Is an Attorney’s Help Necessary When Responding to a Medical Board?
The North Carolina Medical Board (NCMB) was established on April 14, 1859, “in order to properly regulate the practice of medicine and surgery for the benefit and protection of the people of North Carolina.”
The NCMB is governed by Chapter 90 of the NC General Statues. This law is generally referred to as the Medical Practice Act (“MPA”). It grants the Board the authority to license and regulate physicians, physician assistants and a handful of other medical professionals. The MPA outlines the Board’s disciplinary responsibilities and gives specific examples of the types of conduct that may result in discipline. The Board may only take action when conduct is found to violate the MPA.
Section 90-14 of the Act lists specific acts and reasons that may result in disciplinary action. They include:
Immoral or dishonorable conduct
Failure to maintain acceptable standards of care; lack of professional competence
Making false statements/representations to the Board
Being unable to practice medicine with reasonable skill and safety to patients due to alcohol or substance abuse, dependence and/or addiction
Certain criminal convictions; conviction of a felony
Falsely advertising or representing professional credentials, training or education
Promotion or sale of drugs, devices, appliances, goods or services to patients in an inappropriate, exploitive manner
All quality of care complaints are reviewed by a physician or physician assistant on the staff of the Board. The Board staff will obtain copies of medical records or other documents associated with the case. An independent expert medical review may also be obtained in some quality of care cases.
Physicians commonly ask, “Should I hire an attorney in response to a NCMB inquiry? And if so, when should the attorney be hired?”
You should strongly consider retaining legal counsel when you are notified that a complaint against you has been filed with the NCMB. Most professional liability carriers will provide their policyholders with some degree of assistance in responding to a NCMB inquiry. You would be wise to check with your carrier to clarify what kind of support it provides under your policy.
The NCMB’s process in responding to complaints
After NCMB receives a complaint, its first step is generally advising the physician that a complaint has been filed. NCMB typically provides the general nature or details of the complaint. NCMB may also request or issue an investigative subpoena for medical records. At this point, it would be advisable for the physician to notify their professional liability carrier in order to obtain any legal support that is available under their policy and/or to hire an attorney. You should obtain legal counsel at the inception of the process. You want your attorney on board from the beginning.
It is worth noting that once NCMB reviews a complaint and medical records for the case in question, it can close a case without further action. A NCMB investigator may, as a next step, interview the physician and other individuals to obtain additional information. As this is a fact-finding stage, it is critical for NCMB to receive as much accurate information as possible to aid in its decision-making process. The physician’s attorney can help prepare the physician for this interview and accompany them to the interview to help them with any questions that might arise.
When review by the Board identifies a possible problem, a physician may be invited to a private conference with members of the Board to determine what, if any, action is required. Your attorney can attend this conference with you and help you prepare. These conferences may a) reveal no problem exists, b) serve to correct a minor problem, or c) lead to formal action. When formal action is required, the physician may be offered the option of signing an agreement (called a “consent order”) to address the problem. Consent orders most often require changes in practice or behavior and place conditions or limitations on practice.
If a consent order cannot be reached, the Board will file charges and allegations and hold a hearing. Your attorney can help you prepare for the hearing and also represent you at the hearing. If the Board finds at the hearing that the physician has violated the Medical Practice Act (MPA), it may revoke, suspend, or otherwise discipline the physicians’ license or approval.
If the Board believes a physician is an imminent risk to the public, it may take emergency action by ordering a summary suspension prior to public hearing. Cases are heard by the full Board, a panel of the Board, or an administrative law judge. In the two latter situations, recommendations are made to the full Board for final action. For the past several years most cases have been heard by a quorum of the board, typically eight of the twelve members. Hearings are open to the public. Charges, consent orders, and other Board action documents are public and available on the Board’s Web Site.
What are the possible outcomes of a complaint?
Complaints are most often resolved in one of three ways.
No formal action. Typically, this is the result when no violation of the Medical Practice Act has occurred. However, the information is kept on file. This allows the Board to spot recurrent issues or a pattern of behavior that may cause the Board to intervene in the future.
Private action is taken. There may be no violation of the Medical Practice Act that warrants public action, the Board is nonetheless concerned about some aspect of the physician’s conduct or performance. In such cases, the Board takes private action such as a confidential letter of concern to the physician that cautions against repeating similar conduct. Alternatively, physicians may be brought before the Board for a private interview. The contents of the letter or interview are confidential.
Public action is taken. In these cases, the Board determines there was a violation of the Medical Practice Act and takes formal public action. For example, this may be in the form of a public letter of concern, an Order imposing conditions or restrictions on the license, a suspension of the licensee’s authority to practice medicine or some other type of action.
In conclusion, physicians who are subject to a NCMB complaint of any type should understand and fully cooperate with the investigatory process. The consequences can be serious. A physician’s medical license could be at stake. Most medical liability carriers provide policyholders with some degree of legal assistance in responding to NCMB when a complaint has been registered, so physicians should notify their liability carriers as soon as possible and/or secure the assistance of a knowledgeable and skilled attorney.
Robert S. Shields, Jr. is a partner with the law firm of Manning Fulton & Skinner in Raleigh, North Carolina. He has represented physicians before the North Carolina Medical Board and in Medical Malpractice lawsuits for over 20 years.