State medical boards are tasked with disciplining healthcare professionals to protect the public, but their regulatory behavior is influenced by various political and economic factors. Most complaints come from the public and are investigated through a multi-step process involving various medical experts. Common grounds for discipline include substance abuse, sexual misconduct, incompetence, and malpractice issues. However, boards struggle to fulfill their constitutional mandate due to budget constraints, biases in expert testimony, and lack of standardized measures for determining negligence or sanctioning physicians. The disciplinary process can negatively impact physicians and encourages defensive practices without ensuring meaningful public protection.

1. State Medical Boards and
provider discipline:
policy or politics?
DENNIS A. VELEZ, MD

2. Objectives
 Learning objectives:
 1. To understand how state medical boards discipline health care professionals.
 2. To understand how the regulatory behavior of state medical boards is affected
by budgetary constraints, member composition, resource allocation and cultural
and professional bias.
 3. Gain an understanding of how this regulatory behavior is insufficient to fulfill
the state's constitutional mandate to "protect the public”.
 4. How the politics of the state medical boards and epistemic injustice
"legitimizes" discipline and implications for healthcare professionals, hospital
credentialing bodies and malpractice insurance industry.

3. Provider complaints
 Most complaints come through
consumers/public.
 Other venues include: hospital
credentialing body, insurance
companies, claims made against
malpractice insurance, other states
(”piggyback statutes”), DOR, County
prosecutor.
 Less likely: industry, other providers
including physicians, nurses, NP’s, etc.

4. Grounds for Discipline

5. Grounds for Discipline
 Use of controlled substance or alcoholic beverages such that use can impair
the physician’s duty to provide care.
 Use of the “physician-patient” relationship to engage in sexual activity with a
patient.
 Terminating medical care “without adequate notice…or making appropriate
arrangements…for continued care”.
 Disciplinary action by the board of another state or any other licensing
authority including state and federal agencies.
 Not complying with state regulations for maintenance of such license such as
not paying state taxes, not fulfilling required CME.

6. Grounds for discipline
 Incompetence, gross negligence and repeated negligence.
 Multiple malpractice claims or lawsuits, whether they were valid or not,
irrespective of settlement or outcome of verdict.
 Obtaining a certificate of registration “based upon material mistake of fact”.
 Pattern of improper consumption or use of controlled substances, unless
“properly” prescribed by another physician.
 Conduct that may be harmful to the physical or mental health of the public.

7. Process
 Once a claim or complaint arrives, it is reviewed by the medical review officer.
 Complaint is logged in and assigned a case number.
 Provider is not aware a complaint has been filed.
 The medical review officer sends the case to the disciplinary committee with
recommendations.
 If an investigation is requested, a file is open and an investigator is assigned. This
investigator issues findings to an investigative coordinator.
 From the investigative coordinator it goes to a medical consultant.

8. Process
 The medical consultant delivers the report to the disciplinary committee.
 This information along with recommendations then is delivered to the board.
 Throughout this process the reports may be circulated between the different
stakeholders and staff for further review and amendments.
 The board decides if the case is closed or if further action is needed.
 Further action may include requesting a medical staff interview with the
provider(s), a letter sent to the provider with request based on investigative
findings: surrender, probation, restriction, “case closed”, reprimand, “letter of
concern”, among others.

9. State Medical Boards
 Initially used the Professional Model (informality, confidentiality and
collegiality) to contain conflict and keep it out of the public realm.
 No cooperation from local medical societies.
 No cooperation or communication with specialty societies, especially the
ones that grant specialty board certification.
 Board members are mainly physicians and there is usually at least one
“representative of the public” or “consumer member”.
 Members are appointed by the Governor based on advise from the Senate.
Term limits vary.

10. State Boards and “Public protection”
 Over time the discipline process has become more formal: rules of evidence,
discovery, expert witnesses with testimony rebuttal.
 Board matters are filtered through legal counsel. The “trier of facts” cannot
approach physicians, no “ex parte” conversations before or after a disciplinary
hearing.
 Process became more adversarial, sanctions harsher in some cases.
 Given this structure the process became more complicated: hiring experts became
a necessity and not all states can afford to pay expert witness fees to resolve cases
of presumed incompetence or recurrent negligence.

