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Understanding the NCMB’s disciplinary case review process

Image for Understanding the NCMB’s disciplinary case review process In the last issue of the Forum I reviewed the actions the North Carolina Medical Board takes in response to the complaint, malpractice, medical examiner and investigative case information that comes to its attention. In 2008, the Board took public action in approximately 10 percent of cases closed that year, private action 30 percent of the time and no action (internally referred to as 'Accept as Information') 60 percent of the time. In this commentary I will discuss the process used by the Board and its staff to evaluate each case and explain how that process ultimately results in the final actions taken by the Board.

Initial staff review
The Board opens cases involving its licensees in response to information provided by patients and other private citizens, Board licensees and other health care workers, the North Carolina Medical Examiner's Office, hospitals and other health care institutions, malpractice and other insurance companies, the National Practitioner Data Bank, other regulatory bodies and, occasionally, the media.

The first review of such cases is always conducted by Board staff (as you may know, the majority of Board members are working professionals who meet approximately every two months to do official Board business.) Once the staff reviews the initial information, the first step is to identify the licensee or licensees who appear most involved and ask them to respond. The licensee may be sent information received by the Board and asked to provide a written response, or he or she may be interviewed by a Board investigator. The Board expects licensees to provide a timely, complete and accurate account of their involvement in a case under review.

The licensee's response should include pertinent information from the medical record or from other sources that help clarify and support their explanation of the conduct or care at issue.The licensee response is an important opportunity for the licensee to explain his or her perspective, and to bring any mitigating factors that may have bearing on the case to the Board's attention. After reviewing the licensee's response, Board staff may request additional information, including office and hospital medical records, photographs, North Carolina Controlled Substance Reporting System reports, pharmacy records, information from others associated with the case, copies of advertisements and brochures, evidence of licensee certification and continuing education, billing and coding records and police and court reports. In some instances, a Board investigator may visit a licensee's office, a hospital, laboratory or other site in order to obtain whatever other information is necessary to adequately evaluate the circumstances of a particular case.

Office of Medical Director review
Once a licensee response is received by the Board, all complaints, malpractice and medical examiner information, and those investigations that deal with quality of care issues, are forwarded to me or my colleague, Dr. Scott Kirby, the Board's assistant medical director. If we believe additional information is needed, it is requested. If it is impossible to obtain information needed to adequately assess a particular case, it is noted. When Dr. Kirby or I do not have the expertise to assess a quality of care issue, an opinion from an independent reviewer is requested. (The independent reviewer is a practitioner whose area of practice is similar to that of the licensee whose conduct or care is the subject of the case.) Once we have all the information we need to form an opinion, Dr. Kirby or I then summarize each case and make an initial recommendation for Board action. All the case information, along with the Office of the Medical Director summary and recommendation, is then sent to a panel of senior Board staff for further discussion and review.

Legal Department review
For investigations that do not involve a quality of care issue (such as boundary violations, substance abuse, felony or misdemeanor arrests and convictions, etc.) case information, including licensee responses, are reviewed by a Board staff attorney. The staff attorney makes an initial recommendation for Board action and forwards the case to the senior staff panel.

Occasionally, quality of care cases may also involve potential violations of law. When this occurs, cases are jointly reviewed by the Office of the Medical Director and the Legal Department, which work together to reach a recommendation for Board action.

Senior Staff Review Committee
Each case and its accompanying preliminary recommendation for Board action is then evaluated by the Board's Senior Staff Review Committee. This committee includes Dr. Kirby and me; a Board staff attorney and Thomas Mansfield, the director of the Board's Legal Department; Curt Ellis, the director of the Investigative Department; and Judie Clark, the director of the Complaint Department. As a group, this committee revisits each case and comes up with its own recommendation for Board action. The committee's discussion and recommendation for action take place in the context of the six
core competencies. (If you are unfamiliar with the ACGME's core competencies, see the article in this issue of the Forum. ) Consideration is also given to the licensee's past Board history and to any mitigating factors that may have influenced a licensee's behavior. In cases involving a quality of care issue, attention is focused on whether accepted standards of care have been met. The committee looks at patient outcome, the licensee's level of experience, the presence or absence of patterns of poor performance or behavior, and any previously failed attempts to remediate the licensee. Gross negligence, failure on the part of the licensee to address a fundamental component of good medical practice, a licensee's unwillingness to accept responsibility for clearly substandard care, a dishonest or misleading licensee response, or failure to cooperate with the Board inquiry all influence the committee's recommendation

The Senior Staff Review Committee's recommendation for Board action is one of consensus agreement. It may or may not differ from the initial recommendation of the Office of the Medical Director or Legal Department. If senior staff cannot reach a consensus recommendation, an explanation is provided to the Board.

Board committee review and Board action
Each case and corresponding senior staff recommendation is then sent to either the Board's Disciplinary or Review committee, depending upon what Board action has been recommended by senior staff (In general, the Disciplinary Committee reviews cases of a more serious nature and the Review Committee looks at cases that involve misconduct of a lesser degree.) There are two exceptions: in complaint and investigative cases where the Senior Staff Review Committee's recommendation is for no Board action, the complaint or investigative case is closed and retained in the licensee's
confidential permanent file.

Cases sent to the Board's Disciplinary or Review committee are assigned to individual Board members who serve on that committee. The Board member is responsible for familiarizing him- or herself with the facts of the assigned cases and with the accompanying Board staff recommendations. The Review and Disciplinary committees have the opportunity to review and discuss each case assigned to their committee members. The committee will either agree with the senior staff recommendation for Board action or offer an explanation for alternative action. When a Board committee reaches a recommendation for action, the case and recommendation are then sent to the full Board for review and discussion.

During the full Board discussion, the staff recommendation or suggested alternative action may be discussed at length. Following the discussion, the full Board may vote to take action, or it may defer action until more information can be obtained. For example, the full Board may order a licensee to undergo a physical or mental health examination, a substance abuse evaluation, a competency assessment or ask the staff to gather additional information. At times, the Board may obtain additional information directly from a licensee by requesting that the licensee attend a confidential interview with members of the Board. The Board votes to take disciplinary action only when Board members are satisfied they have received all the information needed to thoroughly evaluate a case.

At each step in the review process, opportunity exists to further clarify or amplify the information and recommendations associated with a particular case. The entire review process receives input from numerous individuals and involves checks and balances. The full Board's final action reflects the collective wisdom, expertise and experience of the Board's 12 individual members, as well as that of the staff. This rigorous process helps the Board regulate medicine and surgery for the benefit and protection of the people of North Carolina, as mandated by state law. It also helps the Board avoid taking inappropriate action against licensees who, despite the circumstances that may have brought them to Board attention, practice medicine safely and professionally.