The Board of Medical Practice Improves Its Complaint Handling System

By: KENT G. HARBISON

January 1995 (As seen in Minnesota Medicine)

When the Minnesota Board of Medical Practice^* was created in 1887, it was intended to serve basic licensing and regulatory functions. It established testing and licensure requirements for physicians, set basic medical practice standards, and performed a variety of regulatory roles, including the job of policing and disciplining licensed physicians for violations of the standards. During the past 10 to 15 years, handling disciplinary complaints has almost overshadowed the board's other functions.

Before 1985, the board received an average of 220 complaints against physicians per year. Although the number of licensed Minnesota physicians has grown somewhat since that time (now slightly less than 15,000), the number of complaints filed with the board in recent years has grown at an almost phenomenal rate - nearly 1,200 reports each year. For several years, the board attempted to manage this growth in complaints mainly by seeking legislative approval to increase the size of its staff, particularly the number of investigators from the board and those provided to the board by the Minnesota attorney general's office. Even adding more investigators, however, has not been totally satisfactory. Because it may take an average of 12 to 18 months to complete the complaint review process, neither the persons who file the complaints nor the physicians who are the subjects of them are usually satisfied, and certainly the board and its own staff would like to expedite the process, as well.

In the past two and one-half years, the board has taken some laudable actions to deal more efficiently with the growing number of complaints. During this period, the board has made three significant changes to its complaint processing system: 1) the use of a triage process for screening all complaints against physicians, 2) the use of "corrective action" agreements as an alternative to discipline, and 3) the development of the Health Professionals Services Program, a nondisciplinary diversion program for certain impaired physicians, established by the Minnesota Legislature in 1994. (This program is discussed in detail in the September 1994 Minnesota Medicine, page 41.) Given the significant changes in the board's disciplinary process during the past two years, this article is offered as an update of "The Board of Medical Practice and Its Disciplinary Process" from the December 1991 Minnesota Medicine.

The Board's Makeup

First, a review of the board's makeup may be helpful. The board comprises 15 members, 10 of whom must be Minnesota licensed physicians with doctor of medicine degrees. One member must be a doctor of osteopathy, and the remaining five members are lay persons. Each member must be appointed by the governor, who typically receives nominations from various professional organizations, including the Minnesota Medical Association. Two other requirements for membership on the board are significant: 1) the overall makeup of the board must reflect a state geographic balance, and 2) the 10 M.D. members must "reflect the broad mix of expertise of physicians practicing in Minnesota." All members serve terms of four years; no member may serve more than eight consecutive years.

The process for handling complaints against physicians has several components. The full-time board staff, which is managed by an executive director, handles the bulk of the initial complaint review process. The staff is often assisted by the attorney general's office, which provides legal advice through assigned attorneys and legal assistants, who handle a wide range of investigative and interviewing functions for the board. The board also designates six of its members to serve on two three-person complaint review committees. Each committee usually consists of one lay member and tow professional medical members. In late 1992 the board also began for the first time referring relatively routine or minor complaints to physicians appointed by the board as "medical coordinators, who are not board members, as a part of the new triage system.

Complaints- Many Sources, Many Reasons

The board's disciplinary function usually is triggered when an outside entity or person files a complaint or similar report with the board. Most physicians probably believe that patients are the primary source of complaints. Although patients do make such reports, there are many other sources, including relatives of patients, pharmacists, the state Medicare/Medicaid program (especially regarding prescription practices), and even physicians themselves. Because the board in recent years has shown a strong interest in enforcing the statutory obligation of most physicians to report misconduct by other physicians and even themselves, more reports are being made by physicians.

Complaints reported directly by patients can probably be reduced substantially simply by better communication between physicians and their patients. A fair number of patient complaints are generated because patients are upset by or misunderstand comments from physicians. This is particularly true with respect to complaints of perceived sexual or physical overtones. Overall, the types of complaints are almost unlimited. They can range from very minor criticisms, such as long waits in a clinic, to very serious allegations, such as sexual abuse, criminal fraud, or alcoholism. Since the mid-1980s, the most common allegations filed against physicians have included inappropriate prescribing practices, boundaries issues (physical/sexual contact), improper management of medical records, and alcoholism or other forms of chemical dependency.

The Minnesota Medical Practices Act set outs more than 20 different statutory classifications of misconduct justifying some type of disciplinary sanction. Some of these categories are quite narrow, such as the revocation of a physician's license by another state or physician's conviction for certain types of criminal offenses. Other categories of misconduct are quite broad, such as "engaging in unprofessional conduct."

