August 12, 2019

Medical Malpractice and Physician Discipline: Process, Issues, and Challenges

Professional oversight bodies are responsible for making sure that all licensed medical professionals meet the licensure requirements and maintain their knowledge and skills. Disciplinary action is part and parcel of the oversight function and should theoretically be applied when there is negligence, but this is not always the case. Lawyers specializing in medical malpractice at Cochran, Kroll & Associates, P.C. can investigate these issues for your claim.

Professional Medical Boards

State Medical Boards

In the USA each state has a State Medical Board, which act as agencies to license doctors practicing in the state; however, their overriding purpose is to protect the public from unqualified, unprofessional or incompetent physicians.

State boards formed at the request of private medical associations that asked state legislatures to regulate medical practice. This was implemented via the Supreme Court in 1889.

The role of the State Medical Board, in general, encompasses the following functions:

  • Protect the public from incompetence and unprofessional behavior
  • Establish standards for medical practice
  • License medical doctors
  • Investigate any complaints against doctors
  • Discipline delinquent doctors who violate the medical practice act
  • Refer the physician for evaluation and rehabilitation when needed
  • Setting disciplinary rules

However, each state has its laws and regulations governing medical practice and the responsibilities and powers of the Medical Board.

The Federation of State Medical Boards of the United States, Inc. (FSMB)

The FSMB’s overarching role is to protect patients, and they support the State Medical Boards in regulating health care professionals, examinations and licensing. The foundation promotes research and education to improve quality of care.

The National Board of Medical Examiners (NBME)

The NBME provides a common evaluation system to all State Medical Boards to ensure equitable standards for quality of care and licensing across the board.

United States Medical Licensing Examination (USMLE)

The Federation of State Medical Boards of the United States (FSMB) and the National Board of Medical Examiners (NBME) established a single 3-step examination, known as the United States Medical Licensing Examination (USMLE). The three steps are taken at different times in their training and culminate in their ability to practice medicine independently without supervision.

They assure relevance by using science and clinical faculty and practicing physicians to assist with the generation of the examinations.

The American Board of Medical Specialties (ABMS)

The ABMS is a non-profit organization that protects both the public and specialists and improve quality of care. They set standards for education and professional behavior for medical specialty practice and provide certification via partnership with its 24 certifying Member Boards.

American Medical Association (AMA)

The American Medical Association (AMA) is a professional organization protecting the name, goodwill towards and interests of the physicians in the United States by providing tools and mechanisms, training and codes of conduct to ensure the most professional level of care for the public at all times. They assist with practice management and billing codes, research, litigation, education and advocacy.

There are many state medical societies, and specialty societies providing similar services to the public and medical communities.

Standards of Professional Conduct

The primary purpose of the Medical Board is to protect the public, not to punish physicians. The medical practice act for each state will determine the definition of unprofessional conduct, and complaints that may meet those conditions will be investigated; however, disagreements and poor customer service do not fall under this purview.

Medical boards will evaluate every complaint from patients, review malpractice data, reports or referrals from hospitals and government agencies. They have the power to initiate an investigation at any time, hold hearings and decide on a course of action which may or may not include discipline.

Codes of Ethics, Conduct and Practice

Codes are issued by many organizations as guiding principles for desired behaviors. Professional codes determine what is expected of professional members and may be presented in the form of a Code of Ethics, a Code of Conduct or a Code of Practice, or all three, and in some cases, they overlap.

  • Code of Ethics – normally a short set of ethical principles
  • Code of Conduct – in general more detailed, outlining specific behaviors based on the set of ethics
  • Codes of Practice – rules regarding technical duties based on ethical principles

In some cases, the codes are presented as guidelines rather than rules.

The AMA adopted a Code of Ethics at their founding meeting in 1847, and covers the Principles of Medical Ethics and then outlines practical applications in all situations and relationships:

Principles of Medical Ethics

A physician shall:

  • Be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
  • Uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
  • Respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.
  • Respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.
  • Continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.
  • In the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
  • Recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
  • While caring for a patient, regard responsibility to the patient as paramount.
  • Support access to medical care for all people.

Professional Conduct – has been defined as “A set of values, behaviors and relationships that underpins the trust the public has in doctors” by the Royal College of Physicians and covers knowledge and skills, moral values and the patient relationship.

Unprofessional Conduct –the medical practice act in each state will typically define what constitutes unprofessional conduct, and could include:

  • Failing to meet continuing medical education requirements
  • Performing duties beyond the scope of a license
  • Practicing without a valid license
  • Not recognizing or acting on common symptoms
  • Inadequate record-keeping or privacy issues
  • Prescribing drugs in excessive amounts without legitimate reason
  • Delegating medical duties to an unlicensed individual
  • Impaired ability to practice due to addiction
  • Dishonesty
  • Ethics transgressions
  • Professional self-regulation failures
  • Physical abuse of a patient
  • Fraud
  • Conviction of a felony

Medical Board disciplinary proceedings have to adhere to substantive due process, providing detailed and clear evaluations and showing common sense and rationality.

Cases must be triaged, due to limited budgets and other restrictions: clear cases such as criminal conduct require limited resources, while errors such as gross misconduct or negligence require a lot of investigation. Most disciplinary cases relate to substance abuse, unethical conduct and criminal investigations, according to OIG reviews.

Using character-based transgressions as a substitute for professional conduct is common practice and has been upheld in many courts, and is based in moral decision-making and trustworthiness, as doctors agree to a higher standard of moral and personal conduct than the general public.

