Medical board discipline involves more than a hefty penalty or financial settlement. Here's what you need to know.
According to the Federation of State Medical Boards, there were a total of 7223 actions taken by state licensing boards against US physicians in 2021. Contrary to common perception, many of these complaints do not stem from clear and unequivocal malpractice, fraud, or misconduct.
Because state medical boards do not restrict or impede any person or entity from filing a complaint against a physician, anyone—including a disgruntled ex-employee, contentious business partner, or spouse from an adversarial divorce—can trigger an investigation that can ultimately prompt a medical board to discipline a physician.
In addition, many state and federal laws mandate that hospitals, insurance carriers, law enforcement agencies, and local prosecutors alert the licensing board whenever a physician is arrested, has their hospital medical staff privileges suspended or restricted, or becomes the subject of an adverse judgment or settlement as the result of a medical malpractice lawsuit.
The repercussions of a medical board complaint are serious and can include the loss of hospital privileges and prescribing privileges for controlled dangerous substances, specialty board certification, membership in medical associations and societies, and status as a credentialed provider for third-party payers, including Medicare. Thus, a timely and vigorous response is critical whenever a physician becomes the subject of scrutiny from a licensing board.
Although medical licensure is a privilege and not a constitutional right, medical professionals still have the right to due process or, more specifically, to a full and fair hearing on the merits of any claim or allegation brought against them by a state licensing board. If the matter proceeds to a hearing, it is essential to have a skilled medical expert who can defend the quality of care provided by the physician.
The NPDB Explained
Medical board discipline involves more than a hefty penalty or financial settlement. Any disciplinary action invoked by a state licensing board is reported to the National Practitioner Data Bank (NPDB), a federal database operated by the US Department of Health and Human Services that compiles and maintains all adverse action reports made against health care providers.
An NPDB report is like a national news bulletin transmitted to the entire health care community. A physician cannot escape its ramifications. Whenever they apply for credentials, certification, licensure, registration, or accreditation from any health care organization, that entity will probably query the NPDB, which will reveal the adverse report.
In addition, health care organizations often perform “continuous” queries on the NPDB to regularly monitor particular practitioners and be notified automatically whenever an adverse action against them is reported to the NPDB.
According to federal law, hospitals must also report any and all actions against a medical staff member that adversely affect the member’s clinical privileges for a period of more than 30 days. In addition, hospitals must report the acceptance by the physician of the surrender of clinical privileges or of any restriction of clinical privileges while that physician is under investigation by the hospital for possible incompetence or improper conduct.
Even more concerning is the requirement that hospitals report all physicians who agree to surrender privileges or resign from the medical staff in return for the hospital’s agreement not to investigate. This rule effectively precludes physicians under investigation from making a good-faith offer to “just walk away” by resigning their medical staff membership and clinical privileges in exchange for a clean slate, including not reporting issues to the NPDB. Instead, the physician often has no recourse but to fight the adverse action and gamble on the uncertainty of a hearing.
The key to preventing adverse actions is to remain vigilant against investigations targeting a physician’s clinical, prescribing, billing, or documentation patterns. Medical providers should seek immediate legal counsel whenever it becomes evident that an institution is targeting them for an adverse action. Waiting too long can have dire consequences.
Mr Keoskey is a trial attorney and certified health compliance officer at Mandelbaum Barrett PC in Roseland, New Jersey.
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