August 23, 2006
By: Richard Brown
*Published in the February 2007 issue of Connecticut Medicine. An earlier version of this article was published in the July 1993 issue of Connecticut Medicine.
One day you open your business mail only to be greeted by a notice from the State of Connecticut, Department of Public Health, hereinafter referred to as "department." The letter cites a few statutory provisions and then notifies you that the department is conducting an investigation with reference to one or more of your patients. The letter will request that you provide the department with certified copies of all of the patient's records. Additionally, the department will request a statement of the care and treatment rendered by you to the patient. Finally, the department may request that you answer specific questions in reference to your treatment.
The department may take your response (after having removed your name), coupled with the statement of the patient or complainant, along with the record and forward the same to a physician who, you hope, practices in the same specialty as you do. This "expert" will issue a report to the department. It is important to be detailed in your response to the department, supplying all documentation supporting your decision.
It may come to pass that your response, coupled with the record, may convince the reviewing physician that the claim of wrongdoing against you is meritless. Section 19a-9-15 of the Regulations of the Department of Public Health, hereinafter referred to as "regulations," provides that the department may dismiss any alleged violation if there is insufficient evidence to proceed.
Assuming the department feels that there is sufficient basis to proceed, you, the practitioner, will be given the opportunity to attend an informal "compliance meeting." In my opinion, you should have retained counsel by this point. This informal conference is your last opportunity to convince the department to dispense with formal proceedings against you. Also, if there is merit to some violation of state law or regulation, it may be your last opportunity to work out a resolution with a minimum of publicity, risk, and cost. Do not be fooled by the misnomer "compliance conference," since in many situations one cannot comply with an event which has already occurred.
If you retain counsel, he is permitted to attend this informal hearing and to offer additional documents (such as your expert's report) on your behalf. This means that prior to any such meeting you should have met with your attorney and reviewed with him the entire file. He should have ideas as to how to best present your side of the treatment of the patient. At the informal hearing, which is not being recorded and which does not adhere to the rules of evidence, your attorney should be able to obtain a copy of the report issued by the department's expert along with a copy of the original complaint against you. This information is invaluable in defending against any charges. Also at the informal conference if there is merit to the claimed violations, this will provide you and your counsel with the opportunity to minimize any sanction which the department may want to impose upon you, the practitioner. For example, while there may have been a violation, it might not have been as severe as perceived. In other situations where your protocol is called into question, you may be able to demonstrate that you have taken corrective steps to remedy the situation. While this will not absolve the physician of any wrongdoing, it may mollify the department in terms of the nature of the sanctions. Many cases are resolved by the use of a "consent order," which may or may not call for admissions of wrongdoing on your part.[3]
Assuming the matter cannot be resolved on any informal basis, the department will set it down for a formal hearing. Prior to said hearing, you will receive a notice which will outline the specific conduct under investigation. It is the job of your counsel, if necessary, to move for a more specific statement. At the hearing, your counsel will have the opportunity to present any documents and witnesses (including expert witnesses) supporting your position. It is incumbent upon you to make a record of your legal defense at this hearing. Should you appeal any decision to the Superior Court (as is your right), the Court will only review that which is "on the record." You are not entitled to a new hearing. In other words, the issue on appeal is simply whether you received a fair hearing consistent with due process of law. It is not the function of the Superior Court to retry the case.
Because of the importance of the hearing, every effort must be expended to insure that your position is made clear to the Connecticut Medical Examining Board, which presides over the department's hearing. You should know that not all members of the Board (there are 12) are physicians. Indeed, C.G.S. § 20-8a(a) mandates that at least one member of any panel hearing charges shall be a "public member" - e.g., John Q. Citizen. Furthermore, there is no guarantee that any of the physicians on the three-member investigating board, which will render a report to the entire Board, is a physician practicing in the same area of medicine as the responding physician. Hence, it is extremely important to structure a defense using language and documents geared toward a nonspecialist.
At the conclusion of the hearing, the panel will issue a proposed finding of fact, conclusions of law, and a recommended decision. Your counsel, under C.G.S. § 4-179, will have the opportunity to review this decision, file exceptions, and present briefs to the Board. The Board, after due review, may dismiss some or all of the charges for lack of sufficient evidence of a violation. Should there be a finding of any violation, under C.G.S. §§ 19a-17 and 20-13a et seq., the Board may revoke or suspend the physician's right to practice, censure the physician, or issue a letter of reprimand, the penalty being theoretically commensurate with the wrongful conduct and prior history of the physician. Further, the Board can fine a physician up to $1,000.00, require additional professional education, place a licensee on probation, and/or limit the physician's area of practice. Should a penalty be imposed, you have the right to appeal either the findings of the Board or the sanctions imposed to the Superior Court. However, any such appeal does not act as a stay of the decision and penalties. Accordingly, your attorney must seek such a stay in Court promptly after the Board's decision is rendered.
In my experience, I have learned that there are things that you, the practicing physician, can do to minimize the possibility of finding yourself in the aforementioned position. Foremost, you must properly document your file. Sadly, in this era of litigious patients, the practitioner need to make certain that each patient's record is thorough and complete. This would include specific detailed statements of the patient's condition and documentation of any examination and any treatment rendered. When a patient fails to attend scheduled appointments, such information should be duly recorded. instructions given to patients concerning follow-up care must also be noted.
Additionally, and perhaps most importantly, the physician needs to learn to communicate effectively with the patient. Many of the complaints filed against doctors could be avoided had the practitioner taken a few extra moments to insure that the patient fully understood his condition and the necessary treatment.
In sum, both the State Health Department and patients are holding physicians more accountable for their actions. The public more than ever is resorting to filing complaints against the practitioner with the Department. Your license, reputation, and practice are all put into jeopardy each time such an event occurs. It has become incumbent upon the provider of medical services to be aware of what needs to be done both before and after a letter from the State Health Department is received. Knowledge in this area can prevent many potential complaints from being filed. Additionally, in those situations in which you are called before the Department, you can minimize the impact upon yourself and your practice by the manner in which you deal with the situation. Ultimately, proper documentation and effective communication will always prove to be the physician's best defense.
[1]
[2] Attorney Brown is a former Assistant Attorney General and former prosecutor for the State of Connecticut. He is senior partner in the Hartford law firm of Brown, Paindiris & Scott, LLP.
[3] Before one agrees to any consent order or penalty, one needs to determine any repercussions any admissions or finding might have with both state and federal Medicaid and Medicare agencies as well as with any HMO with which the practitioner is affiliated, and also with the underwriting department of the physician's malpractice insurance carrier, come next renewal.
