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Bar Journal - Spring 2008

Representation of Physicians Before the Board of Medicine

By:

I. INTRODUCTION


Representing a physician before the State Board of Medicine ("the Board") can be a charged and unfamiliar situation for most attorneys. Compared to practicing before the judicial branch, the procedural rules are different, the evidentiary standards are looser, and the array of Board members, investigators, and committees that can become involved in your client’s case can be daunting. As this article will explain, however, many fundamental concepts familiar from the courtroom are applicable here: due process requirements for a fair hearing, settlement negotiations with the Board, examining and cross-examining witnesses, and an appellate procedure that offers redress from erroneous decisions. Another aspect of Board practice that should be familiar are the stakes involved for your client. For a physician, the stress of being investigated or tried by the Board of Medicine is enormous; life as the physician knows it could be over if the Board decides that license revocation is appropriate. This article will highlight the legal underpinnings and the Board’s common practices to familiarize attorneys planning to represent a client before the Board.

A. General Trends

As the growth of New Hampshire’s population continues to outpace the other New England states, the Granite State has experienced a similar increase in the size of its physician community.1 Between 1996 and 2006, the number of licensed New Hampshire physicians grew from 2,8492 to 4,174, and as of July 16, 2007, the number had grown to 5,117.3

The New Hampshire Board of Medicine – the state agency that oversees physician licensing, establishes licensure criteria, and disciplines physicians found to have breached these criteria – has experienced increased disciplinary workload over the past decade. In 1996, the Board imposed 13 sanctions, including reprimands, limitations, restrictions, physician oversight, and/or requirements for additional education.4 By 2006, the number of physician sanctions had risen to 21.5 In 2003, the Board began noting, in its biannual newsletter, the number of confidential letters of concern it issued in the past six months. From April through December 2002, the Board issued 45 letters of concern; received 103 consumer complaints; and received notice of 127 lawsuits against physicians from the courts.6 During 2005, these numbers had increased to 47 letters of concern issued; 147 complaints received; and 169 lawsuit notices.7 That year, the Board also received 45 malpractice claims and 46 complaints from other sources.8 And in 2006, the Board sent 64 letters of concern, and received 372 complaints and notices of lawsuits.9

An increasing number of Board actions involve the imposition of reciprocal discipline as more doctors are licensed both in New Hampshire and another state. In 2006, of the 21 sanctions given by the Board, nine involved out-of-state physicians.10 Of those, four doctors were disciplined by the Board reciprocally. By contrast, in 1996, there were no such cases.11

Board actions frequently involve an inappropriate sexual relationship between physicians and patients. Every year, there are licensees who fail to maintain a proper physician-patient relationship and are sanctioned by the Board. In 2006, the Board sanctioned three physicians for failing to maintain a proper physician-patient relationship,12 compared with five in 2005,13 and four in 1997.14

The Board has also sanctioned an increasing number of physicians for inappropriate prescribing. In 2006, the Board sanctioned three physicians for this conduct, compared with four sanctions in 2005 and one each in 1997 and 1996.15 Concern with the increasing number of Board actions related to improper prescriptions led the Board in 200016 to issue pain guidelines and an explanatory letter.17 The Guidelines provide seven treatment steps physicians should follow in pain management, which include (1) initial patient evaluation; (2) development of a treatment plan; (3) informed consent and treatment agreement (including a written agreement between the physician and patient, and periodic drug testing); (4) periodic review; (5) consultation when appropriate; (6)accurate and complete medical records; and (7) compliance with controlled substance laws and regulations.18 In its explanatory letter, the Board noted that while it "will likely not take disciplinary action against a physician for failing to adhere strictly to the provisions of this protocol, ‘significant deviation’ from the guidelines will likely result in investigation and/or sanction of a physician practice."19

In 2000, the legislature amended the Controlled Drug Act which clarified the law regarding prescription of narcotics for pain in an attempt to assuage physicians’ fear of punishment for pain treatment.20

B. Representative Cases

An analysis of the raw numbers is important to outline general trends, but a discussion of some representative cases from recent years may better illustrate the scope of the Board’s operations. A review of disciplinary notices the Board publishes on its website also demonstrates the types of conduct most likely to result in Board sanctions. This information shows that most of the cases handled by the Board involve one or more of the following: inadequate recordkeeping, physician substance abuse, improper prescribing of addictive drugs such as pain medications, and inappropriate (i.e. sexual) physician-patient relationships.

Representing less serious infractions, Dr. Joel Wagman of Amherst was reprimanded in February 2007 and assessed a $1,000 fine for retroactively altering a patient’s records and not correctly dating the changes.21 In January 2006, Dr. Edward Dalton of Manchester was fined $1,000, in addition to being required to participate in twelve additional hours of continuing medical education ("CME"), for prescribing Hydrocodone without maintaining appropriate records.22 Dr. Dennis Swartout of Westmoreland, N.H., was fined $2,000 and required to take six additional hours of CME after the Board "obtained information regarding two visits of a patient on consecutive days, wherein no vital signs were taken, no testing was ordered, and the medical record was inadequate."23

At the more serious end of the spectrum, psychiatrist Dr. Matthew Hopkins’ license was suspended in 2003 for abusing Adderall.24 Dr. Hopkins’s problems started with a few beers each night in medical school and expanded to full-blown alcoholism during his residency. Later, he began writing himself Adderall prescriptions with fake patient names. A pharmacy grew suspicious, leading to Board action. Though Dr. Hopkins’ license was immediately suspended; he resumed his practice after working with the New Hampshire Physicians’ Health Program ("PHP"), and now specializes in addiction psychiatry.

