Representation of Physicians Before the Board of Medicine
| Citado como | Vol. 49 No. 1 Pg. 0030 |
| Páginas | 0030 |
| Año de Publicación | 2008 |
2008 Spring, Pg. 30. Representation of Physicians Before the Board of Medicine
Volume 49, No. 1
Spring 2008
I. INTRODUCTION
Representing a physician before the State Board of Medicine ("the Board") can be a charged and unfamiliar situation for most attorneys. Compared to practicing before the judicial branch, the procedural rules are different, the evidentiary standards are looser, and the array of Board members, investigators, and committees that can become involved in your client's case can be daunting. As this article will explain, however, many fundamental concepts familiar from the courtroom are applicable here: due process requirements for a fair hearing, settlement negotiations with the Board, examining and cross-examining witnesses, and an appellate procedure that offers redress from erroneous decisions. Another aspect of Board practice that should be familiar are the stakes involved for your client. For a physician, the stress of being investigated or tried by the Board of Medicine is enormous; life as the physician knows it could be over if the Board decides that license revocation is appropriate. This article will highlight the legal underpinnings and the Board's common practices to familiarize attorneys planning to represent a client before the Board.
A. General Trends
As the growth of New Hampshire's population continues to outpace the other New England states, the Granite State has experienced a similar increase in the size of its physician community.(fn1) Between 1996 and 2006, the number of licensed New Hampshire physicians grew from 2,849(fn2) to 4,174, and as of July 16, 2007, the number had grown to 5,117.(fn3) The New Hampshire Board of Medicine - the state agency that oversees physician licensing, establishes licensure criteria, and disciplines physicians found to have breached these criteria - has experienced increased disciplinary workload over the past decade. In 1996, the Board imposed 13 sanctions, including reprimands, limitations, restrictions, physician oversight, and/or requirements for additional education.(fn4) By 2006, the number of physician sanctions had risen to 21.(fn5) In 2003, the Board began noting, in its biannual newsletter, the number of confidential letters of concern it issued in the past six months. From April through December 2002, the Board issued 45 letters of concern; received 103 consumer complaints; and received notice of 127 lawsuits against physicians from the courts.(fn6) During 2005, these numbers had increased to 47 letters of concern issued; 147 complaints received; and 169 lawsuit notices.(fn7) That year, the Board also received 45 malpractice claims and 46 complaints from other sources.(fn8) And in 2006, the Board sent 64 letters of concern, and received 372 complaints and notices of lawsuits.(fn9) An increasing number of Board actions involve the imposition of reciprocal discipline as more doctors are licensed both in New Hampshire and another state. In 2006, of the 21 sanctions given by the Board, nine involved out-of-state physicians.(fn10) Of those, four doctors were disciplined by the Board reciprocally. By contrast, in 1996, there were no such cases.(fn11) Board actions frequently involve an inappropriate sexual relationship between physicians and patients. Every year, there are licensees who fail to maintain a proper physician-patient relationship and are sanctioned by the Board. In 2006, the Board sanctioned three physicians for failing to maintain a proper physician-patient relationship,(fn12) compared with five in 2005,(fn13) and four in 1997.(fn14) The Board has also sanctioned an increasing number of physicians for inappropriate prescribing. In 2006, the Board sanctioned three physicians for this conduct, compared with four sanctions in 2005 and one each in 1997 and 1996.(fn15) Concern with the increasing number of Board actions related to improper prescriptions led the Board in 2000(fn16) to issue pain guidelines and an explanatory letter.(fn17) The Guidelines provide seven treatment steps physicians should follow in pain management, which include (1) initial patient evaluation; (2) development of a treatment plan; (3) informed consent and treatment agreement (including a written agreement between the physician and patient, and periodic drug testing); (4) periodic review; (5) consultation when appropriate; (6)accurate and complete medical records; and (7) compliance with controlled substance laws and regulations.(fn18) In its explanatory letter, the Board noted that while it "will likely not take disciplinary action against a physician for failing to adhere strictly to the provisions of this protocol, 'significant deviation' from the guidelines will likely result in investigation and/or sanction of a physician practice."(fn19) In 2000, the legislature amended the Controlled Drug Act which clarified the law regarding prescription of narcotics for pain in an attempt to assuage physicians' fear of punishment for pain treatment.(fn20)
