regarding the issues raised in the complaint. A physician whose case goes to conference has the right to be represented by legal counsel, which is highly advisable. An attorney who has experience with the process can help you understand the risks and ramifications of options and advise you on how to best present your position. That said, a physician will almost always be his or her own best advocate when appearing before the committee. As a general rule, the less said by the lawyer during the conference, the better. The members of the committee will want to hear directly from you, the physician, rather than your lawyer, and anything the lawyer does that is perceived as interfering with the committee members’ questioning will be poorly received. The conference is not the time for legalistic maneuvering. Your attorney will be most effective by helping you prepare for the conference.
Dos and Don’ts When Going Before the Complaint-Review Committee
Do be prepared. Carefully review all relevant facts including pertinent patient records. Being able to explain the reasoning behind your treatment decisions is particularly important in cases alleging a failure of medical competence. Make sure you are current on the relevant literature in the field. Think about the tough questions that you might get from the committee and how you will respond to those questions.
Do focus on the relevant issues. You need to be able to answer the committee members’ questions to their satisfaction. Because you have a relatively brief time to make your case before the committee, you need to avoid getting bogged down in extraneous matters.
Do be forthcoming. Establishing and maintaining your credibility is crucial. Answers that seem evasive will be a red flag. Try to be objective about the facts that have been alleged. Don’t misrepresent or exaggerate the facts or ignore bad facts. Instead, put them in context. If, in hindsight, you could have done something differently, the committee will be very interested to know how you would resolve similar situations in the future. Be contrite to the extent appropriate, and explain to the committee what the experience has taught you.
Do not go on the offensive. You may be aware of the source of the complaint and be very tempted to show that person’s bad motive. This is generally counterproductive. Motive is usually given little, if any, weight in the committee’s evaluation of the facts.
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Following a few guidelines will greatly improve the likelihood that the conference will result in an acceptable outcome (see “Dos and Don’ts When Going before the Complaint-Review Committee”).
When the committee members have completed their questioning, you and your attorney will be given an opportunity to make a brief closing statement. This is your opportunity to address important facts that the committee may have overlooked and to emphasize particular points you believe are important. The watchword here, however, is “brief.” The objective of the closing statement is to effectively focus committee members’ attention on the most important points and not to distract them with minutiae. You should pay close attention to the questioning by the committee members and try to focus on those issues that appear to give them the greatest concern.
When the closing statement is completed, you and your attorney will be excused while the committee deliberates. The committee may decide to do any of the following: 1) conclude that there are insufficient grounds for discipline and close the investigation; 2) enter into an agreement with you for corrective action; 3) enter into a stipulation permitting the full BMP to order agreed-upon disciplinary action; or 4) refer the matter for a contested case proceeding.
Complaints are often resolved by entry into a corrective action agreement, which is considered to be a nondisciplinary remedy. Under such an agreement, the physician agrees to take certain actions such as fulfilling specified educational requirements. The committee will not enter into a corrective action agreement that requires ongoing monitoring.
Most cases, however, are resolved by entry into a stipulation, which is effectively a settlement agreement between a physician and the board. The stipulation will recite the basic facts on which the finding of violation is based and describe the nature of the disciplinary action being taken. The physician and his or her counsel will have some say in how the facts are set out in the stipulation. By entering into a stipulation, you are giving up your right to contest the facts set forth in it. If it is later alleged that you have failed to comply with the stipulation, the only issue will be whether or not you have complied and not whether the conduct warranting the agreed-upon disciplinary action occurred.
Contested Case Proceedings
One major reason why cases are often resolved at the conference stage is that it allows the physician some control over the outcome. If the case is not dismissed and if you are not able to come to an agreement with the committee regarding an appropriate remedy, then the matter becomes a contested case proceeding. A contested case proceeding is a trial that is conducted by the Office of Administrative Hearings and is presided over by an administrative law judge, who acts as the fact-finder. The committee acts as the prosecutor and must prove that the allegations are more likely true than not. Each side has the opportunity to call witnesses, cross examine the other side’s witnesses, and submit briefs setting forth their respective legal positions.
After the parties have submitted their briefs, the judge will make a decision. The written decision takes the form of a recommendation to the full board, with the ultimate decision resting with the board. As a practical matter, however, the BMP relies very heavily on the judge’s recommendation, often adopting it with little or no modification. A decision by the board to take disciplinary action may be taken to the Minnesota Court of Appeals, although that court gives great deference to the determinations of the board and rarely reverses such determinations.
Disciplinary Actions
Possible forms of disciplinary action include revocation or suspension of the physician’s license, imposition of restrictions or conditions on his or her practice, imposition of a civil penalty, required uncompensated community service, and censure or reprimand.5 Disciplinary actions may be implemented voluntarily, by a stipulated agreement with the physician, or involuntarily, upon conclusion of a contested case proceeding.
The BMP is required to publish its disciplinary actions—including the name and business address of the licensee, the nature of the misconduct, and the disciplinary action taken—at least annually. In addition, disciplinary actions taken by the board are reported to the National Practitioner Database, which is maintained by the U.S. Department of Health and Human Services. A board-certified physician may also have some obligation to self-report any disciplinary action to his or her certifying body.
Agreements for corrective action, which are considered to be nondisciplinary in nature, are available to the public but are not published, nor are such agreements reported to the National Practitioner Database.
Conclusion
Although going before the BMP can be extremely arduous and stressful for the physician, there is good news: The board only rarely takes adverse licensing action. The Minnesota BMP regulates more than 20,000 licensed health care professionals and receives approximately 1,000 complaints a year. In a typical year, the board takes adverse licensing action in fewer than 50 cases. In each of 2006 and 2007, the board ordered the most serious consequences—license suspension or revocation—in fewer than a dozen cases.6 An understanding of the process, careful preparation, and the advice of able, experienced legal counsel can help make the process less painful and minimize the impact of any licensing action. MM
Greg Merz is a principal in Gray Plant Mooty’s Minneapolis office and co-chair of the firm’s litigation practice group.
References
1. Minn. Stat. § 147.001.
2. Minn. Stat. § 147.091, subd. 8.
3. Minn. Stat. § 147.131.
4. Minn. Stat. §§ 147.091, subd. 1(u); 147.131.
5. Minn. Stat. § 147.141.
6. Board of Medical Practice, Fiscal Year 2007 Statistical Report. Available at: http://www.state.mn.us/portal/mn/jsp/content.do?contentid=536914846&contenttype=EDITORIAL&hpage=true&agency=BMP. Accessed February 2, 2009.