If you are a physician facing an investigation or charges by the PA Board of Medicine, you will have many questions and concerns. First, know that you are not alone. In 2022, over 3,000 physicians faced disciplinary board actions in the US. Thousands of other physicians faced board investigations without formal charges. The Lento Law Firm Team is experienced in representing physicians and medical professionals facing disciplinary issues in Pennsylvania.
Types of Disciplinary Actions
Disciplinary proceedings typically deal with allegations of incompetence, illegal conduct, or unprofessional conduct. These proceedings can result in serious discipline, up to and including the denial or revocation of the right to practice medicine. The PA Board of Medicine, under 63 Pa. Stat. §422.42, may take the following actions against a licensed physician in order of severity:
- Revocation of License – The physician may no longer practice medicine.
- Suspension of License – The physician cannot practice for a specific time or until an occurrence.
- Restricted License – The physician is restricted from some types of practice, such as prescribing controlled substances or performing types of surgery or care.
- Probation – The Board will closely monitor a physician's practice.
- Conditional License Restrictions- the physician may not practice until completion of training or continuing medical education.
- Reprimand – The Board issues a letter of reprimand or concern about the physician. This becomes part of that physician's disciplinary record and can be accessed by employers, patients, members of the public, and other parties.
- Fine – The Board orders a physician to pay a particular amount as a penalty.
Obviously, the loss of a license or restriction placed on a license most concerns a physician facing a disciplinary charge. But even a reprimand or other lower-level discipline can have a detrimental effect on the physician's career. Unlike many other professions, physicians are obligated to disclose past negative licensing events repeatedly to agencies, employers, and insurers. So, every time a physician faces credentialing, applies for professional insurance, or seeks admission or recertification to a Board, they are faced with explaining a past reprimand. Because of the potential costs of a charge over a lifetime, it is a sound investment to vigorously defend your license and reputation before the Medical Board.
The Most Common Mistakes Physicians Make in Disciplinary Proceedings
Physicians spend years training and preparing to practice medicine and save lives. But when faced with allegations of wrongdoing from the Board of Medicine, many doctors make one serious mistake—they fail to hire experienced counsel to defend their license.
Many hospitals and clinics have first-rate legal counsel. But it is a huge mistake to rely solely on these attorneys or work they may have done in a civil action if you face Board discipline. In-house counsel serves the interest of the hospital or healthcare system, which may or may not be in sync with the best interests of the physician. Further, these attorneys are not specialists in license defense before the Board of Medicine. Any physician accused of malpractice or misconduct needs an attorney representing their interests with experience before the Board.
The Lento Law Firm Team
The Lento Law Firm Team is an experienced license defense group dedicated to helping professionals defend their licenses. When you retain the Lento Law Firm, you retain a premier group of talented attorneys, paralegals, investigators, and experts to defend your reputation and livelihood.
Board of Medicine Disciplinary Charges
The PA Board of Medicine licenses physicians in Pennsylvania and is the body responsible for the discipline of physicians. Disciplinary charges arise in a variety of ways but often come to the Board's attention in one of three ways:
- The National Practitioner Database notifies the Board of a malpractice settlement or payment.
- Criminal charges or investigations from law enforcement or a regulatory agency are reported to the Board.
- A Complaint is made to the Board by a patient or other party.
The Board of Medicine will provide notice of an investigation by letter to the physician against whom the allegations are made. This letter does not mean that the Board believes or is substantiating the charges—it is a notice to the physician and an opportunity for the physician to be heard. Charges will vary in terms of severity, but any disciplinary charge before the Board is serious and could impact your license.
In many instances, the formal charge can be avoided altogether if the physician secures experienced counsel and acts quickly and deliberately to protect their license.
Board of Medicine Charge Is Not a Criminal Proceeding or a Civil Lawsuit
A formal charge before the Board of Medicine is a significant issue, but it is an administrative proceeding and not a criminal or civil action. Board of Medicine allegations go to the fitness of an individual to practice medicine—they are not criminal, and there is no criminal liability at issue before the Board. While a civil action for malpractice may result in a Board letter, this is not a civil proceeding where one party seeks money to compensate for a loss. The Board of Medicine will deal strictly with your license, although they do have the power to fine a physician. Even in the absence of a fine, a charge can be costly in increased insurance premiums and the loss of employment or business opportunities.
In PA, the Board of Medicine Complaint Process is covered by Title 49, Chapter 16, Subchapter E of the Pennsylvania Code. This subchapter provides a framework for all disciplinary matters for physicians, although the process varies greatly in different situations.
Initial Investigation and Review
After receipt of information, the Board investigatory staff will decide whether the information or complaint merits further consideration. Under Title 49, § 16.41, the Board may have a Prosecutor who will investigate the truth or validity of the complaint, initiate investigations and prosecute disciplinary issues. This Board Prosecutor will decide whether to initiate formal charges and will report back to the Medical Board.