As noted above, physicians may also be disciplined for failure to report their own violation of any part of the Medical Practices Act. The board also has the power to discipline physicians for not reporting personal knowledge of misconduct by another physician. No report is required, however, if the knowledge was obtained during a physician-patient relationship if the patient is the reportable physician, so long as the treating physician "successfully counsels" the other physician to terminate the conduct in question. Finally, the board can discipline physicians who are already the subject of investigation if they refuse to "cooperate" with the investigation. There is little guidance in the law regarding the definition of "cooperation." but refusal to cooperate surely would include a physician's refusal to submit to an interview or product records in response to the board's investigation requests.

Triage Screens Complaints for Severity

All complaints, regardless of their type, are now processed through the board's triage system, which was implemented in the fall of 1992. Misconduct allegations are initially analyzed by board staff members and one of the medical coordinators (currently three) retained by the board to assist with this program. Most complaints are then sent to other board staff members or investigators at the attorney general's office to obtain information pertinent to the subject of the complaint. Collection of such information may include asking the physician to provide a written response to the complaint or submit to a personal interview and often will also entail the production of medical records, consultants' reports, and other relevant documents. Depending on the severity and urgency of the complaints, this information fathering may take many weeks or months to complete.

All of this information, which at this stage is confidential and not available to the physician, is given to one of the two board complaint review committees to evaluate. The complaint review committee acts initially as a screening mechanism without any personal contact with the physician. It may choose at this early point to dismiss the complaint without any further proceedings, or it could conclude that discipline is justified and make a recommendation accordingly to the board. Another option is to have the complaint investigated further for more complete consideration during a conference with the physician before the complaint review committee (discussed below) or one of the medical coordinators. The triage panel may believe that a physician has technically violated the Medical Practices Act but in a relatively minor manner that does not justify discipline. In such a situation, the panel may refer the report to a medical coordinator, who would schedule an informal one-on-one meeting with the physician to discuss the complaint at the board offices. Physicians are generally notified of these meetings by telephone rather than letter but are usually expected to travel to the board offices in St. Paul for the meeting.

Physicians asked to meet with a medical coordinator probably can conclude that the board has tentatively determined that the complaint is relatively minor and not likely to result in discipline. The primary purposes of the medical coordinator meetings are to confirm whether the tentative conclusions are accurate and to provide a subtle message to the physician to be careful to avoid further complaints.

Although the medical coordinator sessions usually result in complaint dismissals, the medical coordinator has the authority to refer complaints back to the complaint review committee for more formal review and consideration. Thus, physicians should be well prepared and are wise to be accompanied by an attorney, to which they are entitled. The meetings usually last no more than 30 to 45 minutes.

The use of the triage approach and the medical coordinator sessions was intended to help the board eliminate many of the hundreds of complaints on file at any given time. This approach has been somewhat successful, but there are so many complaints on file with the board that it still often takes at least nine to 12 months to resolve them, and in some cases, much longer. Nonetheless, the recent changes in the process have begun to bear fruit. At the end of fiscal year 1991, the board had 1,8744 unresolved complaints on file. By the close of fiscal year 1992, the number of pending complaints had dropped to 1,295, and as of April 1994 the total was 990. These numbers are still quite large, but the trend is promising.

The board usually processes the more serious complaints through the complaint review committee conference system. This does not mean that physicians directed to appear for a conference with a complaint review committee should assume they are likely to be disciplined. In fact, the majority of all complaints ultimately are dismissed without any public record.

Complaint Review Committee Conferences

The complaint review committee conference is somewhat more formal than the medical coordinator meetings and usually covers issues or subjects of greater concern. The basic purpose of the conference is to give the committee members and the physician a fuller opportunity to speak directly to one another regarding the accusations of misconduct and to ensure that the board's decision is based on more complete information than that presented during the investigative stage of the process.

Physicians are entitled to be represented by attorneys at these conferences, and again, such representation is wise.

Physicians who are directed to appear for a conference with a complaint review committee are usually given written notice approximately one month before the conference. Conferences are held at the board offices in St. Paul, and the board seldom agrees to reschedule them.

A conference notice typically identifies the factual allegations against the physician and describes the physician's legal rights and responsibilities. The notice also refers to the specific sections of the Medical Practices Act that will have been violated if the allegations of misconduct are true. The notices state that the reports constitute only "allegations," and that the board has not made any prejudgments regarding their validity.  he purpose of the conference is to help the complaint review committee make that decision after questioning the physician.