11. State Medical Boards and “Public
protection”
 Boards have a constitutional mandate to protect the public.
 However, most boards have difficulty meeting this burden of proof.
 Sanctions are routinely dispensed unevenly. Over time sanctions have led to
settlement agreements as is common in most civil cases.
 State legislatures and the executive branch affect state medical board (SMB)
composition.
 Existing literature suggests that state legislatures with a politically liberal
inclination tend to favor more regulation-and hence more disciplinary actions.

12. Physician discipline: subcategories

13. Fraud and abuse: state vs federal

14. SMB and Legislative Influence
 SMBs are, at least, partially responsive to
legislative principals and apply pressure to
address public health concerns.
 State legislatures can influence SMB
composition as well as board behavior by
granting (or withholding) resources to be
effective.
 SMBs are not held to a national
performance standard.

15. SMB Composition and physician discipline

16. SMB Budget
 In general, it is difficult to ascertain the operating expenses, costs, of most SMBs.
 It is unclear from the literature whether budgetary constraints have an effect on
the number of disciplinary actions pursued.
 Having a higher operating budget has been proposed as a way of increasing the
number of providers being disciplined. However, no correlation, let alone
causation that increasing discipline is correlated with better medical care has been
found.
 Board economic independence does not predict better SMB performance.

17. SMB and bias

18. “The bad doctor myth”

19. Malpractice and physician performance

20. Malpractice According to Specialty

21. SMB, expert testimony and epistemic
injustice
 Board action rely sometimes on expert testimony.
 Issues related to the standard of care are a ”moving target” since, local standards are
not published and professional guidelines are, well, just “guidelines”.
 Expert testimony seeks to legitimize “negligence”, a loaded term. Some complications
are expected, this does not mean “negligence”.
 SMBs use “experts”, often this is a physician with “relevant knowledge of current
practice guidelines”. Example: “the physician was negligent for not documenting range
of motion, not reducing spondylolisthesis”, independent of the fact that range of
motion is highly dependent on patient effort and is no longer used even in the AMA
Guidelines for Impairment (6th ed) and no study documents that lumbar spine
reduction improves patient outcomes.

22. “Disturbing disagreements…”

23. Discipline due to “incompetence”

24. Standard of care dilemma
JAMA June 2007

26. ”Expert” testimony

28. Implications
 Physician disciplinary actions are reported to the NPDB.
 Professional stigma associated with discipline.
 Consumers and the public are deprived of good doctors that have tried to help
high risk patients that are at risk for complications.
 Doctor shortages.
 Inability to obtain credentials or be a provider for different third party payers.
 No pathways exist to “get out of the hole”: no counseling, no remedial programs.
Monitoring programs are ineffective and do not insure public safety.

29. Defensive practice and neurosurgery

30. References
 Jost, TS (1997). Oversight of the competence of healthcare professionals. In Jost, TS (Ed.), Regulation of the Healthcare professions (17-
44). Chicago, IL: Health Administration Press.
 Tempelar, AF (1997). The Problem Doctor as an Iatrogenic Factor: Risk, Errors, Malfunctioning and Outcomes. In Lens, P, van der Wal
(Eds.), Problem Doctors: A Conspiracy of Silence (31-56). Amsterdam, Netherlands: IOS Press.
 Ameringer, CF (1999). Building a Modern State Medical Board. In State Medical Boards and the Politics of Public Protection (57-79).
Baltimore, MD: John Hopkins University Press.
 Taragin, MI et al (1994). Does physician performance explain interspecialty differences in malpractice claim rates? Med Care, 32(7),661-
667.
 Schwab, AP (2008). Epistemic trust, Epistemic Responsibility, and Medical Practice. Journal of Medicine and Philosophy, 33, 302-320.
 Browne, MN (2008). Expert testimony in its epistemological place: what predictions of dangerousness can teach us. Marq. L. Rev., 91,
1119-1212.
 Rogers, P (2017). Demographics of Disciplinary Action by the Medical Board of California (2003-2013). California Research Bureau.
 Lewis, MH et al (2007). The locality rule and the physician’s dilemma: local medical practices vs. the national standard of care. JAMA,
297(23), 2633-2637.
 Crites, EV (2011). The regulation and discipline of physicians in Missouri. Journal of the Missouri Bar, March-April 2011.
 Gunnar, WP (2005). The Scope of a Physician’s Medical Practice: Is the Public Adequately Protected by State Medical Licensure, Peer
Review, and the National Practitioner Data Bank. Annals Health L. 14, 329-360.

31. Thank you!
QUESTIONS…?