Illinois In Top 10 For Serious Medical Disciplinary Actions, New Report Finds

Whether a physician faces disciplinary action by their state medical board depends primarily on their own conduct. Practicing with competence, ethics, and integrity should insulate a doctor from any significant concerns that their license may be put in jeopardy. But it’s not only how you practice, but where you practice, that can determine how likely you are to face the scrutiny of your state’s medical licensing authorities.

Wide Discrepancies In State Medical Boards’ Level of Enforcement Activity

A comprehensive new report by Public Citizen found significant disparities between states in terms of the number of serious disciplinary actions brought against physicians between 2017-2019. The report’s authors concluded that these differences in the frequency of physician discipline had little if anything to do with the quality of a state’s doctors and everything to do with the aggressiveness or laxity of a state’s medical board:

“There is no reason to believe that physicians in any one state are more or less likely to be incompetent or miscreant than the physicians in any other state. Therefore, we believe any observed differences between the boards reflect variations in board performance rather than in physician behavior across different states.”

The report’s authors calculated the rate of serious disciplinary actions per 1,000 physicians in each state with either M.D. only or combined M.D./D.O. medical boards for the years 201, 2018, and 2019. They defined “serious disciplinary actions” as “those that had a clear impact on a physician’s ability to practice.”

The report found that Kentucky had the highest rate of serious physician discipline in the country, with an average of 2.29 serious disciplinary actions per 1,000 physicians per year. The District of Columbia had the lowest rate with only 0.29 serious disciplinary actions per 1,000 physicians per year. That means that the rate of such actions was 7.9 times higher in the state with the most active medical board in the country than in the lowest jurisdiction. 

Illinois ranked 10th on the list, with a rate of 1.51 serious disciplinary actions per 1,000 physicians.

Reasons For Differences In Physician Disciplinary Actions Across States

Public Citizen is an organization that generally favors increased consumer and patient protections and thus advocates for greater regulatory activity and enforcement. Therefore, it is no surprise that they concluded that “low rates of serious disciplinary actions suggest that medical boards are not adequately taking actions to discipline physicians responsible for negligent medical care or whose behavior is unacceptably dangerous to patients.”

The report recommended several policy changes, including:

  • Assuring that revenue from physician license fees funds board activities “instead of sometimes going into the state treasury for general purposes.”
  • Ensuring that boards have adequate staffing
  • Including on medical boards members who have a commitment to safeguarding the public, “not protecting the livelihood of questionable physicians.”
  • Opening the NPDB database to the public so that any person can do a background check on a doctor
  • Increasing state legislative oversight of state medical boards
  • Replacing some medical board members who are physicians with members of the public “with no ties to the medical profession, hospitals, or other providers.”
  • Requiring that medical boards check with the NPDB when they receive complaints about a physician.

This report comes after a year in which physician disciplinary actions plummeted nationwide due to the COVID-19 pandemic. However, until and unless the time comes that COVID-19 is no longer an existential public health threat, it is unlikely that any state medical boards will dramatically change the way they do business.

Louis Fine: Chicago Physician License Defense Attorney

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will get you back to your patients and your practice.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Keep Quiet, Lose Your License? Physicians’ Duty to Report a Colleague’s Sexual Misconduct

New York Gov. Andrew Cuomo is just the latest in a long and infamous line of high-profile individuals to find their careers and reputations threatened by allegations of sexual harassment and misconduct. In most of these cases, from Larry Nasser to Harvey Weinstein to Jeffrey Epstein to countless others, the focus is justifiably on the alleged perpetrators of these abhorrent actions. But in the wake of the #metoo movement, many organizations and professions have come under scrutiny for their tacit complicity in allowing such conduct to go unchecked or unreported.  

Specifically, others who may have been aware of misconduct turned away or failed to take action which could have prevented further abuses and spared other victims. For physicians and other medical professionals who learn of a colleague’s misconduct  – sexual or otherwise – the failure to report such wrongdoing is not just a moral failure. It can be a breach of professional ethics that threatens their professional licenses as well.