Because the Medical Practices Act provides that all parts of the investigative and predisciplinary determination are confidential, the physician is not entitled to know the source of the complaint. If the subject matter f the complaint necessitates the review of patient records, the board usually will issue a subpoena for records, which it is entitled to do under the Medical Practices Act. Sometimes the board will also provide the physician with a statement by the patient authorizing the physician to release the records to the board.

In some cases, it is not possible for the physician to respond adequate to a complaint without knowing the identity of the patient involved. For example, if a physician is questioned regarding prescribing practices over a period of years, the board usually focuses on prescriptions to specific patients on specific dates. In fact, conference notices in prescribing cases may contain many pages of information for each patient's prescriptions, such as date of issue, type of prescription, and dosage amounts. However, unless the identity of the patient is critical to the physician's defense of the allegations, the board usually will not disclose it.

The confidentiality requirement has a twofold purpose. First, if the source of a complaint knows that his or her identity will not be disclosed to the physician, the complainant will be more willing to submit a complaint. Second, it is unfair and a breach of privacy to disclose publicly allegations that may not constitute a reason for discipline, especially since most of the complaints are dismissed.

The conference before a complaint review committee usually lasts about one hour, depending on the number of allegations and their seriousness. The conference is tape recorded and closed to the public. The only persons present besides the physician, the physician's attorney, and the three committee members are the committee's attorney and usually four to five other board staff members, including the executive director. In most cases, the committee meets for an entire day, scheduling several separate physician complaint conferences that day.

The conference is usually a question-and-answer session between the physician and the three members of the committee. The committee chair usually begins the conference by asking specific questions related to the allegations contained in the Notice of conference. Other committee members also usually ask questions and, of course, the physician is the person expected to answer. Occasionally, a consultant may assist the committee in asking the questions, especially if the allegations center on a specialized practice area that may be beyond the expertise of the individual committee members. (Sometimes the committee will rely on a report from a consultant who previously reviewed the allegations and the medical records to help determine the validity or seriousness of the allegations.)

The committee's attorney seldom asks any questions at all; those who do ask questions usually limit them to one or two. The committee usually gives physicians and their attorneys an opportunity to make closing statements or other comments to ensure that the physician's side of the story is presented. Although it is not generally appropriate for the physician's attorney to answer many committee questions, the attorney can help clarify issues and questions for the physician.

At the end of the questioning, the committee usually excuses the physician (and attorney) from the conference room while it discusses the allegations and evidence. The committee then promptly informs the physician of its recommendation, which is almost always adopted by the full board.

Board Options for Resolving Complaints

The decision by the complaint review committee usually comes in one of five forms.

Dismissal: It may dismiss the complaint, meaning that the case is closed and confidentiality maintained. (Again, the full board must approve complaint review committee decisions, but it is rare that such decisions are not accepted.)

Further investigation: The committee may send the case back for further investigation or consideration by consultants, especially when the committee is concerned that the evidence is incomplete or believes an expert opinion from a specialist is needed.

Disciplinary sanction: The committee may recommend some type of disciplinary sanction against the physician. These sanctions may range form a simple reprimand to the revocation of a physician's license. Revocation is quite rare, but the board has almost unlimited discretion in fashioning other types of remedies or sanctions, including requiring the physician to attend refresher courses on particular subjects (such as prescribing practices or patient boundaries), assessing monetary fines of up to $10,000 per violation, and placing other conditions on a physician's license.

Minnesota courts have made it clear that the primary purpose of board disciplinary orders is to protect patients and the public at large rather than to punish individual physicians. In other words, the board should not discipline a physician unless it is convinced that the discipline will help protect and serve patients and the public generally.

Corrective action agreement: A fourth option available for a complaint review committee is "corrective action agreements." The corrective action remedies are settlement agreements between the board and a physician whereby the physician agrees to make certain changes in his or her practice or to take some type of refresher course in exchange for the board's ultimate dismissal of the complaint. Although corrective action agreements are technically part of the board's public files, they are not considered forms of discipline and are not reported separately by the committee to the board. They are also not reported to the news media, whereas disciplinary remedies are. The use of corrective action agreements represents another effort by the board to expedite the investigative process and to help eliminate some of the complaint backlog. The board began using corrective action agreements when it adopted the triage system.

As Minnesota Medicine goes to press, the board's complaint review committees have entered into corrective action agreements in 19 cases: seven for chemical dependency or mental illness, nine for competency (including prescribing practices and record-keeping), and three for patient boundaries.