The case of Seabrook physician Donald McGee blends several frequent problem areas. Dr. McGee hired an individual who had a drug abuse history and was an unregistered sex offender, with whom Dr. McGee was having a personal relationship, to assist with Dr. McGee’s opioid dependence program.25 Further, Dr. McGee had an inappropriate relationship with a patient; including drinking alcohol together after business hours. In November 2004, Dr. McGee also pled guilty to driving under the influence of alcohol. Pursuant to a settlement agreement, the Board retroactively suspended Dr. McGee’s license and required practice supervision over the next two years. The Board barred him from practicing substance abuse treatment, and required him to enter the PHP for five years.

The Board permanently revoked the license of James S. Jealous, D.O. in 2005 for engaging in a sexual relationship with a former patient (the State of Vermont took the same action reciprocally).26 The Board asserted that Dr. Jealous, who also taught osteopathic techniques based on nature and spirituality,27 had fostered a relationship with a female patient that involved discussions of spiritual beliefs, past intimate relationships, and the patient’s poetry and writing. The patient became emotionally dependant, and a sexual relationship formed after Dr. Jealous terminated their physician-patient relationship in December 2002. Some months later, Dr. Jealous abruptly ended the physical relationship, causing the patient emotional distress. Dr. Jealous entered into a consent agreement with the Board resulting in license revocation.

As these cases illustrate, Board decisions have tremendous consequences for the careers of physicians and the well-being of their patients. With this in mind, the remainder of this article discusses the Board, its composition and powers, how complaints are filed and resolved, and how attorneys practicing before the Board can safeguard their clients’ interests.


II. Board Composition and Resources

A. Board Members

The Board of Medicine consists of ten volunteer members. Either the Commissioner or Medical Director of the Department of Health and Human serves as one ex-officio member.28 The Governor, with the advice and consent of the Executive Council, appoints the other nine members.29 Five of these members must be doctors, one member is selected from among physicians’ assistants, and three remaining seats are filled by members of the public. Public members must not be members of the medical profession, among other requirements for neutrality.30 The Board meets monthly.

Challenges to the composition of the nonprofessional members of the Board have been unsuccessful. In Appeal of Plantier,31 the defendant contended that neither the public nor the physician members of the Board had the proper training to evaluate his conduct and determine whether it warranted disciplinary action.32 The Supreme Court disagreed and noted in part:
Due process requires that the decision-maker hearing the complaint be fair and impartial. It does not require that the decision-maker be an expert in the underlying bases of the complaint. If this were true, trials before judges and juries could violate due process because judges and juries are not experts on every subject that is litigated.33
B. Board Jurisdiction

The Board has jurisdiction over persons holding a license to practice medicine in New Hampshire and applicants for a medical license. The Board also has authority over physician’s assistants under different statutory provisions not relevant here.34 The Board’s jurisdiction over a physician does not end upon license expiration. The New Hampshire Supreme Court has held that when the Board had started both its investigation and a show cause proceeding before license expiration, the Board retained jurisdiction to discipline the doctor after his license expired.35

The Board examines and investigates applicants, and licenses those found qualified. As stated, the Board can also investigate licensed physicians and discipline them. The Board can assess and collect civil penalties against any person who commits a violation within the scope of its authority, such as disciplining those engaged in the unauthorized practice of medicine.36 Additionally, the Board is responsible for developing and maintaining ethical standards for its licensees and for establishing CME requirements.37

C. Board Disciplinary Authority

The Board may undertake disciplinary proceedings either on its own initiative or after receiving a written complaint charging a licensee with misconduct.38 After a hearing, the Board may take disciplinary action against anyone found to have committed professional misconduct. RSA 329:17, VI specifies that any licensee commits professional misconduct if the person:
a) Provides false information

b) Practices medicine while impaired by alcohol, drugs or physical or psychiatric illness

c) Displays behavior which is incompatible with basic knowledge and competence

d) Engages in dishonest or unprofessional conduct

e) Is grossly or repeatedly negligent

f) Allows an unlicensed person to practice in the physician’s office

g) Fails to provide adequate aseptic safeguards

h) Dishonestly advertises or makes statements tending to deceive the public

i) Willfully violates the Medical Practice Act or Board rules

j) Is convicted of a felony in the United States.39

Should the Board find that a licensee’s conduct falls into one or more of these categories; it has a wide range of disciplinary options with which to respond. The Board can respond:
a) By reprimand.

b) By suspension, limitation, or license restriction or probation.

c) By license revocation.

d) By requiring the person to submit to the care, treatment, or observation of a physician, counseling service, health care facility, professional assistance program, or any combination thereof which is acceptable to the Board.

e) By requiring the person to participate in a program of continuing medical education in the area or areas in which the person has been found deficient.

f) By requiring the person to practice under the direction of a physician in a public institution, public or private health care program, or private practice for a period of time specified by the Board.

g) By assessing administrative fines which shall not exceed $3,000 per offense, or, in the case of
continuing offenses, $300 for each day that the violation continues, whichever is greater.40

In order to safeguard the public, if the Board receives information indicating that a licensee poses an immediate danger to life or health, the Board must issue an order that specifies alleged misconduct and immediately suspends the license for up to 120 days pending a hearing. This hearing must be commenced within ten days.41 Lastly, if the Board receives notice that a physician has been disciplined by the licensing authority in another state, under New Hampshire law the Board must issue an order requiring that physician to demonstrate why reciprocal discipline should not be imposed in New Hampshire. 42 As noted above, reciprocal discipline is frequently imposed.

