Caseload Management

Licensure complaints, including self-reported cases, received by the Osteopathic and Medical Boards are referred to and investigated by the Department of State’s Bureau of Professional and Occupational Affairs. Before enactment of MCARE, the Bureau handled a caseload of roughly 1,000 physician licensure cases per year. It was anticipated that, as a result of the MCARE physician self-reporting requirements, an additional 8,000 to 10,000 cases would be opened against physicians licensed by both Boards. In order to handle this expected caseload surge, the MCARE Act authorized an increase in resources and the Bureau has hired additional legal assistants, field investigators and prosecuting attorneys to manage the cases.

Data from the Bureau reveals that 8,649 files have been opened between the MCARE Act’s effective date through December 31, 2005 as a result of the self-reporting provision. Of the 8,649 cases opened, 5,289 have been closed as requiring no further action. As of December 31, 2005, the Bureau had 3,276 open files, 462 of which involved physicians who had failed to self-report and who are subject to prosecution under the Act. Of the 8,649 cases filed, 68 have resulted in consent agreements or adjudications. Of those 68 cases, however, only two were on substantive matters. The remaining 66 involved physicians who failed to self-report as required under the Act. The Bureau currently has 18 cases in the hearing process, either being scheduled for administrative hearing or, where the hearing has already occurred, the case is being briefed by the parties.

As the Bureau’s statistics indicate, a vast majority of the self-reported cases that go on to prosecution are those where the physician failed to timely or properly report receipt of a medical professional liability complaint to the respective licensing board. According to Bureau of Professional and Occupational Affairs Commissioner Basil Merenda, an Order to Show Cause is only issued against a physician who has failed to self-report after a notification letter has been issued from the Bureau and ignored by the physician. Nancy Kippenhan, Chief Prosecutor for the Bureau, indicated that when MCARE was first enacted, much leeway was granted to physicians with respect to the timely reporting of notice of malpractice complaints. Now, she says, after four years, the Bureau is still issuing, in most cases, a notification letter to noncompliant physicians and, if there is no response, proceeding with prosecution.

Guidelines for Assessing Complaints

Prior to the implementation of the MCARE Act, the licensing boards were authorized, under the Pennsylvania Medical Practice Act and Osteopathic Medical Practice Act, to impose disciplinary action against a practitioner for reasons such as a felony conviction, a license revocation, suspension or disciplinary action in another jurisdiction, the inability to practice due to illness or addiction or unprofessional or immoral conduct. This authority was broadened under Section 905 of the MCARE Act to allow imposition of disciplinary sanctions or corrective measures upon a physician who has "practiced negligently."

The Medical and Osteopathic Boards have since developed "triage" guidelines to assist the Bureau in assessing whether a medical malpractice civil complaint warrants investigation for disciplinary action under the MCARE Act. The criteria include cases involving sexual misconduct physicians, any non-surgical physicians with two or more claims in two years and surgical specialists with four or more claims in two years, multiple claims sharing the same error or complication, cases characterized as "gross negligence," treatments or procedures beyond the physician’s scope of the practice, and any case that results in the unexpected death of a patient.

While generally followed by the Bureau in assessing a reported negligence case, the guidelines are applied in conjunction with existing regulatory requirements as well as existing standards of practice. The Bureau retains discretion to prosecute cases not within the guidelines or decline prosecution for cases within the guidelines.

Standards for Expert Review

While the triage guidelines assist in prioritizing those cases warranting further investigation, the ultimate determination of whether to proceed to prosecution requires expert evaluation. Presently, the Bureau has two in-house medical experts reviewing the complaints that are reported. These experts are often called upon to take a more detailed look at the case and can decide whether or not to prosecute a physician. When the in-house medical experts are unable to make that determination, the case is referred to an outside expert for review. According to Commissioner Merenda, the Bureau makes every effort to refer a case to an outside expert who is in the same specialty as the reporting physician.

The Pennsylvania Medical Society, according its general counsel, Kenneth Jones, is advocating for clearer standards with respect to expert review of professional negligence cases investigated by the Bureau. The Medical Society would like to see the Bureau adopt the new MCARE expert qualification criteria for professional negligence actions when obtaining expert review. The MCARE expert standards require an expert to have an unrestricted medical license, be engaged in active clinical practice or teaching within the past five years, be familiar with the applicable standard of care at issue and have practical experience in the same subspecialty as the defendant physician or be board certified by the same or similarly approved board as the defended doctor.

