By David R. Dearden, Esq.

Published August 2001

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The National Practitioner Databank, which is a national registry of malpractice payments, disciplinary sanctions and quality-based medical staff issues for all licensed professionals, has dramatically increased the visibility of professionals with drug problems, professionals who have made clinical errors and professionals who exhibit behavioral problems. For this reason, an isolated personality problem can explode and become disseminated to a wide audience. This audience can include investigators for the Drug Enforcement Agency, the Office of the United States Inspector General, the State Attorney General’s Office, the Bureau of Program Integrity, credentialing professionals and the Bureau of Professional and Occupational Affairs. It is the Bureau that acts as a prosecutor when a matter that affects a professional’s license is before the Medical Board, the Osteopathic Board, the Psychology Board and the Nursing Board.

This article offers suggestions on ways to avoid those prosecutions or minimize the impact of such prosecutions when they do arise.

Representing Your Qualifications

The credentialing office of modern health care organizations are all skilled in exploring gaps in applications, contacting all listed references for information and in querying appropriate databases to look for discrepancies that will reflect adversely on the character of the professional applying for the right to provide services at such a health care entity. If the investigating organization detects an intentional misrepresentation, the professional may not only be denied privileges but the professional may face a disciplinary action that results when the board learns of the misrepresentation, either directly from the health care organization or indirectly through publications made to the National Practitioner Databank. A professional’s misrepresentation of his or her qualifications in applications or advertisements is viewed seriously by the Boards because such conduct reflects negatively upon the honesty and integrity of the professional involved.

Professionals should err on the side of full disclosure when responding to questions. A professional’s candid but carefully worded explanation of an embarrassing situation will serve him or her far better than any attempt to hide the information. However, when a professional is faced with delicate issues involving mental health or physical disabilities that may be protected by federal law, such as the Americans with Disabilities Act, professionals can seek and utilize opinions from counsel to form appropriate responses. Special attention should be given to situations where someone’s criminal record has been expunged or otherwise considered a non-record offense.

Finally, a professional should be meticulous to keep a copy of each and every signed application in a safe place so that these documents can be consulted for consistency when filling out subsequent applications and studied in the event that questions are raised concerning the representations that were made.

Regulatory Aspects

In the late 1990s, many health care organizations developed medical billing compliance plans. These plans were adopted either involuntarily as a partial sanction for abusive billing practices that were detected by the state or federal health care fraud agencies, or voluntarily to proactively detect and remedy violations through a self-disclosure. The documentation required to support medical billing is so exacting that mistakes inevitably creep into the process of claims submissions. The sanctions for failing to correct an error are so onerous that the expense of creating and adopting a set of policies for self-policing and auditing medical bills is worthwhile from an economic standpoint.

Health care professionals are ethically and financially responsible for the regulatory aspects of their practice, even if they hire and rely on practice administrators to attend to the business aspects of the practice. The "compliance plan" concept can and should be applied to all of the regulatory aspects of a professional’s practice. The exercise of due diligence in all areas does not need to be expensive or overly formalistic. A customized checklist of such due diligence items can easily be reviewed at an annual meeting and documented accordingly.

All professionals need to be concerned about the following:

• All members of the practice must be properly licensed or certified to perform the tasks they actually perform.

• All members of the practice must have proper insurance in place, including malpractice insurance.

• All Drug Enforcement Agency registrations must be in place for professionals writing prescriptions and must be properly handled and documented.

• All hospital staff privileges for professionals must be maintained in good standing.

• All offices, surgery centers and clinical laboratories must be properly licensed.

• All patient complaints must be handled promptly and properly.

• All patient files, billing records and computer files must be treated in accordance with appropriate confidentiality statutes and professional guidelines.

• All Department of Health, Department of Transportation, Occupational Safety and Health, and Workers Compensation reports must be made properly.

• For those professionals involved in clinical or pharmacy research, the Food & Drug Administration reports and institutional review board protocol must be complied with.

• All third party payor rules and requirements must be complied with and request for documents, audits and overpayments must be handled promptly and appropriately.

Finally, professionals need to understand that all business arrangements that involve professionals and possible referral sources for patients must be analyzed against the anti-kickback and anti-referral state and federal statutes that regulate the practice of medicine.

