Keith Loria is a contributing writer to Medical Economics.

Keith Loria

A complaint to a medical board is a considerable challenge posing as much risk to a physician’s career as a malpractice case.

"A physician should never try to take matters into their own hands and contact the complaining party to try to talk them out of it. This will almost always lead to failure and further problems down the line,” said attorney Keith Roberts.

Such a complaint often can be very trying and potentially damaging to one’s reputation. Some of the reasons behind medical board complaints involve a doctor’s code of ethics. Medical malpractice, misdiagnosis, failure to treat a patient and mismanaging a patient are common allegations in such complaints.

Alex Keoskey, a partner at Mandelbaum Salsburg P.C., a law firm based in Roseland, New Jersey, notes it is essential that legal counsel be retained whenever there is a threat of an adverse action against a physician from any source. “Physicians should take medical board complaints far more seriously than a medical malpractice complaint,” he says. “Physicians need to be aware of the reporting requirements enshrined in state and federal law relating to adverse actions by medical boards.”

Kevin O’Mahony, an attorney at KOMahony Law in Johns Creek, Georgia, notes disciplinary action resulting from a medical board complaint can include a reprimand, restrictions on a physician’s practice, continuing medical education or monitoring requirements, probation and license suspension or revocation. “The adverse consequences of a medical board complaint do not end there,” he says. “Physicians generally are required by contract to report disciplinary actions to their professional liability carriers, managed care plans and patients’ health insurance plans.”

Federal law also requires that discipline be reported to the National Practitioner Data Bank, which hospitals must check before granting or renewing medical staff privileges. “In most states, all public disciplinary actions taken by the medical board are required to be entered on the physician’s profile on the board’s website,” O’Mahony says. “The public board order itself can be viewed online by anyone who wishes.”

Public disciplinary actions are also reported to the Federation of State Medical Boards (FSMB), a national clearinghouse whose membership comprises all state medical boards across the country. The FSMB issues periodic reports to all state medical boards informing them of any public actions taken against a physician by another state’s board.

If a physician licensed in Georgia, Florida and North Carolina is the subject of a disciplinary action by the Georgia Composite Medical Board, the action will be reported to the FSMB. The FSMB will then report that action to the Florida and North Carolina medical boards, which may initiate their own investigations leading to disciplinary actions in those states as well.

Additional collateral effects of a medical board action may include loss of hospital privileges, loss of participation in preferred provider organizations, loss of enrollment with third-party payers, loss of board certifications, loss of Drug Enforcement Administration registration, and exclusion from participation in Medicare, Medicaid and other government programs.

Attorney Keith Roberts, co-chair of litigation at the Brach Eichler firm in Roseland, New Jersey, has been representing physicians with medical board complaints for almost two decades. One of the biggest reasons for complaints lately, he shares, involves physicians overprescribing opioids. Others involve crossing patient boundaries and not communicating effectively.

“Physicians need to maintain a high level of ethics and professionalism,” he says. “They need to adhere to the standard of care. Don’t assume you are up to date. Seek it out. Stay on top of respected journals and attend regional and national conferences — because things evolve.”

Medical board complaints can be avoided by following protocol and understanding the patient’s expectations. When expectations are not met, empathy and professionalism should be applied.

There are myriad things physicians can do to avoid medical complaints, O’Mahony says, starting with properly training, supervising and utilizing support staff and allied professionals. Other musts include taking time to learn about patients’ individual characteristics; identifying their unique needs and accommodating them where possible; being courteous and respectful; being receptive and responsive to questions and complaints; minimizing delays and communicating about anticipated time frame issues as soon as possible; and ensuring proper and thorough medical recordkeeping and billing documentation.

“It’s also recommended to avoid inappropriate language in medical record and billing documentation, recognizing that any medical record or bill could later be used as evidence in a medical board or legal proceeding,” O’Mahony says.

Additionally, physicians should properly and thoroughly document informed consent, properly refer patients to other qualified health care professionals when appropriate, have a formal policy in place for identifying and resolving complaints, and apologize — without admitting liability or fault — when appropriate.

“Although a physician can take steps to identify and prevent the most common types of complaint, he or she may not be able to avoid a complaint ever being filed,” O’Mahony says. “Despite a physician’s best efforts, he or she may not be able to please all patients or all parties who could be sources of medical board complaints all the time. Even the finest physician may be the subject of a medical board complaint at some point in his or her career.”

