ABSTRACT
A program of resolving cases that represent a serious cause of concern on the part of the patient public but do not rise to the level of misconduct has been presented. It is called a two-call case resolution strategy. Those cases that meet the criteria for such resolution span a variety of concerns of the patients and often to the physicians involved. By hearing from a physician employed by the state’s adjudicating board, the parties are often highly appreciative and the case can be closed in a rapid time frame, without further extensive investigation. A methodology for employing this strategy is presented. There are several nuances that are discussed to make the program work. We believe the three major clients of the department, the patient, the physician and the state, are fully satisfied with this program.
INTRODUCTION
The following strategy is presented for consideration by other states for resolving cases that do not require extensive investigation and do not rise to the level of professional medical misconduct, but are of concern to the patient complainant and the state. Admittedly, New York state and each state’s programs are unique, but there is a commonality of these types of cases throughout the country. Modification to suit the specific needs of each jurisdiction may be required. For its relative simplicity, easy implementation and apparent success to all parties, may I suggest its use.
“I never thought I would hear from the state board!” This comment and similar ones are convincing evidence that the patient/complainant truly appreciates the interpersonal reactions and concerns generated by a phone call from a representative of a state board.
Many of the complaints received concerning physicians (in this paper when using the term physician, it refers to licensed M.D.s, D.O.s and licensed, certified physician assistants, or P.A.s, and specialist assistants, or S.A.s) involve matters that are not “serious” in the sense of there being public harm, but are, nonetheless, upsetting and serious to the complainant. And, while there may be no legal grounds for action by the state board, a complainant too often believes the issues raised have been ignored. In that scenario, the complainant may continue to demand action by the board or seek relief through other channels, such as elected representatives or, quite possibly, the media.
The two-call case resolution strategy was developed and implemented in an effort to identify and appropriately resolve nonserious cases more quickly and efficiently to the satisfaction of the complainants and the subject physicians. What appears to be a simple resolution to many cases, we have learned during the past three years, does involve certain nuances and strategies to ensure the success of the process.
Using this strategy, the New York State Office of Professional Medical Conduct (OPMC) has been able to successfully close more than 250 cases during a three-year period. This two-call approach significantly reduced or eliminated the resource-depleting, time-consuming and often unnecessary interviews and investigations. Closing these types of cases in the past had meant sending the complainant and the physician pro forma closure letters. Frequently these left everyone dissatisfied, from complainants who believed their complaints had gone unattended to the subject physicians who sustained a prolonged period of anxiety and concern during an often prolonged course of investigation and case resolution. Clearly, there had to be a better way.
SELECTING THE CASES
The cases selected for two-call resolution are typically those involving interactions between a single patient and a physician and/or his or her staff. These include: a) cases of a minor, often unprovable nature; b) cases in which there has been no significant patient harm; c) cases in which the allegations did not rise to the level of acts of professional medical misconduct that suggest a more significant resolution; and d) cases in which there has generally been no significant history of previous complaints of a similar nature.
Of the two calls, one is made to the complainant and one to the subject physician. The OPMC staff believes it is important that a medical board or staff physician carry out the two-call strategy. A board physician lends greater credibility with the complainant who often is flattered at the opportunity to discuss concerns with a physician from the state.
Additionally, in most cases a staff physician can access the subject physician, while a non-physician staff person would encounter delays or non-entry. The subject physician will respond much more favorably to a physician-to-physician conversation.
Thus, an environment is established in which complainants are pleased that their concerns received the personal attention of a telephone call from a physician of the board. Likewise, the subject physician is often pleased to have had an opportunity to discuss a case in which he or she has usually been aware that there was a problem and to learn that the case is to be closed without further action. The state also is satisfied that the patient has been contacted and, further, that an effort has been made to have a physician amend certain practice patterns that may impact adversely on that patient.
Administratively, the OPMC is satisfied that a large number of cases are resolved in a very timely fashion while utilizing a minimum of resources. In this way, greater attention can be directed to more serious cases.
WHAT CONSTITUTES THE TWO-CALL STRATEGY?
The basic elements of the two-call strategy are simple, yet effective. They are:
Selected cases are identified by staff as meeting the criteria for a two-call case.
