Across the country, medical boards are picking up the pace when it comes to handling complaints. In 2003, boards took 4,590 prejudicial actions such as revocations, suspensions and reprimands directly affecting a physician’s license to practice medicine. That figure is 10 percent higher than the previous year and almost 50 percent higher than in 1993.1 Of course, there are more physicians today than there were a decade ago. However, the recent rise also reflects procedural changes that have allowed a number of boards to resolve complaints more expeditiously.2 Many of these changes involve the way board investigators and attorneys do their jobs. The pressure is on to turn around cases more quickly and efficiently. In state after state, investigators and attorneys are rising to the challenge.
And what a challenge it is, given the limited manpower and resources at many boards. In Kentucky, for example, there are five investigators whose caseloads include physician assistants and athletic trainers in addition to M.D.s and D.O.s. Their responsibilities involve not only conducting investigations and testifying at hearings, but also supervising professionals after the board has taken action, making sure that licensees comply with board orders or stop practicing after their licenses have been suspended or revoked. It adds up to a heavy workload. “We might have 25 to 30 investigations that we’re conducting at one time,” says Bonnie Reitz, an investigator whose cases are scattered throughout eastern Kentucky. “In addition, I’m currently supervising 47 people in my region.”
SECRETS OF THEIR SUCCESS
Put the most productive investigators under a magnifying glass, and you are apt to find a combination of dedication, experience, and training. Reitz, for instance, spent 23 years in law enforcement before joining the Kentucky Board of Medical Licensure two years ago. In her current job, she juggles a demanding caseload that includes a number of tough prescribing cases. About half of her time is spent on the road. Yet, despite the difficulties, Reitz echoes the sentiments of many investigators interviewed for this article when she says, “It’s the busiest job I’ve ever had, but I love it.”
When hiring new investigators, most boards want prior experience in law enforcement, administrative investigation or health care. “If you’ve got some experience and already understand how to go about conducting an interview, that helps you get productive a little sooner,” says Jeffrey Lane, director of investigations for the Georgia Composite Board of Medical Examiners. “But what I look for even more than that is attitude, motivation and self-discipline.” Because investigators often travel and work on their own, being a self-starter is especially critical.
Once you’ve hired the right people, the next logical step is to provide them with adequate training. As a practical matter, however, the nature and extent of the training that is offered varies widely from state to state. In Utah, where board investigators are sworn peace officers, “the first thing we do is send them through the police academy,” says Bob Downard, an investigative supervisor for the Utah Division of Occupational and Professional Licensing. “Then we put them through an extensive field training program. If I’ve got a person with a law enforcement background, one of our nurses will do the field training, and vice versa.” The unit Downard supervises is charged with investigating compliance cases for boards representing the whole gamut of health care professions, ranging from medicine and nursing to chiropractic and dentistry. Therefore, one focus of the field training is to familiarize investigators with the statutes, regulations, and policies of all the various boards.
In Washington, the board sends its investigators to state-run training courses modeled after programs developed by the Council on Licensure, Enforcement and Regulation (CLEAR). At CLEAR-style courses, investigators learn the ropes of professional conduct, administrative law procedures, investigative processes, evidence gathering, interviewing, and report writing.3 One problem, however, is that Washington’s courses are only offered sporadically. “Some investigators are here several months before they have an opportunity to take a class,” says James Smith, chief investigator for the Washington Medical Quality Assurance Commission. “But we try to get them in within the first year.” In the meantime, newcomers work with an experienced investigator who provides on-the-job training.
In Maine, Seth Blodgett, a detective in the Office of the Attorney General, took a class in medical terminology when he was first assigned to work on cases for the Maine Board of Osteopathic Licensure and the Maine Board of Licensure in Medicine. In general, he says, “an investigation is an investigation is an investigation,” so he was able to draw on his background in law enforcement. However, Blodgett says he also found the specialized lingo of medicine can be a challenge for those without a health care background, so the class came in quite handy.
INVESTIGATION 101
Whatever training method is used, one of the most important lessons taught is a clear understanding of what an investigator’s job is and what it is not. Ken Spooner, assistant director of investigations for the New York Office of Professional Medical Conduct, has been responsible for training the investigative staff there for 15 years. He offers these three pieces of advice to new investigators:
Know your jurisdiction. Says Spooner, “Realize that you can only investigate the people that the law allows.” In the case of his office, that includes physicians, physician assistants and medical residents.
Know your statutory authority. “For example, our board can authorize the use of subpoenas in aid of an investigation, but otherwise we don’t have search warrant authority,” says Spooner. “If you step outside the bounds of your authority, it can create all kinds of legal problems.”
Leave your bias at home. “This is otherwise known as maintaining your objectivity,” says Spooner. “We all have our personal feelings about right and wrong. However, when it comes to the conduct committed by licensees, right and wrong is established by law, not by feelings.”
