Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Frequent Board of Medicine Disciplinary Actions

Gregory A. Chaires, Esq.
JoAnn M. Guerrero, Esq., LHRM Chaires, Brooderson & Guerrero, P.L.
6-1-2 For many physicians, the experience of opening a letter from the Department of Health inspires pangs of anxiety and concern, generating the oft asked questions:   Did someone file a complaint? Why am I being investigated? Will I be disciplined? Could I lose my medical license?   This article will focus upon some of the most frequent Department of Health (the “Department”) investigations and resultant disciplinary action, which may be taken in a variety of circumstances.   Applicable Law & Most Common Violations   Investigations by the Department are governed by Chapter 456, Florida Statutes and typically involve potential violations of Sections 456.072, Section 458.331 And 459.015, Florida Statutes. Chapter 456 sets forth the general provisions for Health Professionals and Occupations, while Chapters 458 and 459 are the acts specifically governing allopathic and osteopathic physicians, respectively.   Among the most frequent violations that give rise to investigations is the very broad-based description that the physician failed to meet the accepted standard of care or committed medical malpractice. These investigations can be generated by patient complaints, complaints from other practitioners, medical malpractice litigation or closed claims reports that are generated when a settlement has been paid on behalf of a physician.   As you may be aware, practitioners are required to report adverse incidents that occur in their offices and hospitals, and ambulatory surgical centers must as well. Given the obligation to report certain incidents and events under Florida law, wrong-site procedures, wrong-patient procedures and wrong procedures are also frequently investigated and often result in disciplinary action, particularly as they relate to failure to comply with the pause rule. These are known as Code 15 Reports.   Additionally, as noted above, Florida law requires that any claim or action for damages for personal injuries claimed to have been caused by error, omission, or negligence in the performance of such insured’s professional services or based on a claimed performance of professional services without consent of the patient be reported to the Florida Office of Insurance Regulation. See Fla. Stat. 627.912. Thus, many investigations ensue from medical malpractice closed claims reports of underlying civil litigation. Other often-seen violations relate to poor documentation and recordkeeping, as well as improper prescribing.   Disciplinary Actions   According to the Florida MQA Annual Report for July 1, 2007 through June 30, 2008, 5,055 statutory reports and 5,452 complaints were received by the Department involving allopathic physicians and 777 statutory reports and 649 complaints were received against osteopathic physicians. While the number of reports and complaints are significant, it is important to also note that probable cause was found against allopathic physicians in 246 cases and in 40 cases against osteopathic physicians.   What kinds of discipline can be imposed?   For the period of July 1, 2007 through June 30, 2008, the Department reported the following outcomes of its investigations:   Allopathic Physicians:   20 revocations, 44 voluntary surrenders, 28 suspensions, 29 probations, 164 limitations/obligations, 200 fines, 51 reprimands, 305 citations and 100 dismissals.   Osteopathic Physicians:   3 revocations, 6 voluntary surrenders, 12 suspensions, 5 probations, 36 limitation obligations, 43 fines, 13 reprimands, 22 citations and 6 dismissals.   When a Board enters a final order against a physician resulting in a discipline, the order typically incorporates terms and penalties from a negotiated Settlement Agreement entered into between the practitioner and the Department of Health. Penalties issued by the Boards, depending on the allegations in the complaint, typically require payment of an administrative fine, payment of administrative costs, completion of community service, presentation of a lecture or seminar relevant to the violation at issue, evaluation by Florida Cares, quality assurance review of the physician’s practice by a licensed risk manager, and/or completion of continuing medical education courses. Depending on the seriousness of the alleged violations, or whether it is second or third time offense, a Board may impose a period of probation, which can include indirect or direct supervision, license suspension or license revocation. In cases where practitioners are believed to suffer from chemical or other dependency, psychiatric illness or impairment or where boundary violations exist, a Board may require that a physician be evaluated by the Physician Recovery Network (“PRN”) and comply with any and all of PRN’s recommendations.   Finally, as record-keeping and documentation violations are also prevalent, physicians are responsible to ensure that their documentation is thorough, legible and accurate. The Board of Allopathic Medicine has a very good list of frequently answered questions on its website for practitioners dealing with record keeping issues that we encourage all physicians and providers to review. http:// www.doh.state.fl.us/mqa/osteopath/   As healthcare attorneys, we frequently are asked by investigated physicians about the “maximum penalties” relative to their alleged violation(s). This is dependent upon several factors, including whether the violation is a single isolated violation, if there are multiple counts, if the violation stems from a recurrent offense, if the physician has violated an existing final order and so forth. Under Rules 64B8-8.001 and 64B15-19.002, Florida Administrative Code, the Boards of Medicine     and     Osteopathic Medicine provide disciplinary guidelines “which will be routinely be imposed unless the Board finds it necessary to deviate from the guidelines.” See 64B8-8.001, F.A.C. In the interest of brevity, we recommend that each practitioner review the rules to understand the nature of the offenses, as well as the concomitant recommended penalty range. See 64B8-8.001, F.A.C. and 64B15-19.002.   While many patient complaints may ensue after even the best of care from physicians, and the law requires the reporting of closed malpractice claims and certain incidents, we urge physicians to be ever vigilant in employing risk reduction strategies. Considering that the most reported violations involve standard of care issues, wrong-site procedures and wrong procedures; physicians must review their practices on a regular and continuing basis to ensure that satisfactory procedures and protocols are in place to reduce risk. For example, the frequency of such incidents and resultant investigations could be drastically reduced through effective use of the “Pause Rule” (otherwise referred to as “Time Out”), not only by physicians, but by the entire medical team. It is important to remember that the “Pause Rule” is a requirement that must be followed and documented in a patient record in any surgery setting, whether in the office or an institutional facility. See 64B-9.007 F.A.C.   It is quite unfortunate that in many cases, disciplinary action has resulted where the Pause Rule was implemented and initiated, but was incorrectly or incompletely performed. More frustrating is the recognition that such investigation and discipline could possibly have been avoided had the involved practitioner(s) taken a few moments to review the file, meet with the patient or discuss the planned procedure with the assisting medical team, prior to initiating the procedure.   We encourage practitioners to always consult with their health care legal counsel with any questions regarding investigations, disciplinary actions and related matters. Additionally, we strongly advise that physicians read the appropriate rules governing physicians and the medical practice, as well as review profession updates by the respective Boards at their websites. There is helpful information on the website for the Florida Board of Medicine (http://www.doh.state.fl.us/MQA/medical/ me_home.html),   http://floridashealth.com/mqa/ osteopath/os_home.html, the Florida Administrative Code (http://www.flrules.org) and the Florida Statutes (http://myflorida.gov).   In closing, it is imperative that physicians and practitioners alike focus upon the reality of Department investigations and continue to be more proactive in risk prevention. One very effective manner to facilitate such strategy is to focus upon the nature of different kinds of risk exposure and potential outcomes. Understanding the nature and frequency of the circumstances, however, can only benefit a physician in focusing upon particular areas of his or her practice which could perhaps use more attention.