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Physician's Guide to Medicine - Discipline & Your License
Who regulates the medical profession and has the power to
discipline?
How does the Board discipline physicians?
Is there a time limit for investigations or disciplinary
actions?
What are the grounds for disciplinary action?
How does a Board investigation begin?
How is a Board investigation conducted?
What is a competency review?
How can a physician under investigation by the
Board establish his or her competence to practice medicine?
If the Board finds a physician incompetent to
practice medicine, what disciplinary measures can it impose?
Is a Board investigation public knowledge?
May a physician review the final investigative file
before it is presented to the Board?
Can the physician dispute the investigation
process?
What happens if the Board finds no probable cause
for discipline?
What happens if the Board finds probable cause for
discipline?
Is it possible to stipulate to an agreed
penalty in order to resolve a case prior to a formal AHC hearing?
Violation of settlement agreement
What happens if the case is not settled and the
Board files a complaint with the AHC?
What disciplinary guidelines may the Board
impose?
Can the Board´s disciplinary action against a
physician be appealed?
If a physician is disciplined, where, if at
all, is the case recorded?
How important is legal representation during
disciplinary proceedings?
How can a physician decide if an attorney or law firm
is competent to offer advice regarding a disciplinary matter?
Who regulates the medical profession and has the power to discipline?
The Missouri State Board of Registration for the Healing
Arts (the "Board") regulates the medical profession. The Board licenses
physicians, issues and renews registration certificates, and investigates all
complaints against licensees.
The Board is composed of nine members appointed by the Governor, as follows: one
member of the registered voting public who has been a resident of the state for
at least one year; five licensed graduates of a professional school accredited
by the American Medical Association or the Liaison Committee on Medical
Education; and two licensed graduates of a professional school accredited by the
American Osteopathic Association. Each physician must have been in practice for
at least five years preceding appointment. The Board meets as a group annually
in Jefferson City, and at such other times and places as necessary to take up
regulatory matters and decide upon disciplinary cases and penalties.
How does the Board discipline physicians?
The Missouri State Board of Registration
for the Healing Arts is charged with investigating all complaints concerning
alleged violations of state laws regulating physicians. Upon receiving any
information regarding a physician´s violation of a disciplinary ground, the
Board will investigate the physician´s activities as they relate to the
complaint, as well as the physician´s general medical practice. If a violation
occurs, the Board may refuse to issue or renew a physician´s license or
certificate of registration.
Is there a time limit for investigations or disciplinary actions?
Yes. The Missouri State Board of Registration for the
Healing Arts must file formal charges within three years of receiving notice of
an alleged violation. Disciplinary proceedings based upon repeated negligence
and complaints involving sexual misconduct are exempt from the statute of
limitations. Also, the three-year time period does not run during any time the
accused is practicing exclusively outside the State of Missouri, during any time
the accused maintains a legal action against the Board, or during any time the
complainant is less than eighteen years of age.
What are the grounds for disciplinary action?
The grounds are enumerated in Section 334.100
RSMo., which may be obtained from MSMA. Each set of facts is unique to itself.
The statutory grounds are vague, wide sweeping, and subject to interpretation
when compared to the facts.
Physicians should be aware that the Missouri State Board of Registration for the
Healing Arts has used Section 334.100 (4) RSMo., prohibiting "misconduct, fraud,
deception, misrepresentation, dishonesty, unethical conduct, or unprofessional
conduct" broadly, to discipline physicians for activities which may be
questionable but not specifically listed as a separate ground for discipline.
How does a Board investigation begin?
Board investigations begin in various ways.
Information or complaints may come from the public, fellow physicians or health
care providers, hospital administration or other state agencies. For example,
the Department of Insurance is required to report claims for medical malpractice
against physicians to the Board, and hospitals and ambulatory surgery facilities
are required to report disciplinary actions and voluntary resignations. Annual
licensure renewal provides another source of information for potential
investigation, and physicians are advised to use extreme care when filling out
any application or renewal form, to avoid misrepresentation charges.
By administrative rule, all complaints must be in writing and the physician has
the right to know the name of the complainant.
The Board may continue an investigation even though the original complaint is
withdrawn.
How is a Board investigation conducted?