To build a strong case, Spooner tells investigators they need to “clearly understand how misconduct is defined by statute. Then focus the investigation on proving or disproving each element of the misconduct.” A laser-sharp focus becomes even more crucial in a budget-conscious era when boards are often asked to do more with less. “A lot of time is wasted investigating stuff that really isn’t legally defined as misconduct,” says Spooner. “All states are burdened with not enough staff and not enough resources. It does not help matters any when investigators stray away from what their authority is and how misconduct is defined by their state.”
Ultimately, of course, the responsibility for deciding whether a given piece of physician conduct is actually misconduct rests with the board, not the investigators. However, the investigators are still crucial players, because it’s up to them to collect the evidence on which the board’s decision is based. Different states differ in the degree to which they take a police-like approach to evidence gathering. In Georgia, for instance, medical board investigators are sworn peace officers. “We have the authority to make arrests, execute search warrants, and work cases through the criminal process as well as the administrative process,” says Lane. When there is a criminal angle to a case, they can collaborate directly with law enforcement in a way that investigators from most other states cannot. However, even in other states, Lane believes investigators may benefit from forging alliances with law enforcement agencies. For example, Lane gets the word out about who the medical board is and what it does by giving talks to local law enforcement associations and writing articles for local police journals.
At the Arizona Medical Board, a somewhat different philosophy prevails. As in most states, board investigators in Arizona are not sworn peace officers. Senior medical investigator Robin King, for one, prefers it that way: “I believe it’s a much fairer system for the physician. When you go into an investigation with the idea that the doctor is a perpetrator and the patient is a victim, I think it sets you up for antagonistic interactions with the different parties.” King’s boss, board assistant director Barbara Kane, uses the term “clients” when talking about physicians under investigation. But while this softer approach might be anathema to hardliners, it still seems to get the job done. The number of prejudicial actions taken that year was more than double the number just four years earlier.4
ATTORNEYS AT LAW
Once the evidence has been gathered, it is time for the attorneys to step in. Several boards have beefed up their legal staff in recent years.5 For example, Texas’ litigation team has grown from five attorneys in 2002 to 11 in 2004. The growth was necessitated by new legislation requiring that cases be resolved within a set time frame. In the past, a backlog had accumulated. “We were behind because the number of complaints was huge, and the staff was low,” says Michele Shackelford, general counsel for the Texas State Board of Medical Examiners. With the additional staff, she says, “we got all of our backlog caught up in 2003.” And although the cases just kept coming in 2004, “we’re now able to get them out in a timely fashion.”
New board attorneys, like novice investigators, are sometimes stymied by unfamiliar medical jargon. “I took several courses in medical terminology and in anatomy and physiology. I think it helps when it comes to reading medical reports and understanding what doctors are talking about,” says Steve White, former chief of litigation for the Texas medical board. In addition, all boards have medical experts on hand to answer questions about medical practices and procedures. White says, “If you don’t have a medical background, don’t be afraid to ask the experts.”
One way in which boards can stretch their legal resources is by prioritizing how they use their attorneys’ time. In Texas, “we now have all our standard-of-care cases reviewed by a panel of two or three experts, at least one of whom has the same specialty as the respondent. It’s no longer a single expert opinion saying this is below the standard,” says White. “As a result, by the time standard-of care cases get to us, they’re more likely to be clear violations of the Medical Practice Act.”
Once a complaint is filed, most physician-respondents get attorneys of their own. Sometimes, the physicians’ attorneys try to put up roadblocks for the board’s legal and investigative staff. At this stage, “it’s not unusual for an attorney to file a continuance, and we try to work with them on that,” says Mari Robinson, manager of investigations for the Texas board. “However, while it’s not the majority of cases, it’s not uncommon for an attorney to still turn over records late or a physician not to respond at all.” If a licensee ignores a subpoena, the Texas board will open a new complaint against the physician for failing to respond. “Eventually, we’ll either get the information or we’ll be at trial seeking disciplinary action for not turning over the information,” says Robinson. If the person ignoring a subpoena is not a licensee, the Texas board refers the matter to the attorney general for prosecution.
In addition to using delay tactics, “some physicians’ attorneys will try to divert attention from the licensee and his misconduct to the investigator and the caliber of his work,” says Spooner. “During the course of a hearing, the licensee’s attorney may start criticizing the manner in which the investigator handled a particular interview or wrote up a report.” Spooner says the only surefire way to counter this maneuver is by making sure that your investigative technique is above reproach. “Maintain your objectivity, and always be professional,” he advises. In addition, it is essential to follow proper procedures, keep scrupulous notes, and write clear, accurate reports.
