Physicians practicing medicine in any state are required to be licensed in each state where they practice. The Minnesota Board of Medical Practice (MBMP) is the state licensing board governing medical practices in Minnesota. Representing physicians in front of the MBPM requires a detailed knowledge of the Minnesota Medical Practice Act (MMPA), set forth in Minn. Stat. Chapter 147.
Reporting obligations under the MMPA are described in § 147.111, which references §§ 147.01 – 147.22, and states that any “person who has knowledge of any conduct constituting grounds for discipline” under these provisions “may report the violation to the board.” § 147.111, Subd. 1. The grounds for discipline of physicians are stated in § 147.091.
The Anatomy of a Physician Complaint
While the vast majority of physician complaints are patient care-related, complaints and grounds for discipline can include physician behavior not necessarily impacting patient care, including sexual conduct with a patient or others, Minn. Stat §147.025; §147.092 (requiring a “probable cause hearing” with an ALJ when any findings are contested), conviction of a felony within five years that could be “reasonably related to the practice of medicine,” Minn. Stat. § 147.091,(c), or any “unethical or improper conduct.” Id. at (g).
Any complaint filed with the MBMP is assigned an investigator and the affected physician is notified of the filing of this complaint but is not provided with the complaint itself. Instead, the specific nature of the complaint is relayed to the physician, as well as any specific medical records alleged to be at issue. This is generally the stage where physicians retain legal counsel.
First Steps your Lawyer will Take
Once retained by an affected physician, Schaefer Halleen attorneys write to the MBMP (usually the individual describing the complaint to the client) disclosing this retention of legal counsel and asking that all communications occur through our law office. The physician is generally asked to provide a written response to the complaint, which we work with the client to complete in a thorough and timely fashion.
Many complaints are resolved and dismissed once the initial response is received and reviewed by the investigator. The physician, and his or her legal counsel, are notified of any such dismissal. When this occurs, the record of this complaint and dismissal are private.
More Serious Complaints
For more serious complaints, a more detailed investigation ensues, and there are often additional requests for responsive information from the physician, and usually a detailed interview. Represented physicians are permitted to have legal counsel present at any such interview. Complaints can be dismissed after this interview and ensuing investigation, with this result again being private.
If the complaint can’t be resolved (i.e. dismissed) through these initial steps, the MBMP Complaint Review Committee (CRC) gets involved. The CRC is a subset of the full Board (three members, two physicians, and one non-physician), and the CRC typically schedules a meeting with the physician and counsel once the investigation is complete, through a formal Notice of Conference. This document is usually very detailed and contains a summary of the allegations which have been substantiated in the investigation (or which haven’t been found baseless), the issues raised by these facts, and a range of possible outcomes from the CRC review, which can be anything from dismissal to license revocation. Supplemental materials can be submitted before the conference (and sometimes are requested in the Notice of Conference).
At the Conference Meeting
The focus of the meeting is reviewing the allegations at issue and having the physician respond fully to assuage any concerns and/or influence the ultimate resolution. We prepare our physician clients thoroughly for this meeting, similar to the preparation before deposition in litigation.
Once this extensive meeting occurs, the CRC issues a recommendation to the full MBMP regarding what, if any, disciplinary action should be taken. This can also result in dismissal but often will involve some recommended adverse action.
These actions can be private (i.e. a private admonition and engaging in some form of remediation or treatment and then having a fully unencumbered license reinstated when these recommendations are completed), to public actions (meaning these are reported periodically to the public by the MBMP). This can include a public admonition and some other form of remedial action, a suspension of a license for a specified duration or limitation placed on the license, or revocation with or without the possibility of reinstatement. All “public” outcomes are reported to every state where the physician holds a current license (or even an inactive one where there is the possibility of renewal), and is also reported to the NPDB and potentially to the Commissioner of Health, which can have extremely devastating licensing and career consequences..
The Stipulation and Order
These range of outcomes are CRC recommendations only, and the physician will have the opportunity to agree or disagree with them. If there is an agreement, this takes the form of a signed resolution (Stipulation and Order) executed by the physician and the Attorney General’s Office, and an agreement by the physician to pay all costs of the process. This is considered a settlement agreement between the state and the physician. Any such Stipulation has to be approved by the full MBMP. If this approval isn’t granted, the matter proceeds to a contested administrative hearing, as described below.
There is an opportunity to negotiate with the Attorney General’s Office when finalizing a CRC recommendation, and at this stage, we extensively review published MBMP outcomes for similar matters. When we can demonstrate less severe MBMP corrective action in arguably similar circumstances, productive negotiations and revisions to the recommended action often follow.
Many of the corrective action outcomes may involve referral to the Health Professionals Service Program (HPSP), which is governed by Minn. Stat. § 214.31-214.37, and addresses issues and corrective action programs for physicians who “are unable to practice with reasonable skill and safety by reason of illness, use of alcohol, drugs, chemicals or other materials, or as a result of mental, physical, or psychological condition.”
If a Physician Rejects the CRC Recommendation
If the physician rejects the CRC recommendation or the MBMP does not approve a Stipulation and Order (extremely rare), the complaint proceeds to a hearing before an Administrative Law Judge (ALJ), conducted in accordance with the Minnesota Administrative Procedures Act (Minn. Stat. Ch. 14.). The full documents associated with the MBMP process, including the initial complaint, are disclosed to the physician at this stage.
The ALJ, after a contested hearing, issues a recommendation to the full MBMP, which can either accept, reject, or modify any ruling. Once this becomes final, the only recourse is an appeal to the Minnesota Supreme Court.
A physician subject to an MBMP complaint has a statutory obligation to fully cooperate in any investigation, and the failure to do so can be independent grounds for the adverse action. See Minn. Stat. § 143.131, 147.091 (1) (u). Therefore, it is never an option to ignore any complaint or resist any investigation.
The MBMP also has subpoena power throughout any investigation, and an affected physician can freely suggest additional background documents or witnesses to subpoena. It is also often useful to retain an expert and disclose the expert report in any MBMP process, as I did in a recent matter (involving serious allegations and mental health/competency issues), and this report helped secure a dismissal after the CRC meeting.
