Welcome to the WTW, Vital Signs podcast program. My name is Joan Porcaro, and I'm the senior vice president of risk services for WTW Healthcare. I'm very excited for today's podcast continues our newest series designed for physicians, providers, and medical practices, whether community based or hospital owned.
This podcast series is dedicated to helping healthcare professionals navigate the complexities of medical practice with confidence and peace of mind. And in each episode, we'll delve into practical strategies, expert insights, and real-world-case studies to empower you with the knowledge and tools needed to minimize legal risk and enhance patient safety.
In today's podcast, we will focus on how to understand and effectively respond to complaints from medical boards. And we are joined today by several really outstanding folks. I want to start first and introduce you to Mallory Earley. She is the Director of Risk management at ProAssurance. Welcome, Mallory.
MALLORY EARLEY: Thank you, Joan. I'm happy to be here today. I'm looking forward to our conversation.
JOAN PORCARO: And also, we'd like to welcome Stephen Dowd. Stephen is the Director of Claims Operations for ProAssurance Welcome, Steve.
STEPHEN DOWD: Thank, you Joan. Happy to be here.
JOAN PORCARO: And finally, but not least, James McClendon. James is an attorney with the law firm of Husch and Blackwell. We're really pleased for you to join us today. Welcome, Jim.
JAMES MCCLENDON: Joan, thank you for the opportunity, and look forward to visiting with everybody today.
JOAN PORCARO: All right. Well, why don't we go ahead and begin. So I want to bring up one first question. What exactly is a board of medicine complaint? Stephen?
STEPHEN DOWD: Joan, a board of medicine complaint is a formal allegation of misconduct or substandard care by a medical professional. The complaint is lodged with the agency responsible for licensing or certifying, regulating, and disciplining healthcare professionals within that jurisdiction. A complaint can be filed by any number of parties, a patient, patient's family member, nurses, pharmacists, colleagues, hospital medical executive committees. It can also culminate from the investigation by the State Board into mandatory state reporting of settlements or judgments made on behalf of that healthcare provider.
JOAN PORCARO: Thank you, Steve. James, anything to add?
JAMES MCCLENDON: No, that's exactly right. I practice in Texas, and the board of medicine here is charged with handling these type of complaints. I would just add to Steve's list of all the possible sources that you can have complaints come from that I see a lot of complaints come from disgruntled ex-employees that get terminated and they want to try to get their former employer in trouble, and also from disgruntled about to be or ex-spouses that are trying to extract some revenge for perceived grievances that occurred while they were in their relationships. But yes, the primary source of complaints does come from patients or patient family members.
JOAN PORCARO: Thank you Jim. What patient facing type of behaviors can typically trigger a board of medicine complaint? Steve, do you want to take that one as well?
STEPHEN DOWD: Sure. So typically what we see as causes of action for medical board complaints include substandard care, unprofessional conduct and by that I mean perhaps breach of confidence, altering records, filing fraudulent claims, arrests, convictions, prescribing issues, sexual misconduct claims, improper billing practices, and office practice issues. Mallory, any thoughts?
MALLORY EARLEY: Yes, Joan. From a risk management standpoint, we really don't have a cookie cutter formula for what causes a patient to file a board complaint. Now, there are some behaviors that can lend themselves to the likelihood of a complaint being filed. We typically see it from patients being maybe unsatisfied with the outcome or the care that was rendered. If a patient came to a physician and came for pain treatment and went through a treatment or surgery and still has pain, sometimes they feel that is to the level of needing to file a board complaint.
Other times the patient just really didn't appreciate the risks. We see where patients also just want to file a board complaint to be heard and feel like they really want to make sure that their opinions about the care rendered are heard on a higher level. We also see patients wanting to file them for looking for answers. They may go the route of filing a lawsuit, but often we see medical board complaints coming up first because they're a little bit easier to file than a lawsuit in some states.
