An Ounce of Prevention . . . and Then the Cure
Preventive medicine is a hallmark of medical science, a distinct area of medical practice developed to keep us healthy and disease-free and to prolong life. It is so essential to our collective well-being that individual states separately license preventive medical specialists in a broad range of health care skills.
It is no small irony that, when it comes to the legal field, doctors need their own prevention specialists. They need to understand and prepare for the many pitfalls of medical practice, the kinds of mistakes, habits, and sometimes compulsions that can propel doctors down a path full of legal jeopardy and jettison or greatly impair their medical careers. A major error can lead to the suspension of a license to practice medicine or, worse, a permanent ban.
There are a variety of problems that can land doctors in front of licensing boards. All are, at least in theory, preventable, but when they do occur, it is essential to have experienced legal support like the Lento Law Firm to navigate you through the process. Your livelihood is literally on the line. Legal protection is essential at that point, like oxygen.
Before addressing the specific hazards, we want to generally review some steps doctors can take to help avoid or limit legal and administrative entanglement down the road. The more efficient your medical services operation, the more proficient you and your staff are paying attention to detail and the well-being of your patients, both physically and emotionally, the fewer problems you will have and the more prepared you will be for those that crop up. In this regard, ask yourself the following questions:
- Are your office systems and technologies reviewed periodically to make sure they are working well and keeping pace with new developments?
- Have you and your staff, as applicable, stayed abreast of medical trends? Do you have a system in place to make sure that happens?
- Do you acknowledge to your patients when you may not have gotten something precisely correct or even made a mistake? In other words, do you have an established and genuine routine of building trusting relationships with your patients?
- Similarly, do your patients feel you are accessible and willing to have open lines of communication?
- Have you built an office culture that encourages and even empowers your staff to bring patient problems to you? Does your team, like your patients, find you accessible and open to feedback?
- Do you and your staff jealously guard patient confidentiality?
- Is your office recordkeeping diligently maintained and flawlessly accurate?
- Are you keeping up with continuing education requirements in your jurisdiction?
- Do you have patient feedback review systems in place so you avoid not only individual issues, but tendencies that, if left unchecked, might develop into problematic patterns with overall services? Similarly, do you have follow-up procedures that ensure that what your patients are to do once they leave your care does not fall through the cracks of their everyday lives?
Grounds for Investigation
Of course, sometimes things happen, despite best efforts and good intentions. Sometimes serious problems arise and put at risk all you have invested. Here is a summary of common problems that can undermine your medical practice and future livelihood and how the Lento Law Firm can help.
Unethical Behavior. We live in a cultural environment that has little tolerance for discrimination based on race, gender, or religion. Doctors are commanded to treat patients equally. And it is not always about what you do as a physician. What kind of office culture do you have? How have you assured that your patients are not subject to discrimination in treatment, even in the subtle ways, from the time they make an appointment, enter the office, and leave after treatment or consultation? Unethical and discriminatory treatment is a sure-fire way to trigger a complaint that finds its way before a licensing board. The importance of vigilance in this area today cannot be overstated.
Patient Abuse. We know that medical practice can be stressful, especially in the current climate. People sometimes forget that doctors are people like the rest of us and are prone to the pressures and stresses of their lives. One area, however, that can put doctors in the crosshairs of a licensing board is patient abuse, whether it is expressed emotionally or physically. Sexual abuse, in particular, is a major trigger. The medical profession as a whole, and disciplinary bodies in particular, elevate patient trust to near the top of the list of what doctors are expected to build and honor scrupulously. Any slip there can undermine a medical career.
In most cases, the problem arises from not knowing patient boundaries. Each patient, of course, is different. Each has different limitations. It is not always easy to know them, but knowing them is important if you want to avoid a problem in this area. Understand their fears and apprehensions. Never take their comments personally. Seek empathy with them, trying to see the world through their eyes.
It is also helpful now and again to step back and do some self-assessment to make sure that patient trust and respect are not getting lost inside the rigors of the professional work you do as a doctor. It is easy to lose sight of individual differences in patient sensibilities during the course of a busy medical practice. Some review from a distance is helpful.
Prescription Drug Violations. We've seen it in the news. Doctors who overprescribe, maybe to please the patient, maybe to enhance the relationship. The death of Michael Jackson is a high-profile example. Sure, the Jackson case was extreme. The offending physician had become Jackson's personal drug dispensary. But the power that your medical license accords you to prescribe medication also comes with a huge responsibility. In the Jackson case, the patient reportedly begged for drugs to help him sleep, and the physician acquiesced, and there lies the lesson.
