Disciplinary action from a state medical board is among every physician's worst nightmares, and in some states, doctors who practice holistic medicine are especially vulnerable. But if you know your state laws, practice scrupulously, obtain informed consent from patients, and you've got competent legal backup, you have little to worry about, according to Alan Dumoff, JD, an attorney who specializes in representing integrative physicians.
Mr. Dumoff, who practices in the Washington, DC, area, is part of a "Fearsome Foursome" of attorneys including Algis Augustine, JD, in Chicago, Rick Jaffe, Esq., in Houston, and Jacques Simon, Esq., in New York, who've gotten together under the aegis of the American College for the Advancement of Medicine (ACAM) to pool medicolegal know-how for the benefit of holistic/integrative physicians.
"We got together as the 'legal quartet' because we were seeing good doctors getting into trouble because they were using incompetent lawyers," said Mr. Simon. Each of these attorneys has decades of experience successfully defending physicians wrongfully attacked by state medical boards. The foursome shared medicolegal tips at ACAM's annual fall meeting.
The regulatory climate vis-à-vis holistic/integrative practice varies widely across the country both in terms of the letter of the law and its enforcement. State boards in the US average 40–80 new disciplinary actions against doctors each year. But some states run much higher. Texas, for instance, averages 400–500 annually. California and Arizona are also on the high side. Many of these actions are related to substance abuse, sexual abuse, and fraud. But the attorneys say they are seeing increasing numbers of anti-CAM actions.
Mr. Dumoff said he's seen state boards go after doctors who utilize IV vitamin therapies, chelation, and alternative thyroid regimens. They also target those who rely on alternative diagnostic tests without also ordering appropriate conventional tests, and those who use a lot of experimental or off-label therapies.
In states where boards are hostile to holistic medicine, regulators sometimes bring initial charges having little to do with actual clinical care. The first complaint may be about a physician's marketing messages or information posted on the practice's website. "Before long, they are trying to access patient records, hoping to find something on which they can pin a case," said Mr. Augustine. "They can always find something if they want to," added Mr. Jaffe.
But all of the attorneys stressed that physicians can often beat disciplinary actions especially if said actions are malicious in intent. In some cases, integrative physicians have won countersuits against state boards that overstep their jurisdictions or fail to follow proper legal procedures.
I Fought the Law …
How should you respond if investigators representing your state medical board come a'knocking?
The first thing is, do not panic. If confronted by investigators, your best course of action is simply to accept whatever paperwork they proffer and direct them to your lawyer. The less said the better, to cite an old Irish aphorism. "You're not going to convince investigators you're a good guy, so don't spend a lot of time talking to them," said Mr. Jaffe. Under no circumstance should you give the medical narrative on a given patient without legal counsel. This is the single biggest mistake he sees doctors make.
Hire competent counsel immediately. "Administrative law is a thing unto itself. Your malpractice lawyer will not be able to help much. This is a whole different bag," Mr. Jaffe said. Mr. Augustine added that frightened physicians sometimes try to win favor with investigators by being overly accommodating, allowing them into the office and giving them access to patient records. This is a big mistake.
Unless agents show up with a search warrant, you are not obliged to allow them into your office. "Even if they serve a subpoena, you do not have to allow them in. A subpoena is to be responded to via specific processes. In some cases, it can be quashed as illegal." A search warrant is a different story. If agents have one of those, you must permit entry and grant access to any and all records. Warrants are not easy for regulators to obtain, so these situations are rare.
Mr. Simon noted that in some states, like New York, when the medical board demands access to a physician's records, the board must spell out the reason for the investigation. A physician is only obliged to tender records specific to the patient or complaint in question. But sometimes doctors will turn over their entire records, hoping that by being compliant, the board will go away and any action taken will be lenient. "They won't go away. If you give them more records than necessary, you just open the door for prosecution on multiple grounds."
Keep in mind that in most states, the board can only seek medical records for specific and legitimate investigations. "Fishing expeditions" are prohibited. "Ask them what they want your records for. If they do not respond, call me. I will sue them … and they will back off," said Mr. Simon.
Audit Now, Breathe Easy Later
Any physician practicing integrative health care would be wise to study regulations and statutes in his or her state, and to learn as much as possible about recent disciplinary actions against area doctors. It also makes a lot of sense to hire an attorney to make a legal audit of your practice and identify any aspect of your practice that may leave you open to disciplinary action.
A practice audit usually costs in the range of $2,000–$10,000, depending on the size of the practice, the number of non-conventional medical services the practice offers, and the depth of the audit. But even at the high end, those fees are a pittance compared with the costs of fighting a disciplinary action. The legal audit will also give you greater confidence about whether any action taken against you is well founded or not. Don't ever assume that just because the board is making a claim that they have the legal grounds to do so.