The Board may initially request copies of all
pertinent records (patient´s medical chart, administrative records, peer review
records, etc.) for review. The Board has subpoena authority to confiscate and
copy records, and the physician should not release patient records or records of
any kind unless he or she receives a lawful subpoena.
The investigator will usually want to schedule an appointment to question the
physician, but there is no requirement that the physician talk to the
investigator. Upon notice of investigation, the physician should consider
contacting an attorney before discussing circumstances with an investigator.
While failure to cooperate is a separate ground for discipline, the idea is to
cooperate with the investigation with the benefit of advice from an attorney
experienced with the disciplinary process.
The Board may subpoena the physician to appear at a recorded interview or before
a Board subcommittee regarding the alleged violation. Legal counsel is allowed,
and recommended.
Although a physician may feel he or she has nothing to hide, it is advisable to
seek legal advice before speaking to the Board or sending a written response.
Remember, anything you say or write may be used against you. You may believe you
are "just being honest" but the Board could use your own statement or response
as the basis for disciplinary action against you. There are other avenues
available to present your explanation of the situation without waiving your
rights and jeopardizing your license.
What is a competency review?
The Board may investigate a physician´s general
competency to practice medicine as part of the investigation of the main
violation. Such investigation of medical competency is applied by the Board
through the provisions of Section 334.100 (25) RSMo.
If a physician is alleged to be unable to practice with reasonable skill and
safety because of incompetence, substance abuse, or any other mental or physical
condition, the Board will conduct a probable cause hearing. Upon a finding of
probable cause to question a physician´s general medical competence, the Board
will require the physician to establish his or her competence to practice
medicine.
How can a physician under investigation by the Board establish his or her
competence to practice medicine?
The physician may be required to submit to
reexamination, an examination of his or her pattern and practice of professional
conduct, a mental examination, or a physical examination.
Failure to submit to an examination may constitute an admission of the
allegations against the physician, and possible revocation of license.
If the Board finds a physician incompetent to practice medicine, what
disciplinary measures can it impose?
The Board may revoke the physician´s license and
deny application for reinstatement for two to seven years thereafter.
Is a Board investigation public knowledge?
No. A Board investigation is confidential. Even if an
inquiry is made to the Board about a possible investigation, the Board must not
acknowledge the existence of an investigation or of any investigative facts or
documents. If, however, a formal complaint is filed with the Administrative
Hearing Commission, then the matter becomes public. If that never happens, the
matter always remains confidential.
May a physician review the final investigative file before it is presented to
the Board?
Yes. Through the discovery process, the
information contained in the Board´s file prepared in the ordinary course of
business must be disclosed. However, strictly attorney-client privileged
information is not disclosed. May a physician find out exactly what was
considered by the Board concerning a complaint against him? The complaint
usually will set forth the Board´s specific grounds for discipline. Also, the
Board will employ expert physicians to review the record and testify against the
physician. These experts typically will detail the specific facts they believe
justify discipline.
Can the physician dispute the investigation process?
A physician may attack a questionable
investigation through a declaratory judgment action filed in state circuit
court. This is a good strategy if there is a rule interpretation at issue. The
physician can ask the court to determine whether or not he or she violated a
rule as alleged. Such an action should be filed before the Board files a
complaint with the AHC.
What happens if the Board finds no probable cause for discipline?
You will receive a letter advising you of the
finding and indicating the case is closed. All files regarding the complaint
remain confidential.
What happens if the Board finds probable cause for discipline?
If no settlement is attempted or reached, the Board
will file a complaint with the Administrative Hearing Commission (AHC). The
complaint sets forth the alleged grounds for discipline and requests the AHC to
determine that grounds for discipline exist so that the Board may impose
discipline.
Is it possible to stipulate to an agreed penalty in order to resolve a case
prior to a formal AHC hearing?
Yes. For less serious violations,
settlements with the Board are possible prior to formal litigation. For minor
violations, the Board may offer to settle for a reprimand which will remain in
the physician´s record permanently, with no other penalty or probation. A
reprimand is usually offered for a first-time minor violation, and the language
of the reprimand is negotiable.
For a moderate to serious violation, the Board may offer probation, license
restriction or additional education in return for the physician´s agreement not
to engage in particular practice.