Prescribing unneeded medication, no matter who the patient is, no matter what their pleas for help, is a medical taboo, and disciplinary boards will not hesitate to haul you before them if you cross that line. From their standpoint, it is not merely about the one patient; it is about protecting the community from endangering practices or tendencies. This is an area where doctors should be fiercely vigilant, especially when prescribing powerful medications.
There is another lesson in the Jackson case that bears mention here: record keeping. Be diligent in making sure you have a clear record of every drug you administer and prescribe to patients. Gaps in the record will not only look sloppy but will raise questions about intentions. The last thing you want is a medical review board thinking you falsified records to avoid detection of improper practices.
Case in point: a doctor in New Hampshire, in her 80s, refused to adapt to modern practices of computerizing records, insisting on the old school practice of jotting everything down on paper. The fast pace of medical practice and the risks inherent in not using a commonplace computerized system produced mistakes and eventually caused her to surrender her license rather than have it revoked.
Relationships with Big Pharma. Under the category of it goes without saying, one practice that will for sure land a doctor in hot water with a licensing board is receipt of kickbacks from pharmaceutical companies or other third-party vendors. It is well established that pharmaceutical companies pay doctors billions of dollars in the aggregate for consulting and promotion of products. Pharmaceutical companies are constantly searching for ways to incentivize physicians to promote their products. It can be a dangerous slippery slope. Whether a given practice slips into an illegal kickback depends on the circumstances. It is one thing to receive money to help promote a drug and quite another to get paid to prescribe specific drugs to patients, which is illegal. When is the line crossed? It can be tricky.
Insurance Fraud. Health insurance today is a hot button. Many in the general public are frustrated with their ability to access sound medical services because of gaps in their health insurance, or their lack of insurance. Many doctors, in turn, are frustrated with insurance companies. It is no secret that they can be difficult to work with. They are businesses and can be restrictive in recognizing coverage. The challenge for doctors is making sure they toe the line when it comes to dealing with insurance companies, in maintaining accurate medical records, using the correct insurance codes, and charging similarly situated patients the same rates, that is, not charging uninsured patients differently than insured patients. Tinkering here and there, while seemingly harmless in a specific situation, can give rise to a charge of insurance fraud, despite good intentions to help patients ease the financial burden of medical services.
Substance Abuse. It is not surprising that a doctor with a substance abuse problem can easily jeopardize a medical career. The last thing patients deserve is a doctor with an addiction. This is not the place to address how to handle the problem. There are plenty of options out there. It is worth noting, however, that licensing boards can be sensitive to the problem and will refer doctors to treatment facilities if the physician acknowledges the disease and demonstrates a genuine commitment to getting better. It can be a complicated issue when it is part of a licensing review process, but the Lento Law Firm prides itself in handling these situations in a way that will produce the greatest long-term good.
Malpractice. Malpractice tends to be a private headache that, more often than not, is resolved through insurance and litigation settlement efforts. But if the matter is serious enough, the issues in the civil litigation matter might wind up before a licensing board. That is why we often stress to our clients that civil disputes with patients over medical care should be handled with the worst-case scenarios in mind.
It is true that malpractice litigation doesn't often produce an administrative complaint, but if the underlying facts portray the physician in the worst possible light, at least bad enough to suggest they are a threat to patients or if the allegations about lack of care can be classified as gross negligence or worse, there is a genuine risk that the licensing board might want to take a serious look at what happened. At the Lento Law Firm, whenever malpractice is alleged, we want our clients to understand the full range of risks they face, not merely the most immediate and visible ones.
Keep in mind that an insurance carrier providing a defense to a malpractice lawsuit has two related things chiefly in mind: minimizing out-of-pocket costs and putting off the day when they might have to make good on an insurance claim. They are not thinking about implications for you beyond the single claim and risks that may exist to your license and livelihood. That is what the Lento Law Firm does.
Convictions. A felony conviction or pending criminal charge does not necessarily mean loss of a medical license, unless they also involve violation of a licensing regulation. The question is whether the conduct that gave rise to the criminal charge or conviction is deemed, for example, “unprofessional conduct” or “moral turpitude” in the relevant licensing jurisdiction. In some states, however, it could be as simple as any conviction of a crime under state or federal law. Note that the conviction does not have to be related to medicine. A tax evasion conviction, for example, often will suffice. In contrast, a conviction for driving while intoxicated often does not result in loss of license, unless other crimes are involved or is a repeat offense. Mitigation can help. Personal circumstances do matter, and when facing a licensing hearing because of a prior conviction, it is vital to develop a record that will present a more balanced picture and put you in the best possible light.