D. Board Resources

The Board is funded entirely by license fees, and employs a full-time administrative staff. It contracts with other state agencies for investigational and legal support.43 The Board may retain expert witnesses to assist with investigations and disciplinary proceedings.44 The Board may retain special legal counsel when recommended by the Attorney General. The Board may petition the Governor and Executive Council for additional funding in order to retain experts or special counsel under certain conditions.45

By law, Board investigations can be conducted by one or more members, staff personnel, or – vaguely – by any "qualified person."46 The Board’s records are public and are open to inspection, except for records compiled in connection with disciplinary investigations, or those exempt from disclosure under the state Public Records statute.47 While the public does have access to the Board’s public information, those records containing both public and confidential information are provided with the confidential information redacted.48

Board investigations, and the information gathered therein, are not publicly available. An exception, however, exists for information that forms the basis of a public disciplinary hearing. This can create an incentive for physicians under investigation to settle with the Board prior to a formal hearing. By statute, the Board may disclose non-public information acquired through an investigation into physician conduct to law enforcement or to health licensing authorities in New Hampshire and other states. The Board may also disclose such information in compliance with a court order.49

RSA 329:9 grants extensive rulemaking authority to the Board. Notably, the Board can adopt rules relating to the application and examination procedures for physicians, the requirements for license reinstatement, ethical and professional standards, and the procedure governing the filing of charges and the conduct of disciplinary hearings.50



III. BOARD INVESTIGATIVE PROCEDURES


A. Overview

The Board has broad authority to conduct investigations into potential violations.51 Investigations may be conducted formally or informally, and can be conducted on an ex parte basis.52 The Board must investigate any physician who has had three reservable claims, written complaints, or malpractice suits, or any combination thereof, so long as they constitute three different incidents within a period of five consecutive years.53 During formal investigations or disciplinary proceedings, the Board may subpoena witnesses or documents and examine witnesses under oath. This authority does not extend to informal investigations.54 The Board may, at any time, subpoena medical, pharmacy, or billing records related to medical diagnosis or treatment, if relevant to matters under the Board’s authority.55

B. Complaints

One manner in which an investigation may be commenced is in response to a written complaint. Complaints alleging misconduct must be filed in the Board’s Concord office and include the complainant’s name and addresses and the physician involved, as well as the facts believed to constitute misconduct. Complaints must be signed and dated, thus precluding the filing of anonymous allegations.56 The Board’s regulations require that it follow up on a written complaint, by formal or informal investigation.57

C. Reporting Requirements

Every Superior Court clerk must report to the Board the filing of any malpractice lawsuit within 30 days. Further, clerks must report the final outcome of these lawsuits to the Board within 30 days of the disposition.58 Medical liability insurance carriers, including self-insurers, must send a complete report detailing all potential claims to the Board within 30 days of the filing of a malpractice suit.59

The administrator for any hospital or other health care facility must report to the Board any disciplinary or adverse action taken against a physician within 30 days, including instances where misconduct allegations are settled through voluntary resignation.60 Finally, professional societies comprised primarily of licensees must report any disciplinary action imposed due to ethical violations, medical incompetence, or drug or alcohol abuse, within 30 days of the action.61

D. Conduct of Formal Investigation

Allegations of physician misconduct or the unauthorized practice of medicine that are not settled informally are heard by a Board investigator and physician member in a formal public hearing.62 Generally, however, all complaints are first reviewed by the Board to determine if there are violations of the law that the Board can investigate. After this screening, most complaints are referred to the Medical Review Subcommittee ("MRSC") which investigates patient complaints and other information concerning possible physician misconduct.63 The MRSC has nine members, nominated by the Board and appointed by the Governor and the Executive Council.64 It is chaired by a Board member and is comprised of three public members and five physicians.65

The MRSC typically begins its investigation by obtaining the complaining patient’s medical records and by soliciting the physician’s response. After evaluating this and any other evidence it has gathered, the MRSC determines whether there is evidence of misconduct. If the MRSC makes this determination, it prepares a report for the Board recommending: i.) commencement of a formal investigation; ii.) entry into a settlement agreement; or iii.) initiation of a disciplinary hearing.66 During this process, the complainant may not communicate with Board members and must direct any inquiry or information to the MRSC.67

Following completion of a formal investigation, and assuming that a complaint makes it that far, the Board may take one of four actions. First, it may deny the complaint by declining to commence immediate disciplinary action, and without resolving the complaint’s merits. In this situation, a "no further action" letter is issued and a confidential file is maintained for the Board to revisit if new information or allegations arise.68 Second, the Board may issue a no further action letter and a separate non-disciplinary "letter of concern", which is confidential and instructs the physician about the complained of conduct. Third, the Board may approve a settlement agreement with the physician as to the appropriate disciplinary sanctions. Although the agreement is between the Board and the physician, the complainant may comment on the proposed agreement prior to its adoption. Fourth, the Board may commence a disciplinary hearing if the investigation reveals the physician is not meeting minimum standards of competence and honesty. In this case, the Board issues a hearing notice and a public hearing commences at which the complainant may participate.