Liana Casusi, MD, a general physician and consultant, notes that medical board complaints and medical malpractice lawsuits stem from almost the same cause — failure to perform primary physician duties within the expected competencies. “Before practicing your medical profession, plan the dynamics thoroughly,” she says. “How do you receive a patient? How do you create and keep medical records? How do you issue prescriptions? How do you advise follow-up? And these are just a few considerations. Prepare all your record form templates and have your counsel check them for any missing information.”

Her biggest tip for avoiding complaints is to review the rules of one’s medical board and let them guide their lifestyle. “On the actual practice aspect, be thorough before arriving at a diagnosis — and, of equal importance, record everything in the chart,” Casusi says. “Check and double-check prescriptions before issuing them, to eliminate any errors. Always keep private all information about the patient unless you are legally obliged to share it.”

Some practical advice from Roberts involves becoming engaged in billing practices. “Having to ask the billing department is not an advisable position,” he says. “Physicians should know what they’re billing (and) why they’re billing it, and they should be regularly auditing medical charts on a quarterly basis to make sure they are properly documenting codes.”

Whenever a medical board complaint is filed, a physician should consult with qualified legal counsel as soon as possible. “Most physicians are not equipped to represent and defend themselves in a medical board proceeding without the assistance of qualified legal counsel,” O’Mahony says. “The damage that can be done to a physician’s reputation and livelihood by a professional complaint far outweighs any legitimate concerns he or she may have about retaining the services of an attorney experienced in this area of the law.”

Elizabeth Greene, a partner in Mirick O’Connell’s litigation and health law groups, Westborough, Massachusetts, notes physicians should check their malpractice insurance to see whether they have coverage for legal counsel for licensing board complaints. Even if they do not have coverage, it is prudent to engage experienced board counsel.

“With the assistance of counsel, physicians are better equipped to protect their license and avoid responding emotionally or inappropriately to a complaint or investigation,” she says. “Physicians should never alter or destroy records, including when they are faced with a board complaint or investigation, and they must remember the EMR (electronic medical record) leaves a footprint of all actions—the metadata.”

If a physician receives a letter or phone call from a medical board investigator, it is crucial that they not procrastinate or ignore the notice. It is almost never advisable for a physician to meet with or be questioned by a medical board investigator without legal counsel present or on the phone. Once a lawyer has been retained, it is critical that they be promptly provided with all pertinent documents and information, as well as any known grounds for defending the allegations.

“It is important that the physician provide the attorney with all information relating to the complaint, including the good, the bad and any ‘ugly’ facts which may be relevant,” O’Mahony says. “A physician does not want his or her lawyer to be unpleasantly surprised by damaging evidence when it is too late for the attorney to consider how best to minimize or deal with its impact.”

If the medical board conducts a thorough investigation, all relevant information will almost certainly come to light. Withholding important or potentially damaging evidence from their lawyer because the physician hopes it will not come out will impair the attorney’s ability to prepare — or assist the physician in preparing — an appropriate response or defense. Therefore, physicians can best handle medical board complaints by having an experienced lawyer, upholding the code of ethics and behaving professionally.

Casusi recommends keeping all information about the complaint private. “It is actually unnecessary and dangerous for us to share information — especially through letters, SMS or online platforms — because these may be easily leaked and made into evidence in favor of the complainant,” she says. “Another tip, trivial as it seems, is to remain calm. Yes, it is human nature to react with anger, and that is valid. However, avoid impulsive acts of rage that may aggravate the condition.” Examples are badmouthing the complainant or blaming others.

Every case is different, and each case must be examined and evaluated based upon its own facts and circumstances. But a key to resolving medical board complaints successfully — or on terms as favorable as possible — starts with taking the complaint seriously from the get-go.

Roberts notes a physician should never try to take matters into their own hands and contact the complaining party to try to talk them out of it. This will almost always lead to failure and further problems down the line.

If disciplinary action is unavoidable, O’Mahony notes negotiating the most favorable or least damaging resolution possible. Fully complying with all agreed-upon or ordered terms must be accomplished.

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“Physicians should take medical board complaints far more seriously than a medical malpractice complaint,” said attorney Alex Keoskey.

How should you handle a medical board complaint?

