Jurisdiction
The Board issues licenses to qualified physicians to practice medicine in Minnesota and disciplines physicians and other professionals licensed under its jurisdiction. (In addition to physicians, the Board regulates acupuncturists, athletic trainers, genetic counselors, naturopathic doctors, physician assistants, respiratory therapists, and traditional midwives.)
Source of Complaints
The Board receives an average of about 840 complaints each year. Most complaints originate from patients or family members of patients. Complaints also come from employers, health care providers and medical institutions who are obligated to report information that might indicate a basis for disciplinary action, such as loss of privileges or termination of employment. Any settlement or verdict resulting from a claim of medical malpractice must also be reported to the Board. (Note: most, but not all reports of medical malpractice settlements do not result in discipline by the Board as the legal standards are very different.) Physicians are also obligated to self-report information that could lead to disciplinary action. In some cases, other physicians report colleagues to the Board. Pharmacists are also a source of complaints about prescribing practices. Finally, if a physician is also licensed in a state other than Minnesota, if another state imposes discipline on that individual it will be reported to the Minnesota Board as well, which will decide what, if anything, it will do with the information giving rise to the complaint in the other state and whether further discipline is warranted in Minnesota. Complaints are anonymous and confidential, unless the patient provides a release, and those complaining have statutory protection against claims of defamation.
Types of Complaints
The Board’s primary responsibility and obligation is to protect the public from the unprofessional, improper, incompetent or unlawful practice of medicine. The Medical Practice Act lists a number of potential grounds for discipline in Minn. Stat. § 147.091 (as amended in 2017). The most common grounds are: (1) inability to practice medicine with reasonable skill and safety to patients, including issues related to chemical dependency, physical or mental incapacity, or incompetence; (2) concerns about prescribing or over-prescribing, usually related to pain medication, especially opioids; (3) unethical or unprofessional conduct (a broad, catch all category); (4) “boundary” issues including sexual conduct or improper communications with a patient; (5) failure to provide sufficient documentation in response to an audit of continuing medical education (CME) credits; (6) improper management of medical records; (7) unlawfully revealing privileged communications from or about a patient; (8) false or misleading advertising; (9) conviction of a felony reasonably related to the practice of medicine; (9) disciplinary action in another jurisdiction; and (10) abusive or fraudulent billing practices.
Forms of Disipline
The Board is empowered to enact the following forms of discipline:
- Revoke a license;
- Suspend a license;
- Revoke or suspend registration to perform interstate telemedicine;
- Impose limitations or conditions on the scope and use of a license;
- Impose a civil penalty;
- Order a physician to provide unremunerated professional service (rarely invoked); and
- Reprimand or censure the licensed physician.
Triage
All complaints, whether handwritten, e-mailed or otherwise communicated to the Board are reviewed by one of two Complaint Review Committees (“CRC”) each composed of two physicians and one public member. Each CRC meets for most of the day once a month. Initial complaints go through a “triage” process. Before the complaint is presented to the CRC, Board Staff may ask the physician or licensee to respond in writing, and may obtain patient records by subpoena or an authorized release. Thus, the first notice that a doctor may receive about a complaint is a letter notifying them that a complaint has been filed and asking for more information. It is therefore very important (and required) for physicians to keep their address on file with the Board current.
Once the staff has collected the necessary documents and received the licensee’s response, the information is presented to the CRC on the record for consideration. The vast majority of complaints are dismissed at the triage stage. If the CRC determines that further investigation is necessary, it may send the file back to staff and the AG’s office to obtain more records or interview witnesses. If the CRC decides that discipline is not warranted but that the doctor or licensee would benefit from discussing the complaint in person, it can require the physician to meet with a “medical coordinator” for a medical coordinator conference. A medical coordinator is a licensed physician on contract with the board to assist in reviewing complaints. These conferences usually do not take longer than a half hour or hour and the complaint is usually closed and dismissed once the meeting is completed. In some occasions, however, the medical coordinator could send the complaint back to the CRC due to concerns raised in the meeting.