E. Statute of Limitations

Generally, the Board’s actions are governed by a six-year statute of limitations between the time of the alleged misconduct and the commencement of the Board’s investigation. There are exceptions. The statute of limitations period is tolled for the period of time it would take the Board to reasonably have discovered the misconduct.69 The six-year time limitation is inapplicable when there is disciplinary action taken by a licensing authority in another state and the New Hampshire Board is considering reciprocal enforcement.70 Moreover, the time limitation does not apply when there is a criminal conviction, or where the Board is considering a long-running course of conduct as long as some misconduct occurred within the six-year statutory period.

Until 1986, there was no statute of limitations for Board disciplinary actions. In the previous year, Henry Plantier, a Manchester pediatrician, was accused of sexual misconduct with a patient in 1975, 1977, and 1980. In an appeal to the Supreme Court, the physician contended delays in adjudicating these complaints prejudiced his ability to defend himself. According to Dr. Plantier, since the time of the first complaint, he had approximately 100,000 patient visits, and as a result, neither he nor his staff had any independent recollection of the complainant or the complainant’s office visits. Thus, his defense was limited to office procedure and medical records. The Supreme Court based its analysis on laches, requiring Dr. Plantier to show not only that the delay was unreasonable, but also that he was prejudiced by it.71 The Court agreed with Dr. Plantier, by holding that:
Dr. Plantier has demonstrated that the delay in bringing the complaint has prejudiced his ability to defend the charges. Moreover, this is not a case in which the delay was occasioned by a lack of awareness of the misconduct. Rather, John X. simply chose not to take any action until some nine years after the alleged incident and eight years after attaining age 18.72
The following year, the Legislature amended chapter 329 to include the six-year statute of limitations.73



IV. ADJUDICATORY PROCEEDINGS


A. Prior to the Hearing

If the Board decides to hold a public hearing, it will give at least 15 days’ written notice to both the respondent and complainant. The notice includes the issues to be heard; states whether the action was initiated by a written complaint or upon the Board’s own motion, or both.74

If requested to do so, the Board must disclose any non-privileged information in its possession that relates to focus of the proceeding.75 Discovery rights are limited; if a physician wants to conduct discovery, Board authorization is required. The physician must specifically indicate the type of discovery sought. The Board will permit discovery only when it appears the parties cannot adequately address the factual issues at the hearing in the absence of discovery. Further, the Board must find the requested method of discovery is reasonable and will not unduly burden any other party or cause unreasonable delay.76

B. The Hearing

RSA 329:18-A specifies that Board hearings must be public. Legal counsel is permitted.77 Oral argument other than a brief opening and closing statement shall be permitted only upon written motion demonstrating substantial need. Written argument in the form of briefs or memorandum is permitted subject to filing deadlines established by the Board.78 While Board proceedings are structured to some extent by regulation, the Board is authorized to modify its proceedings, so long as due process requirements are observed.79

Chapter 329 provides the Board with significant investigative discretion. Parties must establish their claims by a preponderance of the evidence; and parties making motions carry the burden of persuasion that their motion should be granted.80 Formal hearings are not constrained by the Rules of Evidence, although the Board must respect recognized evidentiary privileges.81 As the Supreme Court has noted, "the law is well settled that administrative tribunals are not bound by the strict technical rules of evidence governing court proceedings … even though the administrative agency is acting in an adjudicatory or quasi-judicial capacity."82 This is not to suggest, however, that the Court gives the Board or other administrative agencies carte blanche to ignore basic evidentiary rules.

The Court has held at least once that the Board acted arbitrarily when it excluded evidence during a disciplinary proceeding.83 In that case, patient Betty Sprague complained to the Board that her psychiatrist, Dr. David Whitenack’s behavior, which included hugging and kissing, was inappropriate. After an investigation and hearing, the Board imposed no sanctions. Sprague appealed and claimed the Board erred in excluding a writ filed against Dr. Whitenack by a former patient’s estate. The Court held the Board abused its discretion in failing to admit the writ for the limited purpose for which it was offered – to demonstrate a source of emotional strain affecting Dr. Whitenack – since the Board would be able to consider the writ for that purpose only.84

The Sprague Court also faulted the Board’s decision to place a strict time limit on the cross-examination of Dr. Whitenack by Sprague’s lawyer. The Board cut off the attorney, who had almost concluded, after twenty five minutes. The Court found that "the cross-examination permitted did not allow for a full and true disclosure of the facts."85 In reversing the Board’s decision and ordering further proceedings, the Court noted the Board misunderstood cross-examination:
The board chairman had complained that the cross-examination was covering ground already covered. This statement by the chairman displays his lack of understanding of the role of cross-examination, given that cross-examination, almost by definition, is a review of direct examination in order to determine the veracity, accuracy and depth of knowledge of the witness.86
If, during a hearing, a licensee wishes to challenge the validity or applicability of a Board rule, a declaratory judgment action can be pursued in Merrimack County Superior Court alleging that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair the licensee’s legal rights or privileges.87

In Thompson v. Board of Medicine, the Board appealed a superior court order that permanently enjoined the Board from conducting further proceedings against the licensee unless certain procedural conditions were met.88 The Board contended the superior court subjected its actions to unwarranted interlocutory review and interfered with the efficiency of disciplinary proceedings. The Supreme Court disagreed, holding the superior court can grant injunctive relief when a party would otherwise suffer immediate irreparable harm.89