The purchase of new technology is a monumental decision-making exercise for a medical practice. Some of the key areas of consideration include patient benefit, practice overhead, potential new revenue, and impact on practice workflow.

One of the best ways to know whether new technology is the right choice for a practice is to research it, whether it’s asking trusted colleagues for their opinion or reading the literature published about the equipment.

Clifford Gluck, MD, FCAS, who owns a urology practice in Hingham, Massachusetts, is frequently presented with the “next big thing” in tech. But he has found that most technology is oversold and that sales associates often significantly exaggerate the benefits.

“One has to be very careful about purchasing any kind of technology — especially ones that the patient will pay cash out of their pocket for,” he says. “That’s why it’s important to get the experience of others who have used the technology and to look at the literature to see what there is in terms of scientific evidence.”

Rafael A. Lugo, MD, a general surgery specialist in The Woodlands, Texas, agrees that not everything new is best.

“It’s a tough decision each practice has to make on a personal level,” he says. “The best method is to evaluate current workflows and then see where the new tech fits in and how it will help the business or improve patient care.”

From there, he notes, consider the return on investment, which ultimately will become a driving force of almost any new technology.

“If we buy new tech just to be modern, then we are wasting the money,” Lugo says. “I think it is important to have clear goals in any expense made for the practice. Overhead is the biggest drain for a practice and if the new tech will not make a difference, then it’s often best to wait.”

Practices should never jump into something quickly, as tech can be expensive and it’s something they may be stuck using for years even if something better comes along.

“Testing the product on a small scale is crucial,” says Ewa Matuszewski, CEO of MedNetOne Health Solutions in Rochester, Michigan. “Purchase one or two licenses or ask the vendor for a testing period. Never purchase group licenses until the user has had the opportunity to see if the product fits the needs of the practice.”

Another great tip is to look at the response time of the customer relations department, she says. If a physician can’t get an issue resolved in a few days and the vendor doesn’t follow up, it may be a good reason to reconsider purchasing the product/licenses.

David Berg, president and co-founder of Redirect Health, notes practices need new technology to stay competitive. This increases the efficiency and effectiveness of the workforce, and it also reduces the cost of hiring new workers to do what the technology can do instead.

When choosing technology, Berg says, “you don’t want to put too much weight on the importance of reviews from other practices unless they are ones you personally know or trust. Building a network that you do trust is an important step for a practice and an effective way to get reliable reviews on new technology you may be considering.”

Attending seminars that demonstrate a new type of technology can be helpful, as well as watching videos about the product and reading the studies that were performed.

“Also important is its ease of use and implementation into practice,” Gluck said. “Is it something that will be covered by health insurance or will patients have to pay for it out of pocket? Will a special protocol have to be implemented in the office? Will assistants need to be trained about how this new technology works? These are important considerations.”

Getting burned by new technology or the companies responsible for servicing them is possible.

“When changes in ownership or priorities with the tech company occur, satisfaction with the cost and/or use of the tech can also change. Getting caught up in a bad contract can jeopardize your practice both financially and technologically,” Berg says. “Sometimes a change in priorities can mean systems you rely on don’t routinely get updated, (but that is) vital for your company to stay up-to-date with patient expectations.”

Securing a good contract that covers any worst-case scenario concerns is extremely important to protecting practices from these situations.

“When you make a decision to purchase new tech, you want to work with the salesperson — your advocate with the tech company — to ensure you always have a contractual out in case things do go south,” Berg says.

Lugo has been burned in the past by buying tech too early and purchasing things that didn’t work as expected.

“One of the most important things I have learned is not to buy until I try,” he says. “You must make sure all questions are answered and instead of letting the salespeople tell you how wonderful the system or technology is, you tell them what you need and ask for a demo on how that will work. Be clear on your needs and expectations from the first conversation.”

After all, it’s easy to be lured by bright colors and fancy gadgetry, but at the end of the day, if the tech was not designed to fit your practice’s needs, it could disrupt your work flow and make things more difficult.

“Technology should be a facilitator and not an obstacle,” Lugo says.

There are some important questions to ask before buying any new technology for the practice: What is their financial model for payment — up front, monthly? What are the conditions of terminating our contract? What are the staffing requirements to get the new tech operational? What type of training will staff need and how long will that take?

