Legal and Legislative Updates

By Deana Johnson, JD

Posted on February 12, 2012 – Notification of a licensure complaint has always been at the top of the list of fears of most health care providers. Nowadays, in the world of instant access to information, it can be even more significant as an adverse finding can follow you for an entire career. Not only have most adverse licensure determinations become available to anyone with access to the internet, they are increasingly being used in court to try and prove malpractice.

Self-regulating licensure boards have historically aroused the suspicion of the population. Asking lawyers to police other lawyers is seen as protectionist. The same is true for medical providers overseeing the licenses of their fellow professionals. This skepticism is not necessary well-founded: those in the profession are arguably best suited to ensure its sanctity. However, in the past, the confidentiality afforded to board hearings and rulings did little to earn public trust in the self-regulating professions.

Enter the world of Google. First, information about a medical provider’s practice areas, educational background and patient rating were posted. It wasn’t far behind that many licensure boards began making their rulings public as well.

Initially, most of time users needed access to specialized, paid research databases, such as Westlaw, to access medical board orders. Today, Westlaw still has links to five state medical board administrative rulings: AZ; NY; VA; VT; and WI.

The next development was for certain boards to voluntarily add search abilities to their existing websites for free access to administrative orders. How much information can your correctional patients (or their contacts on the outside) find out about you from your medical board’s website: your home address; or your licensure history?

Some states, such as Georgia, post the board orders right on the website for anyone to access, free of charge. Other boards allow the user to search for orders but, in order to obtain copies, you have to write in and pay for copies.

So now that more people than ever can access any type of board ruling, what can they do with them?

Use of Adverse Determinations in Litigation

Case Study of How a Bad Board Order Happened to a Good Doctor

Our unfortunate case study is Dr. Married Wrong. He worked very hard to put himself through undergraduate and medical school. He did well despite having to maintain full-time employment to pay his bills. He married his high school sweetheart and took a job right after residency working at an internal medicine practice in a small town. He worked very long hours and was rarely home. His wife hated the move to the small town and resented his absence. She began stealing prescription forms and forging his name to obtain narcotics.

The single pharmacist in town soon caught on. Dr. Wrong was reported to the medical board. Dr. Wrong represented himself and ended up with an adverse order, restricting his prescription-writing abilities for five years and placing his license on probation. He got divorced, kept working hard and soon completed his probation without incident.

However, based on this history, his job choices became somewhat limited when the senior doctor he worked for closed the practice. Dr. Wrong decided to work at the nearby state prison and, to his surprise, found he really loved the work.

Fast forward 15 years. Dr. Wrong is now the prison medical director. He has never been sued and never had another problem with his license. The family of a patient who died while in prison sued him for alleged constitutional violations and medical negligence. He is rightly concerned that his ancient history might come back to haunt him.

His defense lawyer explains that the litigation will occur in two main phases: discovery; and trial. During discovery, both in written form and during deposition, the inmate’s lawyers will be able to inquire about the prior board order because the standard for what can be explored is very broad during this stage of the case. The standard is “relevant or reasonably calculated to lead to the discovery of admissible evidence.” Thus, Dr. Wrong has to endure the embarrassment of revisiting his earlier mistake during his six-hour deposition.

More concerning, his lawyer points out, is the fact that the board order could be admissible at trial. How, asks Dr. Wrong since the order is 20 years old and has nothing to do with his treatment of this inmate, who wasn’t even taking medication. Well, the lawyer explains, it is a determination that is left up to the discretion of each individual judge.

How the Federal Rules of Admissibility Lead to Inconsistent Results

Since the case is pending in federal court, the federal rules of evidence apply. What the plaintiff is really trying to do with this old board order is use character evidence to prove that Dr. Wrong’s conduct in his treatment was below the standard of care. That implicates Rule 404, which states in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This rule, along with the other federal rules governing the admissibility of evidence, requires the judge to weigh the probative value of the evidence against the potential prejudice. That gets us back to the premise that it is entirely the decision of each judge in each case to decide if adverse board rulings, even ones as old as Dr. Wrong’s, are admissible at trial.

Take King v. Ahrens, 16 F.3d 265 (8th Cir. 1994), a case in which the Eighth Circuit Court of Appeals reviewed a jury’s verdict in favor of the doctor in a medical malpractice case. The plaintiff tried to admit an eight-year-old adverse board order sanctioning the doctor for over-prescription of Percodan. Interestingly, an issue in the malpractice case was whether the doctor prescribed Percodan for this patient and later forged the chart to cover it up. The plaintiff argued that the board order was relevant because it showed motive for the doctor to commit fraud to cover his prescription of the same drug he had previously been sanctioned about. The trial court disagreed, and the evidence did not come in. On appeal, the Eighth Circuit affirmed, but noted that this one was a very close call.

This same issue has arisen in Section 1983 claims. In the recent case of Leavitt v. Correctional Medical Services, Inc., 645 F.3d 484 (1st Cir. 2011), the inmate plaintiff alleged inadequate care for HIV. He named, among others, a PA and his employer, CMS. The main issue was a report of a high viral load that the PA either did not see or failed to appreciate. As a result, the inmate was not referred to a specialist and experienced a delay in getting medication. Not long before the time of the PA’s care for this inmate, his license was suspended for 90 days and then placed on probation for: practicing without direct supervision of a physician; withholding medication from a patient; and changing the frequency of a medication without informing another patient. The First Circuit agreed that all of the other defendants deserved summary judgment but found that the PA did not. One of the factors listed multiple times as potential evidence of deliberate indifference is the board order. The Court stated: “The district court was too quick to decide that [the PA’s] version was credible and [the inmate’s] not.”

That statement certainly leads on to question whether the board order is being used as character evidence to determine the ultimate issue in the case in violation of Rule 404. If the appellate judges are putting such weight in a single board order, imagine how the jury would view it.

Back to the Case Study: A Lesson Learned

So what can Dr. Wrong do besides hope his case is assigned to a judge who recognizes this snake pit for what it is? Unfortunately, the time for our subject to have acted passed when he didn’t sufficiently protect himself during the board hearing. No time is a good offense the best defense more helpful than before the document, which is now readily available for free and has no expiration date, is drafted. Adequate representation and mitigating evidence could well have prevented Dr. Wrong from serving as our case study.

Ms. Johnson is General Counsel for MHM Correctional Services, Inc. For more information, readers may reach her at dsjohnson@mhm-services.com.