It could be patients who are emotional. They may be acting out with anger, threats, erratic behavior. Could be financial stress that-- a patient comes to a physician saying they want a refund or want to be compensated. It can really run the gamut. There's no one way to guarantee the behaviors. But a lot of behaviors can go into the potential for a board complaint being filed against a provider.
JOAN PORCARO: Thank you, Mallory. Jim, anything to add from a legal perspective?
JAMES MCCLENDON: After doing this for about 35 years, I've developed three basic categories that complaints tend to fall into. The first one I euphemistically called the doctor was mean to me category and that generally involves communication issues with the patient. I tell all my clients that it's not a time to tell jokes to the client. It's not a time to talk politics to the patient. Oftentimes, those are well received, especially jokes, but sometimes they are not, and they can actually get the doctor in trouble.
Failure to timely communicate is something that I see a lot also, and that usually centers around lab results. I know doctors are very fond of the portal system now, and it's great. And patients can be more interactive with their healthcare by going to the portal. But if lab results come back, especially if they're negative, and even more so if they're kind of really bad results, it's important for the doctor to pick up the phone and get those results, I think, communicated directly to the patient as quick as possible.
Another interaction thing that I see is the doctor actually having the audacity to try to collect the bill for their services. That will oftentimes trigger a medical board complaint. Even though the patient owes the money to the practice, they retaliate when you try to collect the bill by filing a complaint. And your staff-- the staff can have bad interactions with the patient. So I always tell my clients, you're the captain of the ship, and you need to train up your staff, and the staff can get you on the medical board radar.
The second broad category or boundaries issues, those are the worst ones-- let me put it bluntly. A physician should never have an intimate relationship with a patient. I tell my clients, I can pretty much get you through any type of medical board complaint other than creating some very bad criminal conduct, dealing drugs out of your office. But the one that I see the most is boundary issues. So be very, very, very careful and just simply do not do it.
And then the third area is the actual practice of medicine. You operate on the wrong knee, you miss the cancer diagnosis, the actual stuff that can be medical malpractice-- but as Mallory mentioned, a lot of times now, the patients go to the medical board for those type of complaints. So those are the three big areas that I have seen in my 35 years of helping out physicians.
JOAN PORCARO: Thank you, Jim. So are there any early warning signs that a board of medicine complaint may be forthcoming? Mallory?
MALLORY EARLEY: Well, from a risk management standpoint, we really see that patient complaints are obviously a common trigger, not just for a lawsuit or litigation, but also for medical board complaints.
These can come in the form of verbal or written demands for money that may involve a plaintiff's attorney. Patients often feel that they need to be heard, and they want to have the physician speak to them directly about the outcome and other time the grievances may be completely unfounded only maybe financial in nature.
So really, sometimes a request from a patient to have their records handed over to them. They want to take a look at what the physician wrote about them, and the medical chart can be a sign that a medical board complaint may be forthcoming. Unlike a lawsuit, as I mentioned before, board of medicine complaints can be filed rather easily and without a whole lot of factual validation prior to the physician getting involved and being noticed of the summons for the complaint.
JOAN PORCARO: Thank you. From your experience, Jim, anything to add?
JAMES MCCLENDON: Well, I think physicians probably are not taught this in medical school, but I'm sure soon after they go into practice, they start seeing that there are certain red flag patients out there that bring of warning signs to them when they interact with the patient. That is something to be careful for.
I know physicians want to help out everybody, and they should, and it's very admirable but there are certain patients that a physician might start feeling uncomfortable with. They raise their voice at them. They question their advice that they give to them. They tell them they don't want to do that advice, or they have bad interactions with their staff members. That is the stuff that is a red flag for a complaint may be coming down the line at some point in time.
And physicians have to deal with those situations very carefully because you may be inclined to terminate the patient physician relationship, and you certainly can terminate the patient physician relationship. But that may exacerbate the chances of a complaint being filed against you. But from a practitioner standpoint, if I'm representing the physician and the allegation is that the doctor was mean to me and then he improperly terminated the patient physician relationship, as long as you've terminated it correctly, I feel very comfortable representing the physician in those type of board complaints.