Matuszewski cites a popular saying in the industry: “If you’ve seen one practice, you’ve seen one practice.”

“The practice culture, willingness to change and ongoing practice transformation activities vary from practice to practice,” Matuszewski says. “If I had the choice, I would rely on the opinions of physician organizations that review new technology and that are willing and able to test and support the practice needs from planning to implementation and support.”

Lugo points out that what works for one practice may not work for another, so even with strong recommendations, a practice owner needs to consider whether it makes sense for them.

“An important aspect is to ensure compatibility with other systems,” he says. “I would not buy tech that is isolated. I need tech that is malleable and that has the functionality to expand, evolve and collaborate. Health care is moving toward integration of systems, and the new technology must have that flexibility or it will be obsolete in a short period of time.”

This article first appeared on the website MedicalEconomics.com

“One has to be very careful about purchasing any kind of technology — especially ones that the patient will pay cash out of their pocket for,” said urologist Clifford Gluck, MD. “That’s why it’s important to get the experience of others who have used the technology and to look at the literature to see what there is in terms of scientific evidence.”

Advice on evaluating new technology purchases for your practice

Private equity firms’ acquisition of physician practices has escalated in recent years, and urology practices are currently garnering great interest due to an increased demand for services from an aging population and a low supply of urologists.

Victor Houtz and E. Scot Davis shared their contrasting opinions on urologists teaming with private equity partners at the LUGPA 

 in Chicago, with a point/counterpoint debate. Houtz is chief operating officer of New Jersey Urology, which last year teamed with private equity firm J.W. Childs Associates and praises the benefits of the partnership. Davis, who is CEO of Arkansas Urology and has more than 20 years in physician practice management, is not completely in favor of private equity.

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Usually in private equity cases, a urology practice will receive an upfront tax-advantaged payment associated with an ongoing salary reduction while yielding control of the business but not the medical aspect of the practice. And while that new capital can be used to improve the practice to compete with larger hospital systems, some argue that because the private equity firms are going to demand a much higher level of performance and higher level of organizational discipline, it might not be worth it.

Houtz and Davis started by explaining some important questions need to be addressed before deciding to go the private equity route, including “Why are you doing it?” “What aren’t you doing it?” “What is the value to the practice?” and “How does it impact the culture?” Each answered these questions weighted by their particular opinion.

Davis, who was in a physician practice management company earlier in his career, said the private equity model today is similar to his previous experience in growing a practice, though there are some differences. He questioned whether private equity firms truly offer security and autonomy, which is what the private equity companies promise. In reality, he said, urologists probably lose control over their day-to-day operations.

Conversely, Houtz explained why losing some autonomy may be of the best interest to the practice group.

Does private equity benefit all partners?

One question Houtz and Davis debated was whether a private equity arrangement benefited all of the partners or a specific subset. “One challenge is that more senior physicians who are looking to retirement may cash out and then could quit or slow down their production,” Davis said.

Houtz explained that his group requires a certain production level from physicians, with penalties attached, to keep this from becoming a problem.

However, Davis countered that in the basic private equity model, physicians create EBITDA (earnings before interest, tax, depreciation and amortization) by giving away their income for a period of time. And the model is too young-just 3 years-to determine if this is viable for the future. He doesn’t have any empirical evidence, but said it should give pause.

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Another question the executives debated was whether private equity impacted the quality of care. Houtz emphatically stated it doesn’t, but Davis expressed concern that at the end of the day, private equity firms are looking for money and if a certain threshold needs to be hit, that could ultimately affect quality.

Davis admitted he’s not diametrically opposed to private equity and can see the value for certain groups. But in his practice, he said he doesn’t feel there’s value now, although there could be value in the future. He encouraged others to consider that before making any decision going forward.

Houtz also said he feels private equity isn’t the best choice for every urology group and agreed that multiple factors needed to be considered.

Regardless of whether one was persuaded one way or another, at the end of the presentation, The debate ended with one key answer to the question, “Is private equity right for you?” The answer: “It depends.” It isn’t for everybody, but it might be for some, and the two speakers armed attendees with items to consider before stepping into a private equity discussion.

