Tag: Ohio medical board complaint

Disciplinary Action, Investigation, Medical Board, Misdemeanor conviction, physicians, State Medical Board of Ohio

Admissions to Board Investigator Can Be Used Against Physician in Criminal Trial

On December 15, 2020, the Ohio Supreme Court ruled 6-1 that a physician’s admissions made to an Ohio Medical Board investigator can be used against the physician in his criminal trial.

In 2017, three patients accused Dr. James Gideon of inappropriate touching during office visits.  Gideon told Bluffton police he did not inappropriately touch any patients.  Subsequently, however, an Ohio Medical Board investigator made an unannounced visit to Gideon’s office.  Gideon, who was aware of the Ohio Medical Board legal requirement to cooperate with and provide truthful answers to the investigator, admitted to “touching certain areas on the patients and succumbing to temptation”. The investigator provided these admission to Bluffton police.

Gideon was charged with three misdemeanor counts of sexual imposition.  At trial, he argued that the statements he made to the investigator should be suppressed based on the Fifth Amendment protection from being forced to incriminate himself.

The trial court did not suppress Gideon’s incriminating statements because it found that Gideon voluntarily made the statements to the investigator.  Gideon was found guilty in all three cases and was sentenced to 180 days in jail.

On appeal, the appeals court ruled that the trial court should have suppressed the incriminating statements because his statements were not voluntary.

Upon review, the Ohio Supreme Court reviewed that the Fifth Amendment to the U.S. Constitution includes the right to remain silent where a person’s replies might be used against the person in future criminal proceedings.

The Ohio Supreme Court held that, in order to determine that Gideon’s statements were coerced in violation of his Fifth Amendment rights, Gideon had to demonstrate that (i) he subjectively believed that failure to cooperate with the investigator would lead to the loss of his license, and (ii) his belief that he was being threatened was objectionably reasonable by providing some evidence of pressure beyond merely directing him to cooperate in the investigation.  The Ohio Supreme Court found that Gideon’s belief that he was being threatened was not objectively reasonable under the facts and circumstances of the investigation.

Health care and other professional licensees in Ohio must be aware that information provided to an investigator – whether that is an investigator employed by the Medical Board, Nursing Board, Pharmacy Board, or any other board or agency – can be used against the licensee in a disciplinary action and in a criminal proceeding.  Legal counsel is recommended for any licensee in connection with any Board investigation or disciplinary action.

If you have any questions about this article or the State Medical Board of Ohio, please feel free to contact attorney Beth Collis at (614) 628-6945, or attorney Todd Collis at (614) 628-6962.

Collis Law Group, Disciplinary Action, Investigation, Medical Board, Medical practice in Ohio, State Medical Board of Ohio, Uncategorized

Attorney Beth Collis quoted in Medscape article on Medical Board investigations

Attorney Beth Collis, of Collis Law Group LLC, was quoted in a Medscape article titled “The Dangers of a Medical Board Investigation: How to Protect Yourself”. In the article Ms. Collis addresses the 9,000 complaints that the State Medical Board of Ohio receives each year. “Many are minor or frivolous, such as allegations that the doctor or his staff was rude to the patient or family, billing questions, being forced to wait too long for an appointment, etc. The Board generally doesn’t take action in these cases and may not even inform the doctor of them.”

Ms. Collis also addresses how it is necessary for physicians to respond to Board investigations or inquiries. Ms. Collis warns physicians against ignoring inquiries from the Board, or from talking to the Board without counsel. “No complaint is too minor. Too many physicians think they don’t need a lawyer and can just talk the Board investigators into dropping the complaint. Doctors may sincerely want to help but they don’t understand the rules and pitfalls. They are often too chatty and explain things that weren’t even asked.” Legal counsel is recommended for any physician in connection with any Medical Board investigation or disciplinary action.

Read the article, written by Mark Crane, by clicking on the following link: https://www.medscape.com/viewarticle/899247_2

As always, if you have any questions about this blog or the State Medical Board of Ohio, please feel free to contact one of the attorneys at Collis Law Group LLC at (614) 486-3909 or email me at Beth@collislaw.com.