CLEARING HURDLES
One problem that many board investigators face is the need to cover a large geographical area with a relatively small staff. In Alaska, for instance, there are only two investigators to cover an area almost one-fifth as large as the entire rest of the United States. “It is impossible to travel to all the locations from which complaints are generated,” says Colin Matthews, senior investigator for the Alaska State Medical Board. “If there is a complaint involving sexual misconduct or some other very serious breach of patient boundaries, we will go to the complainant or conduct in-depth telephonic interviews.” In other cases, however, the investigators rely heavily on certified mail. Despite the limitations, Matthews says, “what we do works well for us.”
Texas not only is the second-biggest state by size, but also has the third-largest number of licensed physicians. To monitor more than 51,000 licensed physicians, nearly 40,000 of whom are currently in practice,6 the Texas board has 21 field investigators scattered throughout the state. These investigators work out of their homes rather than a central office. Geographic proximity makes it easier for them to conduct face-to-face interviews or personally serve subpoenas. In addition, Robinson notes that investigators who live in the regions they cover “become familiar with the physicians there and know what’s going on in the community.”
Another problem faced by many boards is a limited budget. Some states try to overcome this barrier by pooling the talents of investigators for several boards. In South Carolina, for instance, a July 1, 2004, reorganization within the Department of Labor, Licensing and Regulation brought investigators from 16 health-related boards under one umbrella. Henry Morgan, chief of investigations for the new unit, says the change should cut out duplicated and conflicting efforts. As an example, he cites a recent complaint involving two physicians and a nurse. In the past, two investigators — one from the medical board, and one from the nursing board — would have made the 70-mile trip to gather evidence, and both boards would probably have issued subpoenas for the same records. Now, a single investigator is handling the whole case.
In Colorado, board are refocusing from specialist investigators to generalists. Although board investigators there all work for a central office, in the past, individuals have tended to focus primarily on one board or another. Since early 2004, however, a new policy has been in place to discourage this kind of specialization. Linda Volz, program director for the Office of Investigations, says the policy allows for greater flexibility in distributing the workload. “I can depend on a lot of different people if something happens,” says Volz. “If my regular board of medical examiners investigator is tied up and I get a priority case in, for example, I can depend on somebody else to take it up with little, if any, guidance.” In addition, Volz says she hopes the change will reduce the impact of staff turnover. “If someone specializes and we lose them, we lose that expertise, and we have to start over from the ground up,” says Volz. To prevent this situation in the future, “we’re doing a lot of cross-training, so that all our investigators have at least a good basic knowledge of the practice acts of all the boards.”
If there is one point that everyone seems to agree upon, it is that being a medical board investigator or attorney is a highly demanding job that requires considerable skill, motivation, and dedication. “In a very general sense, I estimate that it takes about three years for an investigator to really learn this job,” says Joan Jerzak, chief of enforcement for the Medical Board of California. It can be a challenge for boards to find, train, and retain good investigators and attorneys. Yet the payoff in successfully resolved cases and stronger board actions is well worth the effort.
SUCCESS STORIES
A board’s investigative and legal team can make or break the case against a dangerous doctor. These examples illustrate the system at its best.
In New York, one case involved a physician with an alcohol problem, who was clearly impaired but stubbornly resisted all recommendations for treatment. Eventually, the board had no choice but to summarily suspend her license. “When our investigator went to the physician’s house to serve the order, he found a moving van in the driveway,” says Spooner. Talking with the van driver, the investigator soon learned that the doctor was headed for North Carolina, where she also held a medical license. “When we found that out, we notified North Carolina and got our documents down to them,” says Spooner. “Almost before the doctor was able to unpack the truck, the North Carolina board summarily suspended her license and stopped her from practicing there.”
In Texas, the medical board recently took on an orthopedic surgeon who has reportedly been sued for malpractice several dozen times. Among other things, it was alleged that this surgeon had performed numerous unnecessary operations. “Some of his patients had three or four back surgeries, none of which were really necessary, and there were a number of bad outcomes,” says Steve White. “What made the case tough, however, is that almost all the surgeries had been approved through the workers comp system.” Arguably, then, the surgeries had been deemed reasonable and necessary — even though most experts agreed that they actually weren’t. To counter this argument, “we had multiple experts testify rather than just one,” says White. He also stressed the quality of the experts’ testimony. “Many administrative law judges don’t have medical backgrounds, either,” says White. “You have to educate the judges why this was unnecessary and why it was below the standard of care and put the patient in jeopardy.”
REFERENCES
- 1.↵Federation of State Medical Boards. Summary of 2003 Board Actions. Dallas, TX: Federation of State Medical Boards; April 5, 2004.
- 2.↵AdamsD. More doctors disciplined as states bolster medical boards. American Medical News. April 26, 2004.
- 3.↵Council on Licensure, Enforcement and Regulation. About the NCIT basic program. Available at: http://www.clearhq.org/basic.htm. Accessed August 25, 2004.
- 4.↵Federation of State Medical Boards. Summary of 1999 Board Actions. Dallas, TX: Federation of State Medical Boards; April 4, 2000.
- 5.↵Adams.
- 6.