JOAN PORCARO: Steve, what's the first thing a physician should do if they receive that board of medicine complaint?
STEPHEN DOWD: It can be a very stressful situation for a health care provider to receive a board complaint. But most importantly, remain calm, don't ignore the complaint or don't procrastinate about responding in some way. I highly recommend contacting your carrier, your insurance carrier and taking advantage of your insurance coverage. An insurance carrier will be able to open a claim for you, will be able to put you in touch with an attorney who has expertise in this area.
From our perspective, we've added attorneys all across the country who have this expertise and are readily available to assist our insureds with responding to these board claims. I think that it's important that the insured does not immediately reach out to the complainant to debate the complaint, to offer apologies, to admit guilt, or to discuss the case or retaliate in any way.
JOAN PORCARO: Thank you. Jim, any other thoughts?
JAMES MCCLENDON: No, that's great advice, Steve. I completely agree with that. I would just remind the physician that anybody can file a complaint. It can happen to every doctor, no matter how good they are. But remember, the complaint is just an allegation. It doesn't mean that you've done anything wrong. And so yes, stay calm. Contact the malpractice carrier.
I see a lot of physicians have knee-jerk reactions to receiving the complaint and fire off a response to the medical board within hours or days and don't really think it through and don't run it by an attorney. And while that can certainly turn out OK for the position, I've gotten involved in situations, I call them downstream, after the doctor has done that and an investigation has gotten open, and I'll see the complaint response that the doctor wrote, and I was like, you had a bad attitude.
You didn't give any credence to the fact that the patient could have perceived this the way they perceived it. And you might start talking about other areas that weren't even involved in the complaint and open up other doors for the medical board to look through. So I think getting an attorney involved-- you have malpractice coverage, that's what it's there for.
Most malpractice carriers nowadays provide coverage for medical defense board work, and an attorney like me or the many others that are out there that have a lot of experience dealing with the medical board and know what to say and not to say in these complaint responses is very important.
And I think you can avoid, not every time, obviously, but many times having an investigation opened by getting an attorney involved, working very carefully with the attorney, because the doctor is the one who knows the medicine, the lawyer knows how to deal with the medical board. The doctor plays a very integral role in responding to the medical board complaint through the attorney. But please, try not to do it yourself.
STEPHEN DOWD: A couple of things that Jim said I'd like to comment on. It's important for a healthcare provider to realize that board complaints are not criminal charges, they can be filed by anyone, and not to take it in a way that is really relative to a criminal charge. And also, the knee-jerk response comment-- we see a lot of claims that simply get worse by a doctor responding instantly without consulting with an attorney to help with that response.
JOAN PORCARO: Thank you. What I'm hearing you say is, it's just really incredibly important to take a breath when you're opening that envelope or hearing from that board of medicine representative and pausing and essentially keeping your emotions in check. And again, working through any other type of complaint, you're always going to need more information. And to be able to proceed the great support of legal counsel and/or your carrier is going to be essential as you move through this process.
JAMES MCCLENDON: Hey, look, we're all human. We're going to make mistakes. Lawyers make mistakes. Carpenters make mistakes. Doctors make mistakes. I think a very important thing also that I teach all my young attorneys and that I emphasize with my doctor clients, if you've made a mistake when you're responding to the complaint, admit that you made the mistake.
Now, we're going to put as much context as we can on the mistake when we file the response. But I think really the worst thing a doctor can do is deny the obvious, because when you have made a mistake and you try to deny the obvious, you're going to lose the benefit of the doubt on any of the other stuff that you can really, legitimately, justifiably defend.
Know it's hard to admit that we made mistakes, and we don't just throw ourselves under the bus in the response. There's a new art and a nuance to filing that type of response. But I think it is critical that the physician be able to acknowledge that, yeah, I missed the cancer diagnosis. Let me tell you how it happened. I'm not making any excuses but let me put it into context for you.
