How Physicians Should Respond to Reports of Misconduct

Few events are more distressing for physicians than learning a complaint has been filed against them with the Virginia Department of Health Professions (DHP). Regardless of the type of complaint filed and whether it has merit, the mere filing of a complaint can threaten a physician’s professional license, hospital privileges, and, perhaps above all, reputation. Many physicians mistakenly assume that a DHP investigation is a routine administrative matter. In reality, it is a legal and regulatory proceeding with potentially career-altering consequences. How physicians respond in the early stages can be outcome-determinative, as our Norfolk medical license lawyers explain.

Take the Complaint Seriously From the Outset

The first step in mounting a medical license defense is to take the complaint seriously from the start. While a DHP investigation does not necessarily mean that any malpractice or breach of standards of care has occurred, physicians should nonetheless treat complaints as if they could result in such findings. Complaints come from many sources, including patients and their family members, coworkers, hospitals, and malpractice insurers.

Allegations of unprofessional conduct commonly include:

Substance or alcohol abuse
Inappropriate or excessive prescription of medication
Substandard, inadequate, or neglectful care
Sexual misconduct with patients
Breaching patient confidentiality
Poor record keeping

Upon receiving notice of such a complaint, physicians should carefully evaluate the allegations and determine the investigation’s procedural posture. Understanding exactly what is being alleged and what potential violations are implicated is key to mounting a response.

Engage Experienced Legal Counsel Early

Two of the biggest mistakes physicians make are delaying or refusing to respond to a complaint or responding immediately without legal guidance. Both approaches can land physicians in hot water. First, DHP expects cooperation, and failure or refusal to respond can become grounds for discipline in themselves. Second, an overly casual or hastily prepared response can cause problems with inconsistencies, admissions, and credibility down the road. An experienced Norfolk medical license lawyer can help physicians:

Understand the allegations and risk exposure
Communicate with investigators appropriately
Prepare strategic written responses
Anticipate collateral issues (e.g., adverse employment actions)
Avoid statements that can unintentionally broaden the investigation

Attorney involvement is particularly important when a DHP investigation overlaps with other proceedings, such as hospital peer-review investigations, malpractice litigation, and insurance credentialing.

Preserve Records

Medical records often play a central role in DHP investigations and disciplinary proceedings. As such, physicians should take care to preserve their records once they become aware of a complaint or investigation. Relevant materials for this purpose may include patient charts, emails and internal communications, prescribing records, and office policies and protocols. Under no circumstances should physicians attempt to alter or destroy records after becoming aware of a complaint. Even well-intentioned edits can create the appearance of deception and cast doubt on a physician’s credibility. The safe and proper way to clarify records is with the assistance of a Norfolk medical license lawyer or other experienced counsel.

Understand the Disciplinary Process

The complaint and investigation process can be intimidating, especially for physicians who have never faced professional complaints before. Generally, investigations of complaints against physicians in Virginia proceed as follows:

Filing of the complaint: A complaint is submitted, and DHP reviews it to ensure it falls within its remit.
Investigation: The case is assigned to a DHP investigator, who collects evidence and interviews witnesses.
Notification and response: The practitioner against whom the complaint is filed is notified of the investigation and asked to provide a written response.
Probable cause review: DHP compiles its findings into a report and submits it to the Virginia Board of Medicine, which reviews it to determine whether there is probable cause of a violation.
Informal or formal resolution: If the Board finds probable cause, it may attempt to resolve the issue via several mechanisms, depending on the severity of the violation. Such mechanisms include, from least severe to most severe, an advisory letter, a consent order, an informal conference, and a formal hearing.
Final decision: If the Board concludes that a violation occurred, it may impose sanctions, including monetary penalties, license restrictions, suspensions, or revocations.

Physicians facing investigations, hearings, and sanctions are entitled to legal representation at all stages of the disciplinary process.

Prepare a Tailored, Evidence-Based Response

A physician’s written response to a complaint is their first and best opportunity to get the case dismissed early. A narrowly tailored, objective, and evidence-based response can clarify nuances, correct factual inaccuracies, and persuade the investigators that no violation occurred. Generally, the written response should:

Maintain a professional tone
Address each allegation directly
Explain the clinical decision-making process
Include supporting evidence
Avoid unnecessary speculation or argument
Maintain compliance with privacy laws

Physicians often believe they should provide as much information as possible to clear the air or appear cooperative. And while under-explanation can land physicians in hot water, over-explanation can do the same by raising additional issues or expanding the scope of the investigation beyond its original parameters. The ideal written response that addresses DHP’s concerns directly while avoiding oversharing. An experienced Norfolk medical license lawyer can help physicians thread that needle.

Consider Reporting Obligations

DHP investigations and corresponding disciplinary proceedings can trigger certain reporting obligations. For example, hospitals must report certain disciplinary actions or privilege restrictions to DHP, while physicians have a duty to self-report disciplinary actions taken against them in other states. In some cases, certain adverse actions must be reported to the National Practitioner Data Bank — a federal repository that tracks adverse actions against medical practitioners across state lines. Physicians should also review their malpractice insurance policies carefully, as many policies contain strict notice requirements, breach of which can result in coverage disputes later.

Protect Your Vocation With the Counsel of a Norfolk Medical License Lawyer

How you respond to a complaint of misconduct can set the tone for the entire disciplinary process. For more information about how physicians should respond to complaints of misconduct, please contact a Norfolk medical license lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.