These cases will have been opened with a case number and include the basic information of a complaint form or letter from the complainant, the identities of the complainant, the subject physician, and telephone numbers of the parties. A brief summary of past interactions with the office is of value in determining whether the index matter was the subject of previous similar complaints.
A worksheet is completed by the staff physician outlining the available information.
A plan is developed as to how to proceed, determining which party to contact first and what will be discussed with the parties.
The two telephone calls are made.
A Memorandum of Investigation is created with a synopsis of the case and the calls made. When appropriate, closure letters are sent to the parties.
At any point in this process when information is learned indicating that further investigation is warranted, or that the case has more serious implications, the case may be reassigned to investigative staff.
If the issues of the complaint are clear from the complaint letter and do not require clarification by the physician, the initial call is most often made to the complainant. To ensure confidentiality, the caller will only speak with the complainant with the exception of those occasions when the complainant defers to a spouse or family member. When leaving a voice mail message inviting a call back from the complainant, the caller only identifies himself or herself as a physician from the Department of Health who is responding to a complaint from the recipient of the call. The name of the subject physician is not mentioned since it cannot be determined who will pick up the voice message, violating the privileged information of the case.
COMPLAINANT INTERACTION
The following are suggested strategies for successful interaction with the complainant:
The conversation is opened by the physician introducing himself or herself as a physician employed by the New York State Department of Health, Office of Professional Medical Conduct.
The staff physician acknowledges having read the complaint and thanks the individual for bringing this matter to the state’s attention.
A discussion and elaboration of the issues is carried out and a further explanation is invited.
When appropriate, the staff physician affirmatively acknowledges the concerns raised by the complainant.
The complainant is advised that the staff physician will be in personal contact with the subject physician and that the complainant’s concerns will be raised and discussed.
When appropriate, it is indicated that the discussion with the subject physician will include those changes that should be made in the future conduct of practice.
There may be occasional cases where the staff physician believes that the conduct of the subject physician was appropriate. If that circumstance evolves, a gentle explanation may be made to the complainant as to why that determination has been made. Such an explanation should be couched in terms such as: “I understand the concerns you have raised, and can appreciate why you have them; however, may I explain to you why the physician’s conduct in this case was appropriate.” If the complainant was called first before the subject physician, it may necessitate an additional and final call to the complainant.
In closing, the following important points are made to the complainant:
A permanent record of this case will be kept so OPMC can recognize any future pattern of similar behavior, which could possibly lead to more significant action.
Because of the complainant’s report and the state’s action, similar behavior on the part of the subject physician may be prevented.
Future patients may well benefit because you have called this matter to our attention.
Once again, thank you for bringing this matter to the state’s attention.
The response from the complainant is almost uniformly positive:
“I never thought I would hear from someone from the state board.”
“This is all I really wanted to have happen, so that it won’t happen again to other patients.”
“I really didn’t want anything to happen to the doctor’s license. Your speaking with him/her would be just fine.”
“Thank you very much for your call.”
SUBJECT PHYSICIAN INTERACTION
Making direct contact with the subject physician is the most important objective. If the physician perceives this process as adversarial or prosecutorial, the entire two-call strategy very likely will fail. The following strategies are critical to avoid such failure:
When initially speaking to office staff refer to yourself as doctor, but it is not immediately necessary to identify yourself as being with the Department of Health or the state board.
If a member of the staff asks for the name of a patient about whom you are calling (and they often will), it should be given. If a query isn’t made, don’t offer the name. There very well may have been negative interaction between the patient and the staff, which would invite their “stonewalling” your contact with the subject physician.
Introduce yourself to the physician as a “Doctor from the Department of Health.”
Immediately, open the discussion by saying, “Doctor, I have a matter on my desk that I believe we can resolve today and now if you will be kind enough to spend a few moments talking to me.” This opening statement is the key to keeping the physician in contact with you. Refer to “the case” as “a matter.” It is less threatening.
If the subject physician is suspicious as to your true identity, invite a call back to your official location and telephone number as proof of your identity.
Without identifying the complainant (the identity of the complainant is confidential in New York State), review the elements of the complaint. The physician often will independently recognize the complainant’s identity.
Many times the complainant has informed the subject physician of his or her intent to report the subject physician to OPMC.
