BPOA has substantially increased the number of investigators, medical consultants and attorneys who handle MCARE based disciplinary actions. The licensed professional will usually first learn of the existence of an open investigation file from one of the investigators. These investigators often adapt a “friendly” persona and are skilled at obtaining statements, over the telephone or in person, from busy physicians who see a benefit to giving a quick statement and then hope that the matter will be closed and forgotten.

Guarded approach with investigators

The proper response to a request by an investigator for a statement should be to politely decline to be interviewed. The professional should confidently explain to the investigator that he or she would like to consult with counsel and have counsel contact the investigator to provide a formal response to the matter under investigation.

In those medical malpractice cases where death or catastrophic injury serious has occurred or the complaint contains allegations of reckless conduct, the prosecutor may be looking to file a disciplinary complaint. Before any verbal statement is provided, the licensed professional must work with counsel to carefully prepare exactly what the professional will say to explain the medical issues. If questions arise about the treatment of a particular patient, no information should be provided without an appropriate patient medical release.

Charge of unprofessional conduct

The written document that forms the basis for the formal charge against a licensed professional is the Order to Show Cause. This document is similar to a civil complaint in malpractice litigation. It sets forth the particular facts that form the basis for an alleged violation of the law. The Bureau will prepare the charging document and file it with the Board. The Board will assign the matter to a Hearing Examiner, who will receive and decide motions, handle pre-hearing conferences and decide procedural issues and eventually conduct the hearing and issue a decision called an Adjudication and Order.

All hearings are conducted under the Pennsylvania Administrative Code, which outlines the procedural and evidentiary rules under which the hearings take place. The evidentiary rules are somewhat relaxed in an administrative hearing and this often aids the Bureau in prosecuting a case.

The Administrative Code does not provide for the detailed pre-hearing discovery mechanisms that are available to litigants in civil litigation. Except for those documents that are exchanged by the parties to be used as exhibits at the hearing, the professional will have limited access to information that may be relevant to help prepare a defense. In addition, pre-trial discovery depositions are not normally part of the pre-hearing phase in Board cases. The absence of these techniques for exposing weaknesses in the prosecution case disadvantages the accused professional and increases the risk to the professional who proceeds with a hearing because the exact nature of the testimony of the prosecution witnesses may not be known until the testimony unfolds during the administrative hearing.

Adjudication

The professional will need to demonstrate to the Bureau prosecutor that he or she is fully prepared to litigate the case and that the professional has a reasonable likelihood of obtaining a satisfactory result through the administrative hearing process. It is absolutely essential for the professional to present qualified expert testimony to rebut the claims of negligence in the Order to Show Cause. Generally, the expert will need to provide his or her credentials and a written report outlining his or her conclusions to the Bureau prosecutor in advance of the hearing. In may be possible for the professional to use the same expert who has been retained by the medical malpractice insurance company attorney who is defending the civil action.

The hearings are held in Harrisburg, Pennsylvania. At the close of the testimony, the parties submit Proposed Findings of Fact and Conclusions of Law. When a decision is issued by the Hearing Examiner it may or may not be reviewed by the Board. In the event that the professional is unsuccessful before the Board, cases can be appealed to the Commonwealth Court of Pennsylvania, but the Commonwealth Court can only reverse Board decisions for errors of law, violation of constitutional rights and/or in the event that the decision of the Board is not supported by “substantial evidence.” This is a difficult standard to meet.

Negotiated Consent Decree

MCARE disciplinary actions may be resolved by a negotiated Consent Decree and Order. The professional may eliminate the risk of a severe sanction and the expense associated with litigating a disciplinary action, by agreeing to a reasonable Consent Decree that is acceptable to the Board. A Consent Decree will require an admission that the professional violated the Medical Practice Act. The Boards take the position that unless the professional agrees that he or she has actually violated the law, the Board lacks jurisdiction to impose a negotiated sanction. For this reason, the Board and the Bureau have resisted Consent Decrees that impose a sanction, but contain language that the professional does not admit to violating the law.

If the Consent Decree is finalized while a malpractice case arising out of similar facts is pending, the professional may be increasing the chances that he or she will suffer from an adverse verdict in a civil case because the Consent Decree will be admissible in civil court as an admission that the physician was negligent.

For minor violations of the MCARE Act BPOA may only ask for a public reprimand and a fine. The professional will have to determine whether or not the sanction will be reported to the National Practitioner Data Bank. If it is, other state boards, hospitals, third-party payors and professional liability carriers will also learn of the sanction.

When the misconduct involved is extremely severe, the Board has the ability to revoke the license of a professional. Once revoked, the professional will not be allowed to apply for reinstatement until five years have elapsed from the date of the revocation.

For less severe, but serious matters, the Board is able to impose probationary terms which may include continuing medical education, practice monitoring, skills evaluations, public service requirements and the like. The Board may also order the professional’s license to be suspended for a set time and then grant a “stay” of the suspension, subject to acceptable compliance with certain probationary terms. A stayed suspension allows the professional to practice but gives the Board the power to instate a suspension if the professional violates the requirements of the Consent Decree. Careful consideration must be given to all aspects of the proposed sanction that the licensed professional will agree to.

Conclusion

Licensed professionals who are sued for medical malpractice must assume that the civil complaint will be reviewed by a prosecutor with BPOA. The professional must keep one eye on the civil case and one eye on a possible disciplinary action. One of the best ways to discourage BPOA from filing a charge (or defend against one that is filed) is to have the defense attorney in the malpractice case obtain an exculpatory expert report or series of reports so that the professional will have a built-in expert, if needed for the defense of a disciplinary charge.

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