Matt Freeman DNP, MPH
“Doug” looked happy to be in a white coat. He was energetic, intrigued, and looked genuinely happy to be working with me. Doug was medical student, assigned to me just for a few evenings at a free clinic. Like me, he spoke Spanish, and liked the opportunity to put his language skills to work.
Doug was ahead of the game. He was quick to formulate a provisional diagnosis and plan. One patient had come in for a follow up on her high blood pressure. I would often ask questions like “so what crosses your mind in a hypertension follow-up visit?” Most students would volunteer thoughtful suggestions like, “Make certain that she hasn’t run out of pills.” Doug was thinking ahead: “See if she has signs of heart failure.” That was worth an “A+” in my experience teaching first- and second-year students.
Doug went on to residency and an oncology fellowship. He certainly had the scientific acumen and compassion for the job. When he was just 29, he took his own life.
I do not know the precise circumstances, but Doug’s suicide took place amid a complaint from the State Medical Board. The complaint could have been about anything. But Doug knew that his career was in danger before it even started.
Doctor Suicide in Context
It is estimated that about 400 physicians take their own lives annually: the equivalent of all of the students in a typical medical school. This is likely a low estimate due under-reporting and families who loved ones who prefer not to disclose the cause of death. It is unclear if the 400 figure is limited to MDs, or if it includes DOs. It does not include DNPs.
For the sake of this article, I have focused on doctors of medicine (MD), doctors of osteopathy (DO), and doctors of nursing practice (DNP), but the discussion could be extrapolated to include psychologists, dentists, physician assistants, nurses, and advanced practice nurses.
A confluence of factors have been identified as reasons for the high suicide rate among doctors: barriers to care for mood disorders, poor access to lethal means, and fatigue.
Litigation has been cited as a significant source of depression and subsequent suicide. A physician who settled a malpractice case took his own life the next day, writing, “I hope that my death will shed light on the problem of dishonest expert testimony.” Others have committed suicide just upon receipt of malpractice claims, not waiting for a ruling.
Doctors’ suicides have also been demonstrated as a response to employers’ discrimination. An employer may be unwilling to employ a doctor who has been subject to litigation, a malpractice insurer may not be willing to insure a doctor who had been subject to previous legal judgment… even if the court ruled in the doctor’s favor.
The Specific Problem of Licensure Complaints
Although studies have linked “malpractice stress” with suicide, a study published in 2015 demonstrated a direct correlation between licensure complaints and physician suicide. Between 2005 and 2013, 114 physicians in the United Kingdom committed suicide while subject to “fitness for practice” investigations.
During those eight years, the UK lost 114 physicians who were subject to investigation, not 114 physicians who were proven to have done anything wrong.
It is likely to get worse.
From 2004 to 2013, the number of complaints filed against healthcare providers rose 76 percent in Texas alone. Between 2011 and 2013, the number of actions made by state medical boards doubled. These actions against physicians include situations in which the board has found no wrongdoing. A “letter of caution” or “non-disciplinary advisory letter,” can go to a physician, indicating that a complaint was filed, but there was no evidence of wrongdoing.
What is a Licensure Complaint?
Depending on the state, doctors are regulated by a number of possible licensure boards: boards of medicine, osteopathy, or nursing. Each board allow complaints to be filed against a doctor for any reason, at any time, by anyone, even if the doctor has an inactive license. There is no cost to lodge a complaint. There is no statute of limitations.
A complaint can be filed by anyone, it need not be a patient, coworker, supervisor, or even someone who has met the doctor called into question. In all but three states, the complaint can by anonymous. Even if the complaint is not anonymous, the name of the individual who lodged the complaint and the specific complaint are not necessarily shared with the doctor.
Examples of Complaints
One friend explained how she received a notice from her state’s medical board when she was a resident. She was under investigation for sexual misconduct. Just as a resident, she learned that a woman complained that a breast examination “took too long.” After exhausting explanations and waiting, the complaint was dismissed.
Another friend also received a surprise letter. She had an inactive license in one state, having moved with her husband across the country. The complaint alleged that she was negligent and violating the standard of care. Through her former employer she learned that a patient’s mother complained. The mother felt that the daughter needed narcotics for unexplained back pain. My friend had not been forthcoming with the drugs the mother wanted, so the mother retaliated.