Medical practice in Ohio, State Medical Board of Ohio, Uncategorized

Rich Doc/Poor Doc

In my practice of representing physicians who are under investigation by the State Medical Board of Ohio, DEA, local law enforcement, and/or their employer, I have seen many professionals struggle with multiple issues.  Recently, I have noticed  that far too many physicians are in disastrous shape financially.  Many physicians have poor money management and/or business management skills that have led them to entering into risky contracts or taking on jobs that they otherwise would have not considered.

Most physicians do not have the time, training, or education to be good money managers and, therefore, generally, many make poor financial decisions.  Many physicians enter the practice of medicine deeply in debt with student loans.  Many residents live beyond their means in the belief that once they complete their residencies, they will be given lucrative employment contracts.  Often, young physicians are so far in debt after completing their training, they are forced to accept work in undesirable practices to pay their debt.

Too often, physicians are also seen as “easy targets” for unscrupulous people.  I am always surprised to learn of highly educated physicians who enter into risky business dealings or fail to perform due diligence when purchasing property or entering into a business venture.

I have seen numerous instances in which physicians who are strapped with debt make unwise decisions as to where they will work and who they choose to associate themselves with in their medical practice.  Often, these physicians will seek ways to save money in their medical practice that leads to poor patient care or that is contrary to law.  Last year, the State Medical Board of Ohio disciplined a number of physicians who (in an effort to save money) purchased non-FDA approved medications from outside of the United States to administer to their patients.  These physicians did not realize that they were violating the law by purchasing these medications.  Nevertheless, these physicians were each subjected to disciplinary action by the Board.

I have also seen physicians continue to work for high volume practices in which they are constantly pushed to order expensive tests to ensure that the practice is highly compensated.  Often, these physicians tell me that they felt trapped in these jobs because the high salaries allow them to pay their debts.  I have also seen physicians take “moonlighting” jobs in areas outside of their specialty in an effort to repay debt only to find themselves investigated by the Board or DEA for practicing or prescribing outside of their scope of expertise.

The best way to have choices as a physician is to live within your means and to take the time and effort to do research before joining a particular practice or entering into a particular business dealing.  Physicians who are financially strapped risk making poor personal and business decisions that can lead to discipline by the Board or another agency.

A qualified accountant can be of assistance regarding your taxes.  A relationship with an attorney can be of benefit when researching a particular job or business venture.  A financial planner can offer guidance as to investments.   Utilizing these types of individuals allows you as a physician to do what you do best…to practice medicine.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please contact me at Beth@collislaw.com or call me at 614-486-3909.

Medical practice in Ohio, self prescribing, State Medical Board of Ohio, Uncategorized

Physicians’ Legal Obligation to Report to the State Medical Board of Ohio

Last week, the State Medical Board of Ohio issued a landmark decision in which the Medical Board permanently revoked the license of a physician for failing to report to the Medical Board allegations of sexual misconduct concerning the physician’s colleague.

Pursuant to ORC 4732.224(B), an individual licensed by the Medical Board who has reason to believe that a violation of any provision of the Medical Board’s statutes or rules has occurred shall report to the Medical Board. Although this law has been in effect for many years, this was the first time we are aware that the Medical Board has disciplined a licensee for failing to report a licensee under this law. It was also remarkable that the sanction imposed was a permanent revocation, which is the most serious sanction that can be imposed by the Medical Board.

An interesting factor of this case also rests in the subjective wording of the reporting statute, which provides that a licensee who “has reason to believe” that a violation of Medical Board law or rule has occurred shall report to the Medical Board. This subjective wording can make it difficult for a physician to know when they must report to the Medical Board allegations made against a colleague.  However, OAC 4731-15-01(D) provides guidance by indicating that “reason to believe” or “a belief” does not require absolute certainty or complete unquestioning acceptance, but only an opinion that a violation has occurred based upon firsthand knowledge or reliable information.

In this case, the Board’s attorneys argued that the physician’s failure to report to the Medical Board allegations of sexual misconduct concerning the physician’s medical partner with patients in the practice was a violation of the reporting statute. Despite the fact that the physician who allegedly engaged in misconduct was terminated from employment at the medical practice, the physician who failed to report to the Medical Board the alleged misconduct permanently lost his medical license.

Although there are certain exceptions to the reporting requirement in OAC 4731-15-01(B), those exceptions are limited and require a fact specific analysis in each individual case.

