Licensing boards, peer review bodies, and other medical disciplinary agencies often investigate quietly and discreetly.
The early stages of an investigation are almost always undertaken before the subject of the investigation is aware of it. A practitioner may be fully investigated and not even know it. If you have reason to believe an investigation is underway, proper reaction is crucial. Much can be done to either help or hurt your situation.
Understand the Seriousness of the Matter
Frequently, healthcare professionals react to an investigation as simply an annoyance and will devote little attention to it.
Meanwhile, the investigation continues, often with the healthcare professional unknowingly forfeiting the opportunity to affect its course. A potential outcome of a disciplinary investigation is the loss of your right to practice, so as soon as you become aware of the potential for an investigation, take a timeout to focus on this matter alone.
An investigated practitioner almost always benefits from having an attorney.
Sometimes, representation is not necessary; more often, practitioners regret not hiring an attorney with experience in healthcare disciplinary matters. Like many medical conditions, early treatment of a legal problem can be the least expensive approach and often leads to the best possible result under the circumstances.
Investigators are trained to take advantage of practitioners' desire to talk and explain themselves. Frequently, the investigation essentially occurs when the investigator first asks to talk with the targeted practitioner. What the investigator is hoping to do is obtain damaging admissions. The time to bring in an attorney is as soon as you learn of a potential problem. Make sure your attorney is experienced in healthcare disciplinary matters.
There are four general ways of reacting to these investigations: obstruction, no cooperation, partial cooperation, and full cooperation.
Obstruction (working to thwart the investigation) is usually a separate -- and sometimes criminal -- offense. It almost never helps, even slightly or temporarily. I cannot recommend it.
Refusal to cooperate is sometimes the best strategy, but usually not. It is the sort of decision that should be made only with the consultation of a lawyer experienced in these cases. It works well only in those cases where the agency is likely to be unwilling to commit its full resources but where the investigated person has done something wrong and is willing to fight to the end. It is very difficult to execute this strategy well. It often is extremely expensive and risky.
Partial cooperation usually hurts more than it helps because it generally irritates the investigators. Investigators usually begin an investigation willing to believe the investigated person. If the investigator can count on the practitioner under investigation to make the process easier, the investigator generally will do what can be reasonably done to make the process easier for those under investigation. On the other hand, if the investigator does not know what to expect from the investigated, no trust will be established. The investigator's trust is often the best thing you can have on your side in an investigation.
Full cooperation usually works best. This attitude shows professionalism, which often is what the agency wants to determine. Openness says you have nothing to hide. Many investigations, begun in ignorance and based on a fear of the unknown, can be closed with simple explanations. The best strategy is to persuade the agency it has no reason to concern itself. The agency usually can get the information it seeks one way or another. So even when a licensee knows he or she has done something wrong, it is usually best to help the investigation along, gaining some goodwill.
In all encounters with regulatory bodies, it is important to be clear, concise, cogent, and complete.
Board investigators sometimes are members of your profession, but often not. Either way, speak to them using professional -- not lay -- language, unless they ask for a lay explanation. Express concern but never anger. Always remember this is not an occasion for debate of scientific ideas.
Remember the Big Picture
Sometimes a fight cannot be avoided.
Often the best outcome is to avoid a dispute altogether or settle early and inexpensively. Experienced counsel can be invaluable for this. Experienced counsel also can help fix whatever might have caused the concern, preventing recurrence. This not only benefits the entire healthcare system and, therefore, patients, it also benefits the practitioner by keeping the trouble from returning.