Disciplinary Process Pre-MCARE

Before MCARE, the boards investigated alleged physician misconduct when one of them received a complaint from an aggrieved patient. Illustrative cases have involved failure to maintain legally required insurance coverage, reciprocal discipline based on action taken by another state, violations of the Controlled Substances Act, or transgression of sexual boundaries with patients. Cases often involve a pattern of behavior or how a physician relates to the public, rather than an isolated act of negligence. In such cases, an investigator from the Bureau of Professional and Occupational Affairs would investigate the complaint, confer with a physician consultant to the board and determine whether to proceed with a case against a physician’s license.

If warranted, a board would issue an "order to show cause" that would instruct a physician to demonstrate why disciplinary action should not be taken. An active case would then proceed to a hearing that would be held before an attorney hearing officer who would issue a determination that would be the binding decision of a board unless the physician requested a review of the decision before a board. Once before the full board, the board could take new evidence in a case and issue its own decision whether to affirm or reverse the decision of the hearing officer.

If a physician disagreed with the decision of a board, the physician could appeal to Pennsylvania’s Commonwealth Court. Judicial review did not mean that the court would routinely overturn the decision of a licensing board. In most cases, the court deferred to the judgment of the board and reversals were highly unusual.

Before MCARE, disciplinary board proceedings have been separate and different from medical malpractice litigation. For example, unlike a medical malpractice case, a disciplinary board case was developed by investigation rather than through the litigation discovery process. All disciplinary cases were investigated and developed by a centralized staff at the Bureau of Professional and Occupational Affairs. A physician might be interviewed by staff investigators but the board would not take the physician’s deposition. Staff investigators would see literally hundreds of complaints, and, in the process, developed what courts consider agency expertise that is quite different from a judge and jury. The boards rely for clinical input on retained consultants to determine what is "unprofessional conduct" rather than competing experts in malpractice cases who testify about the standard of care. Rarely, if ever, would the results of a disciplinary proceeding spill over into a related medical malpractice case.

Disciplinary Process Post-MCARE

MCARE has increased substantially the mission and responsibilities of the boards. Some of the impact of MCARE can be immediately seen as is the case with mandatory reporting of malpractice complaints. Other effects, subtler, but no less important, can only be anticipated until more experience with MCARE makes them clearer.

The greatest change in MCARE for the boards is that the law commits the boards to MCARE’s larger patient safety mission. To further its patient safety objectives, MCARE requires each physician to notify the boards when a physician is sued for malpractice. The Board of Medicine even requires a physician to submit to the board within 60 days of receipt an actual copy of the malpractice complaint. Mandatory reporting dramatically changes both how and when the boards learn about possible violations of their rules. Rather than waiting for a separate grievance from a complaining patient, the licensing boards now see every malpractice case and can pick and choose among them for potential disciplinary infractions. Thus, each board moves from a reactive to proactive enforcement agency.

In addition, MCARE has expanded the scope of matters that can now be scrutinized by a licensing board. Section 905 of MCARE authorizes the boards to impose discipline on any physician who "practices negligently." Most lawyers reading section 905 agree that a single act of negligence can now trigger disciplinary sanctions. Finally, MCARE now gives the boards authority to impose civil monetary penalties up to $10,000.

MCARE also requires the licensing boards to prioritize the types of cases that they will pursue. These criteria are needed because the boards estimate that, driven by mandatory reporting, their pre-MCARE caseload will increase dramatically. Current estimates are for an increase from 1,000 complaints per year to between 8,000 and 10,000. To handle this exponential increase in complaints, the Bureau of Professional and Occupational Affairs has increased its staff measurably with additional hearing examiners and investigators.

While the boards have not formally published their respective triggering criteria, informal information suggests that priority investigations will involve:

· Any sexual misconduct case.

· Multiple claims in a two year cycle.

· Multiple instances of the same error.

· Wrong-site, wrong procedure, wrong patient surgery.

· Any claim of "gross negligence" as defined by the boards.

· Patient abandonment.

· Leaving a procedure unattended.

· Improper prescribing of medication.

· Gross errors in the dosing.

· Prescribing contra to clear indications of allergy.

· Practicing while physically or mentally impaired by a substance.

· Intentionally harming or abusing a patient.

· The unexpected death of a patient.

Obviously, few malpractice complaints do not touch directly or indirectly upon one or more of the foregoing triggering criteria. Because even a single act of negligence can now trigger an investigation of a board and the commencement of a disciplinary proceeding, astute malpractice defense counsel anticipate that initial malpractice complaints will be drafted with "triggering" events prominently alleged.

MCARE, Malpractice Cases and the Law of Unintended Consequences

Perhaps no aspect of the MCARE changes to the disciplinary process causes greater concern that the unintended ones. While it is clear that MCARE was intended to improve patient safety, which may advance with MCARE’s changes to the disciplinary process, the effects of post-MCARE disciplinary proceedings on medical malpractice litigation appear far less intended or understood. In the past, physician disciplinary proceedings had little, if any, effect on malpractice proceeding. Post-MCARE, a disciplinary proceeding may very well arise from a review of the very complaint that initiates a medical malpractice case and the disciplinary determination may well drive the related malpractice litigation.

The unanticipated interplay between MCARE’s disciplinary reforms and medical malpractice cases revolves around how to litigate parallel proceedings; a disciplinary case on the one hand, and a malpractice case on the other. For example, in cases that involve allegations of a wrongful death or "gross negligence," both post-MCARE priorities, a physician may now be required to defend against the same allegation in both a malpractice action and a disciplinary proceeding. Likewise, plaintiffs counsel will have a substantial bargaining chip in pre-litigation settlement discussions when they have the ability to file a malpractice complaint that might trigger a priority disciplinary investigation.

In parallel cases, if the disciplinary proceeding goes forward first and reaches conclusions adverse to a physician, physicians can expect that statements made in the disciplinary proceeding and, even adverse conclusions, to be introduced in related malpractice cases. Imagine the effect on a jury when plaintiff’s counsel shows them a hearing examiner’s recommended report finding "gross negligence," however defined by a board. Further, in a quirk of the law, if a physician prevails in a disciplinary proceeding, he or she cannot use the exculpatory decision of a licensing board to determine the outcome of a malpractice case because the malpractice patient would not have been a party to the disciplinary proceeding. Defense counsel fear that these few examples are just the beginning of the unforeseen ramifications of the interplay between disciplinary proceedings and related malpractice cases.

Urgent Need for Coordinated Defense

For physicians who receive a medical malpractice complaint that alleges factors similar to the above described triggering criteria, it is imperative that they must prepare a coordinated defense to parallel proceedings before the boards and in the courts. Physicians should not hesitate to raise the need for a coordinated defense with their liability insurers. When such malpractice complaint is received, it should be assessed during the 60 day window prior to reporting the complaint to the boards by counsel knowledgeable about physician disciplinary proceedings. A coordinated defense requires close communication and cooperation between legal counsel for each type of proceeding who will rarely be the same type of attorney. These lawyers will need to consider the possible uses and effects of testimony, discovery and settlement offers in each case. MCARE has forced the boards to cast a much wider net in their disciplinary reviews, and the stakes in both physician discipline and related malpractice suits are higher than ever.