An a third case, a cardiologist I know was dismissed from his job in an instant. A woman claimed that he “lingered” while examining her chest and heart. After more than a year of unemployment, the allegations were deemed to be unfounded. He struggled to feed his family. Although he eventually went back to practice, he never recovered mentally. The woman’s motivations were unknown.
How is this different from a lawsuit?
This is materially different from a civil suit, in which a plaintiff has to retain an attorney, an attorney has to agree to accept the case, and the plaintiff’s name would be identified. The plaintiff also carries the financial risk of legal fees, and an attorney has to be convinced that the case is significant enough to warrant his or her own investment. Unlike a lawsuit, a board complaint does not result in financial payout should a court rule in favor of the plaintiff.
Malpractice suits are also based on different criteria. A doctor guilty of medical malpractice has been proven to have been negligent, breached duty to the patient, and deviated from what a doctor of similar education and experience would have done in similar circumstances. Furthermore, the suit must prove that a patient sustained damage in the process. All four of these criteria must be proven.
In a board complaint, a doctor has only one criterion to be proven: a deviation from the Medical Practice Act, Osteopathic Medical Practice Act, or Nurse Practice Act. No damage to a patient must be demonstrated.
Doug’s suicide can be described as a “permanent solution to a temporary problem.”
The outcomes of board complaints vary from state to state. These can range from dismissal of the complaint, a letter to the doctor that does not indicate guilt, fines, mandated continuing education, restrictions of practice, to license suspension or revocation.
In many aspects of practice, the outcome of the complaint is irrelevant. Just the fact that a complaint was filed can be profoundly damaging. For example, some health care insurers will not permit a doctor to join their “panel” if he or she has had a board complaint filed regardless of whether the complaint was substantive or resulted in a sanction. In other words, an anonymous email to a board can prevent a doctor from accepting payments from an insurance company… permanently.
In the event of a board action, the outcome is binary: yes or no. Even if the Board issues a letter indicating that the doctor had not violated any of the practice acts, this is still considered “board action.” It may still be reported to the National Provider Data Bank, malpractice insurers, and—in many cases—in publicly searchable databases. The boards routinely issue press releases to alert the public of board infractions.
Two Hypothetical Scenarios
Dr. Jane Lucas
Let us say that you are a particularly jealous or malicious person. Your neighbor, Jane Lucas MD, always seems to have a nicer car, a nicer house, a nicer lawn, and you envy her salary. How can you level the playing field? Send an anonymous email to the Medical Board suggesting that Dr. Lucas is having an affair with one of her patients.
The subsequent investigation will prove that no such affair took place, but Dr. Lucas will lose her capability to bill insurers, and will thereby be pushed out of practice. The fact that she was investigated for misconduct is deemed by insurers to be a crime, even though the investigation demonstrated her innocence. Nobody will know that you did it.
It is just the fact that a complaint was lodged, not that the outcome that wrecked Dr. Lucas’ career. Dr. Lucas will never know who wrote the email. One can only hope that such complaints are statistical rarities.
Dr. Alex Tong
Alex Tong DO is a third-year resident. He discovered that the receptionist stole money from the office, and the residency clinic fired the receptionist.
The receptionist knew that he would likely be caught, so he made photocopies of three instances in which Dr. Tong refilled blood pressure medication without making a proper note of the refill in the patient’s chart. The receptionist then submits these to the Board of Osteopathic Physicians, and an investigation is launched. The Board finds that Dr. Tong did fail to document a few refills, but no patients were harmed. They mandate that Dr. Tong take a three-hour online continuing education class on patient documentation. Meanwhile, Dr. Tong found a better way to document refills in the electronic health record system.
For the rest of his career, Dr. Tong will always have to report to everyone: state boards, malpractice insurers, employers, specialty boards, insurance companies, etc.
It is a permanent mark on Dr. Tong’s record. The greater damage would have been if Dr. Tong had not refilled the blood pressure medication, but he will always have a red “yes” next to his name next to “Board Action” in publicly searchable databases. This cannot be expunged, and could be profoundly deleterious as Dr. Tong finishes residence and starts seeking fellowships and practice opportunities.
