The Louisiana State Board of Medical Examiners (LSBME) is authorized to oversee and regulate the practice of 14 medical professions, including physicians, respiratory therapists, occupational therapists, physician assistants and others. As a result of the Louisiana law establishing the Board, it may suspend, revoke, restrict or impose disciplinary measures, such as probation, fines or termination of licensure, on those whose licenses are issued by it. The Board is charged with protecting the public from unprofessional, improper, unauthorized or unqualified practice by medical professionals.
As a result of the statutory authority authorizing the Board to protect the public, it has the duty to conduct investigations which are prompted by several different events. Investigations can be prompted by complaints filed by the public, reports of changes in privileges by hospitals, adverse panel opinions and reports of settlement by insurers. Insurance companies, like LAMMICO, are required to report any payment of settlement funds above $1,000 to the LSBME, as well as report all settlement payments to the National Data Bank. As a routine matter, the LSBME assigns an investigator to review the report and send an inquiry to the involved healthcare provider.
What action should I take if I receive such a letter?
This inquiry will call upon the physician to respond within a set deadline with sufficient information to allow the investigator to review the matter and determine whether further action is necessary. This is a preliminary review of the matter. The typical letter from the LSBME will request a summary of the facts of the case (which should not be the detailed one prepared for your attorney and covered by attorney-client privilege), copies of pertinent records and information regarding current or past claims. Cooperation with the LSBME investigator is essential. The Board is authorized to take a variety of actions, based on its conclusions, which can range from fines, public or private reprimands, further education requirements, suspension or revocation of licensure. The attorney who represented you in the underlying legal matter should be able to assist you with your response. Failure to respond can result in discipline. This initial letter from an investigator is your first opportunity to explain the events in question and avoid a more formal and costly investigation/disciplinary action. If the investigator finds that there is no concern, the investigator will close the file without further action. A preliminary review is not an investigation that must be reported upon renewal of licensure. If a formal investigation is recommended by the investigator, a much more involved process is then invoked.
What information is important to the Board investigator in evaluating my reply?
A clear and concise statement of the facts and reasons for settlement is essential to avoid further investigation. The Board, in conducting a formal investigation, looks to the “aggravating circumstances” of the case to determine whether further investigation/discipline is necessary, including:
- Whether the physician is a danger to public health, safety and welfare
- Whether there is patient harm or one or more violations involving more than one patient
- Severity of patient harm
- Prior or similar violations or board disciplinary actions
- Disciplinary action in another jurisdiction
- Conduct involving patient exploitation
- Failure to treat persons for discriminatory reasons
- Failure to cooperate with the Board investigation or failure to adhere to a previous Board order
- Dishonesty or selfish motive
- Attempt to conceal or refusal to acknowledge nature of conduct
- Financial benefit and other relevant circumstances
The Board will consider the following as mitigating circumstances to discipline:
- Practice or professional competency concerns that do not rise to the level of a violation of the practice standards
- Isolated, minor or technical violation with adequate explanation which is not likely to recur
- Steps taken to ensure nonoccurrence in the future
- Timely and good faith effort to rectify or mitigate consequences
- Recognition of wrongdoing
- Cooperation with Board and staff
- Potential for rehabilitation
- Voluntary participation in Board-approved CME
- Absence of adverse patient impact
- Remoteness of misconduct
These factors should be considered when responding to a letter from the Board investigator. The Board is looking for patterns of misconduct, incompetency or impairment, practice outside of the norms of specialty standards and other egregious errors in practice. A single reported settlement will not likely result in any more than the initial letter. The fact of settlement alone does not create the need for action by the Board.
The physician’s failure to respond to the inquiry and provide context to the reviewer detailing the facts of the care, the claims made and defenses to those claims, as well as factors leading to the decision to settle can be detrimental to the physician’s license status. The investigator makes a recommendation based on the physician’s response to either close the matter or recommend that the Board proceed with a formal investigation. Avoidance of a formal investigation is important, as the cost, stress and possible consequences of such actions can be avoided by simply responding to the investigator’s inquiry in a factual, courteous and timely manner. The vast majority of such investigations are closed without further action, but such inquiries should not be treated lightly.
Contact your defense attorney or the LAMMICO Claim Department at 504.831.3756 for assistance in responding to these communications.