Why private equity is right for some, not all, practices

Having four generations of physicians working in the same practice is both a blessing and a significant source of complications, said Haydn Shaw, CSP, at the LUGPA 

Shaw, the author of “Sticking Points: How to Get 4 Generations Working Together in the 12 Places They Come Apart,” used his to talk discuss three key components of the topic-four generations interacting in an office, how to recruit and keep clinicians happy, and how to hand off a practice.

This is the first time there have been four generations in the workplace, he explained, and it’s soon to be five-although there are already five generations of patients today as life expectancy has increased 30 years since 1900.

“It’s one of the great blessings of modern medicine and science,” he said. “It also makes life a lot more complicated because through most of the centuries, there were only three generations of people and a clear hierarchy. But now that we’ve got five generations in a workplace, there are a lot of opinions from different generations, and there are traditionalist practitioners who are still effective in their 70s. But if the older generations expect the younger staff to wait their turn to push for their preferences, they will be surprised.”

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He explained while the process has always been to “wait your turn,” today’s graduates don’t want to pay their dues for 20 years and are looking to be heard from the get-go. It’s not that the younger generations want to be running the place in a year; the research doesn’t support that, Shaw said.

“As a matter of fact, both generations believe that traditionalists and boomers know more than anyone else in the workplace, so both Gen X members and millennials have a lot of confidence in the work experience of older generations. What they don’t want to be told is ‘wait your turn’ and that they will be at the card table instead of the big table for another 15 years.”

While younger generations don’t expect to make the decisions, they do want to observe and occasionally be asked their opinions.

Another critical factor when it comes to creating a happy work force with multiple generations relates to retention and boredom. As millennials get older, Shaw explained, they’re better able to deal with boredom, but younger millennials don’t have a lot of tolerance for boredom. A Gen Z member may take a job with more boredom if it provides security over a job that’s their passion.

“Gen Z watched people have to work really hard just to get what boomers got the week they graduated from college,” he said. “They’re a little more serious about things, but boredom is still a major threat.”

So, when they get to work and the boredom factor is not taken into account, turnover may ensue and retention could be problematic.

A third piece Shaw addressed was the importance of emerging adulthood and how older generations who don’t understand this concept will blame a lot of things on millennials.

Emerging adulthood, he explained, is the life stage between adolescence and early adulthood that has been expanding over the last 40 years as people postpone marriage, having kids, and finishing an education. But all that can get pushed back due to demands of a career, and many physicians have been pushing it back for decades.

“One of the common complaints is that older nurses say that younger nurses are not as dedicated to patients,” Shaw said. “Often, it’s because they don’t want to take the worst shifts or they want a long weekend. They may want Columbus Day off because a bunch of their friends are going away for the weekend but are told they’ve only been there 9 months and need seniority for that. The problem is the oldest nurse has been there 23 years and they will never get seniority for that.”

When baby boomers entered the work force, a 24-year-old nurse was often married (maybe with a child already) or knew who they were spending the rest of their life with, so they didn’t need to go off with friends for a long weekend to find someone.

“So, when older nurses say younger nurses don’t care as much about outcomes or about patients, what they’re often saying is younger nurses don’t care about patients enough to work shifts that make it hard to find love. It’s a choice previous generations with a short emerging adulthood life stage didn’t have to make and don’t realize younger nurses do unless the old rules change,” Shaw said. “And when you explain it that way, a whole lot of nursing managers better understand and say that makes a lot of sense.”

Shaw warned Gen Xers in a physician practice to brace themselves for what he had to say.

“One of the things I hear quite a bit of from people who own their practices is, ‘While I admire and appreciate the professionalism or the education of my Gen X staff, it just seems like a lot of Gen Xers care more about how much money they make and how much time off they get than they do about patients,’ ” he said. “There is growing research that older millennials are willing to put in the most hours of any generation.”

He noted work-life balance has always been valued more by younger than older generations. One physician said he couldn’t sell his practice in good conscience because none of the younger generations cared about patients as he did.

Physicians need to raise their generational IQ, Shaw concluded, so they can work better together in the office, quit blaming a generation for challenges, and start making the adjustments that transition them into the future.

Having four generations of physicians working in the same practice is both a blessing and a significant source of complications, said Haydn Shaw, CSP, at the LUGPA annual meeting in Chicago.

Keith Loria

Articles

How should you handle a medical board complaint?

Advice on evaluating new technology purchases for your practice

Why private equity is right for some, not all, practices

How four generations of physicians can work together