By David R. Dearden, Esq.
A physician can minimize the chances that he or she will have to respond to an investigation by Pennsylvania’s Bureau of Professional and Occupational Affairs by carefully attending to the administrative aspects of practice, by handling patient complaints in a prompt and sensible manner and by paying attention to the ethical guidelines that apply to the practice of medicine. However, if a malpractice action is filed against a licensed professional, the MCARE Act requires the professional to notify the applicable licensing Board within 60 days of the filing of the Complaint. This new self-reporting requirement increases the chances that the Bureau will open an investigation file that could potentially lead to a disciplinary action against a professional’s license to practice. The purpose of this article is to provide general advice on ways to defend one’s license.
When the State Board of Medicine or the State Board of Osteopathic Medical Examiners receives a report of a patient complaint or a malpractice complaint the Board will refer the matter to the Bureau of Professional and Occupational Affairs for evaluation and an investigation. The Bureau is responsible to prosecute disciplinary actions before the applicable licensing Board. The Board acts as the judge to determine whether violations of law have been proved and the appropriate sanction to be applied. The Bureau and the Board are both housed in the same state office building and they are both part of the executive branch of state government. Even though the Bureau and the Board are closely aligned, the investigators and staff lawyers for the Bureau are required to keep separate files from the Board decision makers in order to comply with administrative due process requirements under Pennsylvania law. Lyness v. Commonwealth, State Board of Medicine (1992).
The Bureau usually assigns an investigator to each open file. In many cases, the licensed professional first learns about the existence of a open investigation file from one of the investigators who either telephones the licensed professional or actually shows up, unannounced, at the professional’s home or office. These investigators often adapt a “friendly” persona and are skilled at obtaining statements from busy physicians who see a benefit to giving a quick statement and then hope that the matter will be closed and forgotten.
Use a Guarded Approach with Investigators
The proper response to a request by an investigator for a statement should be to politely decline to be interviewed. The professional should ask for a business card and confidently explain to the investigator that the professional would like to consult with counsel and have counsel contact the investigator to provide a formal response to the matter under investigation. In the event that questions arise about the treatment of a patient, no information should be provided without an appropriate medical release by the patient authorizing the professional to discuss the patient.
The professional should not try to handle a disciplinary investigation without guidance from a knowledgeable health care attorney. The Pennsylvania Medical Society may be a resource to draw upon as well. It is important to find out as much as possible from the investigator concerning the source and nature of the complaint before making a comment. If a medical procedure is the subject of the investigation the professional will want to re-examine the medical chart, consult medical literature and come to an understanding about the factual and legal issues that could be implicated in a disciplinary proceeding before responding to an investigator.
The Negotiation Process
Many of the investigation files that are opened by the Bureau are closed after some initial research. In other cases the professional may receive a letter indicating that there has been a review of a complaint or other issue and the file is being closed because the facts did not seem sufficient to warrant further investigation. The professional is usually placed on notice that the event could be seen to violate either the Medical Practice Act or the MCARE Act and that the Bureau is reserving the right to reopen the file if it becomes aware of subsequent conduct that is similar in nature. These “warning letters” are part of the investigation file and are not part of the public record.
There are times when the conduct under investigation is so problematic that the professional may consider making an appointment to meet with the Bureau prosecutor (with counsel) to discuss a negotiated sanction. In these cases, there are risks to consider because a candid discussion will probably result in an admission by the professional of unlawful behavior. However, when it is relatively certain that unlawful behavior has been or will be discovered it may make sense to demonstrate to the Board that the professional has openly admitted the wrongdoing and is seeking treatment, counseling, education or taking other remedial steps. This approach may help the professional argue that he or she is worthy of retaining his or her license.
There are other times when the best approach is to admit nothing and force the Bureau to prove that misconduct occurred. In either case, the licensed professional must work with counsel to carefully prepare exactly how the licensed professional will explain the situation and the appropriate demeanor that the licensed professional must exhibit while delivering the explanation that is called for. If the matter can not be resolved through negotiation, the Bureau will file formal charges.
Order to Show Cause
The written document that forms the basis for the formal charge against a licensed professional is the Order to Show Cause. This document is similar to a civil complaint in malpractice litigation or the criminal complaint and affidavit of probable cause in a criminal setting. It sets forth the particular facts that form the basis for an alleged violation of the law. Prosecutors will usually reference specific sections of the applicable Medical Practice Act, Board regulations, the Abortion Control Act, the Criminal Record Information Act and now, the MCARE Act. The Bureau will prepare the charging document and file it with the Board. The Board will assign the matter to a Hearing Examiner, who will receive and decide motions, handle pre-hearing conferences and decide procedural issues and eventually conduct the hearing and issue a decision called an Adjudication and Order. Under certain circumstances the Adjudication and Order is reviewable by the Board. All hearings are conducted under the Pennsylvania Administrative Code which outlines the procedural and evidentiary rules under which the hearings take place. The evidentiary rules are somewhat relaxed in an administrative hearing and this often aids the Bureau in prosecuting a case.