Appreciate too that a conviction could have implications apart from a suspension or revocation of a medical license. It could also result both in employment termination and getting barred from participating in certain federal programs, like Medicare or Medicaid. Thus, you could survive an investigation with your license intact and wind up without a job or with limited access to your medical field. That is why, again, at the Lento Law Firm, we encourage clients to carefully consider the complete array of risks we can outline for them when facing these sorts of legal problems. A comprehensive reassessment allows us to assemble a broadly protective strategy for you.
The Licensing Hearing Process
If you find yourself facing an administrative hearing before a disciplinary board, it is essential to retain counsel immediately to defend your interests. At the Lento Law Firm, we want to get started as soon as practical. The process tends to move quickly. We need your keen attention and commitment to help us help you. Your integral involvement is essential for a successful defense.
Preparation. The key to handling a disciplinary proceeding is preparation. The process is much like any civil or criminal trial. You have to marshal all available evidence to combat the specific allegations, and you need a well-considered comprehensive game plan that ties specifically to what is being asserted, keeping in mind all other possible ramifications.
Roughly speaking, if the facts alleged against you are untrue or untenable, the defense strategy will be a full-fledged attack on the merits of what is asserted. Suppose there is truth in the allegations, at least to some extent, and in hindsight, you may have made mistakes and are willing to acknowledge them confidentially with us. In that case, the strategic focus will tilt toward laying out strong mitigation showing by providing evidence to explain to the board what happened to offset the results of whatever missteps occurred, to some or a great extent. That way as well, we can create leverage to extract a compromise (discussed as part of outcomes below) that may work for you.
Except in extreme situations, while the administrative matter is pending, you should be able to continue working as before, subject to any employment contract provisions that the pending charges might invoke. The right to uninterrupted medical practice during the administration process, however, does not mean life as usual. You may want to consider how the problem came to be in the first place and whether there are adjustments you can make to avoid a recurrence and at the same time allow us to trumpet any changes as a sound basis for mitigation.
Range of Outcomes. While we have alluded to some of this, here is the range of outcomes from the administrative hearing process.
- No Action. To state the obvious, this is always the preferred outcome, convincing the licensing board that you have done nothing to warrant any action by them, that you have not violated any rules, regulations, or laws, that the evidence is insufficient to warrant any punitive action, and that as a result, they should dismiss the proceeding on a no-action basis. That is the medical administrative equivalent of a criminal trial acquittal.
- Warning or Reprimand. A warning or reprimand is the least severe form of sanction. While it might seem like a slap on the proverbial wrist, it can have consequences for your medical practice. It also becomes a strike that will compound things for you in the event you again wind up in a later disciplinary proceeding. A warning or reprimand is, at best, a mixed outcome, but it is preferable to others.
- License Suspension. Suspensions are by their nature severe. They put your medical practice on hold for a specified term. Licensing boards do not take suspensions lightly and tend to impose suspensions for severe forms of malpractice.
- License Revocation. The most severe of the administrative penalties, license revocation, will follow from errors that fall way below an acceptable standard of care. This is where criminal convictions have application, especially serious felonies. While appealing a reprimand sanction or license suspension is not always automatic, the termination of your right to practice medicine normally is. The lack of a license is the death knell of a career, placing you at a difficult crossroads. Do you give up the fight or continue trying to save your livelihood?
- Consent Decree or Settlement. It is important to mention the prospects of a consensual resolution. Striking a deal allows you in part to control risk and is often a wise strategy. It can be difficult initially to consider an agreement that imposes a measure of penalty. We at the law firm understand the powerful urge to have your ”day in court” and have a voice in the battle against allegations you did something wrong. But one of the benefits of hiring the Lento Law Firm is our commitment to provide a candid assessment of risk, our best effort to handicap the range of possible outcomes so that you can make an informed and diligent decision about whether to strike a compromise and keep your livelihood alive.
We are mindful that this process can be exhausting and emotionally draining. At the Lento Law Firm, we believe in serving the whole client. We will have your back and be your warrior throughout the process.
If you want us to review your medical practice to see if you are checking all the prevention boxes, please reach out to us. If things have escalated and you are facing legal jeopardy, do not hesitate to contact us. The sooner we are able to help you, the more effective our representation. You've worked too hard and long to build a professional life to not have experienced legal counsel be your compassionate champion. We stand ready to protect your rights and your livelihood.
Call the Lento Law Firm at (888) 535-3686.