Listen to the subject physician’s story, which often will be quite different from that of the complainant.
After dutifully listening to the physician, outline the elements of concern in the matter. These may be concerns raised in the complaint, or additional concerns raised by the office and staff of OPMC.
Invite the physician to make those changes necessary to avoid similar complaints. Many physicians are interested in hearing this information so that they can amend their practice patterns. Often, they will evidence surprise at learning about an element of the practice that needs addressing. Adverse staff behavior they were not aware of also can be of interest to them.
Thank the physician and indicate that the case will be closed. (Now you can use the word “case.”)
The response of the physician is usually strongly positive; the subject physician would like to avoid any further interaction with the OPMC and the board. The physician is, of course, pleased that the matter is to be closed without further action. A closure letter may be requested and it is subsequently sent to the physician.
CLOSURE
It is not always advisable to send closure letters, especially one to the complainant. Such a letter often once again inflames the complainant in a matter which the complainant has been informed will be closed. If the complainant requests a closure letter, it is permissible to send such a letter and indicate “the physician has been made aware of the concerns you have raised.” This is true, but is not necessarily judgmental. A physician who wants a closure letter should receive one as requested. In certain cases, to reinforce issues raised during the telephone call, it is of value to send a closure letter summarizing those concerns and suggested practice changes.
There are rare instances in which either the subject physician or the complainant cannot be reached. If the former is operative, a closure letter should be sent to the physician enumerating the elements of concern raised, and suggestions are offered as to how to amend these concerns. If it is the latter, and it is determined there is a lack of interest in pursuing the case, the case can be closed. If staff feels there are still issues of interest to the state, a closure letter to the complainant can indicate that the case had been resolved by speaking with the subject physician and informing him/her of the issues of concern.
As in many cases investigated by the board and OPMC, there may be two different views of the events, that of the complainant and that of the subject physician. When appropriate and when not possible to make that decision, it is not always necessary for the staff physician to be judgmental. A judgment cannot always be made based on the available information. In that setting, listening attentively to both parties’ stories will often satisfy their needs and allow for an amicable resolution and closure of the case.
At the conclusion of the case, the staff physician completes a memorandum of investigation. This includes a summary of the information on the work sheet, a report of the interviews with the two parties and a case summary. Recommendations as to whether closure letters should be sent are made. If a closure letter is sent to the physician, the content of the closure letter to the physician is included.
ANALYSIS OF COMPLAINTS
In an effort to enumerate the reasons for a complainant to report a matter to OPMC, 250 cases that were submitted by staff for a two-call case resolution were analyzed. Many complaints had multiple concerns, making such identification often difficult. However, the breakdown listed below either identifies that which may have been the only complaint or if multiple, the major complaint.
It should be noted the list includes allegations that were determined to have little or no basis. Please also note these are allegations that were considered by staff to not rise to the level of professional medical misconduct. If they did rise to that level, either they were considered not to be candidates for two-call closure or, as in 10 cases, were referred back to staff for further investigation.
CONCLUSION
A sample case resolution form can be found below. Also included are two sample memorandums of investigations based upon real cases. Names, dates and identifying information have either been changed or deleted. Any similarity to actual individuals is purely coincidental. The two-call case resolution has been an almost uniformly successful method of resolving selected cases. It is a strategy the New York State Board for Professional Medical Conduct and the Office of Professional Medical Conduct continue to employ to this date.
This two-call case resolution strategy was the recipient of the 2004 AIM Best of Boards Award from Administrators In Medicine.
Sample Two-Call Case Resolution Form
Memorandum of Investigation
SUBJECT: E. Epsilon, P.A.
FILE #: CR-03-03-5555
BY: D. State, M.D.
DATE: March 1, 2003
This case was initiated by Ms. Ponds, mother of patient Stephanie, on 3/1/03 concerning the above referenced P.A.
Allegedly, Stephanie went to her college’s health services unit on 2/17/03 with complaints of painful temperomandibular joint (TMJ). There she was seen by Epsilon who allegedly prescribed Skelaxin 800mg. Outdated samples were given to Stephanie. Stephanie took 800mg and had a reaction including inability to stand, weakness and breathing difficulty. She was taken as an emergency to the University Hospital. An additional complaint is that Epsilon is a P.A. who is listed as a Nurse Practitioner.