Under OAC 4731-15-01(E), a report required to be made must be made to the Medical Board within 48 hours. Under OAC 4731-15-01(G), each report must include (i) the name of the practitioner or other individual in violation, (ii) the violation which is believed to have occurred, and (iii) the date(s) of and place(s) of occurrence(s), if known.

This case is a cautionary tale to Ohio physicians. If you have reason to believe that another licensed professional is violating any of the provisions of the Ohio Medical Practice Act (ORC 4731 et seq and OAC 4731 et seq), you are required to report to the Medical Board.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to call one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at beth@collislaw.com

 

 

Medical practice in Ohio, Uncategorized

What is a Medicaid Exclusion and Is There a Way to Appeal These Decisions?

The Department of Health and Human Services has the authority to exclude certain individuals from participating in Medicare, Medicaid, and all Federal health care programs as defined by 1128B(f) of the Social Security Act.

Exclusion from participation can materially affect a professional’s scope of practice because exclusion prohibits the professional from submitting or causing claims to be submitted to any Federal health care program (such as Medicare, Medicaid, VA, TRICARE, the Military Direct Care System, etc.) for any items or services the professional provides and prevents the professional for working in any capacity for an organization that accepts Federal funding. (However, exclusion does not prevent the professional or their family members from receiving benefits to which they are entitled under a Federal program.)

There are two types of exclusion: Mandatory Exclusion is required for certain offenses (42 USC §1320a-7(a)) and Permissive Exclusion is discretionary and may be imposed for certain other offenses (42 USC §1320a-7(b)).

Generally, mandatory exclusion is required for a (i) conviction of health care program-related crimes, (ii) conviction related to patient abuse, (iii) felony conviction related to health care fraud, and (iv) felony conviction related to controlled substances.

Generally, permissive exclusion may be imposed for a number of different offenses including but not limited to (i) a misdemeanor conviction related to controlled substances, (ii) a health care license revocation or suspension, and (iii) excessive charges or unnecessary services.

In my practice, I have seen physicians and other licensed professionals (including nurses) receive a letter from the OIG proposing an exclusion from participation in Federal health care programs following a suspension of their professional license or after a misdemeanor or felony conviction or after being convicted of a drug crime.

In cases where exclusion is permissive, it is recommended to provide the OIG with a clear and detailed response as to why the exclusion should not be imposed.  Under certain circumstances, the OIG may choose not to impose exclusion.  In other instances, the OIG will impose exclusion for a specific time period, for example, during the time period that the professional’s license is suspended.

If you receive a notification from the OIG proposing an exclusion, experienced legal counsel can assist you to formulate and file a timely response.

As always, if you have any questions about this post, the State Medical Board of Ohio or the unintended consequences of a Medical Board disciplinary action, feel free to contact the attorneys at the Collis Law Group at 614-486-3909 or send me an email at beth@collislaw.com

State Medical Board of Ohio

How are decisions made by the State Medical Board of Ohio

I am often asked by clients, “Who makes the final determination as to the sanction that will be imposed against a physician at the State Medical Board of Ohio?”  In theory, this is a simple answer. The Board Members review all the evidence in the case and a vote of six members will result in a sanction against a physician. Alternatively, if the case does not proceed to a hearing, two members of the Board, the Board Secretary and Supervising Member review the evidence and offer terms for a settlement in lieu of proceeding to a hearing.

To make the appropriate determination as to the sanction that should be imposed, the Medical Board has Disciplinary Guidelines, which are posted on the Board’s website (http://www.med.ohio.gov/pdf/meddis.pdf) that outline appropriate sanctions for various violations of the Medical Board’s laws and rules.

In addition, the Medical Board is to review similar prior Board actions and make a determination that is consistent with similar sanctions that have been imposed in similar cases in the past. This is called following precedence.

However, this is all “In Theory”.  What we have seen in the past year is that the Medical Board has been reluctant to follow the disciplinary guidelines (they are advisory only, not mandatory) and the Board has been unwilling to follow prior Board decisions in imposing discipline against physicians.

This change can be based on a variety of factors. First, each year as Board vacancies open up, the Governor is charged with appointing new Board members. New members often come to the Board and look at cases differently than former Board panels.  This change can be refreshing as a shakeup in the Board makeup can bring fresh perspectives to the Board. However, it also leads to inconsistent results, and leaves members of the medical community unaware of how they might be sanctioned if they do violate a Board law or rule.