JOAN PORCARO: Thank you. Thank you, Jim. And basically, when we're talking about this, we really covered a lot about some of the things that they absolutely should not do. And we're going to touch about in a moment, what should they do as far as avoidance or managing or preventing such allegations but a question back to Jim. Are there differences between different states and how their medical boards are set up?
JAMES MCCLENDON: Yes, no doubt about it. All 50 states have their own independent medical boards. I practice in Texas and have vast amount of knowledge in Texas, but have many clients that also have license in other states that will have issues in those other states. And while most medical boards are probably set up the same and have a lot of similarities, there are definitely differences in the way each operates.
And so I think it's very important that a physician try to find an attorney that really specializes in medical board work. And I help clients do this all the time for other states, to find the attorney in that state that knows and practices all the time in front of that medical board. I don't think it's wise for an attorney in Texas to help out a physician respond to an Arkansas medical board complaint. I think it's better to find the best physician advocate in Arkansas to help the physician out.
Yes, there are differences. I don't know what those differences are, but I've done it long enough to know that every state certainly has their own medical board and their own procedures and protocols and that's why you really want to get a lawyer that knows those intricacies involved.
JOAN PORCARO: Thank you. So when we're talking a little bit more about the kinds of approaches physicians could put in place to prevent situations like this from arising, how can a physician better manage that patient interaction?
MALLORY EARLEY: All right. Well, I will take that one, Joan. I think communication is key to all patient interactions. Obviously, from a risk management standpoint, we see open and honest communication is really the foundation to any physician patient relationship. You want to have that formed trust and shared decision making that really makes a cohesive, trusting relationship.
Obviously, there's other elements. Strong informed consent process is vitally important to make sure you're managing your patient's expectations and communicating that there is no guarantee-- there's no guaranteed outcome. It really is something that's a shared decision process. Also, the financial component of the treatment does not necessarily guarantee an outcome that-- you hope for the best outcome.
But there's no guarantee, especially in those self-pay circumstances, where the patient has put a financial implication on the line-- oftentimes, they feel like they should be able to have guaranteed outcomes. And that's just not the case in the practice of Medicine. You want to make sure managing those expectations through conversations, informed consent can really be one of the best ways to preemptively prevent abortive medicine complaint from ever being filed in the first place.
JOAN PORCARO: Thank you, Mallory. Jim or Steve, anything to add?
JAMES MCCLENDON: Well, this is McClendon here. Mallory, yeah, Patient. Communication is really at the top of my list as far as ways to avoid medical board complaints. Remember, as the doctor in the practice, you are the captain of the ship, and your staff will take a lead from the way not only you interact with them as staff members in a cordial, polite, and professional manner, but will also take your lead in how you train them to communicate with your patients.
I see so many complaints that are not coming from communications by the doctor with the patient, but from the staff members with the patient. And I really recommend, once every couple of week lunches with the staff or the ones that you work with. Chat and chew sessions where you all talk about situations that came up in the last couple of weeks, how you handled them. And train your employees up.
The other thing that I always tell my clients to help you avoid medical board complaints or to get through your medical board complaint is medical record keeping, document, document, document. The medical board wants to see your thought process in documentation. Don't just have a check-the-box medical record. Have a part in the medical record where you actually dictate out or type out or handwrite out, if you have to, why you did what you did.
I did not start the patient on opioids because two weeks ago, he called and was complaining that he'd already run out and he's not going in for his random urine screen and even though he's saying he's in pain, I'm not going to see him again until he comes into my office. I'm not going to refill the prescription until he comes into my office. So document, document, document.
The final practice tip I would have in this area is, if at all possible, and this has to do with the boundaries cases where there's only two people in the room, try to make sure the patient and the doctor-- try to have a third person in the room, especially in any type of sensitive exam on a patient.