It is true that Dr. Tong erred, but in a comparatively mild way, and he found a systematic way to prevent further errors. A temporary problem, but the board action is permanent. The punishment is far greater than the crime.
Furthermore, Dr. Tong cannot sue the vengeful receptionist for damages to his career. State laws protect those who complain against healthcare providers.
Anyone from the outside would say, “That was an angry, dismissed employee trying to seek revenge.” But the laws that govern licensure board investigations and actions do not allow for the obvious analysis: the focus becomes on small omissions by Dr. Tong, not the motivation of the complaint.
How could this lead to suicide?
Alex Tong has invested heavily to get to this point in his career. Based on US News and World Report, Dr. Tong spent $204,176 on medical school tuition, not including undergraduate degrees, the cost of living and student loan interest. (The DNP degree is 10 percent less expensive: $183,100.) There is variation, of course, due to in-state and out-of-state tuition for some schools, as well as various loan forgiveness programs.
Dr. Tong hasn’t even reached the point of finishing his residency, and his career could be in jeopardy for the smallest of infractions. Even if Dr. Tong explained to potential employers and insurers that it was a minor error, the complaint was due to a vengeful receptionist, and he completed continuing education, he may still struggle. An employer faced with two potential doctors to hire: one with a history of board action and one without… they would most likely select the candidate without a history of board action.
Furthermore, if Dr. Tong is in the market to grow his practice, his history of board action will be displayed to the public permanently if a potential patient searches on a site like healthgrades.com, vitals.com, among other commercial directories.
More than two hundred thousand dollars in debt and with significant barriers to advancing his career or finding patients, Dr. Tong’s career has just collapsed. A temporary problem became a permanent.
Boards Discourage Seeking Care
Let us say that Dr. Tong contemplates suicide after facing the consequences of board action. As a physician, he knows the warning signs: cleaning up “loose ends,” establishing a plan and designated time, perhaps turning to alcohol or other substances to blunt his pain.
But perhaps he was “weighing the options,” not entirely sure that he would end his life. If Dr. Tong sought the care of a healthcare provider, who felt that he would be safest if admitted to the hospital, Dr. Tong would face additional board action.
Serious mental illness, such as illness requiring hospitalization, has to be reported to a licensing board. This too becomes a part of a doctor’s enduring and searchable record, and he may face board-mandated evaluation and treatment. The Board thereby inflicted mental distress and punished its victim for seeking care.
Legal Issues with the Board Complaint System
One might tell Drs. Lucas and Tong to move to another state. But board actions are reciprocal. If doctor has a license in more than one state, each state has the ability to conduct its own investigation. So Dr. Tong faces board action in any state in which he holds a license, not just the state in which the infractions took place.
This is analogous to getting a speeding ticket while on vacation. If one visits Florida and gets caught driving 60 miles per hour in a “50 miles per hour” zone, one would receive a speeding ticket in Florida, not in one’s home state as well.
One might imagine that the licensure boards would hire experts to investigate complaints. Perhaps these would be healthcare providers or those with a familiarity with medical terminology, medical charts, and medical education. Although there are some nurses employed as investigators, the actual qualifications are not what one would expect.
A recent job posting for the Ohio Medical Board required an investigator to have “3 yrs. exp. in drug law enforcement; completion of coursework for associate degree program in law enforcement or health care related field; valid driver’s license required.” Drug law enforcement? That is not the same as a background in the diagnosis and management of illness, standards of medical and nursing care, and the dynamics of patient/provider relationships.
Investigators themselves do not make decisions about board sanctions, but they can certainly “color” the decision. Based on the state, a decision is usually made by doctors, nurses, and attorneys. But in cases like Jane Lucas and Alex Tong, the decision is made without their own presence at a hearing—after all, Jane Lucas was found to be innocent, and Alex Tong’s infractions were minor and likely impossible to dispute.