The Administrative Code does not provide for the detailed pre-hearing discovery mechanisms that are available to litigants in civil litigation. Except for those documents that are exchanged by the parties to be used as exhibits at the hearing, the professional will have limited access to documents that may be relevant to help defend oneself. In addition, pre-trial discovery depositions are not normally part of the pre-hearing phase in Board cases. The absence of these techniques for exposing weaknesses in the prosecution case disadvantages the accused professional and increases the risk to the professional who proceeds with a hearing because the exact nature of the testimony of the prosecution witnesses may not be known until the testimony unfolds during the administrative hearing.
Preparation for a Hearing
In order for the licensed professional to be in a position to negotiate an acceptable settlement, the professional will need to demonstrate to the Bureau prosecutor that he or she is fully prepared to litigate the case and that the professional has a reasonable likelihood of obtaining a satisfactory result through the administrative hearing process. Depending upon one’s budget, investigators can be hired to obtain witness statements. The professional will want to present favorable fact witnesses and may ask to present character witnesses concerning the professional’s reputation for truthfulness under certain circumstances. There are many times when expert testimony can be used to defend against the claims in the Order to Show Case. Generally, the expert will need to provide his or her credentials and a written report outlining his or her conclusions to the Bureau prosecutor in advance of the hearing.
The hearings are generally conducted in Harrisburg, Pennsylvania with a court reporter who prepares a transcript of the hearing. At the close of the testimony, the Hearing Examiner will ask the parties to submit Proposed Findings of Fact and Conclusions of Law. When an Adjudication and Order is issued it may or may not be reviewed by the Board. In the event that the professional is unsuccessful before the Board, cases can be appealed to the Commonwealth Court of Pennsylvania, but the Commonwealth Court can only reverse Board decisions for errors of law, violation of constitutional rights and/or in the event that the decision of the Board is not supported by “substantial evidence.”
Consent Decree and Order
Many disciplinary actions are resolved by a negotiated Consent Decree and Order. The licensed professional can eliminate the risk of a more severe sanction and the expense associated with litigating a disciplinary action, by agreeing to a reasonable Consent Decree that is acceptable to the Board. A Consent Decree will contain stipulated facts and an admission that the professional did violate the Medical Practice Act. The Boards have taken the position that unless the professional agrees that he or she has actually violated the law, the Board lacks jurisdiction to impose a Consent Decree. For this reason, the Board and the Bureau have resisted settlement agreements that impose a sanction, but contain language that the professional does not admit to violating the law. If the Consent Decree is finalized while a malpractice case arising out of similar facts is pending, the professional may be increasing the chances that he or she will suffer from an adverse verdict in a civil case.
The discussions that take place concerning Consent Decrees are similar to the discussions that take place in connection with the settlement of civil cases. The Bureau has a wide array of weapons at its disposal. It can threaten revocation of a license while it is seeking a Consent Decree which will result in an agreed upon probationary period. There are no published sanction guidelines in effect and counsel for the licensed professional often has to rely upon statements from the prosecutor for the Bureau concerning what he or she expects the Board will approve. For minor violations of the Act a public reprimand and a fine may be the significant aspects of the Consent Decree. The licensed professional will also have to consider whether or not the sanction will be reported to the National Practitioner Data Bank. In most cases the sanction will be reported to the National Practitioner Data Bank and from that report it is most likely that hospitals, third party payors and professional liability carriers will also learn of the sanction.
When the misconduct involved is extremely severe, the Board has the ability to revoke the license of a professional. Once revoked, the professional will not be allowed to apply for reinstatement until five years has elapsed from the date of the revocation.
For less severe, but serious matters, the Board is able to impose probationary terms which may include continuing medical education, drug and alcohol testing, public service requirements and the like. The Board can also order the professional’s license to be suspended for a set time and then grant a “stay” of the suspension, subject to acceptable compliance with certain probationary terms. A stayed suspension allows the professional to practice but gives the Board the power to reimpose the suspension if the professional violates the requirements of the Consent Decree Careful consideration must be given to all aspects of the proposed sanction that the licensed professional will agree to because each sanction has its own set of ramifications concerning third-party payors, hospital staff membership and employment and shareholder relationships.
The State Boards do have a responsibility to treat professionals fairly, but they also must protect the safety of the public. Unfortunately, when a professional’s conduct is under the microscope of a Bureau prosecutor, even professionals who have never experienced any question about their professional abilities or reputation often become viewed in the same light as those professionals who suffer from a poor reputation and those who have a chronic problem with professionalism. Therefore, prompt remedial action is recommended to demonstrate to the Bureau prosecutor that the conduct under examination, if problematic, is an aberration and not a pattern of misconduct. The licensed professional needs to be creative to adopt a proactive approach that can blend public service, additional education, therapy, treatment, testimonials and other information to impress the Board that the event in question is either not something that should be sanctioned or that the practitioner is entitled to a progressive sanction that will permit him or her to practice. At the same time the Board must be able to demonstrate to the public that the sanctions it imposes are reasonable and necessary to improve the practice of medicine for the benefit of all Pennsylvanians. This tension presents unique challenges and significant responsibilities to all those who are involved in the disciplinary process.
David R. Dearden, Esq., is a shareholder of the law firm of Kalogredis, Sansweet, Dearden and Burke, Ltd. in Wayne, Pennsylvania.