But if you can afford it, to always have a scribe in the room, at least a witness in the room, because there are allegations made by patients that are not true, but those allegations are taken seriously, and if there's a witness in the room, it is a wonderful piece of insurance for the physician to have when these type of complaints arise.
And they generally will keep that type of complaint from coming about, because if the patient was going to make up something about whether or not the doctor yelled at me or said something inappropriate to me or improperly touched me, if they know that there was a witness in the room, be it a chaperone or a scribe, they're far less likely to make those type of complaints.
JOAN PORCARO: Thank you, Jim. Steve, were are you going to add something.
STEPHEN DOWD: I actually I think that both Jim and Mallory hit on the most important points, that communication and effective communication is essential and accurate and detailed record keeping is essential as well.
JOAN PORCARO: I agree. And I am really appreciative of your comment about making sure that your clinical rationale is actually well stated in that medical record. It becomes really important when you're dealing with something like this that might not happen. You might not even hear about the concern, even for a longer period of time, so that information can be fresh in your mind as you review your notes.
So there's obviously a variety of legal implications in all of this. And I want to ask first, do any states require that I, as a patient, go ahead and file that board complaint before moving forward with litigation? Steve, Jim?
STEPHEN DOWD: I am not aware of any, Joan, off the top. But I know that states do require mandatory reporting of settlements and judgments. For instance, here in California, $30,000 settlement or judgment on behalf of a health care provider needs to have a State Board 801 report filed. But I'm not aware that they need to be filed in advance.
JAMES MCCLENDON: I'm not familiar with every state's requirements, but I don't know of any offhand that do require you to file a medical board complaint prior going to a medical malpractice suit. Certainly in Texas, you do not have to. Interestingly enough, Texas, back in 2003, I believe, it was passed tort reform. And the entire goal of tort reform in Texas was to make it much less lucrative for a plaintiff's attorney to take a medical malpractice case to a jury to get monetary damages.
And the purpose of tort reform and the goal of tort reform in Texas was to try to get as much of the medical malpractice cases handled through the Texas Medical Board. And tort reform has been very effective in Texas. Most of the medical, not all of it by any stretch, but most of the medical malpractice stuff has now gone to the medical board, which was the legislative intent in Texas. And I think that has happened in quite a few other states as well.
JOAN PORCARO: So, here's a question I get all the time from physicians. They received that board of medicine complaint. However, the patient still wants to receive care from the doctor or still wants their family member to receive care, what now? What should happen? Mallory?
MALLORY EARLEY: Oh, this is a tricky one. And we also receive this question quite frequently in risk management. The question of who to keep treating after, whether it's a lawsuit or a board of Medicine complaint has been filed, is always tricky to navigate. In many ways, it's a conflict of interest. On the one hand, a patient, who wants to continue care after filing a complaint, shows that they still trust and value the physician and can sometimes be used in favor of the physician.
In so many words, the doctor can't be doing too bad of a job if the patient still wants to keep seeing him or her. But on the other hand, a doctor may not feel comfortable continuing to treat a patient who's alleged substandard care or other allegations against him or her. In risk management, we stress the importance of that shared decision making and open communication between patients and our physicians.
So we would never want to recommend a doctor continue treating a patient or even a patient's family members if he or she was uncomfortable. So I really take this as more of a case by case look in these situations and see what is best for the physician and the patient, but often err on the side of discontinuing the relationship. And consider the same for family members of the patient who may have even filed the complaint themselves.
JOAN PORCARO: Jim, any thoughts?
JAMES MCCLENDON: Mallory, that's exactly right. It is on a case-by-case basis. And you're also exactly right, it is one of the more frequently asked questions that I get after the complaint is filed. Basically, I always tell the doctor that if they want to terminate the patient, they absolutely can terminate the patient. You just have to terminate them in the correct way.
