So You've Gotten a Letter, What Do You Do Now?

Published on: 6/09/2006

Likely very little scares a healthcare provider more than being served with a lawsuit – often by a Sheriff’s Deputy in an unmistakable brown uniform, and almost always at his or her place of practice. At once coalesce feelings of humiliation, rage, uncertainty, and fear – fear of the potential judgment against him or her that may be lying in wait at the end of a relatively long, drawn-out, and inconvienent process; fear of the likely smear on his or her reputation in the community that may follow an adverse judgment, or may exist simply by virtue of the stigma of having been sued; fear of the potential implications on credentialing and privileging at healthcare facilities or by third-party insurers; fear of confronting the patient or patient’s family throughout the litigation; fear of the inevitable deposition conducted by the patient’s lawyer; fear of the probing eyes of the jurors at trial; and for those fortunate enough to have no litigation experience, a general fear of the unknown. For most providers, at least some comfort comes from the knowledge that insurance will pay for the cost to defend the lawsuit and any potential monetary judgment. However, all told, litigation is a very unpleasant experience.

The purpose of this article is to inform healthcare providers of the potentially greater fear that may remain, as yet, unknown to or unappreciated by them. Specifically, the fear that erupts, or at least should erupt, upon realizing that an investigation has been begun by the applicable regulatory board. Quite simply, a healthcare provider who is a victim of an adverse judgment continues to have many viable options in response to the negative outcomes spawned by the judgment. The provider can move his or her practice away from any negative publicity. The provider can pay a higher premium for insurance with the carrier that he or she had for the lawsuit, can search for a new carrier if dropped by the former, or may need to do both (i.e., pay a higher premium to a new carrier). The provider can contend with credentialing and privileging issues – perhaps simultaneously with a practice move. In short, the provider can continue to practice his or her profession, albeit with possible limitations, restrictions, or adjustments. What lies in wait at the end of an investigation and regulatory board disciplinary action may well be an absolute inability to practice your chosen profession. Or at least an absolute inability to practice it in Virginia, coupled with high hurdles to attempts to start over in another jurisdiction.

The Department of Health Professions (“DHP”) is the umbrella under which fourteen regulatory boards operate. A DHP investigation may originate from several sources. An investigation may be prompted by a report of a payment in settlement of a malpractice claim or by a report of payment of a malpractice judgment. An investigation may be prompted by reports that appear in the public media. An investigation may be prompted by other healthcare providers, by other agencies, by law enforcement officers, or by courts. An investigation may be prompted by a complaint received directly from a patient or patient’s family member.

For better or for worse, it is amazingly easy to lodge a complaint with the DHP concerning a healthcare provider. All such complaints begin the intake process through the Complaint Intake Unit. A complaint may be submitted by telephone (including toll-free for those outside the Richmond area), fax, e-mail, in person, or anonymously. The Complainant (“Source”) may download a complaint form from the DHP website, or the Enforcement Division can send a complaint form to a complainant requesting the form. The Intake Investigator will evaluate the Complaint to determine whether it falls within the DHP jurisdiction and contains allegations that are violations of law or regulation. At this stage, the Intake Investigator may even inform the Respondent/Licensee (you) of the Complaint and may ask you to provide information or a written response to the Complaint. Thus, occasionally, the first letter that you receive from the DHP is from an Intake Investigator. However, the more common sequence of events is described below.

Because of the relative rarity of receiving a letter from an Intake Investigator, you should do whatever you can to take advantage of the opportunity to bring an end to the process before it gains inertia. When the Intake Investigator has sufficient information to make an evaluation, he or she will examine the information to determine whether it appears sufficient to justify an investigation. When an Intake Investigator opens an investigation, he or she will assign the investigation a priority (based upon the real or potential danger to the public), will enter the investigation into the agency’s computer tracking system, and will assign a Field Investigator.

The DHP currently has almost 50 sworn Field Investigators. The DHP Field Investigators typically have some sort of medical background (usually nursing), law enforcement background, or legal background (I have worked with one investigator who is an attorney). However, the investigators do not appear to be sub-specialized. Thus, an investigator may be working on an investigation of a dentist on one day and an investigation of an ophthalmologist on the next. The Field Investigator will request records from various of the Source’s healthcare providers and will embark on a series of interviews of people who appear to have relevant information. At a minimum, the Field Investigator will interview the Source and the Respondent/Licensee. The letter requesting an interview is the more common first contact that you will receive from the DHP concerning an investigation. The end result of the investigation is a comprehensive report that the Field Investigator will prepare, which will contain a summary of the investigation, as well as attachments of all relevant records and documents, and of all interview summaries. The Field Investigator will submit the report, with attachments, to the applicable regulatory board for its review.