A recent Superior Court case, Bennett v. Board of Medicine, which relied extensively on Thompson, granted an injunction against the Board involving a physician’s free speech rights.90 The Board had issued a Notice of Hearing informing the doctor it intended to hold an adjudicatory hearing to determine if the doctor had made "unprofessional comments"91 to patients and whether those comments constituted an ethical breach. The court agreed with the doctor that the term "unprofessional conduct" as prohibited in chapter 329 and the Board’s administrative rules92 was sufficiently vague when applied to the doctor’s speech as to violate the First Amendment. The court found First Amendment became "unprofessional conduct" did not "provide a reasonable opportunity to understand what conduct is prohibited."93

C. Rulings

The Board may direct that evidence be received solely by the hearing’s presiding officer. The presiding officer then prepares a "proposed decision," with recommendations for the case’s final disposition and any pending motions. Parties may then file exceptions and supporting memoranda for review by the Board, generally within ten days following the close of the hearing.94

If no exceptions are filed, the Board may issue an order announcing that the proposed decision will be reviewed by the Board on its own motion. If no exceptions are filed and the Board does not elect to review the recommendations, the proposed decision automatically becomes the Board’s final decision on the forty-first day after service.95

The Board’s disciplinary actions can include the following: reprimand, license suspension or revocation, and administrative fines, as well as remedial measures such as counseling, continuing education, or supervision.96 A licensee who is disciplined by the Board may appeal to the Supreme Court. Sanctions, however, are not stayed during the appeal.97

A licensee who is disciplined by the Board may file a reconsideration motion within thirty days after receiving a final order.98 A reconsideration motion must identify the Board’s errors of fact or reasoning, or any erroneous conclusions, and can be accompanied by a memorandum of law.99 The Board may treat the motion as a request to reopen the case and order further evidence or argument as necessary to consider newly discovered evidence, assess newly discovered evidence, or to cure alleged errors.100

D. Appeals

There are two different judicial appeals depending on what type of Board action is challenged. If the licensee is challenging the validity or applicability of a Board rule because it impairs the physician’s legal rights or privileges, a declaratory judgment action can be brought in the Merrimack County Superior Court.101 In such a case, the Board is a party to the action.102

The second type of appeal rests with the Supreme Court and is available to challenge the Board’s procedures. This appeal must be brought within 30 days after an application for a rehearing is denied by the Board, or, if the application for rehearing was granted, within 30 days after the rehearing decision.103 The licensee’s petition must state the nature of the proceeding before the Board; specify the order complained of, and the reasons why that order is unlawful or unreasonable.104 In any event, no Board sanction, including suspension, is stayed during appeal.105


V. SUPREME COURT RULINGS

While case law about the Board is not voluminous, the Supreme Court has decided a handful of cases.

The most recent Supreme Court case involving the Board, Thompson v. Board of Medicine, was decided in 1998.106 In an interlocutory appeal, Dr. Thompson complained of a conflict of interest because a member of the Attorney General’s office was prosecuting his case; while another member of the same office was advising the Board and helping to preside over the proceeding. The physician also alleged that two individuals with conflicts of interest were permitted to sit as public members of the Board. The Court affirmed the injunctive relief granted by the trial court to the physician. It ruled the superior court had jurisdiction to intervene in an exceptional case such as Dr. Thompson’s, prior to a final Board judgment. This is the case where an appellant faces "due process violation that fundamentally impedes the fairness of an underlying proceeding resulting in immediate and irreparable harm to that party."107 The wisdom of not mandating that Dr. Thompson wait until the appeals period to challenge the Board’s decision was the Supreme Court’s ruling that he "most likely would be unable to recover lost income and [would face] a decreased patient base during the appeal period."108

In the 1997 Appeal of Rowan decision, the Court affirmed the Board’s sanction of preventing the physician from practicing medicine for at least one year. The Court agreed with the Board that Dr. Rowan violated RSA chapter 329 by repeatedly failing to respond to the Board’s requests for information regarding a patient’s sexual complaint against him. Dr. Rowan argued the Board’s only recourse to discipline a physician who failed to respond to Board summonses was to appeal to the superior court for court-issued sanctions under RSA 491:19. The Supreme Court disagreed, and held the Board appropriately disciplined Dr. Rowan since a duty to communicate with the Board in good faith and in a timely manner was a part of physicians’ professional ethics.109

In Appeal of Dell, which the Court decided in 1995, Dr. Dell sought review of the Board’s decision denying his relicensure application. He contended the Board breached the terms of a prior consent order, and erred in requiring him to seek reinstatement, rather than renewal. In the consent decree, Dr. Dell was permitted to seek to "renew" his license after completing requirements enumerated in the decree. Because Dr. Dell did not complete these requirements until after the statutory period for license renewal, the Board denied his renewal request. When Dr. Dell sought license restoration through the more burdensome relicensure provision, RSA 329:16-e, the Board denied his application.110

The Supreme Court disagreed with Dell’s interpretation of the consent decree and ruled that the term "renew" was meant in its ordinary sense, and did not direct that the parties proceed under any particular statutory section. The Court also rejected Dell’s argument that he did not receive a fair and impartial hearing, finding that the Board could lawfully refuse to accept the recommendation of the hearing officer if the record "satisfactorily explains the reasons for not following the hearing officer’s recommendation."111 Furthermore, the Court found the Board’s decisions were supported by substantial evidence, and thus did not violate the doctor’s due process right.112