Ethical Obligation to Report Misconduct

The duty to report misconduct within the medical profession is often the only way such transgressions can get the attention of professional licensing boards such as the Illinois Department of Professional Regulation (IDFPR) as well as law enforcement. As the Federation of State Medical Boards (FSMB) put it in its sweeping 2020 Report and Recommendations on Physician Sexual Misconduct:

“In a complaint-based medical regulatory system, it is… essential that patients, physicians and everyone involved in healthcare speak up whenever something unusual, unsafe or inappropriate occurs. All members of the healthcare team, as well as institutions, including state medical boards, hospitals and private medical clinics have a legal as well as an ethical duty to report instances of sexual misconduct and other serious patient safety issues and events. This duty extends beyond physician-patient encounters to reporting inappropriate behavior in interactions with other members of the healthcare team, and in the learning environment.”

Similarly, the Council on Ethical and Judicial Affairs of the American Medical Association (AMA) admonishes that, “A physician should expose, without fear or favor, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.”

However, while the Illinois Medical Practice Act allows for physician reporting of a colleague’s unethical behavior, it neither requires it nor makes a failure to report a basis for disciplinary action.  It provides that licensed physicians “may report to the Disciplinary Board any information the physician… may have that appears to show that a physician is or may be in violation of any of the Act’s provisions.”

But just because reporting sexual misconduct is not mandated under the Act doesn’t mean that failing to report physician sexual misconduct isn’t an ethical violation. “The obligation to report incompetent or unethical conduct that may put patients at risk is recognized in… the ethical standards of the profession,” according to the AMA.

The FMSB was more strident in its 2020 report, concluding that the failure to report sexual misconduct should result in disciplinary action: “Physicians who fail to report known instances of sexual misconduct should be liable for sanction by their state medical board for the breach of their professional duty to report.”

AMA Reporting Guidelines

The AMA has set forth guidelines for how physicians should respond to and report information about a fellow doctor’s patient misconduct. Physicians who become aware of or strongly suspect that conduct threatens patient welfare or otherwise appears to violate ethical or legal standards should:

  • Report the conduct to appropriate clinical authorities in the first instance so that the possible impact on patient welfare can be assessed and remedial action taken.
  • Report directly to the state licensing board when the conduct in question poses an immediate threat to patients’ health and safety or violates state licensing provisions.
  • Report to a higher authority if the conduct continues unchanged despite initial reporting.
  • Protect the privacy of any patients who may be involved to the greatest extent possible, consistent with due process.
  • Report the suspected violation to appropriate authorities.

Regardless of the language contained or not contained in licensing statutes, professionals of all stripes should seize the moment and no longer remain silent when they become aware of harassment or misconduct. While the damage done to victims of sexual misconduct is exponentially greater, the damage to your professional reputation and career could be catastrophic if it is discovered that you were tacitly complicit in allowing such misconduct to continue. 

Louis Fine: Chicago Physician License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations against physicians, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

Put Up Or Shut Up: The Burden of Proof In Illinois Physician Licensing Hearings

Simply saying something doesn’t make it so. Just because you believe a proposition doesn’t make it true. And wanting a certain result doesn’t entitle a person to get it. If you are going to advocate for a position or seek an outcome based on claims you make, you better have the receipts to back it up. That is a fundamental proposition of our judicial system. A party seeking relief, whether a plaintiff in a civil lawsuit, a prosecutor in a criminal case, or a defeated president in a flurry of desperate and delusional litigation, must meet the applicable burden of proof to prevail. So too must the Illinois Department of Financial and Professional Regulation (IDFPR) when pursuing disciplinary action against a physician, as does a doctor seeking to have their license reinstated.

But, as we have seen over the past month, anyone can file a lawsuit for anything based on nothing whatsoever. As long as you pay the court filing fee, you could sue me today for implanting listening devices in your molars. Of course, as we have also seen, cases based on implausible allegations unsupported by any facts or evidence usually meet a swift demise. And those who bring such frivolous claims without a reasonable basis for doing so can and should face consequences for their actions.

Allegations v. Burden Of Proof

The burden of proof, however, does not refer to what a party must show when they initiate a proceeding, though there does need to be a good faith basis in fact and law for pursuing a case in the first place. Rather, it is what a party must ultimately prove to a judge, jury, or hearing officer to get the relief or result they seek.

When the IDFPR launches disciplinary proceedings in a physician licensing matter, they do so after conducting an investigation and gathering facts to support their filing of a formal complaint. Similarly, it gathers facts and evidence when making a decision as to granting or restoring a license. While the facts that the Department may rely upon may be weak, disputed, or of questionable veracity, IDFPR rarely pursues cases or makes license decisions without at least some evidence that could plausibly justify their efforts.

