Few things are as important to a doctor as his license to practice medicine.
The North Carolina Medical Board (“Board”) is charged by the legislature with regulating the practice of medicine for the benefit and protection of the people of North Carolina. Therefore, board investigations are serious business and practitioners should take them as such. This article provides important information and guidance useful for navigating an investigation of the board.
Complaint vs. Investigation
The Board receives information from a variety of sources, including complaints from others, self-disclosures (mandatory or voluntary) from licensees, reports from malpractice insurers, hospitals and other licensing bodies, media reports and data mining. In principle, any information brought to the attention of the board in any way can give rise to an investigation. As long as it’s sufficiently specific (e.g. “my doctor is unethical” isn’t enough) and alleges a violation of the Medical Practice Act (the state law that governs the board and its regulated community), the board is likely to do so initiate procedure request.
The Board uses two primary methods to question its licensee: a complaint or an investigation. Neither “complaint” nor “examination” are expressly defined in the Medical Practice Act. Generally, Board Complaints are dealt with through written correspondence between Licensee and the Board Complaints Department. In contrast, investigations are conducted through face-to-face contact between the licensee and a Board investigator. This article is primarily about responding to investigations. A previous article looked at how to respond to complaints.
Oftentimes, healthcare professionals respond to a complaint or exam simply as an annoyance and pay little attention to it.
Meanwhile, the investigation continues, with healthcare professionals often unknowingly missing the opportunity to influence its course. One possible result of a disciplinary investigation is the loss of your right to practice. Therefore, as soon as you become aware of the possibility of a complaint, it is vital that you take some time out to focus on this matter. Delaying your response or simply ignoring the request will only make the potential outcome worse, sometimes far worse than the penalty the allegation itself would have entailed.
response to the investigation
Full cooperation with the board brings the best results. This approach demonstrates professionalism, which is often the most important point from the point of view of the board of directors. In most cases, openness and simple explanations are sufficient. The best strategy is to show the board that they have nothing to worry about. When you know something went wrong, it’s usually best to acknowledge it and outline the steps that were taken to correct the problem.
Fast action is required. Board Rules (21 NCAC 32N.0107(d)) require”[a] licensee [to] interview within 30 days of the date of a verbal or written request from officers of the Board of Directors. The board may allow up to 15 additional days for the interview if the licensee demonstrates good cause for the extension.”
The practitioner almost always benefits from the involvement of an experienced attorney.
Sometimes a proxy is not required. More often, however, practitioners regret not having hired an attorney with experience in disciplinary healthcare matters. As with many medical conditions, treating a legal issue early can be the most cost-effective approach and often produces the best possible outcome under the circumstances.
When an investigator arrives:
Even if the agency’s investigators arrive unannounced with their demands or request short-term attention, courtesy and courtesy towards the agency and its employees are usually returned. When an examiner comes up, greet them even if they are busy with a patient (unless it would be unsafe for the patient to do so). Be polite. Be sure to identify them, whether by checking their credentials or calling the agency’s office. Ask them the purpose and scope of their investigation – they may not tell you, but they could.
If you have any doubts about whether you are or may become a target of the investigation, or if you have the slightest concern about complying with the investigator’s requests, contact your attorney immediately. Do not delegate dealing with the investigator to any of your employees; do it yourself. You can have someone make copies for you, but you talk to the investigator. Help them get a record if they lawfully force you to do so, but do not allow yourself to be questioned without your lawyer; Politely ask them to wait until your attorney can be present.
Comply with legal requirements
Oftentimes, agency investigators will show up with some sort of search warrant, subpoena, subpoena, or other request for documents or other items. It will be important to work with an attorney to determine whether the board has the authority to compel the item and to negotiate a mutually acceptable plan to meet legitimate claims.
For example, the investigator may request a medical record. The investigator may be authorized to record, fulfilling the request may be optional, or you may be forced to decline. If in doubt, seek legal advice. When permitted, it is usually better to provide a copy of a medical record than the original.
Allow the execution of search warrants
Search warrants are different. Licensing bodies do not typically use search warrants; usually this is a sign of a criminal investigation. If an investigator arrives with a search warrant, call your attorney immediately. Do not impede the investigator. Let them take what they want, but inventory what they take. Politely ask that they keep a copy of any vital information (such as a medical record) they take with them.
Board investigators are not professionals, but they are experienced investigators who are typically retired from law enforcement. Still, speak to them in professional rather than amateur language. They will ask for explanations or written comments if necessary. Express concern, but never anger. Always remember that this is not an opportunity for a debate on scientific ideas. It is always best to have an experienced attorney assist you in preparing for and attending interviews.
Professional indemnity insurance often covers defense against board requests. Insurance coverage under the misconduct policy varies: some provide coverage for most board requests; some only cover patient complaints or claims about patient care; Some only cover requests that could give rise to liability for malpractice, and others do not provide insurance coverage.
Many policies include a duty to notify the insurance company of a board request. Even if the policy does not contain any reporting obligation, you will usually be asked about the annual renewal. Failure to notify or answer an application question truthfully may result in denial of coverage or even cancellation of the policy. You should notify your insurer immediately so that a determination of coverage can be made.
Many insurance policies allow you to choose your attorney. Some pay the attorney directly; others reimburse you for part or all of what you pay.
While responding to an investigation can be one of the more stressful events of an expert’s career, you can overcome it. Understand that the process can take many months before a resolution is reached.