Recently, we have seen that if the case before the Board does not affect the physician’s medical practice (i.e. a conviction unrelated to medicine) that the Board members have been reluctant to sanction the physician. On the opposite end, if the case involves prescribing of pain medications or even minor violations of a prior Board sanction, the Board has been very punitive.

In this time of uncertainly, I still believe that you put your client in the best position before the Board if you provide the Board Members with as much information through the settlement or hearing process as possible. Board Members often complain that they do not have enough information about the physician to make a reasoned decision about their case. Therefore, I have found that while the Disciplinary Guidelines and prior case actions can be helpful in determining how the Board might proceed in any case, a recommended way to handle any case is to put as much information about the physician and their facts and circumstances about their case before the Board.  This might mean taking more cases to hearing than the Board has seen in recent years.  However, until the Board settles into a rhythm of making consistent decisions on similar cases, this might be the only way to effectively represent the client before the Board.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to contact one of the attorneys at Collis, Smiles and Collis at 614-486-3909, check out our website for more information at www.collislaw.com or email me at beth@collislaw.com.

State Medical Board of Ohio

Is Professional Courtesy Dead among Physicians?

Going back to the time of Hippocrates, physicians have provided medical treatment to their colleagues and their colleagues’ family members without charge. The rationale was to discourage physicians from treating themselves and their family members and also to encourage professional courtesy among physicians.

It is rare today that physicians have the time, desire, or financial means to take on patients without charge. However, if a physician is in position to do so, the rules of the game still apply. You still need to treat a pro bono patient EXACTLY as you would treat a paying patient.

You need to do a physical examination and document in the patient’s chart all the medications you prescribe and the treatment plan. Too often, I have had physicians tell me in my office that they did not create a chart because they were “not billing insurance.” This is improper. The State Medical Board of Ohio does not have different rules for the treatment of patients who you charge and those you do not charge. The Medical Board never even asks if you were paid for the treatment. This is not the standard.

The American Medical Association has also drafted an Opinion on Professional Courtesy and it states that while “professional courtesy is a long-standing tradition in the medical community, it is NOT an ethical requirement”. The Opinion also warns physicians that they should be aware that accepting insurance payments while waiving patient co-payments may violate AMA Opinion 6.12 “Foregiveness or Waiver of Insurance Co-Payment .” American Medical Association Opinion 6.13.  In addition, in Ohio, it is against the law to waive an insurance co-pay for a patient or to advertise that you will waive an insurance co-pay. Ohio Revised Code 4731.22(B)(28)(a) and (b).

If you want to provide medical treatment to another for free you may do so as a professional courtesy. However, you may not bill insurance and waive the co-payment to the patient.  You must provide treatment to this patient in the same manner and in accordance with the same medical and legal laws, rules and standards applicable to all other patients.

As always, if you have any questions about this post or about the State Medical Board of Ohio, you may contact any of the attorneys at Collis, Smiles and Collis in Columbus, Ohio at 614-486-3909.

State Medical Board of Ohio

Medical Residents, Be Advised

As July 1 quickly approaches and medical Residents prepare to start their residency programs, it is imperative that Residents know the limits of their Training Certificate. For instance, many Residents question whether they are authorized to prescribe non-controlled medication to family and/or friends pursuant to a Training Certificate. The answer is, no.

The holder of a Training Certificate is not authorized to write non-controlled medication prescriptions to family members and/or friends unless the care being delivered to the family member is under the auspices of the Residency Program for which the Training Certificate was issued.

Other restrictions also include, but are not limited to: the holder of a Training Certificate is not authorized to practice medicine, including writing prescriptions, except as may be required by or incidental to the holder’s Residency Program. In addition, the holder may not practice outside of the Residency Program hospital or facilities for which the Training Certificate was issued. Thinking of picking up part-time medical work an a hospital or office setting on weekends? You will need to have a full Ohio medical license to work outside of your training program.

Lastly, the Training Certificate may be revoked if the holder practices medicine, including writing prescriptions, outside of the Residency Program. Residents, don’t overlook formalities and be aware that there are limitations to follow while working under your Training Certificate!

