Health Law Matters

MEDICAL BOARDS TO CRACK DOWN ON DEFICIENT PHYSICIANS

By Steven K. Sanborn,   Mitchell Warner, P.A.

Overview:

Historically, state medical boards have focused their investigations upon physicians who engage in sexual misconduct or other ethical breaches, have substance abuse problems, overprescribe controlled substances, or obtain criminal convictions. As far as investigating a physician's competency, many state medical boards have refrained from taking actions against clinically deficient physicians until after such physicians have obtained one or more bad patient outcomes. One group has estimated that fewer than one in five disciplinary actions taken by medical boards nationally have addressed incompetence or negligence. However, the North Carolina Medical Board ("NCMB") and the Federation of State Medical Boards ("FSMB") have become more pro-active towards identifying and disciplining physicians who are clinically incompetent.

In May, 1998, the FSMB released a report to its member boards that includes a number of recommendations toward improving physicians' standards of care. The report was prepared by a committee that included a member and the Executive Director of the NCMB.

Identification In order to identify incompetent physicians, the FSMB report outlines a number of things medical boards can address: improve reporting and registration requirements applicable to physicians, hospitals, managed care entities and medical societies; establish liaisons with medical societies and Peer Review Organizations to allow and improve exchanges of information; conduct random audits of pharmacy records and implement systems to effectively monitor the prescribing of controlled substances; issue guidelines and provide educational programs to physicians to improve the keeping of patient records; and establish markers to identify physicians warranting evaluation, including the physician's age and health status, changes in practice location, changes in practice speciality without formal retraining, failure of speciality board recertification examinations, number of complaints and malpractice cases, and physicians who have no affiliation with hospitals or managed care entities. Probably the most controversial of the recommendations, the evaluations of markers would be done behind the scenes, often without the licensees knowledge. Evaluation and Investigation The report provides a number of recommendations for state boards to better evaluate and investigate potentially deficient physicians. First, states could employ a medical director and other health care professionals as investigators. Second, state boards could utilize peer review panels with physician volunteers acting as reviewers. Third, state boards should establish a system for screening quality of care complaints in an efficient and timely manner. Fourth, the investigation of a complaint should include a large sampling of patient records, as well as an investigation of the office practices and procedures, hospital and managed care performance discharge data, and interviews with colleagues, peers and patients. Finally, state boards should utilize, or advocate for, subpoena power to access patient records and peer review documents. Disposition The report identified three tracks for disposition of quality of care cases: if no violation of the Medical Practice Act is found, issue may be resolved by closure, educational letter, conference or other means; if quality of care issues indicate a likelihood of formal board action, then boards may utilize disciplinary actions, including revocation, probation, restriction, and reprimand, or enter into agreements requiring clinical assessment and retraining; and if patient harm is imminent and emergency action is warranted, boards may issue summary suspension, injunction, and/or orders requiring mental or physical examinations. Assessment and Remediation The report recommends that boards utilize programs providing assessments services. Boards should require dyscompetent physicians to participate in focused remediation programs, or to take examinations such as the SPEX. The FSMB and the National Board of Medical Examiners have initiated a comprehensive national center for physician assessment. The report recommends that state board work with medical societies and institutions to develop remedial education programs.

The NCMB has been at the forefront of the increased initiative among state medical boards to take a pro-active approach towards identifying and rehabilitating clinically deficient physicians. Utilizing the recommendations of the FSMB, the NCMB may conduct independent investigations based upon markers and other criteria, and not resulting necessarily from any particular malpractice case or peer review action. Physicians who fail to maintain and improve their skills could face disciplinary or remedial action from the Board.

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Copyright © 2006 -  Mitchell Warner, P.A.        The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell, JD, FCLM or Kenneth A. De Ville, JD, PhD, Co-Editors at (800) 662-7403.