Department of Health (Department) Complaints are common and originate from a wide variety of sources. Complaints come from patients, family members, Notices of Intent in medical malpractice claims and Code 15 Reports hospitals are required to submit to the Department.
Typically, a physician receives a letter from the Department including a copy of the complaint. The physician has 45 days to submit a written response to the complaint. Upon receipt of the letter, a physician should contact their professional liability carrier as insurance policies often provide coverage for administrative actions. Under no circumstances should a physician submit a response to the Department or speak with its investigator without seeking legal advice.
A physician, with the assistance of counsel, should submit a written response to the complaint. This initial response, if done properly and thoroughly, is the physician’s best chance to, in the immortal words of Deputy Barney Fife, “nip it in the bud.” The response should provide all relevant information and records for the Department in an easily understandable manner since investigators usually have no medical training. Counsel can also submit a summary of the physician’s defense, as well as an expert affidavit in support of the physician’s treatment.
During the investigation, the investigator may request an interview. Physicians under investigation are not required to submit to an interview. However, if a physician agrees to an interview, he should only do so with counsel present.
Once the initial investigation is complete, the investigator prepares a report for The Probable Cause Panel (the Panel). The Panel reviews the investigator’s report and any information the physician submitted to determine if probable cause exists that the physician violated any Florida Statute or rules.
If the Panel finds no probable cause, the case is dismissed, and the matter is not a public record. The Panel may also elect to issue a Letter of Guidance, which is neither public record nor considered formal discipline. The case will be dismissed after the Letter of Guidance is issued.
If the Panel finds probable cause, a formal Administrative Complaint is prepared by the Department. The Administrative Complaint outlines the charges against the physician. A physician typically has three options:
- Dispute the charges and request a formal hearing
- Stipulate to the Department’s proposed settlement
- Attempt to negotiate a settlement with the Department’s attorney
If a physician elects a formal administrative hearing, an administrative judge will hear the case. Both sides can call witnesses, experts and submit evidence. The judge will prepare a written decision called a recommended order. The order is submitted to the Board of Medicine where a final order is entered. The final order may be appealed.
Collateral Effects on Medical License
There are, of course, collateral effects that Department discipline can have on a physician’s medical license. These include the following:
- Action to revoke, suspend or other action against the physician’s privileges and medical staff membership at hospitals, ambulatory surgical centers, skilled nursing facilities, etc.
- Mandatory reporting to the National Practitioner Data Base.
- Inclusion of the disciplinary action on the physician’s Department profile, which is available to the public.
- Action may be initiated in other states in which the physician has a license.
- The Office of the Inspector General with the Department of Health and Human Services may take action to exclude the physician from the Medicare Program which can result in the physician being placed on the List of Excluded Individuals and Entities (LEIE).
- If the physician in placed on the LEIE the physician is also automatically “debarred” from participating in any federal contracting and placed on the U.S. General Services Administration’s debarment list.
- The DEA may act to revoke the physician’s DEA registration.
- Third party payors may terminate the physician’s contractor or panel membership.
10 Common Mistakes
Not responding properly or handling a Department Complaint ineptly can result in possible revocation of the physician’s medical license. Below is a list of common mistakes physicians make following notification of a Department Complaint Investigation.
- Providing the Department investigator an oral statement or interview without the assistance of counsel.
- Providing a written statement in response to the Department investigator’s invitation to do so without the assistance of counsel.
- Failing to provide a complete copy of the patient’s medical record when subpoenaed by the Department investigator and no objection applies.
- Failing to keep an exact copy of all materials and documents provided to the Department Investigator.
- Failing to check to see if your medical malpractice insurance policy will cover the legal fees to defend the investigation.
- Failing to submit a written request to the Department Investigator at the beginning for a copy of the complete investigation report.
- Believing that because you know someone with the Department, on the Board or a state official influence can be exerted to have your case dismissed.
- Believing the matter “has gone away” because you have not heard anything for months.
- Attempting to defend themselves.
- Failing to immediately retain an experienced attorney to represent them.
A Department Complaint can have far-reaching implications on a physician’s medical license. The Health Care Practice Group at Pearson Bitman is committed to assisting Clients in navigating and defending Department Complaints. For more information and assistance, please contact David Doyle and Julie Tyk at Pearson Bitman.
By Julie A. Tyk, JD
Julie A. Tyk, JD, is a Partner with Pearson Bitman, LLP. Julie concentrates her practice in medical practice defense litigation, insurance defense litigation and health care law. She has represented physicians, hospitals, ambulatory surgical centers, nurses and other healthcare providers across the state of Florida. She may be contacted by calling (407) 951-8523; email@example.com.