Allegations in a complaint, as noted, are just that – allegations. And the decision to deny a license renewal or issue a reinstatement can be challenged by an applicant or licensee. This is where the parties need to put up or shut up

Disciplinary Action and Refusals To Renew: Burden of Proof Is On The IDFPR

Section 1110.190 of the Illinois Administrative Code provides that the burden of proof rests with the Department in all cases it institutes by filing a Complaint or Notice of Intent to Refuse to Renew a physician’s license.  An Administrative Law Judge may make a recommendation for discipline only when the IDFPR establishes by clear and convincing evidence that the allegations of the Complaint or Notice are true.

While a somewhat nebulous concept, as all burdens of proof are, “clear and convincing” evidence generally means that degree of proof which, considering all the evidence in the case, produces the “firm and abiding belief that it is highly probable” that the allegations in the IDFPR’s formal complaint are true. This standard falls between the “beyond a reasonable doubt” burden of proof that prosecutors have in criminal cases and the “preponderance of evidence” standard applied in most civil lawsuits.

License Denials And Requests For Reinstatement

“Clear and convincing” evidence is also the standard the Department must meet when filing a Notice of Intent to Deny the issuance of a physician’s license. Specifically, if the Notice of Intent to Deny alleges that the applicant has violated a disciplinary provision of the Medical Practice Act, IDFPR has the burden of proof to prove by clear and convincing evidence that the alleged violation occurred. 

If the Department meets this standard in a physician licensing case, the burden of proof then switches to the physician, who must prove by a preponderance of the evidence that the license should be granted. As noted, preponderance of the evidence is a more lenient standard, meaning that it is more likely than not that the facts supporting the physician’s reasons why they should be issued their license are true.

The preponderance of the evidence standard also applies when a physician files a Petition for Hearing seeking restoration of their license. The burden of proof is on the physician rather than IDFPR in license restoration hearings.

Even when the Department bears the burden of proof, it has many unfair advantages over licensees in terms of gathering and producing evidence. As I have discussed in a previous post, a licensee’s ability to pursue the discovery and obtain the evidence necessary to challenge IDFPR’s allegations is extremely limited. In fact, the extent of allowable discovery is determined by the very people prosecuting the case. The inherent unfairness of IDFPR’s discovery rules is just one of many reasons why physicians need experienced professional license defense counsel at their side when their careers and practices are at stake.

Louis Fine: Chicago Physician Licensing Attorney

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will get you back to your patients and your practice.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Just Tell Me What You Want Me To Do: Conditions For License Reinstatement After Disciplinary Action

Do the right thing. Follow the rules. Straighten up and fly right. Do what you’re told. If the Illinois Department of Financial and Professional Regulation (IDFPR) has suspended your professional license or put you on probation, following or satisfying the probationary terms and conditions imposed by the department is a necessary prerequisite to reinstatement and resumption of your career. But it can be hard to comply with probationary terms if you don’t know what they are.

Unfortunately, the orders and consent decrees that impose sanctions and establish conditions for reinstatement are often so vague and ambiguous that it can be difficult, if not impossible, to know what you need to do to get your license back. And that ambiguity can lead to frustration, disappointment, and more months or years of sitting on the sidelines when the IDFPR denies your petition for restoration.

What Does Probation Mean For A Professional Licensee?

If the IDFPR determines that disciplinary action is warranted against a licensee, they have a range of sanctions they can impose, metaphorically ranging in severity from a slap on the wrist to a death sentence. The department can impose these sanctions in an order after a disciplinary hearing, or they can be part of a consent decree entered into between the licensee and IDFPR.

Probation is one of those sanctions. If the IDFPR places you on probation, you will be able to continue working or practicing subject to specific conditions and limitations established by the Department. As with probation in the criminal justice system, a violation of any of the imposed terms will create additional problems potentially involving further discipline. The probation term could be for a set period which will automatically expire providing the licensee complies with all conditions, or it could be for an indefinite time, requiring that the licensee petition the board to terminate the probation. 

But probationary terms can also be part of a license suspension. In that case, the licensee cannot obtain reinstatement of their license until they meet the conditions set forth in the order or consent decree.

