(This column is the first in a three-part series.)
Question: Which of the following statements about state medical boards is best?
A. They are made up exclusively of doctors.
B. Disciplinary actions are on the rise.
C. They investigate narrowly defined areas of clinical practice.
D. They usually end with physician suspension.
E. They are insufficiently vigilant, according to critics.
Answer: E. The 10th Amendment of the U.S. Constitution authorizes states to establish laws protecting the health, safety, and general welfare of their citizens.
Dr. S.Y. Tan
All 50 states have enacted legislation under the Medical Practice Act authorizing medical boards to issue licenses and regulate physician conduct. The structure and authority of these boards vary from state to state, with some retaining all licensing and disciplinary powers, while others are more advisory in nature and report to the department of health.
Medical boards consist primarily of appointed volunteer physicians and may employ an administrative staff that includes an executive officer and support personnel.1
State statutes, rules, and regulations govern the disciplinary function of medical boards, which receive, review, and investigate complaints directly from patients and other sources.
There are six main categories of complaints: substandard patient care, alcohol and substance abuse, fraud and other criminal conduct, dishonesty, sexual misconduct, and failure to meet CME requirements. Whether a board can sanction a physician for misconduct outside the realm of medical practice is frequently at issue.
In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his or her capacity as a member of the medical profession is not sanctionable by the state board of physicians.
On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the “practice of medicine,” even if there is no issue of the individual’s grasp of particular technical skills.
However, the term “practice of medicine” is liberally construed in most jurisdictions, and both boards and courts tend to take a dim view of physician dishonesty and lack of integrity.
For example, the California Court of Appeals in Windham v. Board of Medical Quality Assurance rejected a defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional standing.2 Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.
The court stated that it was difficult to “compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients.”
Likewise, the Washington Supreme Court in an older case upheld the suspension of a doctor’s license following his conviction for tax fraud.3 In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.
The number of adverse actions taken by boards nationwide appears to be stabilizing. In 2009, they affected some 4,560 errant physicians. In some states, both the number of complaints and actions may even be subsiding.
For example, the 2014 report by the Texas Medical Board showed that the number of complaints had fallen 17% after reaching a peak in 2009. In 2012, the year with the latest published nationwide data, there were 9,219 total board actions affecting 4,479 physicians. However, only a minority – some 275 doctors – faced the most severe disciplinary sanction, i.e., license revocation. The others either saw their licenses denied (170) or suspended (739), or faced lesser sanctions such as reprimands, probations, restrictions, and fines.
Critics have labeled medical boards “a good old boys network” where any private admonition is never made public. A stinging report of medical licensing and discipline in the state of New York, using data from 1982 through 1989, concluded, “the structure and functioning of the process as they now exist are seriously deficient in these areas and that major reforms are urgently needed.”4
The consumer group Public Citizen has bemoaned the fact that most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner. Advocacy groups worry about insufficient vigilance, and cite the case of Dr. Farid Fata, an oncologist whose license was finally removed by the Michigan board in 2013 for giving chemotherapy to healthy patients. The board had received an earlier complaint from a nurse in 2010, but it took no action until federal authorities charged the doctor following a tip from a whistleblower.5