"You can often beat the rap, but you're not going to beat the ride," said Mr. Jaffe. The bottom line on disciplinary actions is, you're going to need to go through the administrative process. "Most cases can be resolved early on if they're argued right. Get in early, as early as possible. If they truly have something on you, you should settle. But if they do not, you should fight and fight hard. It's long and expensive but remember that the boards often do not follow all the rules, so you can often win your case."
Under legal duress, physicians are often tempted to go for an easy settlement. While that may provide temporary relief, it can have long-term consequences. For one, a settlement goes on record as a violation, and secondly, it lays groundwork for future prosecutions. Only settle if you know you're bound to lose and your license is in jeopardy, said Mr. Jaffe. "If you settle, you will be sanctioned and fined. Settling implies that you've done something wrong. So don't settle unless you really did something wrong."
In some cases, it's the medical board that is in the wrong. If you believe that your state board has overstepped its jurisdiction or that an action taken against you is illegal, do not be afraid to sue the board, said Mr. Simon. "This will stay the administrative process in its tracks, and you bring in a whole different set of players, including a court of appeals. Your medical license is not at risk so long as you are in court, even appeals court."
Where the Troubles Start
One of the legal quartet's goals is to help integrative doctors learn from each others' medicolegal mistakes. Mr. Dumoff said that trouble often starts with the assumption that, "if a therapy makes sense to you, and it is commonly used, then it must be legal. This is not always the case. Likewise, it is risky to assume that FDA approval for a particular device, drug or substance applies to the particular off-label use to which you are putting that device or substance."
He said regulators are rightfully on the lookout for "treatment mills", that is, large lucrative practices built around a very limited set of modalities, and that take a "one-size-fits-all" approach to patient care. "Be careful about building a practice around a small set of therapies and protocols."
Careful and detailed record keeping is essential for making a strong defense should you be targeted for investigation. "Show thorough consideration of conventional diagnoses, even if you opt to use alternative therapies," advised Mr. Dumoff. "Show a reasoned basis for diverging from conventional therapies in favor of a less accepted alternative."
Mr. Augustine agreed. "Poor records are the quickest way to get in trouble. Writing 'Improved' at the bottom of the chart is poor record-keeping. Get into the details. Keep very careful records of everything you do with a patient as well as all relevant clinical responses. Ask patients for details, and document them."
The Legal Quartet are true believes in informed consent, "For any and all practices and procedures you use that are outside the mainstream norms. The consent form should indicate that the patient has been informed of all therapeutic options, as well as his or her right to choose other practitioners who utilize other therapeutic approaches," Mr. Augustine said. "If you are treating a patient over long periods of time, have her sign a new consent form every 6 months," so that the patient consistently restates their own free will and their own choice.
How to Get Yourself in Trouble
The attorneys described several common medicolegal mistakes doctors make, and which you should take care to avoid:
- Making claims of superiority over conventional treatments, and using language with patients that implies guaranteed therapeutic outcomes.
- Building a practice around non-standard alternatives for high-risk patients, such as those with HIV and/or cancer.
- Extensive use of alternative diagnostics like bioresonance testing, applied kinesiology, EAV (Electroacupuncture According to Voll), especially if also excluding conventional diagnostics.
- Making diagnoses based more on personal spiritual worldviews than on patient presentation and well-reasoned decision trees.
- Excessive candor on websites or marketing materials. Discussing personal problems and private struggles on your website may endear you to patients, but it is an invitation for regulators, especially if said candor has to do with substance abuse or mental illness.
- Lecturing to or arguing with investigators. Don't make your case to investigators; let a lawyer handle that. Remember, silence is your best friend.
- Flip-flopping. If you make a decision to go in a certain direction, medicolegally (i.e., to fight a disciplinary action rather than settling) stick with it. Don't go back and forth, or second-guess yourself mid-stream.
- Assuming it's over before it's over. A long silence following one's last conversation with investigators or regulators does not mean the board has dropped your case. It is over only when you get a letter from the board stating that the matter is closed. And that can take 2–3 years.
- Partially opting out of Medicare. The choice to opt out of Medicare affects your entire practice. You cannot segment your practice and accept Medicare in one context, like your community hospital, but not another, like your private-pay holistic clinic. Remember, it's you who opts out, not your practice settings.
Alan Dumoff, JD, will explore medicolegal issues as they pertain to holistic medical practice at Holistic Primary Care's "Heal Thy Practice: Transforming Primary Care" conference, Oct. 31–Nov. 2, 2008, at the Westin La Paloma, Tucson, AZ. Don't miss it!