1. Do not respond hastily. Resist the temptation to answer it yourself immediately, in the hopes that a quick response from you will result in the Board’s quick dismissal. Wait, even if the allegations are completely frivolous. No matter how quickly you respond, the Board can take months or years to act. Whatever you do, you could be living with this complaint hanging over you for a while.
2. A defense lawyer might be free. The first thing you should do is call your malpractice carrier because your policy might pay for your legal defense.
3. Preserve the medical record. Do not make a single alteration for any reason.
4. Hospital notification. Check the medical staff bylaws everywhere you have privileges as the bylaws might require that you inform the hospital of any pending Board complaint whether or not the allegations have merit.
5. Hire a lawyer! You should be represented by a lawyer with experience at the Board of Medicine. Individual state agencies have their idiosyncratic quirks and “traditions.” There are many lawyers with experience at the Medical Board, so find one!
6. Help your lawyer be efficient. Even though your insurance might be paying for your lawyer, a typical policy can cap coverage at $25,000, or less. A defense in a more complicated case can run through the policy limit sooner than you realize, so strive to help your lawyer be efficient. One way to reduce your lawyer’s time is to provide a written, detailed chronology that is responsive to the complaint.
7. Patient privacy. The Board’s complaint cover letter will typically say that HIPAA “…provides that otherwise protected health information may be disclosed to a health oversight agency for activities that include disciplinary actions,” and “[t]he Board clearly meets the definition of a health oversight agency.” The Board’s statement of the law is, in my view, a bit incomplete. According to HIPAA, doctors are prevented from disclosing medical information when a state law is more protective of patient privacy than HIPAA. In Alberts v. Devine, 395 Mass. 59 (1985) the Supreme Judicial Court stated, “. . . in this Commonwealth all physicians owe their patients a duty, for violation of which the law provides a remedy, not to disclose without the patient’s consent medical information about the patient, except to meet a serious danger to the patient or to others.” HIPAA is complex. Without a release from the patient or the patient’s legal representative, and even with a Board subpoena, it is not at all clear that you can provide patient health information to the Board. The complaint might have been filed by your patient’s relative without the patient’s knowledge. Without a release from the patient, you need to proceed with tremendous caution.
8. The possible good news: a letter from the Board is better than a phone call. If you first learn about the complaint through a telephone call from a Board investigator or prosecutor, the allegations likely have already been escalated and appear to the Board to be on the more serious side. So, a letter from the Board enclosing the complaint and asking for your side is, relatively speaking, “good news.” (And if you get that phone call, obtain legal advice before speaking with the Board!)
9. Don’t lie to your lawyer. When you speak with your lawyer, do not commit a “sin of omission.” Your lawyer loses credibility at the Board, and you hurt your case, if your lawyer doesn’t have the full picture. And don’t lie to the Board. Tell your lawyer what happened and leave it to your lawyer to defend you. Remember the adage, “It wasn’t the crime, it was the cover-up.” The Board most certainly has taken this approach.
10. Don’t look for vindication. Here is what the Board typically writes when it closes a complaint: “We have determined that no further action is warranted and the complaint has been closed. Information concerning this matter will be kept on file at the Board. We reserve the right to reopen the complaint should you commit any violation of Board statutes or regulations in the future.” Though a bit ominous sounding, in reality it is an A+: the best outcome possible.
About Attorney Andrew Hyams
Attorney Andrew L. Hyams specializes in representing physicians and other health professionals in licensing and disciplinary matters before their respective regulatory boards. He served as the General Counsel at the Massachusetts Board of Registration in Medicine for five years. Andy has also been Deputy General Counsel at the Boston Public Health Commission. He is admitted to practice in Massachusetts and New York.
Andy can be reached at firstname.lastname@example.org or 781-997-1566.