Mid-Atlantic Health Law TOPICS

The Maryland Board of Physicians is mandated to investigate any complaint that alleges violations of the Maryland Medical Practice Act. The Board has 22 board members, including physicians, a physician assistant and consumers.

Complaints to the Board of Physicians often come from patients or family members of patients, reports from hospitals, and law enforcement. Maryland physicians are well-advised to understand the ABCs of how complaints are handled by the Board.

A. The Investigative Process

When the Board of Physicians receives a complaint, a preliminary investigation is conducted by the intake unit, and the information gathered during the investigation is presented to a disciplinary panel, which is a subset of half of the members of the Board of Physicians.

During a preliminary investigation, the intake unit may subpoena medical records and ask for a response from the licensee involved, all of which will be presented to the disciplinary panel for consideration.

The disciplinary panel may close the case without charges, close the case with an advisory letter, refer for peer review or direct further investigation.

If a preliminary investigation moves to a full investigation, and the complaint concerns an allegation that the licensee did not meet the standard of care or did not keep adequate medical records, the disciplinary panel must obtain reports from at least two different peer reviewers.

If one or both peer reviewers conclude that a violation of the standard of care occurred, the licensee has an opportunity to respond before the panel charges.

If the disciplinary panel determines that reasonable cause exists to charge the licensee, an administrative prosecutor from the Office of the Attorney General drafts the charges on behalf of the disciplinary panel. The licensee is then offered a meeting before the Disciplinary Committee for Case Resolution (DCCR). The disciplinary committee is comprised of the same 11 Board members who comprised the disciplinary panel that has already been involved in the matter.

Approximately 90% of cases settle at DCCR. If the case does not settle, the case is referred for a hearing.

If a case is referred for a hearing, the hearing is held before the Office of Administrative Hearings (OAH). The OAH is an independent state agency that conducts full evidentiary hearings, which include the calling of witnesses and cross-examination.

All OAH proposed decisions go back to the Board of Physicians and are considered by the remaining 11 Board members who have not previously been involved in the matter. However, that group, on behalf of the Board, has the discretion to accept or reject the proposed OAH decision.

B. Sanctions

Four sanctions are available to the Board of Physicians: reprimand, probation, suspension and revocation. For each disciplinary ground, the Board of Physicians has identified a maximum sanction, minimum sanction, maximum fine and minimum fine.

When determining the sanction and/or fine, the Board of Physicians considers mitigating and aggravating factors, such as whether or not the licensee was cooperative during the proceedings; whether or not the licensee implemented remedial measures to correct or mitigate the harm arising from the misconduct; and whether or not the licensee has been rehabilitated or exhibits rehabilitative potential.

C. Best Practices

If a physician receives notice from the Board of Physicians that a complaint has been filed against the physician, he or she should contact a health care attorney immediately to begin working on a response. Often, the Board will grant extensions if more time is needed to prepare a response, and the physician or the physician’s attorney should not hesitate to request an extension.

While the physician will need to address the complaint truthfully in the physician’s written response, and while the information requested in any subpoena needs to be provided, the physician should not give any more information than is necessary to address the complaint or respond to the subpoena. Licensees can get themselves in trouble during the investigative process by providing tangential information that is unrelated to the allegations in the complaint.

If the Board of Physicians requests an interview during the investigation, the physician is entitled to have his or her attorney present during the interview. Interview responses should truthfully answer the questions asked but provide nothing further. Also, if a physician does not know the answer to a question, it is perfectly acceptable to state that. Most importantly, as in any other oral examination, attorney preparation is invaluable.

Finally, written and oral responses should always be respectful. The Board and its investigators are just doing their jobs, and an arrogant response is a nonconstructive response.

Barry F. Rosen
410-576-4224 • brosen@gfrlaw.com

A version of this article was published by The Daily Record on October 29, 2020.