September 2004

Board complaints can be worse than lawsuits

by Timothy Feuling

Usually, when you think of professional liability insurance you think primarily of malpractice lawsuits. But you should also think about board complaints, since a good insurance policy will protect you against the high cost of defending yourself before your board.

At a Risk Management Conference in November 2002, speaker Eric Harris, J.D., Ph.D., surprised the audience by saying that complaints to licensing boards are generally more damaging to doctors than lawsuits. He was speaking specifically to psychiatrists at that presentation, but the observation holds true for most professionals, including doctors of chiropractic.

Thomas West, J.D., a former administrative law judge in North Carolina, whose practice now focuses on defending doctors against licensing board complaints explained some of the reasons for this. "Board complaints are time consuming, emotional and expensive," he stated in an interview published in The North Carolina Psychologist. "With Board actions now being reported to managed care companies, they can have a serious impact on the (doctor's) practice."

In addition, public access to licensing information ‑‑ including complaints ‑‑ is becoming more prevalent, particularly on the Internet. Soon, every prospective patient will no doubt "check up on you" before making an initial appointment. If your record shows that you were censured or otherwise found "guilty" of a board complaint, you could lose patients.

Finally, board complaints are also more dangerous simply because they're easier to file. Unlike a lawsuit, which is filed by the patient, anyone can file a board complaint against you ‑‑ a patient, the board itself, a member of the public, or the DC or MD down the street. The Internet also plays a part in this as well, since it provides ready access to information on how to file a complaint and often a means for doing so online.

Board complaints that aren't successfully defended can also cost you a great deal of money (in addition to the fine, you may be charged for the cost of the investigation and hearing) ‑‑ and possibly your license. Even a suspension can be a career‑ending penalty.

All this can happen even if you weren't in the wrong. Sadly, political and philosophical differences still influence board decisions and it is not uncommon for a board to overstep its authority and fine, censure, or even suspend the license of a doctor who fails to practice according to what the board members think is right.

Many doctors think that when they go before the board to answer a complaint, they are "innocent until proven guilty," as they would be in a court of law. They expect the same standard of justice to prevail.

However, as Portland, OR attorney Mary Nester noted in an article in an Advance Newsmagazine article, "because a license investigation is not a criminal action, you are afforded no constitutional rights to confront your accuser or have an attorney appointed to represent you. Further, because a license investigation is not a civil action, you may not be entitled to discovery of evidence that the agency may have to support its case. Some agencies may withhold evidence indicating that you did nothing wrong."

Nester also warned that "Most licensing boards have the authority to subpoena records without being obligated to notify you of this action. The board may obtain and review your personnel file, including any disciplinary records, your school records, patient records and, depending on the source of the complaint, quite possibly your own medical records. (Many state agencies interpret HIPAA as excluding them from notification and authorization requirements.) In many situations, you are the last person interviewed in an investigation."

If the board finds you didn't do anything wrong, the matter is closed and may remain confidential (although it may become public record depending on the rules of the board and the state).

If, after their investigation, the board thinks there is substance to the case, they hold an administrative hearing but, as an agency proceeding ‑‑ not a criminal or civil court case ‑‑ you have very few rights.

That's why an attorney is so important, even in seemingly "minor" case. Nester advises: "Take every board investigation seriously. Do not presume that because you are innocent, you will ultimately prevail."

Attorney Steven Shaber, who concentrates in health law and also frequently represents doctors facing licensing board action, adds: "The attention and care you pay to your initial response to a complaint is crucial. I think any professional person is shaken under these circumstances, so the services of an attorney are critical. If you and your lawyer marshal the facts right away, you may win without a hearing or settle on the best possible terms."

The problem is, of course, the expense of hiring an attorney and defending against a board complaint can be staggering. That's why it's essential for you to choose a professional liability insurance policy, like the one offered through Chiropractic Benefit Services Risk Management Group, that contains coverage for board complaints. If your current policy does not contain this critical coverage, you need to switch companies!

SOURCES: "What to Do if You Receive a Licensing Board Complaint," by Jane E. Perrin, Ph.D., The North Carolina Psychologist, January/February 2003.

Defending yourself against a BON Complaint, by Mary Nester, Advance for Nurses, June 10, 2004.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and a member of the Board of Directors of the World Chiropractic Alliance. He assists doctors in maximizing their practices through the proper choice of insurance and related services. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800‑883‑0412 or by e‑mail: feuling@cbsmalpractice.com).

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What to do if a complaint is filed against you with your state licensing board

Contact your insurance company if your policy covers board complaints. Regardless of your coverage, contact your attorney. If the complaint was filed by a patient, you may discuss the case with your attorney without the patient's permission. The courts have found that in medical malpractice cases, a patient gives implied content to waive confidentiality by filing a complaint or entering litigation, so records may be shared with the attorney "to the degree necessary to defend the claim."

The law gets trickier if the complaint concerns a specific patient but was filed by someone other than the patient (another DC, for example, which is an all‑too‑common occurrence!). There may not be an implied "waiver of confidentiality" in such cases, so begin by discussing the matter with your attorney without divulging the patient's name or specifics. The attorney will let you know if you can go further without violating patient privacy laws.

Do NOT contact the person who filed the complaint against you and do not discuss the specifics of the case with other DCs.

If your attorney needs supportive material on professional issues such as chiropractic guidelines, wellness or maintenance care, caring for children or asymptomatic patients, etc., check out the World Chiropractic Alliance Advocacy Council website.

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