Complaint Review Conference
If the CRC at any point determines that the physician might need to be disciplined, the Board will usually send a letter to the licensee requiring him or her to appear before the CRC for a complaint review committee conference. The date, time and location of the conference will be set forth in the letter. Re-scheduling is only available for good cause. The conference is typically scheduled for a one-hour block of time. Typically, the meeting takes place around a conference room table at the Board’s office building on University Avenue. The conference is not open to the public. In addition to the three members of the CRC, the Board will usually have two to five staff members in the room along with an attorney from the Minnesota Attorney General’s office. The assistant AG will read the physician his or her rights. The CRC chair will typically ask if the physician wants to make an opening statement. The CRC members will then ask questions. The physician will then be asked if he or she wants to make any closing statements. The physician and his or her attorney is then asked to leave the room while the CRC deliberates. After ten minutes or so, the physician will be asked to return the room. The CRC will then announce its decision. If the CRC decides to dismiss the complaint, the process is over at that moment. (There are no appeal rights for the person making the complaint). If the CRC decides that discipline is appropriate, it will almost always in the form of a proposed stipulation and order. This is the equivalent of a plea bargain or settlement agreement. The official written proposal will be sent by mail after the conference to the licensee or their representative. The physician can either (1) agree to the discipline and sign the agreement; (2) refuse and go to a contested case hearing; or (3) in some cases negotiate the specific terms of the stipulation.
Do You Need a Lawyer?
A physician is not required to have an attorney attend a complaint review conference with him or her, but most do. In the conference itself, the attorney usually says very little. The attorney can provide value in many other ways, however, such as: (1) explaining the process; (2) preparing the physician beforehand as to what to say, and how; (3) serving as a source of comfort and support during a stressful time; (4) in rare circumstances, jumping in to assist a physician whose responses are not helping him or her; (5) being present so that if the case goes beyond the conference (i.e. to a contested case hearing) the lawyer is up to speed on what occurred, and what was said at the conference stage; and (6) assisting to review and potentially negotiate the terms of a proposed stipulation and order.
What is "Public" and what is "Discipline"?
There is some confusion about what information about a complaint, or discipline, is “public” and what is considered “discipline.” The two terms are not the same, and their use in this context may not be intuitive. First, a complaint itself is not public and will not be accessible on the internet or through the Minnesota Data Practices Act. If a complaint is dismissed, the public will not have access to its existence. The Board, however, keeps a record of all complaints, including those that are dismissed.
If discipline is imposed, the terms of the discipline are public. The Board issues a press release and the discipline is noted on the physician’s profile on the Board’s website at https://mn.gov/boards/medical-practice/public/find-practitioner/.
If the Board issues an agreement for “corrective action” and the doctor agrees, the corrective action is also noted on the Board’s website and, in this sense, is public information. Corrective action is not considered “discipline,” however. Why does this matter? Because many specialist certification bodies will not renew a certification if the physician is under “discipline.” Failure to re-certified may cause a doctor to be disqualified for billing to certain insurance programs, which in turn may cause them to be unemployable. This is a big deal, and the Board is aware of it. If a physician is restricted from applying for an unrestricted license before a certain time, and has otherwise fulfilled the requirements to remove the discipline, the Board will often be flexible in allowing a doctor to petition for an un-restricted license early.
The Contested Case Process
If a CRC recommends discipline but the physician refuses to sign a stipulation and order, the complaint proceeds as a “contested case” within Minnesota’s administrative law system. Fewer than five percent of complaints go to this point. Most are either dismissed or settled with a stipulation and order. A contested case starts with a notice of hearing which sets forth the allegations. The parties go through a “discovery” process much like in district court. Often, each side hires one or more experts. The parties are likely to meet at least once for a mediation. If the mediation is not successful, the case goes to a hearing, which is the equivalent of a trial, before an administrative law judge (“ALJ”). The ALJ makes factual findings and recommendations. Parties can then file “exceptions” to the report. The case then proceeds to the full Board (not just a committee) for oral argument and a final decision. The Board reviews any recommended discipline de novo and is not constrained by the recommendation of the ALJ, although it must be based on the evidentiary findings. The Board then issues a final order for discipline. That Order may be challenged only at the Minnesota Court of Appeals for abuse of discretion. Click here for more information about the standard of review at the Court of Appeals.
The Health Professionals Services Program (HPSP)
The Health Professionals Services Program (HPSP) is diversionary program that allows physicians and members of over a dozen other health-related professions, to seek treatment for substance abuse and mental health disorders in a safe and monitored fashion that is not reported to the public.