As always, if you have any questions about this post or the State Medical Board in general, please feel free to contact me at beth@collislaw.com or call me at 614-486-3909.

State Medical Board of Ohio, Uncategorized

Physicians .. have you read the rules?

The practice of medicine in Ohio is outlined by one statute section, Ohio Revised Code 4731, and one set of rules drafted by the Medical Board, Ohio Administrative Code 4731. This Code section and these rule outline the requirements to be licensed as a physician, podiatrist, massage therapist or physician’s assistant in Ohio and also define the scope of practice of medicine in Ohio. However, I am always surprised that most physicians with whom I speak have no idea that these laws and rules even exist.

Ohio Revised Code Chapter 4731 is the law governing the practice of medicine in Ohio. The Ohio Administrative Code is drafted by the Medical Board members and is reviewed and approved through a rule making process. Physicians in Ohio are required to know, understand and follow the guidelines established in these laws and rules.

These laws and rules can be found at the Medical Board’s website at: http://www.med.state.oh.us. You can also follow the following link to find these sections: http://codes.ohio.gov/orc/4731
or for the administrative rules go to: http://codes.ohio.gov/oac/4731

Pertinent sections of these laws and rules include:

Basis for disciplinary action can be found at R.C. 4731.22(B) which can be found at: http://codes.ohio.gov/orc/4731.22.

To learn more about licensing and continuing education go to: OAC 4731-10, which can be found at: http://codes.ohio.gov/oac/4731-10.

To learn more about prescribing of controlled substances go to: OAC 4731-11, which can be found at: http://codes.ohio.gov/oac/4731-11.

To learn more about the Medical Board’s hearing process go to: OAC 4731-13, which can be found at: http://codes.ohio.gov/oac/4731-13.

To learn more about the duty to report to the Medical Board go to: OAC 4731-15, which can be found at: http://codes.ohio.gov/oac/4731-15.

To learn more about what to do if you believe you suffer from  chemical dependency go to: OAC 4731-17, which can be found at:  http://codes.ohio.gov/oac/4731-17.

As practicing medical professionals in Ohio, you are required to know, understand and follow the laws  and rules in ORC 4731 and OAC 4731. Take the time to read the rules and, if you have questions, contact experienced legal counsel to assist you.

As always, if you have any questions about this post, please feel free to contact me at beth@collislaw.com.

State Medical Board of Ohio, Uncategorized

Physicians .. do you need a vacation?

I have written about work/life balance in the past (see “Do You Have Balance in your Life,” April 18, 2012) however, as the holiday season approaches, I think it is important to consider whether this is a good time to suggest taking a break from the hectic pace of your practice. In the news again today, there was a story about how Americans are given less vacation days per year than any other major industrial nation (10 days vs. 30 days for most Europeans) and that Americans rarely use all their vacation days. http://today.msnbc.msn.com/id/3041440/vp/50068545#50068545

Many people think that they are too busy to take a vacation or that if they leave for even a few days they will return to even more work than when they left. In some cases, Americans are afraid that if they do take a few days off their bosses will recognize that they are dispensable and may re-assign their work and their job to others. Despite whatever real or imaginary fears you might have about taking a break from work, the reality is that everyone needs to rest, relax and step back from the stress of their daily lives so that they have the energy to return to the workplace prepared to work. Physicians are no exception. Physicians deal with extremely stressful situations on a daily basis. Failure to take the appropriate breaks from your practice can lead to weight gain, depression, additional stress and poor decision-making.

As noted in previous posts, stress can lead physicians to make poor decisions related to patient care or can lead to them making poor personal decisions such as drinking and driving, committing a boundary violation with a patient, or seeking unacceptable ways to relieve stress such as sharing personal information with patients or “friending” patients on social media sites.  Ultimately, failure to implement appropriate stress management tools, including taking a vacation, can lead to future professional problems.

Whether you choose to stay home for a “staycation” or take that long-awaited trip, give yourself (and your practice) a break. It will do you a world of good.

As always, if you have any questions about the State Medical Board of Ohio or this post, please feel free to call me at (614) 486-3909 or email me at beth@collislaw.com.  My office will be closed from December 24, 2012 to January 3, 2013 to give everyone at CSC a much needed break.