The State Medical Board Has Called You, Now What?

As reported by various news outlets, the State Medical Board of Ohio (“Board”) has, and will continue, to ramp up investigations and enforcement actions related to alleged violations of ethical and professional guidelines. In particular, professional boundaries and sexual misconduct issues will be a primary focus for the Board, as it has been since the revelations of the Dr. Richard Strauss case became public.

Under the Ohio Medical Practice Act, the Board is tasked with regulating allopathic physicians (M.D.), Osteopathic Physicians (D.O.), Podiatric Physicians (D.P.M.), Massage Therapists (M.T.), Physician Assistants (P.A.), and several other types of limited license health care providers. In addition to issuing licenses to qualified applicants, the Board is charged with investigating and disciplining such professionals for a wide variety of issues which fall within the Board’s jurisdiction. Such issues include deviations from the standard of care, improper prescribing, impairment and misleading or false statements. In recent years, a primary focus of the Board has been professional boundaries and sexual misconduct issues. On February 2, 2023, the Board issued a statement reaffirming that it has prioritized sexual misconduct complaints and will be aggressively pursuing such matters with additional resources and strengthened polices.

While applicants and licensees have a legal duty to cooperate with a Board investigation, there are some “dos and don’ts” to keep in mind if a provider comes under review:

Do:

• Contact an attorney immediately. If you are contacted by the Board, remember that while the Board may be friendly and even helpful, you have the right to counsel at every stage and in every conversation, including the initial conversation. You may consider taking the Board investigator’s contact information and consulting with counsel prior to engaging in the initial contact.
• Take an active role in your own defense. Help your attorney understand the context of your actions and clinical thinking by identifying scholarly articles, textbooks, and experts that can support your actions or treatment.
• Consider seeking treatment. If you need help with substance use issues or other mental health or physical conditions, seek help. Practice self-care and actively try to manage your stress in order to avoid burnout.
• Locate your malpractice insurance. A medical malpractice case is not the same thing as a license disciplinary action. With that said, some malpractice insurance policies cover the cost of license defense. Some policies require the insured to inform the carrier in response to the filing of an administrative complaint.

Do Not:

• Assume an unexpected visit from a Board investigator is a friendly visit. Make no mistake, the Board’s investigator is looking into a complaint against an applicant or licensee. Anything discussed with the investigator, who may show up to an office or contact the licensee without providing advance notice, is in furtherance of the investigation. 
• Take an investigation lightly. The Board has an obligation to investigate wherever the evidence leads. That means, if the Board undercovers evidence of a violation, even if unrelated to the original complaint, the Board may take action for these issues too.
• Do not assume that lack of patient harm will end the Board inquiry. If the evidence supports a determination that the providers’ actions fell below expected standards or deviated from the law, the Board may seek to impose discipline even where there is no patient harm. Unlike civil malpractice cases, damages is not an element to proving a violation of the law and imposing license discipline.
• Do not assume there is a statute of limitations. The Board has wide discretion in choosing when to bring a disciplinary action. Under Ohio law, the Board is not subject to a statute of limitation, and in some instances has pursued action for significantly dated issues or behavior.
• Attempt to “fix the damage.” Do not alter or “correct” records or contact the patient and/or the complainant at issue.[1] Likewise, the provider should think twice before taking to social media to defend themselves. The internet is forever, and so are electronic records.

Under investigation? Dinsmore and Shohl can help. We are counselors and advisors experienced in guiding applicants and licensees from pre-investigation through disciplinary hearings and appeals.  Contact Beth Collis, Dan Zinsmaster, Greg Tapocsi, or LaTawnda Moore for further information.