Possible Remedies to be Implemented after Investigation

State Medical Boards will, after investigating complaints or reports determine the remedy to be applied, based on what is best for the public as well as for protecting a valuable medical asset for the community. In many cases, additional training or education in particular areas allows for modification of behaviour leading to complaints, or provide the skills needed to perform new procedures.

Studies have found strong correlations between the physician’s patient-communication abilities and level of complaints, and to this purpose, the FSMB has added an additional test to the Stage 2 testing of the medical licensure examinations to evaluate a physician’s ability to communicate with their patients in a way that instils trust.

Remedies include:

  • Modification: additional training or education
  • Reprimand
  • Probation
  • Restrictions on the physician’s license
  • Suspension
  • Revocation of license

It is important to remember that a malpractice complaint does not mean negligence took place and needs to be proven first.

In our connected society today the challenges to Medical Boards are significant – health care and health care practices are changing by the day due to technology and physicians need to keep up to date with latest developments and guidelines. Patient centricity and technology are changing the way physicians practice in many cases, and the vast number of frivolous medical malpractice cases takes their toll on insurance premiums as well as physicians’ stress levels, which has led to a burn-out epidemic of massive proportions in the medical community.

Physicians and patient advocates all want a system that fully protects patients but protects physicians from unfair persecution and stress as well, and that ensures adequate and fair restitution for patients if malpractice occurred.

Medical Malpractice and Discipline

The AMA litigation center covers a wide array of cases involving their members as individuals or as a professional body, and could include medical liability, peer review payment issues or staff privileges, and often tackles the courts to provide better access and care to specific groups of patients whose rights are being violated. Assistance with medical liability cases has strict requirements regarding the merits of the case.

However, we often see headlines proclaiming that the medical profession is being protected by their own, such as the AMA or State Medical Boards and that doctors with several malpractice accusations are still practising and posing a threat to society.

Generalizations of this sort are akin to the personal injury lawyer being characterized as a charlatan chasing up cases for their own gain. Professionals all have to comply with legislation, rules and codes of conduct, and a few bad apples do not make a failed harvest.

Studies have shown skewed distribution results all over the world, in most cases, it is a small group of medical professionals who have the majority of complaints against them, and attempts to predict the probability of future serious malpractice has not been successful. However, the probability of future complaints can be measured and can be applied to implement interventions to reduce adverse events.

Patient safety is of paramount importance in medical practice, as outlined in the Institute of Medicine Report: To err is human: building a safer health system, released in 1999. Prompt identification of any professionals that are not sufficiently trained, negligent or incompetent, or that behave unprofessionally is crucial to building a system that favors patient safety.

Studies have reported physician actions to be disciplined in as many as 4% of their membership overseas, and only at half a percentage point (0.5%) in the USA; most have identified those with recurrent issues are disciplined. It showed doctors with the following general characteristics to have a higher incidence of discipline:

  • Male
  • Lack of board certification
  • Increasing age
  • International medical education
  • Internal medicine, family practice, general practice, OBGYN and psychiatry.

Pediatrics and radiology had the lowest numbers related to discipline.

How well do State Medical Boards Discipline?

Measuring how many doctors are disciplined by State Medical Boards and for which type of transgressions does not tell the full story of their involvement in protecting the public or improving patient safety.

Evaluation of public complaints show that the vast majority of patients who have a grievance will either exit the relationship, or keep quiet, and very few raise complaints. A study by the Health Matrix showed it to be mostly family members, female and they will use more than one channel to air their grievances (leading to duplication of efforts), and complaints apply mostly to office-based physician care.

The investigation showed that almost all grievances were investigated, and that Boards are much more active than statistics show, but mostly at an informal level. As in any quality improvement process the emphasis is on correcting the system they operate in, additional training and education and supervision until improvement is proven, with disciplinary action only applied in severe cases or those involving character flaws.

While a very small percentage of physicians generated the majority of medical malpractice cases, and incompetence could not be proven in most cases, thus linking board disciplinary actions to competence is probably misplaced.

Where should Medical Malpractice Liability be Centered?

Many organizations are calling for tort reforms to change medical liability from the physician to the organization they work for, as most quality control failures lie in the system within which they operate, and today most physicians are employed by an organization. This would complicate medical malpractice suits, especially during the discovery phases and proving direct causation and is unlikely to be implemented soon.

Despite sensational headlines in click-bait articles, Medical Boards do have the best interest of the public at heart and contribute to patient safety, albeit often in informal ways. However, the public can protect themselves from unscrupulous physicians by researching before accepting treatment recommendations and surgeries, as well as checking on the credentialing of the facilities they use for health care services.

All malpractice cases are reported to a central database, and you can request information regarding a physician from the State Medical Board. You can check with the Office of Professional Medical Conduct (OPMC) in your state. Try to speak to previous patients, and do not assume that a physician with difficulty communicating with patients is not competent, ask as many questions as you need to feel comfortable and safe.

If you have suffered an injury due to medical treatment, discuss your issues with an experienced malpractice lawyer at Cochran, Kroll & Associates, P.C. to determine if you meet the components required for medical malpractice to avoid frivolous complaints and lawsuits, which redirects scare resources from the real culprits. If more patients with real serious complaints came forward to address issues of negligence, the few that cause problems could be identified sooner.

In Michigan, you can call Eileen Kroll, a registered nurse and personal injury trial attorney, at Cochran, Kroll & Associates, at 1-866-MICH-LAW (1-866-642-4529) to discuss your reasons for a complaint and possible malpractice litigation. The case evaluation is free, and our law firm never charges a fee unless we win your case.

Nikole has a special interest in medico-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medico-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.

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