No settlement is likely for a very serious violation, short of license
suspension or revocation.
Violation of settlement agreement
If the physician violates the stipulated settlement, the
Board will use the following procedure to enforce the terms of the agreement:
(1) Investigate, similar to the method used in the disciplinary investi- gation;
(2) File a complaint with the Board (not the AHC). The Board will determine if
the settlement agreement has been violated and if additional discipline should
be imposed;
(3) To prevent further violation of the agreement, the Board may file a
temporary restraining order and permanent injunction action in the circuit court
in the county where the physician resides;
(4) The physician has the right to counterclaim for a declaratory judgment to
determine whether the agreement was violated;
(5) Litigate; and
(6) Either party may appeal an unfavorable decision.
What happens if the case is not settled and the Board files a complaint with
the AHC?
Filing of the complaint commences litigation
requiring a formal response by the physician within thirty days. The physician
definitely should be represented by counsel at this time. The AHC process is
conducted with the formalities of litigation, including "discovery:"
Interrogatories - written questions which you must answer, with the assistance
of your attorney; Requests for Production - relevant documents you must
pro-duce; and Depositions - oral question and answer by the opposing attorney.
Proceedings are recorded and may be used at the AHC hearing; your attorney may
be present. After discovery is concluded, there will be a hearing before the AHC
at which the Board and the physician will present evidence on the alleged
violation. If the AHC determines there are grounds for discipline, the case goes
back to the Board to set discipline. The physician then has another hearing
before the Board to set disciplinary guidelines.
What disciplinary guidelines may the Board impose?
By statute, the Board may impose the
following discipline:
(1) Warn, censor, or place the physician on probation as the Board deems
appropriate for a period of ten years;
(2) Suspend the physician´s license for a period of three years;
(3) Restrict or limit the physician´s license for an indefinite period of time;
(4) Revoke the license and prohibit the physician from applying for
reinstatement for two to seven years;
(5) Administer public or private reprimand;
(6) Require the physician to submit to care, counseling, or treatment at his or
her expense; or
(7) Require the physician to attend designated CME courses and pass additional
examinations.
Can the Board´s disciplinary action against a physician be appealed?
Yes. After the Board makes its decision on
discipline, the physician has thirty days from the date of mailing or delivery
of the decision to appeal the AHC´s decision to the Circuit Court of Cole
County, in Jefferson City. The circuit court will not reconsider the factual
circumstances of the case, but will only consider whether the AHC decision was:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the Board;
(3) Unsupported by competent and substantial evidence upon the entire record;
(4) Unauthorized by law for any reason;
(5) Made upon unlawful procedure or without a fair trial;
(6) Arbitrary, capricious or unreasonable; or
(7) An abuse of discretion.
The Board and the physician have the right to appeal an unfavorable circuit
court decision to the Missouri Court of Appeals, within ten days of the circuit
court´s final decision.
Upon request and a hearing in circuit court, a physician may seek a stay of the
Board´s discipline pending the appeal of the disciplinary decision to the
circuit court.
If a physician is disciplined, where, if at all, is the case recorded?
If a physician has been disciplined, his
case and the relevant records are recorded at the Missouri State Board of
Registration for the Healing Arts and are available to public inquiry. Likewise,
the physician´s name and address is published on a list, compiled quarterly,
which is mailed to any inquiring member of the public. Further, all disciplinary
penalties are reported to the National Practitioner´s Data Bank.
How important is legal representation during disciplinary proceedings?
The value of having experienced legal
representation in disciplinary matters cannot be overemphasized. The foregoing
discussion presents only a general overview of the legal and procedural process
involved in physician discipline. Any physician who has concerns about specific
activities, or who is presently under investigation, should immediately contact
an attorney who has experience in such matters.
How can a physician decide if an attorney or law firm is competent to offer
advice regarding a disciplinary matter?
Effective representation of a physician before the
Board is difficult if an attorney is inexperienced in the process from the
physician´s side. Two areas of knowledge are particularly important. First, it
is essential the attorney know the Board´s investigatory process. Second, the
attorney needs to understand the nuances and difficulties of medical practice.
Therefore, the most important considerations in selecting an attorney for a
disciplinary matter are experience in handling disciplinary cases for physicians
and the track record in those cases.
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