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Health Law Monitor

IMPACT OF LICENSING BOARD COMPLAINTS ON MALPRACTICE CLAIMS

August 3, 2022

By: Michelle R. Prud'Homme

Licensing boards provide consumer protection in the form of regulation, but do not provide compensation.  Patients who claim harm from malpractice use the civil court system to seek compensation.  Board complaints are sometimes used by claimants to further a malpractice claim.  The potential of civil liability is an important consideration when handling a board action, highlighting the need for legal representation in the defense of board complaints.

Plaintiffs’ counsel, who pushed for a requirement to report settlements paid on behalf of certain health professionals, faced a backlash in which physicians who may have settled smaller cases for convenience, chose to defend to avoid reporting and board involvement.  Settlement became more difficult.  Some attorneys now use board complaints in the pursuit of malpractice claims.  This can include a form of screening claims, seeking leverage to settle, or generating potential evidence.

  • SCREENING CLAIMS

Specific requirements vary among states, but most have a threshold requirement for pursuing a claim against a licensed professional that requires an expert review.  In Colorado,  C.R.S. §13-20-602 requires certification that a person with expertise in the area of the alleged negligent conduct has reviewed the known facts and such materials found to be relevant, and concluded the filing of the claim does not lack substantial justification.  The identity of the reviewer is not disclosed to the defendant.  Licensing boards have professional members qualified to provide a review, or in the case of certain medical specialties, will seek an outside review in the particular specialty.  It is arguable whether a review by a licensing board meets the requirements of the statute.  Assessing a “claim” includes reviewing not only negligence, but causation.  A licensing board does not necessarily address causation.  Regardless of whether the review meets statutory requirements for pursuing a malpractice claim, anyone can file a board complaint at no cost. Simply raising concerns will lead to a review of the conduct without the need for the complainant to prove a case.  A dismissal does not prevent a party from pursuing a civil action, but it can weed out some claims that attorneys are unsure about pursuing.

  • SETTLEMENT

An adverse finding by a licensing board is more impartial than a “hired gun” expert.  As a result, the decision can carry more weight in negotiations and be used by a plaintiff to obtain a settlement.  Although appeals processes may mean significant delays before there is a decision, the fact that preliminary review has led to a referral for discipline may still provide leverage in negotiations.

  • EVIDENCE FOR CIVIL SUIT

When discipline is entered against a licensee, the discipline is public record.  It is a common topic in discovery and, in some circumstances, may be admissible.  It can be relevant to negligent credentialing or supervision claims.  Other than the discipline itself, much of the file of a board complaint is confidential and not subject to discovery.  However, depending on the board and state, responses and other statements of the licensee may be subject to production under a Freedom of Information Act request to the agency, or a discovery request to the individual licensee.  Most discipline is entered through negotiated stipulations rather than adjudication following trial to an administrative law judge, so “findings” should not be binding in a civil court.  Nonetheless, the language used in stipulations and consent agreements, and potential admissions, need to be carefully weighed for their impact on civil liability.

Professional liability insurers and self-insured healthcare entities frequently provide a legal defense for board complaints.  This is beneficial to help the individual licensee, who is facing the stressful situation of a board complaint, to navigate the system and avoid a hastily written emotional or incomplete response.  Aside from the obvious goal of protecting an individual from discipline where possible, it is important to consider the wording of responses that have a potential of being used as an admission, and the language in any negotiated agreements.  When a board complaint involves allegations that carry a potential for a civil suit, the impact that the handling and resolution may have on liability is an important consideration that should not be overlooked.  Legal representation in the defense of board complaints can help avoid many pitfalls.

 

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