Published 1/1/2008

The power of the patient complaint

By Judith Feinberg, Esq.

Paying attention to four key areas can help reduce complaints

Imagine yourself in this situation: As a board-certified orthopaedic surgeon for 17 years, you serve a wide range of patients, including those with sports injuries and hip and knee replacements. You also perform a small number of independent medical exams (IMEs) for a local insurance company. One of those IMEs is on “John Q. Examinee,” a 37-year-old construction worker who claims to be experiencing chronic, unresolved shoulder pain after a lifting injury at work. Based on the results of your objective examination, including reflex and range-of-motion testing, you find that his disability is unsupported and recommend his return to work. Two months later, you receive an ominous-looking envelope from your state medical board. Mr. Examinee has filed a complaint against you.

The patient complaint
Every state has an agency or board of medicine that registers and licenses physicians; issues limited licenses to residents, temporary physicians, or fellows; and investigates complaints against physicians by hospitals, insurance agencies, and consumers (patients). Although in many states, these agencies seek to support a positive practice environment and maintain the integrity of the profession, their primary function is to protect the consumer and the public health.

Because transparency is key to serving that mission, at least part of every complaint filed, as well as the physician’s response and the final disposition, is available as public record. How much information is available—and for how long—varies significantly among states.

What it means to you
In Massachusetts, copies of any patient complaint filed with the Board of Registration in Medicine, the physician’s response, and the final disposition are public record for at least 10 years. Although the patient’s name may be redacted from these documents to protect patient privacy, the physician’s name generally is not. Again, this level of transparency serves the core mission of protecting the public health: it advises the public of the status of complaints against a named physician.

In many states, the agency also issues a press release whenever final discipline is entered against a physician. These releases may be very detailed and always include the physician’s name and the type of discipline imposed. Occasionally, such a release may be picked up by the wire services and widely reported. In other cases—particularly on heavy news days—it may go largely unnoticed.

In addition, whenever any state, commonwealth, or U.S. territory enters final discipline against a physician, that discipline is reported to both the Federation of State Medical Boards (FSMB) and the National Practitioner Data Bank (NPDB). Cases alleging fraud or billing impropriety also may be entered into the Healthcare Integrity Data Protection Bank. These reporting requirements are a matter of state and federal law and allow other states to be advised of discipline against physicians who may be licensed in multiple states. In most states, the board of medicine has “reciprocal jurisdiction” to enter discipline against a physician who has been disciplined elsewhere, with little or no additional investigation. Therefore, a physician who is disciplined for failure to obtain informed consent in State A can be disciplined by State B without the need for independent investigation by State B’s own agency.

Finally, most health insurance panels, health maintenance organizations (HMOs), and indemnity insurers maintain sophisticated credentialing programs for member physicians. In many cases, these programs are required by law. Recredentialing applications may ask about previously dismissed or settled professional liability claims, or open and pending claims, as well as about patient complaints, investigations, or other matters before the state medical board. This interconnecting network—the state medical board, the NPDB, and the FSMB—is designed to further the interest of public protection and ensure that physician information is easily accessible and readily transmitable.

Responding to a complaint
Each state has its own rules and regulations regarding how physicians respond to patient complaints. Most states require a formal, written response. It is always advisable to obtain the advice of counsel before responding to any patient complaint, even one that seems simple or completely unfounded.

You can contact your state medical society for information about attorneys who have experience working before the state board of medicine. These attorneys tend to know the investigators and prosecutors and are best equipped to facilitate an effective response for you.

Read the complaint itself carefully, as well as any cover letter from the state board. Most states have strict timelines for responding, and failure to respond may subject you to risk of additional discipline. You may be required to provide a complete copy of the patient record with the response; an attorney can assist you in ensuring that such a release is authorized. Be sure to check your professional liability coverage. Some policies will provide legal representation for responding to such a complaint, but they may have specific, time-sensitive notification procedures.

Not all complaints are patient complaints
Most states have several different types of complaints. A complaint filed by a patient or consumer may be referred to as a “patient complaint.” Hospitals, nursing homes, and HMOs, however, may be required by law to report changes in the status of privileges to the state board. In Massachusetts, for example, these “statutory reports” are investigated differently from patient complaints and may also require a written response. In other instances, you may have to come in for an interview in response to such a filing. In any event, legal advice is always prudent.

Avoiding a patient complaint
Although complaints are based on multiple factors, several common issues underly most patient complaints. You can greatly minimize your risk by paying close attention to these four key areas.

1) Enhancing communication
Communication is a key issue in avoiding patient complaints. Because many patients have difficulty absorbing—or understanding—the information presented to them, you may want to develop informational handouts on commonly performed procedures that can be distributed at the initial consultation and just before the procedure. This gives patients the opportunity to take the information home, discuss it with their families, and even do some Internet research so they can better understand the procedure and formulate questions.

You also may want to establish “Ask the Nurse” or call-in hours at your office—a designated time each day for patients to call and speak with a nurse or other licensed provider and get answers to routine questions about basic procedures.

2) Practicing cultural competence
Patients come from a variety of cultures. Often, patients’ cultural backgrounds affect how they relate to healthcare providers or process information. In certain cultures, for example, asking a physician questions may be considered rude or a challenge to authority. Therefore, important questions about the risks and benefits of a procedure may go unanswered if the physician is not proactive in providing information.

In other cultures, phrases like “goodbye” or “take care” are not used to end a conversation. The patient may simply turn and walk away. The physician may interpret this as anger or rudeness, when in fact the patient is perfectly satisfied with the interchange. Developing an understanding of the predominant cultures that make up your patient base can help you to avoid miscommunication.

3) Remembering that informed consent is a process
Informed consent is a process, and the “informed consent sheet” commonly seen in medical records is simply the documentation of that process. Consider providing information about basic procedures to patients during the initial consultation so they can review the material before the procedure. Be sure to document not only that the patient was informed of the risks and benefits of the proposed procedure, but that alternatives to the procedure were also offered, and that the risks and benefits of those alternatives were explained. Always document the date on which the patient was first provided with this information so that the length of time the patient had to consider these options is clear on the record.

4) Explaining all charges and fees up front
Make sure that all charges are clearly explained to the patient, including

the base charge for the proposed procedure and any additional charges for follow-up visits. Many board complaints begin with patients who feel “wronged” by unexpected charges, so a clear explanation of all financial considerations can help reduce complaints. Because many patients may not have the financial or literacy skills to read complex documents, phrase the information in “plain English” and assign someone to serve as a contact person for clarification of issues.

Minimizing your risk
Patient complaints can have serious ramifications for providers. Fortunately, the risk of receiving a patient complaint can be minimized by focusing on strong communication skills—including an understanding of cultural mores and the patient’s ability to receive and understand information. Implementing a strong and well-documented consent process can also minimize risk. If you do receive a patient complaint, seek legal assistance in responding—preferably from an attorney who has experience working before your state board of medicine.

Although the interlocking system of state boards, national reporting agencies, and credentialing networks is daunting, it serves to maintain the integrity of the profession. Greater physician involvement on state boards, as well as with credentialing agencies and credentialing units within insurance panels, can only serve to further communication between agencies and providers. Understanding the network of national reporting agencies and credentialing bureaus is a valuable risk-management tool for every orthopaedic surgeon.

Judith einberg is a senior associate with the firm of Adler, Cohen, Harvey, Wakeman & Guekguezian, LLP in Boston. She specializes in administrative law and professional liability defense. She can be reached at jfeinberg@adlercohen.com