B. Representative Cases
An analysis of the raw numbers is important to outline general trends, but a discussion of some representative cases from recent years may better illustrate the scope of the Board's operations. A review of disciplinary notices the Board publishes on its website also demonstrates the types of conduct most likely to result in Board sanctions. This information shows that most of the cases handled by the Board involve one or more of the following: inadequate recordkeeping, physician substance abuse, improper prescribing of addictive drugs such as pain medications, and inappropriate (i.e. sexual) physician-patient relationships. Representing less serious infractions, Dr. Joel Wagman of Amherst was reprimanded in February 2007 and assessed a $1,000 fine for retroactively altering a patient's records and not correctly dating the changes.(fn21) In January 2006, Dr. Edward Dalton of Manchester was fined $1,000, in addition to being required to participate in twelve additional hours of continuing medical education ("CME"), for prescribing Hydrocodone without maintaining appropriate records.(fn22) Dr. Dennis Swartout of Westmoreland, N.H., was fined $2,000 and required to take six additional hours of CME after the Board "obtained information regarding two visits of a patient on consecutive days, wherein no vital signs were taken, no testing was ordered, and the medical record was inadequate."(fn23) At the more serious end of the spectrum, psychiatrist Dr. Matthew Hopkins' license was suspended in 2003 for abusing Adderall.(fn24) Dr. Hopkins's problems started with a few beers each night in medical school and expanded to full-blown alcoholism during his residency. Later, he began writing himself Adderall prescriptions with fake patient names. A pharmacy grew suspicious, leading to Board action. Though Dr. Hopkins' license was immediately suspended; he resumed his practice after working with the New Hampshire Physicians' Health Program ("PHP"), and now specializes in addiction psychiatry. The case of Seabrook physician Donald McGee blends several frequent problem areas. Dr. McGee hired an individual who had a drug abuse history and was an unregistered sex offender, with whom Dr. McGee was having a personal relationship, to assist with Dr. McGee's opioid dependence program.(fn25) Further, Dr. McGee had an inappropriate relationship with a patient; including drinking alcohol together after business hours. In November 2004, Dr. McGee also pled guilty to driving under the influence of alcohol. Pursuant to a settlement agreement, the Board retroactively suspended Dr. McGee's license and required practice supervision over the next two years. The Board barred him from practicing substance abuse treatment, and required him to enter the PHP for five years. The Board permanently revoked the license of James S. Jealous, D.O. in 2005 for engaging in a sexual relationship with a former patient (the State of Vermont took the same action reciprocally).(fn26) The Board asserted that Dr. Jealous, who also taught osteopathic techniques based on nature and spirituality,(fn27) had fostered a relationship with a female patient that involved discussions of spiritual beliefs, past intimate relationships, and the patient's poetry and writing. The patient became emotionally dependant, and a sexual relationship formed after Dr. Jealous terminated their physician-patient relationship in December 2002. Some months later, Dr. Jealous abruptly ended the physical relationship, causing the patient emotional distress. Dr. Jealous entered into a consent agreement with the Board resulting in license revocation. As these cases illustrate, Board decisions have tremendous consequences for the careers of physicians and the well-being of their patients. With this in mind, the remainder of this article discusses the Board, its composition and powers, how complaints are filed and resolved, and how attorneys practicing before the Board can safeguard their clients' interests.
II. Board Composition and Resources
A. Board Members
The Board of Medicine consists of ten volunteer members. Either the Commissioner or Medical Director of the Department of Health and Human serves as one ex-officio member.(fn28) The Governor, with the advice and consent of the Executive Council, appoints the other nine members.(fn29) Five of these members must be doctors, one member is selected from among physicians' assistants, and three remaining seats are filled by members of the public. Public members must not be members of the medical profession, among other requirements for neutrality.(fn30) The Board meets monthly. Challenges to the composition of the nonprofessional members of the Board have been unsuccessful. In Appeal of Plantier...
Para continuar leyendo
Solicita tu prueba