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Nov 13 2015

Responding to “trivial” complaints: Frustrating but necessary

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Article summary:
• NCMB staff handle about 25 percent of patient complaints per year without the need for a written licensee response
• In many cases, NCMB cannot tell if a patient complaint has merit without a response from the licensee
• State law prohibits NCMB from obtaining a licensee response via telephone
• Complaints must receive thorough consideration and investigation in order to preserve public trust in the Board

A while back, Board Members asked me to write an article to address a question often received from licensees who find themselves the subject of a patient complaint: Do I really have to respond to this (possibly) frivolous allegation?

Put simply, the answer is, “If the Board asks you to, yes.” However, some deeper explanation is in order.

Review process filters out truly frivolous cases
Each year the Board opens about 2,500 cases based on complaints from patients and other sources. To manage this influx of information, some of which includes allegations of actionable misconduct or substandard care, NCMB staff members assess and filter cases so that licensees and Board Members alike are spared the need to respond to complaints that are truly without merit.

In fact, up to 25 percent of complaints received annually are clearly inconsequential, incoherent, trivial, or simply outside of the Board’s authority to investigate. In these cases the licensee is advised of the complaint, but not asked to respond in writing to the allegations or to provide medical records for review. The complainant is advised in writing that their complaint is not appropriate for Board investigation. That’s roughly 500 cases per year handled solely by Board staff.

In the remaining cases, however, it simply cannot be determined upon initial review of the complaint whether the allegations are valid without input from the licensee. The complainant will often paint a picture that is of sufficient potential concern that the Board is obligated to investigate. While it might seem reasonable to expect Board staff to simply call the licensee to discuss the matter this is expressly prohibited under the law. North Carolina General Statutes §90-14(i) prohibits any agent of the Board from contacting a licensee by telephone who is the subject of a complaint or investigation. The first communication is required by law to be in writing and to provide the licensee with mandatory notifications.

Preserving the public trust
It must be noted that the Board has a statutory duty to treat all complaints seriously, and to thoroughly investigate allegations where there is a reasonable possibility that a violation of the Medical Practice Act has occurred. Similarly, the licensee has a responsibility (and, in fact, a keen self-interest) to ensure that the Board has all the information it needs to reach a fair decision about the complaint. North Carolina physicians and physician assistants are fortunate to enjoy the privilege of self-regulation. This privilege is based on public trust. It will only continue as long as the Board, with full cooperation by licensees, can demonstrate it is willing and able to faithfully carry out its obligation to investigate and resolve complaints that are brought to its attention.

The Board recognizes that some patients may have unrealistic expectations about what can be achieved by filing a complaint. Over the last few years, NCMB has sought to educate patients and the public about the Board’s complaint resolution process to encourage appropriate use. These efforts include brochures and an online tutorial that spells out what the Board can and cannot do through the complaint process. In addition, the Board’s Complaint Department staff counsels patients and the public directly, fielding about 40 phone calls each business day. In each of the past two calendar years (2013-2014) the Board observed decreases in the number of complaints received from patients and the public. Although we cannot say for sure what is driving this decline, it’s possible that the Board’s efforts may have deterred some inappropriate use of the complaint process.

Preparing an appropriate response

The Board is well aware that requiring a physician to respond to a complaint is time-consuming and, particularly if the allegations are untrue, frustrating. Contrary to what licensees may believe neither Board staff nor Board Members ever consider licensees to be guilty until proven otherwise, and there is no arbitrary assignment of blame. In a typical year, just 10 percent of all disciplinary cases (out of the approximately 2,500 cases opened) result in any type of adverse public action.

Licensees often wonder if they should hire an attorney to help them respond to a patient complaint. This is ultimately a matter of personal choice, determined by the circumstances of you particular situation. A thoughtful, well organized response, adequately supported by the medical record, is generally sufficient and can be prepared without the aid of an attorney. It is not helpful to submit a response that is emotional or dismissive or that makes sarcastic or derogatory comments about the complainant, the complaint, or the Board. Your response to the Board should be a professional, succinct, and objective answer to the specific allegations in the complaint. Any complaint that relates to quality of care should be carefully considered. Licensees may want to contact their malpractice carriers for advice in these situations.

In closing, regardless of your opinion of the complainant or the complaint you are required, when asked, to provide the Board a timely and professional response. Think of it as an opportunity. There is almost no complaint that cannot provide a licensee some useful information about his or her practice or patient interactions. You might consider, even briefly, reflecting on the allegations from the complainant’s point of view and look for ways to, hopefully, avoid similar issues in future.

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 Comments on this article:

I fail to see how the statute prohibits the board from handling complaints by telephone consultation with the licensee. Your own article cites the statute which notes “The first communication is required by law to be in writing and to provide the licensee with mandatory notifications.” After the board follows the law and notifies in writing it could then proceed to resolve the issue by telephone.

By David Bartholomew on Nov 16, 2015 at 2:24pm

I recently had a complaint filed against me by a patient.  This was my first in 23 years as a practicing physician (10 years in NC).  While it was an inconvenience to say the least, after providing all the evidence of record, as well as my written response, I would like to congratulate the Board for a job well done.  I agree that it is the responsibility of the Board to uphold the public trust.  At the same time, the complaint was dismissed without further cause and the patient was notified.  I firmly believe that it gives us an opportunity to respond to those complaints which have no merit and are submitted solely because a patient did not obtain the outcome they desired (in this case, a workman’s compensation issue).

By Marcelo Perez-Montes, MD, MPH on Nov 16, 2015 at 3:20pm

Recently I was asked by the Board to reply to an irate complaint from the mother of a young man who died under my care.  Investigation on my part revealed that the man was actually not taking the medication I prescribed and his death was likely due to murder by overdose given by another person! 
  In my 44 years of general practice, I have found that investigating and replying to Board complaints has been a most interesting and rewarding experience.

By James Stewart Campbell, MD. on Nov 17, 2015 at 11:13am

In response to Dr. Bartholomew NCMB Chief Medical Office writes:

The necessity for a written response to complaint allegations is to provide licensees with important procedural protections. Complaints, for which a response from the licensee is requested, may have the potential for disciplinary action by the Board. Thus, it is in the licensee’s best interest to provide the Board a written response to the allegations in the complaint - rather than having the Board rely on an interpretation, from Board staff, of a telephone conversation or consultation with the licensee.  However, if you, or any licensee, ever has a question about the Board complaint process, policies, procedures, or any other question for that matter, you are welcome and encouraged to call me at any time to discuss your concerns.

By Jean Fisher Brinkley on Nov 17, 2015 at 11:48am

The Board is mandated to study each and every complaint, and do not forget that

any one of could end up in the role of a PATIENT in life .Give the Board the

facts and your(Professional) judgmental opinions when requested, and if you

have nothing to feel guilty of anything.

By Sastry V,Neti on Dec 30, 2015 at 10:08am
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