In the 1994 case of In re Smith, the petitioner, Dr. Smith sought to vacate a decision of the administrative panel governing psychologists, which had permanently revoked his certificate to practice psychology for engaging in unprofessional conduct.113 Although this decision involved the Board of Examiners of Psychology and Mental Health Practice, its holding is relevant to the standards that govern the Board’s conduct. Dr. Smith argued that the failure of every member of the hearing panel to be present for testimony that was used to assess the patient’s credibility violated his federal and state due process rights.114 The Court agreed, holding that when the Board’s decision to sanction a psychologist depends on factual determinations, resolution of which depended, in part, on credibility findings, all Board members must be present for all the parties’ testimony.115

The 1985 case of Plantier116 has been discussed earlier. The Plantier case is also notable because it involves a physician’s challenge to the constitutional authority of the Board to impose any discipline. In Plantier, the Board concluded he had engaged in unprofessional and immoral conduct in violation of RSA 329:17, VI(B), and revoked his license. Plantier challenged the scope of the legislative delegation to the Board.117 According to Plantier, the legislature gave the Board too much discretion in disciplining physicians, and granted the Board judicial power. The Supreme Court disagreed by ruling the Board was not provided with unguided and unrestricted discretion.118 RSA 329 as a whole, the Court concluded, not only provided a gradation of permissible disciplinary measures, but included specific factors that need to be proven in order for the Board to take disciplinary action.119

The Court also rejected Plantier’s vagueness challenge in that the statute did not give a physician any warning about the type of proscribed conduct. Although immoral conduct is not defined in chapter 329, the Court relied on other jurisdictions and construed the phrase to mean "conduct which is willful, flagrant, or shameless and which shows a moral indifference to the opinion of the good and respectable members of the community."120 In addition to adopting this definition of "immoral conduct," the Plantier Court concluded the phrase was not unconstitutionally vague for two additional reasons. First, the forms which immoral conduct may take are numerous and varied, which renders it virtually impossible for the legislature to set forth all of the acts encompassed within its meaning.121 Furthermore, a person of ordinary intelligence would know it was immoral for a physician to engage in sexual acts with minor patients.122 Lastly, the Plantier Court held that physicians hold a property interest in their license to practice medicine that is entitled to due process protections under Part I, Article XV of the New Hampshire Constitution.123


VI. Effects of Confidentiality of Board Proceedings on Malpractice Suits

All proceedings, records, findings and deliberations of Board committees, such as the Medical Review Subcommittee, are confidential.124 Furthermore, information gathered by the Board in disciplinary investigations is generally confidential.125

If an investigation leads to adjudicatory proceedings or disciplinary hearings, information from the investigation can be introduced in those proceedings, and thus would no longer be confidential. Further, this information must be shared with law enforcement agencies, licensing agencies in other jurisdictions, Board investigators or prosecutors, and expert witnesses retained by the Board in the same or related disciplinary matters. The Board must disclose information gathered in an investigation to a licensee, complainant, or "other person with knowledge of the subject matter of a particular misconduct allegation, when such disclosure would assist the Board’s investigation."126

Settlement discussions, even those occurring during disciplinary proceedings, are confidential.127 At any time, the Board may defer disciplinary action while the licensee and the complainant participate in confidential mediation with a qualified mediator who is not affiliated with the Board.128 If the Board allows mediation, information that concerns "the substantive misconduct issues alleged by the complainant which either party discloses to the mediator during good faith mediation shall be accorded the same privilege available to settlement negotiations under New Hampshire Rule of Evidence 408."129 If, therefore, a patient initiates a malpractice action against a doctor who has reached a settlement agreement with the Board, the patient is unable to obtain supportive documents from the Board. If, however, the doctor was disciplined by the Board through formal adjudication, the results of the Board’s investigation are public, and available to the patient.130 It is important to note that the information the Board obtains in its investigation is not absolutely confidential, since it may be disclosed in response to a court order.131


VII. CONCLUSION

Representing a practitioner before the Board of Medicine can initially seem to be a daunting and overwhelming task. However, the Board’s practices are well established and clearly set forth in its’ administrative rules and statutory provisions set forth in RSA 327.

Endnotes

1. Between 2000 and 2006, the state’s population grew at a rate of 6.4%, reaching 1.3 million in 2006. U.S. Census Bureau, New Hampshire QuickFacts (2007) http://quickfacts.census.gov/qfd/states/33000.html; U.S. Census Bureau, Population Distribution in 2005, at 2 fig.1 (2007), http://www.census.gov/population/prp-profile/dynamic/PopDistribution.pdf.

2. Mark Hayward, Is NH Last in Punishing Docs - Or Are Docs Just Better?, Union Leader, Mar. 26, 1997, at A1.

3. Telephone interview with Penny Taylor, Adm’r, N.H. Bd. of Med. (July 16, 2007). Note that some of this growth can be attributed to a state law passed in 1999 that required out-of-state doctors practicing teleradiology for patients in this state to be licensed here. See RSA 329:1-b.

4. N.H. Bd. of Med., Board Actions in 1996 (2007) http://www.nh.gov/medicine/cidisciplinary1996.html. The Board’s website contains notices of its sanctions dating back to 1986, which can be accessed at http://www.nh.gov/medicine/cidisciplinary.html. Any citations to Board actions in a particular year are accessible from this address.