Settlement Prior to Formal Charge
In many instances, a physician is aware of a pending issue, malpractice suit, or other allegation prior to formal action. Even in the absence of a formal charge, under 49 Pa. Code § 16.55(d), the Board Prosecutor may enter negotiation at any stage of a complaint and may settle the case by agreement. In these situations, an experienced attorney may be able to address the issue and come to an agreement with the Board and its staff. In this way, the formal charge is avoided altogether, and the reputation of the physician is protected.
A physician facing potential charges has every incentive to attempt to settle the issues early in the process with their attorney. The terms of the settlement are confidential until a formal agreement is reached, and admissions made in the consent agreement rejected by the Board are protected. But use care and discuss any admissions of fact with your attorney prior to making statements to the Board Prosecutor. It is essential at this phase to have an experienced attorney guiding you through a settlement with terms that will provide the greatest protection and least inconvenience to you in the future. This is particularly vital if drug or alcohol violations are at issue—before any type of consent agreement, make sure you have spoken with counsel.
Formal Charge/Complaint and Response
If the Board Prosecutor determines that a formal charge is warranted and a settlement cannot be reached, the matter will proceed to a formal complaint charge and process. At this stage, the physician will have the opportunity to present a written summary of the case and to present witness statements or documents.
The Board will request complete files of pertinent documents—this might be malpractice action paperwork or a patient medical record. The Board Prosecutor will have broad discretion to take witness statements or depose witnesses, which is the taking of a witness statement under oath. Depending on the nature of the allegations, an expert witness may be required under 49 Pa. Code §16.52a.
Any physician facing formal charges may request an administrative hearing before a Hearing Officer. This hearing is an opportunity for Due Process – which is a legal term that simply means that you can tell your side of the story and present evidence to a neutral finder of fact. Strict rules of evidence do not apply in this type of proceeding, but the Hearing Officer will put witnesses under oath and will ask about the authenticity of documents. Presenting your evidence to the Hearing Officer is a daunting task, but a good legal team will guide you through your theory, testimony, and documents.
Appeal From the Hearing Officer's Decision
The Decision of the Hearing Officer will generally become final 20 days after issuance. If the licensee files a notice of appeal, the Board will review the Hearing Officer's decision. The Board will review the record (transcription of testimony and exhibits) from the Hearing Officer but can also hear additional testimony. The Board will then issue a Decision with factual findings and legal conclusions. If the Decision of the Board is not sound, you will have 30 days in which to appeal to the PA State Commonwealth Court.
What Puts a Medical License at Risk in PA?
Many physicians are completely blindsided by a Medical Board complaint and letter. In other instances, you may be aware of allegations or civil proceedings and wonder if the Board will become aware of these charges or if you have a duty to report misdemeanor criminal charges or nominal settlements. There may not be a clear answer, but in other instances, a failure to report is a serious error. If in doubt, consult an experienced legal counsel.
National Practitioner Database
After a settlement or verdict/judgment in a medical malpractice action, a report is made to the National Practitioner Database. The Database will notify the Board of Medicine of the cause of action and the result. The Board of Medicine will typically ask the physician in question to explain the malpractice allegations. If you have questions on whether you must report an event to the Board or whether a settlement will be reported to the National Practitioner Database, make sure to consult an attorney before settlement.
Charges or Investigation/Audit
The Board may also become aware of allegations or charges of criminal wrongdoing. This may happen through the report of abuse allegations, an audit, or through the reporting from state or federal law enforcement or regulatory agencies.
Criminal charges often become Board issues at 3 critical times:
- Initial licensure by the Board.
- Report of conviction against a currently licensed physician.
- Recertification of a license.
Act 53 and Effect of Criminal Convictions on Licensure
At one time, professional boards considered “crimes involving moral turpitude” or similar wording. In a world of changing ideas of morality, this language can seem out-of-date. In 2020, the PA Legislature passed Act 53, which sought to simplify what sort of criminal charges should impact all types of state licenses, including licenses to practice medicine. For the most part, the Board of Medicine has broad discretion to license individuals with criminal convictions and to consider mitigating factors with three notable exceptions.
Three Exceptions - Criminal Charges of Particular Concern
- Sexual Offenses. Rape, sexual assault, and several other sexual offenses are an absolute bar to the practice of medicine in Pennsylvania. If you find yourself facing allegations, consult an attorney immediately.
- Crimes of Violence. Crimes of violence are not necessarily a bar to a medical license, providing that 3 years have passed since you have served your sentence (or probation or other requirements) and you have remained crime free. In that case, the Board may consider granting a license. It is important if you have been convicted of a crime involving violence in your past that you seek counsel and formulate a plan given your circumstances.