In the same vein, the Medical Society would encourage the Bureau to follow the MCARE Certificate of Merit rules whereby the Bureau would certify early in the investigative process that the case has been reviewed by a licensed professional who has stated that the care fell below the appropriate standard. While noting that the MCARE provisions regarding expert qualifications and the certificate of merit specifically refer to "medical professional liability actions," Nancy Kippenhan says the Bureau has willingly solicited input from the professional societies regarding management of these cases. Later this month there will be a meeting hosted by the Bureau where physicians and representatives from the various medical societies will have the opportunity to hear Ms. Kippenhan and the Bureau’s two in-house physician experts explain how cases are presently being handled and to discuss ways in which to improve the system.

Confidentiality and Admissibility Issues

The MCARE Act specifically protects all documents, materials and information utilized in an investigation by either medical board as confidential, privileged and protected from discovery in a medical professional liability action. Likewise, an investigator or other person with access to these documents is precluded from testifying in any judicial or administrative hearing. These provisions were intended to improve the effectiveness of the investigative process and, according to the Bureau, has in fact aided their efforts in obtaining information from Plaintiffs’ or physicians’ attorneys since the information is protected while part of the investigative process. So far, according to the Bureau, these confidentiality provisions have not been challenged in court.

When a case moves on to an administrative hearing, the testimony and other evidence utilized at the proceeding, as well as any potential adverse ruling, may be admissible in the related malpractice civil trial. Under the doctrine of collateral estoppel, where an issue of ultimate fact has already been determined by a valid judgment, the issue cannot again be litigated between the same parties in a future litigation. According to Nancy Kippenhan, there has not, to date, been a prosecution resulting in discipline which was completed while the civil case was still ongoing. It is an issue that will most likely be litigated before there is an understanding of the ultimate collateral impact of disciplinary action on a pending civil malpractice case.

Another area of concern is the consent agreement utilized when licensure actions are settled. The standard consent agreement used by the licensure boards requires a physician to admit to a violation of a law or regulation. It is unclear whether or to what extent the consent agreement would be admissible in the related civil action. In a civil malpractice action, a physician can enter into a settlement and release agreement and agree to a monetary settlement contribution but specifically deny any admission of liability. According to Ken Jones, the Medical Society has sought to have the Bureau reconsider the wording contained in the consent agreements.

Legal Representation for Physicians

With the self-reporting requirement and potential investigation and prosecution by the Bureau, a physician may be faced with having to defend two cases simultaneously. An investigation is usually initiated by a Bureau field investigator with a request for medical records and an interview with the physician. This investigative process occurs without the procedural rules and constraints required in the discovery phase of a civil case. Physicians are offered the opportunity to submit a written response to the allegations set forth in the complaint. Just as in a malpractice action, where a physician’s deposition testimony can be used at trial to undermine his or her credibility, any statement or information provided to an investigator during the investigative process can potentially be utilized at an administrative hearing to discredit the physician. It is in the physician’s best interest to consult legal counsel before at the commencement of the investigation. The Pennsylvania Medical Society has published a helpful pamphlet entitled "Physician Licensing Investigations and Prosecutions – A Guide for Pennsylvania Physicians."

Physicians should also make an inquiry with their malpractice carriers as to whether or not legal representation for licensure investigations related to the self-reporting requirement is covered through their professional malpractice policy. PMSLIC does provide an administrative defense coverage at no additional premium as an enhancement to all physician professional liability policies as of January 1, 2006. Legal counsel will be provided for representation in investigations by the Bureau that are directly related to the medical incident covered by the PMSLIC policy. Medical Protective will also provide coverage under their professional liability policies for legal defense in a licensure investigation at no addition premium. Neither carrier provides coverage for any monetary fine imposed by a licensure board.

By requiring the Medical and Osteopathic Boards to review all negligence actions, the MCARE Act has created a system which inherently may not be the most efficient process for monitoring the quality of care provided by physicians in Pennsylvania. Moving forward, it is important to continue to evaluate the criteria and standards of review utilized in the investigation and prosecution of this substantial caseload. Only through fair and effective case management can the patient safety goals established by the MCARE Act properly be advanced.