newjerseynewsroom.com

BY ALEX J. KEOSKEY

COMMENTARY

Ask any five people you know: "Ever had a bad experience, or know someone who has had a bad experience, with a doctor?" The chances are good that at least one or two of them will provide you with a frightening tale of a relative, spouse, friend, acquaintance or dearly departed who was the victim of a "bad" doctor. This will sometimes be followed by an expression of resentment that "nothing was done" to punish or admonish that doctor. It may be concluded with an ominous warning regarding the negligence of doctors and hospitals in general.

However, those same five people may be unaware of the existence of a vital state agency that wields almost unlimited power for the purpose of policing physician malpractice and misconduct — The New Jersey Board of Medical Examiners.

The Board is the regulatory body of the state of New Jersey which establishes qualifications of applicants for medical licenses as well as standards for the practice of medicine in our state. It's most significant role however, is as disciplinarian for licensed physicians who do not adhere to those requirements. On any given month, a physician, podiatrist or psychiatrist licensed by the Board may temporarily or permanently lose his or her license to practice medicine for violations ranging from insurance fraud, substance abuse, a criminal indictment, medical malpractice or negligence, or other misconduct.

The New Jersey State Board of Medical Examiners gets its enforcement power from its pecking order within state government. The board is an agency of the Division of Consumer Affairs, part of the most powerful appointed post in our state government, the Department of Law and Public Safety, headed by the state Attorney General. However, the Board, on its own, has no independent means to search out and uncover physicians who may be found wanting with regard to their quality of care. Although the Board conducts ongoing investigations of doctors, an investigation can only begin when the Board receives information from an outside source. As a result, the Medical Board's investigation almost always originates with someone-a colleague, a hospital supervisor, an insurance company investigator, an office employee, a patient or even a spouse-- reporting that doctor to the Board.

When the average citizen imagines doctors being held to account for misconduct or malpractice, they mostly think in terms of a medical malpractice lawsuit, brought and tried by private lawyers in civil court, alleging harm from negligent medical treatment and seeking money damages from the doctor (or, more than likely, his insurer). For those whose lives and occupations offer them little contact with health care outside of their visits with their family doctor, the assumption is that the ultimate punishment for any physician believed to have committed gross errors or negligence in the care of a patient is a civil lawsuit filed by an attorney alleging malpractice. In fact, a more nerve-racking fear for practicing physicians is an action initiated against them by the Board of Medical Examiners, with the assistance of the State Attorney General, who prosecutes such cases.

While a lawsuit naming them as a defendant is clearly a source of stress for any busy physician, almost all doctors are insured for such claims. When a doctor is investigated by the state Medical Board, those same insurers will not provide a defense, since it is not a lawsuit, but a regulatory action by the government. When a doctor is sued by a former patient for malpractice, the physician is aware that, whatever the outcome, the lawsuit will be handled by his/her medical malpractice insurer, who takes over the defense of the claim in civil court with limited day-to-day involvement from the doctor.

While no doctor wants to endure a burdensome lawsuit or the possibility of an adverse judgment, most would prefer it to an adverse action by his or her state Medical Board. A Board investigation can result in a wide range of actions which can run the gamut from a simple request to the doctor for a written explanation to a sudden notice from the state Attorney General seeking the temporary suspension of the doctor's license to practice medicine in this state. When a doctor thinks of a malpractice suit, he thinks of the worst-case-scenario as an increase in his insurance premiums; when he receives a letter from the Medical Board notifying him of an investigation, he envisions the Attorney General entering his office with a subpoena and removing his license from the office wall.

If such license suspension is imposed on that doctor by the Board, for a term of anywhere from six months to several years, the result for that doctor is not only an abrupt loss of their livelihood, but a devastating impact on their patient's medical care and possibly, irreparable damage to their reputation. Comparing a license suspension to a simple layoff or firing misses the point. A person fired or discharged from employment can attempt to find employment elsewhere, in the same or similar position. For the doctor, that is not an option. Suspension means inability to practice anywhere in the state and, due to what are called "reciprocity" laws, in other states as well. Everything from mortgage payments to college tuition may have to be abruptly deferred. This sudden loss of income, coupled with the payment of legal fees to qualified counsel who have the tools to represent the doctor before the Medical Board, can easily spell financial disaster for the average physician, even one with a thriving and successful medical practice.

It's difficult to overstate the scope of the disruption when a doctor who heads a thriving practice caring for hundreds, perhaps thousands of patients is suddenly barred from seeing persons he has treated for many years. Those same patients must be notified and told to find other sources of care. Those scheduled for surgery or with significant chronic ailments are suddenly and without prior warning denied care from a person whose invaluable perspective regarding the history of their ailment, medication, and prognosis is taken away without warning.

Tripwires

New Jersey is one of many states that have created increasingly strict notification systems that alert other state's medical licensing boards, HMOs, hospitals, patients and other relevant parties when a physician has been the subject of a malpractice settlement or payment, or when his or her license is the subject of a regulatory action affecting their practice. How this reporting system works is not generally known.