Physicians as Targets: Insights, Hard Realities and How to Risk Manage Them.
Michael J. Schoppmann, Esq.
Kern Augustine Conroy & Schoppmann, P.C.

In order to survive (and God willing, even possibly succeed) in today’s medicine, every physician must come to accept certain key insights and recognize certain hard realities.

Consider the case of Dr. A. B. – Dr. B., seeking privileges at a local hospital, obtained and completed the medical staff credentialing application. One of the questions, standard to all credentialing applications, asked if Dr. B. had ever been sued for medical malpractice. Dr. B answered that, yes, he had been sued twice, provided the requested details and filed the application. The hospital, as it is obligated to do, queried the National Practitioner Data Bank (“NPDB”) to verify Dr. B.’s background – including any malpractice actions. Unfortunately, the NPDB report included a third malpractice action. The hospital, upon learning of same, denied the doctor’s application for failing to report the third malpractice action and, as it is obligated to do, reported that denial as an adverse action to the NPDB and the state licensing board. The state licensing board investigated and eventually issued a reprimand (the least form of public punishment) for “inadequate medical record keeping” to Dr. B. The reprimand, as the law requires, was also reported to the NPDB. As Dr. B. was licensed in two other states, those state licensing boards also launched investigations of Dr. B’s reprimand. As Dr. B. no longer practiced in those states, and hoping to avoid the costs of legal representation and travel to those distant other states, he did not challenge those investigations and his license was eventually revoked in both states. As the law dictates, those revocations were also reported to the NPDB. As Dr. B. sought re-credentialing with his hospitals and health plans/managed care companies, investigations were initiated and as he began to be terminated from numerous health plans, he also began to suffer a significant loss of income. On the day that his final health plan terminated his contract, Dr. B. was notified that the third malpractice which he had failed to disclose – the very genesis for the destruction of his entire professional standing – was dismissed.

First insight: The number of agencies, entities and authorities who earn their living every day (and all day) regulating, auditing, monitoring disciplining, prosecuting and punishing physicians continues to grow every day.

Hard Reality: Any action, by any of these entities, will certainly be costly to defend, may well be career ending and may even place the physician’s liberty at stake.

Risk Management: Every physician must:
(1) Obtain the “ground rules” for every entity/agency under which they exist, operate and/or practice whether they originate from “private” entities such as hospitals (i.e., Bylaws, Policy and Procedure Manuals, etc.) or health plan/managed care company (i.e., policies and protocols, contract terms,
codes of conduct, etc.) or “public” agencies such as state licensing boards and/or federal oversight organizations.
(2) Review and analyze the “ground rules”,
(3) Decide if they can comply with these “ground rules”, and
(4) If they cannot comply with the “ground rules”, every physician should immediately end any role or responsibilities they hold under that entity/agency.

Anti-Physician Acronyms

Second Insight: All of the entities adverse to physicians have the ready ability, and in some cases the legal obligation, to communicate and coordinate with each other as to the action they are taking against a physician or practice.

Hard Reality: As a result, any application, investigation or action seemingly limited to one arena may well result in actions and/or investigations being brought against the physician from a number of other adverse entities. One of the tools in cross-referring physicians for corollary actions is the monitoring of the National Practitioner Data Bank (as seen in the case of Dr. A. B., infra). The NPDB is a permanent depository of all professional data pertinent to a physician. Medical malpractice payers, State licensing boards, hospitals, other health care entities, and professional societies are responsible for reporting to the NPDB any medical malpractice payments made and/or adverse actions taken against a physician.

Risk Management: No application, process, inquiry or investigation (of any type, any nature or any mechanism) should be treated as “casual”, educational”, “collegial” or “informal”. Every application for credentialing must be carefully scrutinized and verified by the physician themselves. Any physician under review, of any nature or degree, must be properly and thoroughly prepared for any
meeting, review or conference. The physician under review must obtain the medical record at question, thoroughly review the record and be properly prepared prior to any such meeting, review or conference.

The National Practitioner Data Bank

Third Insight: Medical records are being reviewed, audited, analyzed and scrutinized at an ever increasing rate and in exponentially increasing numbers.

Hard Reality: Most of the complaints generated to entities adverse to physician, and the resulting actions and/or investigations undertaken by those entities, are initiated by and predicated upon the negative conclusions derived from a review of medical records – without any direct discussion with, or defense by, the physician. Moreover, most medical records, borne of naiveté, are incomplete, inadequate or run afoul of some form of policy, protocol or regulatory requirement.

Risk Management: Every physician should design and prepare each and every medical record under the presumption that their patient, their department chairperson, and their “worst enemy” will be reviewing that very same medical record.

Medical Records Scrutiny

Fourth Insight: Almost every complaint to an entity adverse to a physician and/or every adverse conclusion, in any form of review (from any jurisdiction or authority), results in an eventual reporting or referral to the physician’s state licensing authority (“BOM”) and any adverse action by that state licensing authority far outweigh the practical impact of a medical malpractice claim. Moreover, that action carries a wide-reaching, pervasive and permanent and adverse impact upon the physician through the cross-reporting mechanism of the NPDB.

Hard Reality: There is no insurance protection for the settlement, or loss, of an action brought by a state licensing authority.

Risk Management: No physician should treat any inquiry (by telephone, correspondence or in-person) lightly. Regardless of the source of that inquiry, the BOM stands immediately behind the entity offering the inquiry and the physician should treat, and defend, the inquiry as if it was being offered directly from the BOM.

BOM Complaint Trends

Fifth Insight: Physicians, as their medical license is a privilege and not a right under the law, hold a set of dramatically compromised rights under the law and are routinely, and increasingly, wrongfully labeled as “Disruptive”, “Impaired” and/or an “Outlier.”

Hard Reality: Any one of these “Scarlet Letter” labels is a virtually permanent and potentially career ending accusation.

Risk Management: No physician should expect that there is, or will be, a “day in court” that exonerates them or provides them with “justice”. Regardless of the environment (medical malpractice, licensing authority, hospital “quality assurance”
review, health plan audits, etc.) initial conclusions (aka the proverbial “first impression”) are binding, irremovable and devastating. Conversely, regardless of the issue (negligence, disruptive conduct, impairment, etc.) physicians must be in complete control of every environment. Even the slightest suggestion or inference of wrongdoing must be dealt with immediately, aggressively and relentlessly. Until each and every negative “first impression’ is fully resolved, and documented, in the favor of the physician, the matter remains an open, high-risk and potentially career ending threat.

In conclusion, it is a frustrating and unfair (yet unquestionably true) hard reality that physicians are the targets of an increasing number of both private and public sector entities and/or agencies. Accepting that reality, and seeking immediate and ongoing compliance with the “rules” of these entities and/or agencies is the first, and possibly the most critical, step in risk managing these risks attendant to these anti-physician acronyms. Had Dr. B. understood his non-delegable and unwavering obligation to review and verify his application for hospital privileges, every aspect of the legal nightmare that engulfed him thereafter could have been avoided. Avoiding any critical review, any potential negative conclusion, and/or and especially any adverse action is the new, and true, definition of victory.

Kern Augustine Conroy & Schoppmann, P.C. www.drlaw.com has offices in New York, New Jersey, Pennsylvania and affiliate offices in Chicago, IL, and Altamonte Springs, FL. The firm’s practice is solely devoted to the representation of health care professionals. Mr. Schoppmann may be contacted via email ‐ mschoppmann@drlaw.com.