In Texas, you certainly have to give reasonable notice, which I always interpret as giving them at least 30 days notice where you will refill any prescriptions during the 30-day time period in which they are seeking a new doctor. I will give them-- tell them and put it in writing. I always help them or will offer to review the letter before it goes out, and that you will treat them if an emergency situation arises during that 30 days, or that they should call 911.
As Mallory said, sometimes it's not the patient that filed the complaint, it's the family member that filed the complaint. And the doctor still has an extremely good relationship with the patient and will want to keep seeing the patient. And so I get asked the question in reverse, also. Is it OK to continue seeing the patient? And the answer to that is, yes, you can but proceed with caution.
And I do always advise them to talk to somebody like Mallory in the risk management department of their malpractice insurance, because they certainly may have different advice than me. And we want to do everything to make sure that the doctor does not jeopardize their malpractice insurance coverage. So it's good to get advice from both camps in those types of situations.
JOAN PORCARO: Absolutely. Both of you, thank you for your comments on this topic. We're getting close to closing our conversation today. Any storytelling? Any lessons learned that you'd like to share before we sign off?
JAMES MCCLENDON: Well, this is McClendon. Thanks again for the opportunity, Joan. I hope this has been beneficial to the folks that are listening. I would say a medical board complaint can be incredibly anxiety provoking for a medical professional or for a physician. I kind of fancy myself as an armchair psychologist in helping physicians get through these type of things, and they can have a profound impact on their career.
There is a ripple effect if you do have a medical board complaint that ends up in an agreed order against you. You certainly don't want to have a situation where you have a restriction on your license or a suspension. Those can result in ripple effects with the insurance companies that are your payers, the Aetna's, the Blue Crosses, the Uniteds of the world.
They can have effects on your hospital privileges, your credentialing at those hospitals, those type of orders. And they can also impact your employment. You could face termination if you have an order entered against you that has those type of things in them. So yes, please take these very seriously. And it is very important to have a lawyer help you, guide you through the medical board process, because it is fraught with peril. And the medical board, while they're not necessarily your adversary, they're not necessarily your friend either.
JOAN PORCARO: Thank you, Jim. Steve?
STEPHEN DOWD: One of the things we're commonly seeing is a downstream effect of, or downstream outcome of, some of these adverse consequences is state medical boards are attempting to recoup costs, cost recoveries for administrative and investigative charges that are part of your case, and they can be very significant in some cases. Now, our insurance will provide some coverage for that given the circumstances. But it's something to be aware of when you're facing these circumstances.
JOAN PORCARO: Thank you. Mallory, any closing thoughts?
MALLORY EARLEY: I mean, in closing, I would just think, really, these types of complaints can happen for a lot of reasons, or honestly, no reason at all and no wrongdoing on the physician's part in any way. So be prepared. Know what to do if and when you get a complaint in the mail or dropped at your door. Know how to report to your carrier. Get in touch with having the right folks on your team to help you respond, and never attempt to respond on your own. Please, please reach out to your carrier because it's much easier to do these proactively than on the flip side of trying to help remediate prior behaviors.
JOAN PORCARO: So Jim, thank you so much for joining us today.
JAMES MCCLENDON: And Joan, thank you for the opportunity. I've enjoyed the visit.
JOAN PORCARO: And Mallory, again, thank you.
MALLORY EARLEY: Anytime, Joan. We're happy to help.
JOAN PORCARO: And last but not least, Steve.
STEPHEN DOWD: Thank you for having me, Joan. I've enjoyed the discussion with everyone.
JOAN PORCARO: All right. And in closing, I want to thank our audience and those who have tuned into our discussion. I hope you'll be joining us for future discussions in the coming weeks. And if you enjoyed this episode, don't forget to subscribe wherever you get your podcasts. And stay tuned for our next conversation featuring industry experts bringing you the latest on topics of interest to risk management professionals.
Tune in to Vital Signs and take the first step towards a more secure and successful medical practice. And again, thank you to our listening audience for joining us at WTW, Vital Signs.
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