- Drug Trafficking. The Board may license someone with a drug trafficking conviction after 10 years or after a finding that you no longer pose a risk and otherwise are qualified to hold a medical license. Once again, if you find yourself facing allegations of this type, it is vital that you secure experienced counsel quickly.
Other Criminal Charges That May Impact a Medical License
- Medicare or Medicaid Fraud
- Unlawful Acts under Pharmacy Act
- Neglect or Abuse of a Care-Dependent Person
- Human Trafficking or Employing Victims of Human Trafficking
- Female Mutilation
- Child Abuse Investigation Violations
- Medical Marijuana Violations
- Unlicensed Practice
Assessment Factors the Board May Consider
In determining whether criminal convictions are problematic for a physician licensed in Pennsylvania, the Board may consider the following factors:
- The facts and circumstances of the conviction.
- Other convictions or criminal history.
- Any other information the Board deems relevant or you wish to provide.
Most professional licensure actions deal with alleged behavior that may not be criminal but is unprofessional or shows a lack of ability to practice responsibly. 49 Pa. Code §16.61 defines Unprofessional Conduct by a physician, which may include:
- Disclosing facts obtained through the physician-patient relationship in such a way that the patient may be identified personally.
- Violating a regulation concerning the practice of medicine.
- Performing medical treatment in an incompetent manner or for which the physician is not competent to provide.
- Guaranteeing a cure without condition.
- Advertising in a deceptive fashion.
- Practicing fraudulently.
- Practicing while impaired by drugs or alcohol.
- Permitting an unlicensed provider to provide medical care for which a license is required.
- Possessing, using, distributing, or prescribing controlled substances without an acceptable medical purpose.
- Treating a patient by a secret method, the physician refuses to disclose to the Board.
- Charging a patient or a third party for a service not provided.
Denial of License During the Application Process
The Board may deny the license application of a physician after a background check. Every application for a PA license to practice medicine involves a long list of disclosures and background checks. The applicant must list every place they have lived, worked, or trained in the previous 10 years. This data will be used to determine what type of background check is required.
- For applicants who have lived or trained within the State of PA only, you may obtain a Criminal History Record Check (CHRC) as part of the application process.
- For applicants that have lived in other states, you must obtain a CHRC from the other states in which you have resided or trained and an FBI Identity History Summary Check. Some states (AZ, CA, and OH) will not provide the record checks to the Board, so you should submit the FBI Identity History Summary Check and any state records that are available to you.
When Additional Information Is Required in a License Application
The Board of Medicine will require additional explanations in your application if your application contains the following:
- A criminal history.
- Disciplinary actions from another state.
- A malpractice complaint.
The Board first asks that you provide a handwritten summary of the circumstances surrounding the action or incident. The Board will also ask that you provide copies of any court documents, disciplinary actions or malpractice claims, or settlements in your history. Include the entire document, even pages without relevant information. Be sensitive to any appearance that you are hiding information.
Physician's Data Center
The Federation of State Medical Boards (FSMB) maintains a database of disciplinary actions and other information. The PA Board of Medicine relies on this Data Center and will likely become aware of any past discipline or other misconduct. It is best to be proactive with good legal counsel if you know of events in your past that will be problematic. Contact legal counsel and get assistance in drafting an explanation and telling your side of the story.
Do Not Wait To Begin Defending Your Medical License
Allegations of illegal, incompetent, or immoral behavior can put a license to practice medicine at risk, whether in an initial application or in continued licensure or recertification. Often, physicians are aware that some challenges they are experiencing will eventually result in a Board investigation. Do not wait to begin defending your license or your ability to be licensed. Remember to keep records and copies of all pertinent information for your counsel and to use care in any interaction with the Board or other legal authority or agency. Most importantly, take the issues seriously and find legal counsel who can secure the best outcome for your individual situation.
Areas We Serve in Pennsylvania
The Professional License Defense Team at the Lento Law Firm represents clients throughout Pennsylvania, including physicians who practice in the following areas:
We represent physicians who worked at the Milton S. Hershey Medical Center, University of Pittsburgh Medical Center, Temple University Hospital, Lehigh Valley Health Network, St. Luke's University Network, Penn State Children's Hospital, UPMC Harrisburg, the Allegheny Health Network, or any medical facility in Pennsylvania. The Lento Law Firm Team can represent your interests in multiple state licenses if necessary.
License Defense Team for Pennsylvania Physicians
No matter your area of practice, the Lento Law Firm Team is the premier license defense choice for physicians in Pennsylvania. If you are facing allegations of misconduct before the Board of Medicine, don't go it alone. The PA Medical Board has vast resources and investigatory powers, and you may find yourself quickly “above your head.” Hundreds of professionals have trusted the Lento Law Team to fight for the best possible outcome for their case. The Lento Law Team can evaluate your case and provide the guidance you need to put this challenging time behind you. Call 888.535.3686 or contact us online now.