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Aug 14 2009

Understanding the NC Medical Board’s disciplinary work

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As Medical Director for the North Carolina Medical Board I review the complaint, malpractice, medical examiner and investigative case information that comes to the Board from a variety of sources. Watching the Board evaluate this information has given me a good understanding of the actions that follow the analysis of each case.

Most readers of the Forum are no doubt aware of the Board's public actions, which are printed in the back pages of this newsletter. However, readers may not be aware of the far greater number of Board actions that are not public. Both public and non-public actions are important in helping the Board fulfill its mission to regulate medicine and surgery for the benefit and protection of the people of North Carolina.

This is the first part of a two part commentary that will provide insight into the Board's disciplinary processes. This article will discuss the number of cases reviewed and actions taken in the most recent year, and review the range of public and private actions used to resolve disciplinary cases. Part 2, which will be published in a subsequent issue of the Forum, will discuss the multi-step review process used to determine whether discipline is warranted in a particular case and, if so, what type of discipline the Board feels is appropriate.

In 2008, the Board opened more than 2000 cases based on information received from patients and other private citizens, health care institutions, health care workers, out-of-state medical boards and other regulatory bodies, insurance companies, the National Practitioner Data Bank, the North Carolina Medical Examiner's Office and other sources. The overwhelming majority of cases centered on an individual licensee. A handful of cases involved multiple practitioners or an entire practice. Most cases involved quality of care issues, and others involved licensees who came to attention because of alcohol or substance abuse issues, criminal convictions, changes in hospital privileges, disruptive behavior, ethical and boundary concerns or other aspects of professionalism.

The Board does not resolve every case opened in a given year. In cases where the Board acted in 2008, public actions were issued approximately 10 percent of the time. Private action was taken 30 percent of the time and no action was taken in 60 percent of cases. "No action" is technically an incorrect term, since the actual Board action in these cases is to "Accept as Information" (more on this later).

A fundamental and important aspect of the Board's disciplinary work is to remediate, whenever possible, the behavior or practice that led the Board to take a private or public action. The remediation activity may be implicitly or explicitly stated as part of the action, and depending on the circumstances, broad or narrow in scope. For example, if a practitioner is not prescribing controlled substances
safely, the Board might first direct the licensee to obtain additional training and/or supervision that would result in better prescribing. If this approach is not appropriate for the circumstances, the Board might instead restrict the practitioner's ability to prescribe specific controlled substances or prohibit the licensee's use of controlled substances altogether.

Public actions
As noted above, just one in 10 cases reviewed by the Board resulted in a public action last year. However, there is no doubt that these actions have the greatest impact on licensees. Public actions arise from licensee behavior or practice that deviates significantly from accepted standards and that has the potential to extend beyond the circumstances of a single case. Public actions include Public Letters of Concern, Consent Orders, Orders of Discipline, Notice and Entry of Revocation, and Order of Summary Suspension. All public actions are reported on the Board's website via the licensee's public nformation page, and to the Federation of State Medical Boards. All of the actions listed above, except for the Public Letter of Concern, are disciplinary in nature and are also reported to the National Practitioner or Healthcare Integrity and Protection Data Banks.

Public Letters of Concern and Consent Orders accounted for about two-thirds of public actions in 2008.

A Public Letter of Concern is just what it sounds like--a formal letter from the Board to a licensee that expresses concern about a behavior that may pose a risk to public safety. When a public letter is issued, the behavior examined was determined to be below accepted standards. In quality of care cases, the conduct of concern usually involves a failure to follow a fundamental component of good
medical practice. When the Board issues a Public Letter of Concern to a licensee, the licensee must either agree to accept it or proceed to a public hearing before the Board, which is a process much like a trial. A public letter may also be issued following a hearing or agreed to as part of a Consent Order.

A disciplinary Consent Order is a negotiated agreement between the Board and a licensee that involves behavior of greater concern to the Board than that associated with a public letter. The Board and the licensee must agree on the content of the Consent Order, which typically contains one or more disciplinary actions and may also subject the licensee to terms and conditions. Depending on the extent of the Board's concern, disciplinary actions may range in severity from a reprimand or period of probation to a suspension, revocation, or annulment of a practitioner's license. In addition, Consent Orders may impose conditions that direct the licensee to complete continuing medical education. A Consent Order may also limit the licensee's practice or prescribing, require mentoring, physical or neuro-psychiatric evaluation, substance abuse evaluation and treatment, or other terms meant to restrict and remediate behavior that poses a risk to patient safety.

An Order of Discipline, which follows a hearing, is similar to a Consent Order in terms of the range of Board concerns about a licensee's practice or behavior and the severity of associated disciplinary actions. An Order of Discipline does not require the licensee's consent, but it does require due process.

Notice and Entry of Revocation is a relatively infrequent Board action taken specifically in response to a licensee's criminal felony conviction. It rescinds the licensee's ability to practice. A practitioner's license may also be revoked for reasons other than a felony conviction by a Consent Order or Order of Discipline. Under state law, when a license is revoked, the licensee is prohibited from seeking reinstatement for a period of at least two years.

A summary suspension temporarily removes a licensee from practice due to what the Board perceives as an immediate threat to public safety. When a license is summarily suspended, the licensee is entitled to a prompt hearing.

Private actions
A private action occurs when the Board determines that a practitioner's behavior does not pose a risk to public wellbeing, but nonetheless is a cause for concern. The concern is expressed in a Private Letter of Concern or "PLOC", and is not a disciplinary action. The letter directs a licensee to improve practice or behavior before it leads to more serious problems and, potentially, a public action by the Board. The private letter is meant to focus a licensee's attention on conduct of concern to the Board, and is meant to be persuasive in getting the practitioner to take steps to improve. Private letters may contain a request for the licensee to complete remedial activity to help achieve that improvement.

A Private Letter of Concern usually arises from an isolated, self-limited, non-recurring event. Examples include failing to communicate with a patient effectively, writing a prescription for a medication to which the patient has a known allergy, or terminating a physician-patient relationship inappropriately. In quality of care cases, the Board typically considers the outcome of care and whether the practitioner deviated from accepted standards in determining the tone and content of the private letter.

When a private letter is issued, it becomes part of the practitioner's permanent Board file. An individual who complains to the Board about a practitioner may be told that the Board has issued a private letter of concern as a resolution to their case. However, the content of the letter is not public. It is not posted on the Board's website, nor is it described in the Forum.

The most common resolution: no formal action
As I noted earlier in this article, most cases reviewed by the Board end with no formal action being taken against the licensee. In these cases the Board may conclude, after a review of the facts, that the practitioner met or exceeded accepted standards and has practiced professionally. When this happens, the Board moves to "Accept as Information" and the case is closed. This was the result in close to two out of every three cases where the Board took action in 2008. An "Accept as Information" case does become part of a licensee's permanent history with the Board, but is referred to as what it is: an item of information.

The Board recognizes that the overwhelming majority of its approximately 35,000 licensees practice medicine safely and behave professionally. Their good work is reflected in the benefits their patients receive and in the relatively small number of cases that come to Board attention.

Each of the actions I have described in this commentary arises from a lengthy process of information evaluation that is carried out by the Board and its staff. In a subsequent issue of the Forum, I will review that process and discuss how it results in various Board actions.

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