Regardless of whether your first communication from the DHP is from an Intake Investigator or from a Field Investigator, do not take that communication lightly. Your written response to an Intake Investigator, or the substance of your answers and your appearance at an interview, respectively represent significant opportunities. However, not only should your goal be to not waste such an opportunity, but your greater desire should be to minimize the risk that you unwittingly harm your position during your response or interview. Perhaps because of some embarrassment, or perhaps because of a belief that he or she is a well-educated and intelligent person who need only tell the truth (always a good thing), I have had several clients who have attempted to represent themselves to their board at the investigation stage with negative consequences.

The applicable Board will review the Investigation Report to preliminarily determine whether the information is sufficient to indicate that a violation of law or regulation has occurred. If the Board answers that question in the negative, then the case is closed. If the answer is in the affirmative, then the Board may take disciplinary action and that process is begun.

The next step in the disciplinary process (absent extreme risk to the public by the Licensee’s continued practice, which warrants a bypass to more formal measures) is an Informal Conference Committee. The Licensee will receive a Notice of Informal Conference Committee, which will inform the Licensee of: the date, time, and location of an Informal Conference; the specific allegations against the Licensee; the actions that the Informal Conference Committee may take; and the Licensee’s various rights and opportunities. Such opportunities will include the right to appear in person or by counsel, and the opportunity to submit additional records or materials to the Board for distribution prior to the Informal Conference.

The actions that the Informal Conference Committee may take include: exoneration (a finding of no violation); reprimand or censure; monetary penalty (up to $5,000.00 per violation); remedial or corrective action (i.e., attending a certain number of continuing education hours in specified topics); or probation with terms that the Licensee must complete over a specified time period (e.g., practice monitoring). The Informal Conference Committee cannot suspend or revoke the Licensee’s license. However, the Committee may recommend that the case be referred to a Formal Hearing, which includes the potential for suspension (for a term or indefinitely) or revocation.

The Informal Conference Committee will be composed of some sub-set of the applicable Board. The Informal Conference will not be recorded (stenographically or otherwise), but will be open to the public. The interests of the Commonwealth will be presented by either an Adjudication Specialist, who is in the Administrative Proceedings Division of the DHP, or by an Assistant Attorney General. The Informal Conference is typically just that, an informal fact-finding conference. It has few, if any, of the safeguards that exist in a court trial: although objections may be made, the rules of evidence generally do not apply; no absolute right to cross examination exists; and the members of the Board will ask the witnesses questions. At the conclusion of the Informal Conference, the Board will retire into executive session for deliberation and will return with findings of fact, conclusions of law, and any applicable penalties, all of which are memorialized in the form of an Order, which will be sent to the Licensee. The Licensee has a certain period of time in which he or she can either consent to the Order, or inform the Board that he or she does not consent and wishes to appeal the matter to a Formal Hearing.

If the Licensee appeals the matter to a Formal Hearing, none of the Board members who participated in the Informal Conference Committee may participate in the Formal Hearing. The Formal Hearing is recorded; is conducted much more akin to a court trial; and is likewise open to the general public. The end result of a Formal Hearing will be an Order that states findings of fact, conclusions of law, and any applicable penalties. As with the Order offered by the Informal Conference Committee, the Licensee can elect to appeal the Board’s Order that resulted from a Formal Hearing.

Appeals from the Order that issued following a Formal Hearing proceed under the Virginia Administrative Process Act. Harkening back to the system of “checks-and-balances” that we all learned in our elementary school history/government classes, the Administrative Process Act effectively provides a mechanism for a licensee who is harmed by adverse agency action to file a lawsuit appealing that action (asking the judicial branch for relief from the executive branch). An appeal is made to a Circuit Court. An appeal in this manner implicates a fairly high standard. Thus, the Board decision comes to court with a presumption of regularity and propriety. In terms of an evidentiary standard, the court will uphold the agency action unless it was not supported by substantial evidence in the record. In terms of that record, the appeal, as with most appeals, is based exclusively on the record (i.e., generally no new evidence may be submitted or considered). A Licensee adversely affected in Circuit Court may appeal further the decision through the judicial system.

The investigation resolution process thus proceeds from inception to resolution with stops along the way at various levels, with increasing risk and exposure awaiting the healthcare provider as the levels increase. As a general and simplistic rule, the sooner that a resolution may be had, the better for the healthcare provider.

As a postlude, while I was preparing this article, I found myself shepherding yet another healthcare provider through the disciplinary process. Within the last few days, my client and I appeared before an Informal Conference Committee of one of the regulatory boards. Just before we entered the hearing room, my client observed that it was “not a pleasant experience.” After the presentation of his case, while awaiting the decision of the Conference Committee, my client passed along this warning to other healthcare providers: “If you can do anything in the world to avoid this situation, do it.” That “anything in the world” begins with the care that you provide. However, you would be naive to believe that perfect care (or even, for that matter, perfect results) guarantees that you never get the letter that you now should dread. When that happens, the next thing “in the world” that you can do is seek whatever advice or assistance that you can muster to do what you can to minimize potentially significant risk and exposure.

This article first appeared in the May 2006 Virginia Medical Law Report.