Divergence from the US Judicial System
Board investigations are “administrative” investigations, not criminal or civil suits. So the investigators are not obliged to follow the Bill of Rights. There is no option to “remain silent,” and no requirement for a “speedy and public trial.” Most board investigations take longer than malpractice suits (sometimes years). The Board issues a license, and it may restrict or revoke a license on its own terms.
The evidentiary standard also varies from state to state. A criminal conviction requires that the evidence demonstrate a crime “beyond a reasonable doubt.” No state licensing board requires this standard of evidence. In many states, the evidentiary standard is at a “preponderance of evidence,” meaning that there is a 51 percent chance that the doctor in question is guilty of some infraction. (Other states take the higher standard of “clear and convincing evidence,” which is somewhere in the middle.)
The “preponderance of evidence” standard really means that the Board has decided that the odds are just one percent better than chance alone that a doctor has violated the Medical, Osteopathic, or Nurse Practice acts.
Protecting the Public, But Only a Portion of the Public
Licensure boards universally state their mission as “protecting the public.” They are charged with the duty of only licensing doctors who are qualified, and who continue to practice in accordance with state laws. This appears both reasonable and necessary.
What about the public health effects of board action? Doctors are members of the public. If there is a demonstrated relationship between board action and doctor suicide, one could argue that the boards actually present a threat to public health. This is twofold: 1. The doctor suffers either from being forced out of practice or by suicide. 2. The public suffers because their access to care is thereby limited.
During the eight years of the study published by the British Medical Journal, the UK lost 114 physicians to suicide. And the UK already has fewer doctors per capita than all but three other countries in the European Union.
Even if the investigation does not lead to suicide, the study published in the BMJ demonstrated that more than 75 percent of those investigated experienced moderate to severe depression, and almost one third took a month or more off work.
Second Victim Syndrome
Albert Wu MD, a professor of health policy and management at The Johns Hopkins University, coined the term, “Second Victim Syndrome” in which both the patient and healthcare provider suffer or die in the wake of an error.
In April 2011, Kimberly Sue Hiatt RN, took her own life following board sanctions. Hiatt had been in practice for 25 years without incident. In one misstep, she made a grave miscalculation, and she administered a dose of medication that was ten times stronger than what was ordered. The patient died five days later. Hiatt was dismissed by her employer immediately. The Board of Nursing mandated that she be supervised whenever administering medications for the next four years. This effectively rendered Hiatt unemployable.
The Board acknowledged that the patient who died was in critical condition with a poor prognosis.
There is no question that Hiatt made a significant error, but she did not engage in a cover-up: she reported the mistake immediately. And her track record was reported to be excellent.
A more reasonable approach would have been a “root cause analysis:” by what mechanism did Hiatt make the error? Was the medication stored or dispensed in a misleading or an unusual way? Were the means of cross-checking the dose and medication unreliable? Was the order unusual or unclear? Indeed Hiatt would have some culpability, but other mechanisms might have contributed to the error? Such measures would not just have helped Hiatt; they would have prevented future errors.
From a public health standpoint, a patient possibly died to a medical error, but the population as a whole suffered because the reaction to the error led to the dismissal, restriction, and suicide of an experienced critical care nurse.
Public Health Consequences for Those Who Remain in Practice
The study from the UK demonstrated that doctors who were subject to investigation (not necessarily found to have done anything wrong,) put patients at risk through hyper-vigilance: 55 percent ordered more tests and 11 percent prescribed more medications than they would have otherwise.
In other words, just the process of investigation can lead to unnecessary medical tests and medications, thereby putting the public at possible risk from the cascade of over-testing and over-treating.
What About Really Bad Doctors?
Every clinician I know can cite a list of doctors who have harmed patients, violated the standard of care, engaged in sexual misconduct, or worked under the influence of alcohol or drugs.
It seems reasonable mechanism for filing and investigating complaints serves to protect the public. A patient or family who has suffered harm from incompetence or impairment of a doctor deserves a means to seek justice. But the cost of retaining an attorney serves a significant purpose: it discourages a frivolous or vexatious complaint.
Furthermore, the board complaint system is pseudo-judicial. There is an extant judicial process for filing civil suits if one is harmed by a doctor, but there is an obvious incentive to use a board complaint: it is free.
