medical

By Jennifer J. Thomas

On December 20, 2015, the Louisiana State Board of Medical Examiners’ (“LSBME”) published in the Louisiana Register the final rules for processing complaints against physicians and investigations regarding the practice of medicine.   The new rules are contained in Chapter 97 of LAC 46:XLV and are a result of Act 441 of the 2015 Legislative session, which amended  the Louisiana Medical Practice Act, La. R.S.  37:1261-1292.   The amendments required, in part, for the LSBME to promulgate rules for the investigation of complaints, notification to the physician being investigated, time limits for the investigation, and limiting the role of the LSBME executive director in the investigation.

When a complaint is submitted to the LSBME, it will be investigated by LSBME staff.  In accordance with the amendment to La. R.S. 37:1285.2(A), the executive director may not act as the lead investigator on any investigation regarding a physician.   The executive director does have the authority to issue subpoenas to obtain documentary evidence or require the appearance of witnesses.  A complaint can be anonymous and the identity of any complainant will be kept confidential unless the complainant waives confidentiality or the complainant is called as a witness at a formal LSBME administrative hearing.

The complaint process is divided into the preliminary review and formal investigation.  During the preliminary review, a determination is made as to whether sufficient cause exists to warrant a formal investigation.  The licensee may be provided the opportunity to respond to the complaint and has the right, at his/her own expense, to retain legal counsel to assist in responding to the complaint.   The preliminary review of the complaint is to be completed within one-hundred and eighty (180) days of receipt of the complaint; however, the LSBME can increase the preliminary review period for “satisfactory cause.”  The 180 day timeline does not apply to information received from local, state, or federal agencies relative to on-going criminal, civil or administrative investigations or proceedings.   After the preliminary review is concluded, a decision is made as to the whether there is sufficient cause for a formal investigation.  A complaint can be closed upon submission of a report and recommendation to the board.  If a compliant is closed after preliminary review, it is not considered an “investigation” and a licensee is not required to report the preliminary review as an investigation on LSBME renewal applications.

If there is sufficient cause, the board staff will submit a report and recommendation to the board to commence a formal investigation.  Within five (5) business days after the initiation of the formal investigation, written notice is to be sent to the licensee by registered, return-receipt-requested mail or by personal delivery.  The notice will contain a summary of the complaint and notice that the licensee can retain legal counsel.  The purpose of the investigation is to determine whether or not there is evidence to indicate that the law has been violated.  The LSBME can consider past complaints and investigations for the purpose of determining if there is a pattern of practicing or recurring conduct that is contrary to the accepted standards of the medical practice in Louisiana.  If the complaint involves medical competency, the board may, as part of the investigation, order the licensee to undergo an evaluation at an approved center.  Formal investigations are to be completed within thirty-six (36) months, but the time period can be increased for “satisfactory cause.”  The 36 month time period does not apply to any investigation already pending as of July 1, 2015.

If the investigation results in sufficient evidence to indicate that a violation of law has occurred, an administrative complaint may be filed with the board.  However, prior to filing the complaint, a draft administrative complaint must be mailed to the licensee along with a letter providing the licensee an opportunity for a conference to show compliance with all requirements to retain his/her license or to show that the complaint is unfounded.  If the licensee does not respond to the complaint or if the licensee does not satisfactorily demonstrate compliance with the law, the administrative complaint may be filed.  In emergency situations involving public health, safety and welfare, the administrative complaint can be filed with the board without prior notice to the licensee.  Once the administrative complaint is filed, the parties can engage in discovery including the identification of witnesses and exhibits.  The licensee can request the issuance of subpoenas by the LSBME for documentation, information, and the appearance of witnesses at the hearing.  At the administrative hearing, both parties will make opening and closing statements, examine witnesses and present evidence.  The burden of proof is by the preponderance of evidence.

The final rules provide for the opportunity for an informal resolution at any time during the complaint and investigation process upon the recommendation of the lead investigator and a majority vote of the board members.  Informal dispositions can be non-disciplinary in the form of an informal conference and letter of concern and are not considered disciplinary action and not a public record.  Whereas, formal disciplinary dispositions include consent orders and voluntary surrenders of licenses and are considered disciplinary action and public record.  The board is not required to offer an informal disposition prior to an administrative hearing.

With the adoption of the LSBME’s final rules, physicians should become familiar with the LSBME’s complaint and investigation process.  Because one day, despite all efforts to practice medicine in accordance with the law, a physician could be on the receiving end of a LSBME complaint and is entitled to due process throughout the complaint and investigation process.