Referral program: The fifth and most recent remedy is the "Health Professional services Program" created by a 1994 statute. The board may refer certain impaired physicians to a treatment and monitoring program as an alternative to discipline (see September article, page 41).

The Physician's Options

Because the committee's decision at the complaint review conference is often a recommendation for the full board, the physician has the option of accepting or rejecting the recommendation. If the physician chooses to reject a recommendation of discipline, he or she has the right to a full evidentiary contested case hearing before a state administrative law judge. This hearing is quite similar to a court trial and enables the physician to present his or her own evidence and witnesses and to cross-examine the opposing witnesses. At this stage of the proceeding, the physician also has the opportunity to learn the identity of the complaining person or persons and has access to some of the board's previously confidential files affecting the case.

Although the right to an administrative contested case trial seems attractive, it is not necessarily what it may appear. The decision of the administrative law judge is simply a report of the findings of fact and legal conclusions based on the evidence presented during the trial or hearing. The judge does not make the final decision regarding whether or not discipline is to be imposed; rather, that decision remains with the full board after it receives the report and transcript of evidence from the administrative law judge. Consequently, so long as the board concludes that a physician has engaged in some type of misconduct or violation of the Medical Practices Act, regardless of how significant or insignificant, it still has the authority after an administrative trial to impose public disciplinary sanctions against the physician.

A physician also has the right to challenge the board's final decision through an appeal to the Minnesota court of Appeals, but the courts have often shown great deference to the board's decisions. The courts' attitude seems to be that, so long as the board's decision is reasonably supported by the evidence in the administrative law judge's report, that courts will not set aside a disciplinary decision based on that evidence. This is true even if the court itself might subjectively believe that discipline is not justified.

Given these factors and the time and expense necessitated by an administrative contested case hearing, physicians rarely challenge board decisions through a contested case hearing or judicial appeal.

Reporting Requirements

The board is required by law to periodically publish a summary of all disciplinary decisions against physicians to the Legislature and the news media. Furthermore, all disciplinary decisions must be reported to the National Practitioner Data bank in California, which was established several years ago as a national record center and monitoring system for physicians throughout the country, State licensing boards, hospitals, and certain other entities may have access to the Data Bank records to determine whether physicians have been disciplined or otherwise had their licenses restricted.

There are two exceptions to the public reporting requirement concerning medical board decisions. Discipline imposed because a physician is impaired and unable to practice medicine with reasonable skill and safety is specifically exempted by state law from being reported to the news media, although the decision is in the board's public files and available for inspection. This is more fully explained in the September article on the Health Professionals Services Program. Also, corrective action agreements between the board and physicians are not reported to the news media because they do not constitute disciplinary decisions. These agreements are, however, part of the board's public files. (A pending or dismissed complaint is not reported or otherwise open to the public.)

No Statute of Limitations

Unlike most other legal claims, medical board disciplinary investigations and remedies are not restricted by a statute of limitations. The board has the power to investigate and discipline physicians for alleged misconduct occurring even 10 or 20 years in the past. In fact, it is not unusual for the investigation and the conference with a complaint review committee to be held one or two years after the complaint has been filed with the board. These facts definitely raise the possibility of complaints reported at a time when witnesses and other evidence are no longer available or the witness's memories of the case have greatly faded.

Perhaps the most extreme illustration of the dilemma potentially created by the absence of any time limitation arises in the context of patients who have received therapy for emotional, psychological, or other mental illnesses. For example, a patient may allege that a physician violated professional boundaries in the physician-patient relationship 15 years before the patient's memory was refreshed so that he or she could recall the violation. Furthermore, the patient hypothetically could wait another two to three years before reporting the allegation to the Board of Medical Practice.

Conclusion

In light of all these factors, a physician is well-advised to take seriously all medical board investigations. Even though most board complaints are dismissed without any public record, there is too much at stake for a physician to participate in the process without careful preparation and advice.

The board has recognized the problems created by the growing number of complaints lodged with it - problems for physicians, patients, and the board itself. During the past three years the board has attempted to eliminate from the disciplinary system frivolous complaints and to expedite the processing of all reports. In the meantime, it attempts to strike a balance between the perception in some quarters, including the news media, that it is too lenient with "bad" physicians and the perception among many physicians that it is unnecessarily accusatory and punitive. Considering the competing interests and conflicting opinions, the board is not likely ever to satisfy everyone.