On this date, State spoke with Ponds. Ponds insisted this was an overdose for her 110-lb. daughter. (State had looked up the drug in the Physicians’ Desk Reference. It is listed as a musculoskeletal relaxant whose usual dose in adults and children over 12 years is 800mg tid or qid. There is no major toxicity listed.) When State pointed out that the dose prescribed appeared appropriate, Ponds insisted that it was an overdose. Ponds opined that her daughter is no longer allowed to go to the student health service, excepting an emergency. State thanked Ponds for reporting the matter. State indicated he would contact Epsilon about the concerns raised, that being dosage prescribed, the outdated samples, the listing as a nurse practitioner, and that the case would be closed. Ponds was very pleased.
On this date, State contacted Epsilon, who has now left the health services and works as a P.A. for a private doctor. Epsilon indicated that she prescribed Skelaxin 400mg tablets, take one and if one doesn’t work take a second. Apparently, Stephanie took two pills very rapidly. Further, Epsilon is now very cautious in the amount of Skelaxin she prescribes.
Regarding the outdating, Epsilon noted that a staff nurse, not her, dispensed the outdated samples. Epsilon also noted that there was suspicion that Stephanie was using alcohol at the time of taking the Skelaxin. Finally, Epsilon stated she only claims to be a P.A. That there was a nurse practitioner at the health services unit, that was so listed, but not her. State indicated that the case would be closed.
This case should be administratively closed without letters to the parties.
(Alleged simple negligence)
Memorandum of Investigation
SUBJECT: J. Pi, M.D.
FILE #: CR-03-04-1010
BY: D. State, M.D.
DATE: May 21, 2003
This case was initiated on 4/18/03 by L. Dell, M.D. Dell and Pi were former medical practice partners. Dell included with his complaint a series of letters from patients alleging a variety of misdeeds on the part of Pi. These included largely those types of complaints that would be included under verbal patient abuse: rudeness, insensitivity, lack of responsiveness, etc. Additionally, there were complaints about the irregular times of making rounds on patients at the nursing home.
On 5/17/03, State spoke with Dell. Dell indicated that after five years of association, the practice with Pi broke up in March 2002. That since that time, Pi was in private practice. Dell opined that Pi is “bright enough,” but has negative interactions with patients as indicated in the letters. State pointed out that the disassociation of a medical practice often included dissatisfaction with former associates resulting in consternation on the part of the parties. State told Dell that he would call Pi and alert him to the concerns raised in the letters. Although State had little hope of changing Pi’s personality, State would invite Pi to consider altering his demeanor in interacting with patients. That the case would be closed.
On this date, State spoke with Pi alerting him to the concerns raised in the letters in the case file. Pi opined as follows: When he learned of the concerns of the nursing home, he altered his time of rounds to meet the nursing home’s requirements. Pi stated he now makes rounds no earlier than 8 a.m. That he only showed up during the night for emergencies. State then outlined to him the concerns raised in the letters. State read to him portions of several letters. State indicated that State understood the tensions of a break up of a medical practice, but that Pi apparently had been abrasive in his interactions with several of his patients. State invited Pi to review his behavior with patients and to subsequently alter his pattern of interaction.
Pi agreed he would carry out such self-assessment. The conversation then turned to Pi’s complaints about Dell failing to send to Pi copies of patient records of patients who had defected to Pi’s practice. State noted that patients were entitled to copies of their records. That a break up of a practice invites such obstructionist behavior on the parts of both parties. That the best way to handle this was not for Pi to request the files, but for the patients to make the request and then turn over copies of the files to Pi. Pi agreed.
State informed Pi that Pi and Dell should resolve their differences in a manner that did not adversely affect their patients. That Pi should do whatever was possible to solve these problems and get on with his professional life. Pi agreed.
This case should be administratively closed. Letters to both parties should include:
“This office recognizes that tensions may develop following the break up of a professional medical practice. These tensions can unfortunately have an adverse effect on patient care. Physicians in the dissolution of practice should make every effort to avoid such adversities upon these innocent individuals. This office prefers to keep at arms length in such a breakup, however, we have and will continue to view and examine inappropriate behavior on the part of either party.”
(Dissolution of professional medical partnership)
