Board Investigations: Proceed With Caution

The Rhode Island Board of Medical Licensure & Discipline is empowered to license qualified applicants, investigate complaints and charges of unprofessional conduct, and evaluate the competency of any licensed physician (R.I. Gen. Laws chapter 5–37–1.3). Like the other professional boards within the Rhode Island Department of Health, the Board of Medical Licensure & Discipline may issue subpoenas, take depositions, and summon and examine witnesses during an investigation or hearing. If there is “probable cause” to believe that allegations of misconduct against a licensed physician are caused by impairment, the Board may even order physical or psychiatric examination of the physician in question. The Board is comprised of four licensed allopathic physicians, two licensed osteopathic doctors and five public members, one of whom must be an attorney with experience as plaintiff’s counsel in the presentation or prosecution of medical malpractice claims. With its significant authority and diverse membership, the Board is charged with not only regulatory responsibility, but also a role in patient advocacy and protection.

For these reasons, a physician facing a complaint of unprofessional conduct or an investigation triggered by a “sentinel event” should proceed with an abundance of caution. Frank Connor, a partner in the Providence office of Barton Gilman LLP, is an experienced medical professional liability defense attorney. As part of his practice, Frank regularly represents physicians who are facing Board investigations in both Rhode Island and Massachusetts. Below, he explains key elements of Board proceedings, and dispels some common misconceptions about the process.

Q. If I receive a Board inquiry, is it better to handle it alone? Does hiring an attorney make me look “guilty”?

A. Proceeding alone is certainly an option, but it is simply a myth that hiring an attorney makes a health care provider appear “guilty” to the Board. While the Board’s job ultimately is to act as an advocate on behalf of patients and consumers, it is responsible for conducting fair and impartial investigations. The Board realizes that physicians want to protect their professional interests, and it is accustomed to dealing with attorneys representing physicians during investigations.

Q. My husband’s best friend is a real estate lawyer. He can advise me, right?

A. Hiring an attorney is a good start, but the best choice is to hire a medical defense attorney who practices regularly before the Boards within the Department of Health. This is a specialized area of law. A lawyer with experience representing physicians in connection with Board investigations will help you navigate the nuances of the Board’s administrative process, will know the unwritten rules attendant to making your case effectively before the Board, and is familiar with the Board’s priorities and current hot-button issues that may require special attention. Look at it this way: If you are an ophthalmologist, your husband’s best friend shouldn’t seek care from you for a cardiac condition. In the event of a Board inquiry, your best bet is to hire an attorney who specializes in these matters.

Q. I received a letter from the Board asking for comments in relation to a complaint against me. I don’t really need a lawyer to respond to a letter do I?

A. Generally speaking, it is a not a good plan to wait for a more “serious” inquiry from the Board – it is usually too late. Once the Board issues a finding of unprofessional conduct, it is extremely difficult (usually impossible) to put that proverbial toothpaste back into the tube and persuade the Board to reconsider its finding.

Q. Can’t I just turn the letter from the Board over to the risk manager and let the hospital handle it?

A. While you have important personal and business relationships at the institutions where you have admitting privileges, the hospital’s interests and your interests may or may not conflict. The job of the hospital’s attorney is to ultimately protect the hospital. Retaining your own attorney is the best practice for all concerned. Of course, the analysis may be different for a physician who is employed by the hospital.

Q. Does my professional liability insurance cover the defense of a Board investigation?

A. Your professional liability policy may very well include some coverage for defending against an investigation by the Board, and the physician generally has complete autonomy regarding the selection of her or his attorney under such coverage. The extent of the coverage depends on the policy terms, and your attorney can assist you in making the claim properly so that any available coverage is secured.

Q. Is a Board inquiry similar to a morbidity and mortality conference?

A. No. The Board acts as a consumer advocate and is responsible for protecting patients. It is not a “peer review” process. Not all members of an investigating committee are physicians, or even physicians in the medical practice area at issue. The Board process is unlike a morbidity and mortality conference in another important respect – it is not a confidential proceeding. This means a plaintiff’s lawyer who later represents the patient in question could obtain a letter you write on your own as part of an investigation and use it against you in a lawsuit down the road.

Q. Can I assume that the Board will get all the pertinent medical records and that a peer in my specialty will review them?

A. In a word, no. The Board has limited resources, and it is never certain that they will gather all of the medical records from the patient’s other providers, or that a physician in your specialty will have input on the issues. It is usually necessary to persuade the Board’s counsel that fairness requires these extraordinary steps.

Q. Do I need to respond right away to a Board inquiry?

A. No. The Board routinely grants courtesy extensions. You should take the time needed to prepare a response and retain an attorney experienced in representation before the Board.

Frank Connor is a partner at Barton Gilman LLP and has defended physicians and other medical professionals against allegations of malpractice in the courtroom for more than 20 years. He also has decades of experience representing clients in connection with investigations by the Rhode Island Board of Medical Licensure & Discipline, the Massachusetts Board Registration in Medicine and Medicaid/Medicare billing authorities.