5. Board Actions in 2006, supra note 4.

6. New Hampshire Board of Medicine, Newsletter Winter 2003, http://www.nh.gov/medicine/winter2003.pdf.

7. New Hampshire Board of Medicine, Newsletter Winter 2006, http://www.nh.gov/medicine/winter2006.pdf.

8. Id.

9. New Hampshire Board of Medicine, Newsletter Summer 2006, http://www.nh.gov/medicine/summer2006.pdf; and New Hampshire Board of Medicine, Newsletter Winter 2007, http://www.nh.gov/medicine/winter2007.pdf.

10. Board Actions in 2006, supra note 4.

11. Board Actions in 1996, supra note 4.

12. Board Actions in 2006, supra note 4.

13. Board Actions in 2005, supra note 4.

14. Board Actions in 1997, supra note 4.

15. See notes 117-119 supra, and Board Actions in 1996, supra note 4.

16. SeePain & Policy Studies Group, Annual Review of State Pain Policy 2000, Univ. of Wisconsin. http://www.painpolicy.wisc.edu/publicat/01ppsgar/ar-nh-g.htm.

17. New Hampshire Board of Medicine, Pain Guidelines (2007) http://www.nh.gov/medicine/cipain.html (noting that "For many physicians, fear of investigation or sanction for dispensing large or prolonged narcotic prescriptions has impeded effective and appropriate treatment.").

18. Id.

19. Id.

20. RSA 318-B:10, IX provides that: If, in the judgment of a physician licensed under RSA 329, appropriate pain management warrants a high dosage of controlled drugs and the benefit of the relief expected outweighs the risk of the high dosage, the licensed physician may administer or cause to be administered such a dosage, even if its use may increase the risk of death, so long as it is not furnished for the purpose of causing, or the purpose of assisting in causing, death for any reason and so long as it falls within rules of the board of medicine.
21. See Board Actions in 2007, supra note 4.

22. See Board Actions in 2006, supra note 4.

23. Id.

24. See Board Actions in 2003, supra note 4; Kerry Grens, When Doctors Cross the Ethical BoundaryNew Hampshire Public Radio, Aug. 18, 2005, http://www.nhpr.org/node/9570 (transcript of radio broadcast); New Hampshire Psychiatrist Puts Addiction Fellowship into Action, Join Together, Dec. 7, 2005, http://www.jointogether.org/news/headlines/inthenews/2005/nh-psychiatrist-puts-into.html.

25. See Board Actions in 2007, supra note 4; Susan Morse, Doctor Given OK to Resume His Practice: McGee was Suspended for Misconduct, Seacoast Online, June 23, 2007, http://www.seacoastonline.com/apps/pbcs.dll/article?AID=/20070623/NEWS/706230340/-1/rss24.

26. See In re James S. Jealous, D.O.No. OS01-1104 (Vt. Office of Prof’l Reg. May 10, 2005) ("Stipulation of Facts and Consent Order") (containing In re James S. Jealous, D.O. (N.H. Bd. of Med. Feb. 3, 2005) ("Consent Order")), available at http:// http://vtprofessionals.org/opr1/oprdocs/all/OS01-1104.pdf; Board Actions in 2005, supra note 4.

27. See Mission Statement, http:// http://www.jamesjealous.com/missionstatement.html (last visited Sept. 25, 2007).

28. RSA 329:2.

29. RSA 329:4.

30. RSA 329:2

31. 126 N.H. 500 (1985).

32. Id. at 511.

33. Id. at 511. (quoting Appeal of Beyer, 122 N.H. 934, 939 (1982).

34. See RSA chapter 328-D.

35. Appeal of Rowan, 142 N.H. 67, 75 (1997)

36. RSA 329:2, II.

37. N.H. Code Admin. R. Med. 101.01(b).

38. RSA 329:17, I; see also Section B, infra.

39. RSA 329:17, VI. See alsoNew Hampshire Board of Medicine, What Type of Complaints Are Handled by the Board? (2007) http://www.nh.gov/medicine/cifaq.html#whattype.

40. RSA 329:17, VII.

41. N.H. Code Admin. R. Med. 503.01.

42. N.H. Code Admin. R. Med. 504.01.

43. Id.

44. RSA 329:18, II.

45. Id.

46. N.H. Code Admin. R. Med. 210.03.

47. RSA 329:8.

48. N.H. Code Admin. R. Med. 104.01.

49. RSA 329:18, I.

50. RSA 329:9, I-VI.

51. See RSA 329:18, I.

52. RSA 329:18. III.

53. RSA 329:17, III-a.

54. RSA 329:18, IV(a).

55. RSA 329:18, V.

56. N.H. Code Admin. R. Med. 205.02(a) and (b).

57. N.H. Code Admin. R. Med. 502.02(a).

58. RSA 329:17, II.

59. RSA 329:17, III.

60. RSA 329:17, IV.

61. RSA 329:17, V.

62. RSA 329:18-a.

63. New Hampshire Board of Medicine, What Happens During an Investigation? (2007) http://www.nh.gov/medicine/cifaq.html#whathappens.

64. RSA 329:17 V-a.

65. Id.

66. New Hampshire Board of Medicine, What Happens During an Investigation? (2007) http://www.nh.gov/medicine/cifaq.html#whathappens.

67. N.H. Code Admin. R. Med. 206.14. See also New Hampshire Board of Medicine, What Happens During an Investigation? (2007) http://www.nh.gov/medicine/cifaq.html#whathappens.

68. N.H. Bd. of Med., What Action can the Board Take?, http://www.nh.gov/medicine/cifaq.html#whataction (last visited Sept. 26, 2007).