If the current judicial system works as it should, a patient who has suffered harm from a doctor should be able to sue, win the case or settle if the case against the doctor is shown to have merit. Should the court rule in a questionable way, the doctor would have the option of a countersuit or appeal.
Why This May Be a Losing Battle
Licensing board appointments are political in nature. The members of the board are typically appointed by a state governor. No governor would want to appear to be “soft on crime” by reducing the power of a licensing board. In fact, Arnold Schwarzenegger dismissed every member of the California Board of Nursing because the Board was deemed to be too slow to seek punitive action against “bad nurses.”
Schwarzenegger’s move was politically wise. “Bad doctors” (or in this case “bad nurses”) make great news stories. Investigative journalists can show the ineptitude of lengthy board investigations, demonstrating that a bureaucracy could endanger the public.
The flip side is not newsworthy: a doctor wrongly accused or sanctioned lacks the front page appeal of “if it bleeds, it leads.”
Differentiation Between Investigation and Sanction
Employers, malpractice insurers, health insurance companies, and boards should revise their question: “Have you ever been subject to an investigation” to “Have you ever been sanctioned?”
To use another driving example, the question is analogous to asking the absurd question, “were you ever driving exactly the speed limit and the Highway Patrol noticed that you were driving within the confines of the law?”
Statute of Limitations
Unlike civil and criminal convictions, there is no statute of limitations on board complaints. Anyone can file a complaint any time.
Likewise, a board action, even a “non-disciplinary letter,” can be a permanent action. It seems reasonable that a doctor’s record could be expunged after a certain period of time, assuming that he or she has no further infractions. But this varies state to state. Since there are so many databases to collect state data, it could be insurmountable to remove expunged action from searchable sources.
Higher Evidentiary Standard
A “51 percent” chance of wrongdoing seems insufficient given the lifelong damage that board action can impart. At minimum, state boards should use “clear and convincing evidence,” but given the consequences, a “beyond a reasonable doubt” standard would be appopriate.
Proportional Response to the Infraction
In the case of Alex Tong, a three-hour continuing education class seems like a fairly reasonable response. But the “all or nothing” nature of board sanctions means that Dr. Tong’s career is forever stained by a comparatively small act by the board. There is no way for Dr. Tong to answer the “Have you ever been sanctioned?” binary with, “Yes, but it was a disgruntled receptionist, and I just took a three-hour class.”
Dr. Tong and his patients would have been better served if he just took the continuing education, demonstrated how he had altered his documentation methods, and then be free from future discrimination.
Support Mechanisms for Those Under Investigation
As the boards pursue their mission of “protecting the public,” they have a duty to protect doctors as a part of the public. Given the known correlation between severe mood disorders and suicide related to the Board’s procedures, the Board should establish a means for counseling, guidance, treatment, and suicide prevention.
Encourage Doctors in Distress to Seek Care
Perhaps the most sinister action a board can take is to punish a doctor who seeks care for mental illness. A doctor who is admitted for psychiatric reasons deserves the compassion that he or she would provide for patients. If the doctor seeks treatment for a paralyzing depression, he or she should not be subject to discipline by a licensure board. It is particularly disingenuous for a licensure board to be aware of the emotional damages that an investigation can impart and subsequently sanction the doctor in question due to “mental impairment”
Address Board Investigations in Educational Programs
Students of medicine and nursing and residents deserve to know about the rise in board complaints, and their increased likelihood of an investigation. Degree and residency programs should invite discussion from members of licensure boards and their investigators to novice clinicians.
In every case, friends who were subjected to investigation were caught by surprise, unfamiliar with what to expect, and surprised by the opacity of the system.
I wish that Doug were alive for many reasons. His death is a tremendous loss to his potential patients, who would have appreciated his kindness as they battled cancer. He would have undoubtedly been an insightful teacher to other clinicians. And I know from conversations with his mother how deeply his family misses him.
Above all, I wish that Doug could express his voice in this article, to describe his pain, and articulate how a system designed to protect the public led him to take his own life.
There have been many more like Doug, and the time has come to realize that the system is putting doctors and the public at risk.
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All images: public domain