By utilizing an annual or semi-annual review process, professionals will detect anomalies that occur to even the best of practices and organizations and allow them to be remedied before they become problematic. In those rare situations where a professional has utilized some form of diligence checklist, if a problem does develop, the professional should be able to make an effective argument that his or her intention was to comply with all appropriate laws and regulations and that this omission was not the result of carelessness, but an inadvertent omission.

Confidential Professional Forms

At the first hint of a problem, the professional is wise to proactively seek a creative way to resolve the situation. Most health care organizations do have formal or informal mediation programs to resolve workplace issues. The discussions that take place in these settings are statutorily entitled to confidentiality in Pennsylvania and these forums can be very useful in either resolving problems or demonstrating to superiors good will and an effort to reach a creative resolution.

A professional should never allow a behavioral or clinical issue to become a formal investigation under the medical staff by-laws. Every effort should be made to cooperate with those providing constructive criticism to encourage them and keep all such action routine and general. If this is done, there will be no basis for the health care organization to make a report with the National Practitioner Databank in the event that a decision is made to take a leave of absence or resign from the staff. Professionals should make sure that they have an updated copy of the medical staff by-laws, divisional and departmental rules and policies, all practice plan documents, policies and written materials that relate to the discipline of member of the organizations to which they belong. It is awkward for a professional to request documents that relate to disciplinary issues from colleagues or the medical staff office once a problem has escalated.

The peer review process is also well suited to review morbidity and mortality clinical outcomes with a critical eye. These discussions will be cloaked with a peer review privilege that is, for the most part, effective to protect discussions that take place in that forum from public disclosure. Professionals should be sensitive to clues or suggestions by colleagues that additional training or proctoring may be needed for the mastery of certain procedures. While no one can predict those malpractice or disciplinary cases that can spiral out of control, professionals should be alert to make statements about such cases only in protected forums and to impress upon colleagues one’s desire to have constructive criticism and to take appropriate corrective action.

In the event that a malpractice action is instituted against a professional, the professional should not necessarily be in a hurry to have the matter resolved. It is entirely appropriate for the professional to request that assigned counsel aggressively pursue the defense by retaining an expert to evaluate the procedure that is involved and to obtain a favorable opinion, in writing, from a recognized and qualified expert witness. Attorneys who are routinely hired by malpractice insurance companies are generally knowledgeable professionals who enjoy forensic work and who are willing to evaluate malpractice matters and to give opinions that may be favorable to professionals who have been sued.

It is of great value to have a favorable written expert opinion to use for support in the event that years later the procedure is peer reviewed by the medical staff of a hospital or is critically analyzed by the credentials committee of a health maintenance organization. These written opinions can prove decisive in the event that a disciplinary action is instituted for the procedure featured in the malpractice action.

Finally, it is particularly important for professionals who are considered to be impaired to utilize the peer review process established by the Medical Practice Act. There exists an excellent confidential mechanism for professionals with a drug, alcohol and/or other behavioral or psychological problem to obtain counseling, possibly while on a leave of absence from the medical staff, without there being a corresponding disciplinary action instituted. One of the most compassionate acts a professional can do for another is to report the professional to the professional health program that is administered in part by the Pennsylvania Medical Society. This organization has been extremely helpful in rehabilitating professionals in situations that are career threatening.

Increasingly, professionals appear to be living in glass houses. Health care organizations will not tolerate abusive behavior. Almost any medical decision that results in an unfavorable outcome can be the potential for a malpractice action with results that are unpredictable. A certain number of troublesome employees with access to confidential information can cause tremendous difficulty. Therefore, professionals can protect themselves by assembling and insisting upon good documentation. Sensitive documents need to be kept in a safe place where they are readily available, if necessary, for analysis by legal counsel. Professionals need to pay attention to the regulatory aspects of their practices and it is wise to evaluate certain key regulatory issues on a regular basis that can be documented in business records. Certain especially sensitive legal issues can be protected from disclosure by the attorney-client privilege. In addition, in the event that a professional anticipates a problem or a problem begins, communications concerning the problem at issue should be handled in forums that are protected from public disclosures under various statutes and privileges.

It is hoped that the suggestions set forth in this article form a foundation for adopting defensive strategies that will decrease the chances of a disciplinary action and avoid or minimize the impact of one if it is instituted.

David R. Dearden, Esq., is a shareholder of the law firm of Kalogredis, Sansweet, Dearden and Burke, Ltd. in Wayne, Pennsylvania.