Under a Microscope: What to Expect If You Are Called Before The Minnesota Board of Medical Practice

As a physician licensed to practice in this state, you should be prepared to defend against complaints that may be brought against you. Every year, the Minnesota Board of Medical Practice receives more than 1,000 such complaints from patients, their relatives, pharmacists, insurers, staff and physicians. All of them, even those that are frivolous or trivial, are considered and processed. For that reason, it makes good sense to treat them seriously and take appropriate action to protect your license.

About the board

Before considering what you can do to safeguard yourself, a little background may be helpful. Since the late 1800s, the board has been responsible for establishing licensing requirements and regulating the practice of physicians in Minnesota. The board, which is appointed by the governor, has 16 members including 10 physicians licensed in Minnesota, one osteopath and five lay persons. It also has an executive director and staff.

Other physicians selected by the board act as medical coordinators and assist with handling complaints. In some cases, the board may seek the opinion of an expert consultant. Lawyers and support staff from the attorney general's office also gather information and provide legal advice.

The Minnesota Medical Practices Act empowers the board to investigate complaints and discipline doctors for misconduct. Today, the board devotes the majority of its time to processing such complaints. Prohibited conduct ranges from addiction to alcohol to engaging in unethical conduct. In recent years, the most common allegations involve inappropriate management of medical records, improper prescribing practices, chemical dependency and inappropriate sexual conduct with patients. A physician also may be disciplined for failing to report his or her own misconduct or knowledge of a violation by colleague.

Responding to a complaint

The board's complaint resolution process appears complicated and lengthy. After a complaint is filed, it undergoes review by the board's staff and medical coordinators. Although a complaint may be dismissed at this stage, most are referred to the attorney general's office for further investigation.

Generally, the board informs a physician of the pending investigation early in the process. In some cases, the board may subpoena and review patient records, obtain consultants' reports and collect other relevant documents before issuing the complaint. The board then asks for a written response.

While you are obligated to cooperate fully and assist the board, it may be beneficial to get help writing your reply. In some cases, physicians consult with their malpractice insurer, colleagues or lawyer for help answering the complaint, as it may be difficult to undo mistakes made in the initial response. You should be thorough and candid when composing your answer and avoid responding in an arrogant or hasty manner. You may ask the board for an extension if the deadline for responding is too short.

The board may ask you to supply copies of pertinent medical records along with your response. In some cases, the board reviews patient records without the physician's knowledge before it even issues the complaint. This may occur when there have been allegations involving record keeping or prescribing practices. When preparing your response, you should examine each patient record in light of the allegations. In cases where your work is peer reviewed, it may be appropriate for a colleague to review the allegations and the medical records and offer comments to include with your explanation. In such cases, you may wish to have your attorney look over your reply.

After submitting your initial response, you may be called on to provide further explanation and appear for an interview. To prepare, you should review the allegations and relevant records and consider consulting with an attorney. Because the investigation may take months to complete, you should consider taking remedial actions such as undergoing a professional assessment or completing an appropriate training course during this period.

Reviewing the complaint

A complaint review committee composed of three board members evaluates the information collected during the investigation. Once it completes the review, the committee will recommend a course of action or suggest that the complaint be dismissed. If further investigation is needed, the committee may ask the attorney general's office to obtain more data or seek an expert's opinion.

When satisfied that no more evidence is forthcoming, the committee may require you to meet with a medical coordinator. Generally, coordinators handle minor statutory violations. Although this meeting is informal, it should not be taken lightly. It is helpful to understand what issues may be of concern to the board and consider possible ways to address them. You also may wish to bring a colleague or lawyer with you to the meeting. Afterward, the coordinator may recommend dismissal or refer the complaint back to the committee for further consideration.

In more serious matters, the complaint review committee may wish to hold a formal conference. You will receive written notice of the conference, which is held before the committee members, the committee's attorney, the board's executive director and three or four staff members, at least a month in advance.

The notice sets forth the allegations and identifies the sections of the statute believed to have been violated. Legal advice regarding the allegations and how to prepare for the meeting may be helpful.

The purpose of the conference is to assure that the complaint review committee has a complete picture of the facts before making a recommendation to the full board. Members of the committee address the allegations and ask questions. Your lawyer may help clarify those questions. Generally, you will be afforded an opportunity to raise concerns about the accusations before the committee makes its recommendation.

The next steps

Of course, you do have the option of rejecting the committee's recommendation. In that event, the matter is referred to an administrative law judge. At that point, the documents and other information gathered in the process will be made available so you can prepare for your defense.

The judge does not render a final determination of the case. He or she will instead make recommendations to the board. The board will then issue an order, which may be reviewed by the Minnesota Supreme Court. Because the board will make the final decision and because the hearing and any appeal are costly exercises, rejecting the committee's recommendation deserves careful consideration.

If you are willing to accept its recommendation, the committee will send you a stipulation to review. The committee will consider requests for modifications to the language and, in some cases, will adopt those changes. After you sign the Stipulation, it goes to the full board for approval. Once approved, an order is issued.

Even at the close of this lengthy and painful process, the complaint may be dismissed. More often, however, the board will require corrective action such as completing classes to correct the underlying cause for the complaint. After you provide evidence of compliance, the board may issue a dismissal.

In addition to corrective action, the board may monitor your practice by requiring regular reports from a supervising physician, psychiatrist, other health care professional or designated board member. Usually, the board will impose sanctions, ranging from a reprimand to revocation of your license. Monetary sanctions of up to $10,000 for each violation may be imposed as well. Failure to comply with every aspect of the order results in additional discipline and can lead to license revocation.

Finally, when sanctions are imposed, the entire order will be reported to the media. The resulting news stories can be the most distressing part of the whole process. It is, therefore, advisable to have a release prepared for the media and to be cautious when granting interviews.

Susan E. Oliphant, J.D., is a partner with Maslon Edelman Borman & Brand LLP in Minneapolis.