69. RSA 329:17, XII.

70. Id.

71. Appeal of Plantier, 126 N.H. at 508.

72. Id. at 509. 73. See RSA 329:XII leg. history (West XXXX Supp. XXXX).74. RSA 329:18-a, II.

75. N.H. Code Admin. R. Med. 206.07(a).76. N.H. Code Admin. R. Med. 206.07(c).

77. N.H. Code Admin. R. Med. 206.05.

78. N.H. Code Admin. R. Med. 206.11(d).

79. N.H. Code Admin. R. Med. 206.11(e).

80. N.H. Code Admin. R. Med. 206.10.

81. N.H. Code Admin. R. Med. 206.09.

82. Appeal of Plantier, 126 N.H. at 512.

83. In re Sprague 132 N.H. 250 (1989).

84. Id. at 262.

85. Sprague, 132 N.H. at 259.

86. Sprague, 132 N.H. at 258; see also N.H. Code Admin. R. Med. 206.11(a) ("Where facts material to the subject matter of the proceeding are in dispute and personal observation of witnesses or the immediate opportunity for cross-examination of witnesses is necessary or desirable, the proceeding shall, to that extent, consist of a trial-type evidentiary hearing ….").

87. RSA 541-A:24. Board actions are subject to the APA as laid out in RSA 541-A.

88. Thompson v. New Hampshire Bd. of Med., 143 N.H. 107, 108 (1998).

89. Id. at 109.

90. Bennett v. New Hampshire Board of Medicine, 05-E-478, Merrimack Superior Court (June 30, 2006).

91. The complaints against Dr. Bennett involved three separate (anonymous) patients. Dr. Bennett allegedly "spoke to Patient S in an unprofessional manner suggesting that she purchase a pistol with which to commit suicide."Motion for Injunctive Relief at ¶ 10, Bennett v. N.H. Bd. of Med., No. 05-E-0478, (N.H. Super. Mar. 2006). The second complaint alleges that Dr. Bennett told another patient, "You need to lose weight. Let’s face it if your husband were to die tomorrow who would want you. Well, men might want you but not the types that you want to want you. Might even be a black guy." Bennett, slip op. at 2. In the third complaint, another patient "complained of Dr. Bennett’s answer to a question about whether she could contract hepatitis B from her son: ‘Not unless you’re having sex with him.’"  Ass’n of Am. Physicians and Surgeons, Inc., Dr. Bennett’s Freedom of Speech Upheld, Nov. 2006, http://www.aapsonline.org/newletters/nov06.php.

92. RSA 329:17, VI(d) allows the Board to take disciplinary action against licensee who has:

engaged in dishonest or unprofessional conduct or has been grossly or repeatedly negligent in practicing medicine or in performing activities ancillary to the practice of medicine or any particular aspect or specialty thereof, or has intentionally injured a patient while practicing medicine or performing such ancillary activities.

N.H. Code Admin. R. Med. 501.02(h) requires licensees to adhere to the AMA Principles of Medical Ethics, which in turn requires physicians to provide "competent medical care, with compassion and respect for human dignity and rights."

93. Bennett at 12.

94. N.H. Code Admin. R. Med. 207.04.

95. N.H. Code Admin. R. Med. 207.04(d).

96. RSA 329:17, VII.

97. RSA 329:17, VIII.

98. N.H. Code Admin. R. Med. 208.01(b).

99. N.H. Code Admin. R. Med. 208.01(d).

100. N.H. Code Admin. R. Med. 208.01(e).

101. RSA 541-A:24. Board actions are subject to the APA as laid out in RSA 541-A.

102. Id.

103. RSA 541:6. See also RSA 329:17, VII ("Disciplinary or non-disciplinary remedial action taken by the board under this section may be appealed to the supreme court under RSA 541.")

104. RSA 541:7.

105. RSA 329:17, VIII.

106. Thompson v. New Hampshire Bd. of Med., 143 N.H. 107 (1998).

107. Id. at 110.

108. Id. at 111.

109. Appeal of Rowan, 142 N.H. 67, 72 (1997).

110. Appeal of Dell, 140 N.H. 484, 486-87 (1995).

111. Id. at 494.

112. Id. at 495.

113. In re Smith, 139 N.H. 299 (1994).

114. Id. at 302.

115. Id. at 303-04.

116. 126 N.H. 500 (1985).

117. Id.

118. Id. at 512.

119. Id.

120. Id. at 513 (citing Searcy v. State Bar of Texas, 604 S.W.2d 256, 258 (Tex. Civ. App. 1980); In re Monaghan, 126 Vt. 53, 64, 222 A.2d 665, 674 (1966)).

121. Id. at 513.

122. Id.

123. Id. at 506.

124. RSA 329:29.

125. N.H. Code Admin. R. Med. 210.04(f)(3).

126. N.H. Code Admin. R. Med. 210.04(f)(3)(d).

127. N.H. Code Admin. R. Med. 206.15(e).

128. N.H. Code Admin. R. Med. 205.02(h).

129. N.H. Code Admin. R. Med. 205.02(k).

130. N.H. Code Admin. R. Med. 206.03(c).

131. RSA 329:18, I.


Author
Attorney Peter W. Mosseau heads the medical services group at the law firm of Nelson, Kinder, Mosseau & Saturley, PC., Manchester, New Hampshire
Author
Attorney Stephen D. Coppolo, is an associate at the law firm of Nelson, Kinder, Mosseau & Saturley, PC., Manchester, New Hampshire.

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