Sometimes, probationary terms can be quite specific and usually relate to the nature of the acts or omissions that led to disciplinary action. Common probationary terms can include:

  • Undergoing physical or psychological exams
  • Seeing a therapist or undergoing psychotherapy
  • Completing a substance abuse program and attending ongoing counseling or support groups
  • Avoiding all criminal arrests/convictions during the probationary period
  • Complying fully with the applicable laws governing the licensed profession
  • Notifying an employer or employers about the probation
  • Fulfilling continuing education courses related to your violation

What If There Are No Specific Terms Contained In The Order Or Consent Decree?

When the terms and conditions for reinstatement are clear and specific, complying with them simply requires doing the work and staying out of trouble. But many license suspensions fail to delineate precisely what steps a licensee must take or complete to get their license back.

A licensee can spend their suspension or probationary term doing everything right – addressing the issues that got them in trouble, working on improving themselves personally and professionally, sobering up and undergoing therapy, etc. – and still not get their license reinstated. The power to give a licensee their career and livelihood back is entirely in the hands of the hearing officer who evaluates the petition for reinstatement.

That unfettered discretion can and does lead to unjust results. As noted, it can be hard to follow the rules if you don’t know what they are. Therefore, if a licensee is considering a consent decree to agree to probation or a license suspension, it is critical that the terms of probation be set forth as specifically as possible. This is yet another reason that licensees should never represent themselves before the IDFPR or enter into a consent decree without first consulting with an experienced Chicago professional license defense attorney.

Louis Fine: Chicago Professional License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

The Road From IDFPR Complaint to IDFPR Disciplinary Action

complaintAs a lawyer, clients often will ask me whether they can sue this person or that company for a perceived wrong. My answer is always the same: anyone can sue anybody for anything. Of course, that doesn’t mean that they actually have a viable case or that filing a lawsuit is a smart move. It’s just that anyone who has the money for the filing and service fees can walk into a courthouse and file a lawsuit.

Similarly, anyone who feels that a licensed Illinois professional has acted improperly or done them wrong in some way can file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR). But just because IDFPR receives a patient, client or customer complaint does not automatically translate into the institution of disciplinary proceedings. There are multiple stops on the road from complaint to action, any one of which can be the end of the matter.

Initial Evaluation

No matter whether an allegation of misconduct comes from a client, competitor, media reports, or other governmental bodies, IDFPR does not institute disciplinary proceedings without first conducting an investigation to determine whether the allegations appear to have merit.

When received by IDFPR, a client/patient/customer complaint will be forwarded to the Department’s Complaint Intake Unit. The claim is then sent to the investigative unit in charge of evaluating allegations for the specific profession at issue. Each licensed profession has its own investigative unit which is supposed to be staffed with individuals who have the knowledge and experience to evaluate the factual allegations in the complaint. They are also supposed to understand the applicable laws, regulations, and standards which determine whether a particular act or omission, if true, would be the basis for disciplinary action.

The lead worker on the case will review the information set forth in the complaint and decide whether to initiate an investigation or close the case. A case may be closed at this early juncture if the substance of the claim, even if true, would not support any disciplinary action. For example, if a patient filed an IDFPR complaint because a doctor did not shake their hand when walking not the exam room, that complaint will wind up in the IDFPR dustbin in short order.

Initial Investigation

However, if the lead worker decides that the allegations merit further inquiry, an IDFPR investigator will be assigned to look into the matter. The investigator can take any number of steps as part of their analysis, including:

  • Reviewing the complaint along with any documents or evidence submitted by the complainant
  • Pulling IDFPR licensure records and records of past investigations and disciplinary actions concerning the licensee.
  • Interviewing the complainant
  • Interviewing any known or potential witnesses
  • Interviewing the licensee who is the subject of the investigation
  • Issuing subpoenas for documents and other evidence

Referral for Prosecution

At the conclusion of their investigation, the assigned investigators will prepare and submit reports describing the steps they took, the evidence and testimony they gathered, and the conclusions they have reached. Upon receipt of the reports, the lead worker will review and decide whether the case should be closed or forwarded to the appropriate Department prosecutions unit for the initiation of disciplinary proceedings or other further action.

For some professions, such as physicians and dentists, IDFPR has case coordinators who are licensed members of those professions. These subject matter experts will review a case and all investigatory reports and decide whether a matter will proceed to the next level.

If you receive notice that an IDFPR complaint has been filed against you, the two most important things you can do are not panic and then call an experienced Chicago professional license defense attorney as soon as possible. You don’t want to wait until that complaint metastasizes into a formal prosecution before taking steps to protect yourself and your career.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.