Tag: physician/patient relationship

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, Uncategorized

The Digital Age Brings Down Another Prominent Figure

In the past, I have written about the dangers that participating in social media can present to medical professionals (August 23, 2012 post “Social Media Can be a Dangerous Pastime for Medical Professionals”).  The resignation of General David Petraeus yet again demonstrates that the digital age presents significant perils to those individuals who ignore or attempt to circumvent the appropriate use of such media.

I found it interesting that it has been reported that General Petraeus and Paula Broadwell allegedly wrote emails in “draft”, left the drafts in a draft email folder which they could both access and read, but did not send to each other, thereby attempting to avoid creating a trail of emails.

Engaging in social media creates a trail that can be used by employers, governmental agencies, criminal investigators, and State licensing boards as evidence of wrongdoing.  When a professional, like a physician, engages in email, texting, Facebook, Twitter, or other forms of social media with patients, they risk being determined to have committed a boundary violation with a patient.  A physician may not engage in a personal, sexual, or financial relationship with a patient.

In the past, these relationships were more difficult for employers or governmental agencies to prove because, in many instances, cases came down to a “he said – she said” situation.  However, in the digital age, impermissible relationships are documented in emails, texts, photos, videos, Facebook posts, and Tweets.

It is a violation of the State Medical Board of Ohio’s laws and rules to engage in a personal, sexual, intimate, or financial relationship with a patient.  Such relationships subject a physician to discipline by 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 email me at beth@collislaw.com or call me at 614-486-3909.

State Medical Board of Ohio

Ohio Courts will not reverse Medical Board decisions if the sanction seems too harsh

I recently read of a Medical Board disciplinary matter in the State of Illinois, in which the Illinois Medical Board revoked a physician’s medical license for engaging in a sexual relationship with a patient. Then, the Illinois Appeals court reversed the decision and sent the case back to the Illinois Board to issue an alternative sanction after finding the sanction was “overly severe” given the physician’s conduct. William Joel Kafin v. The Division of Professional Regulation of the Department of Financial and Professional Regulation.   I was struck by this case, as this would never happen in Ohio.

In Ohio, under Ohio Revised Code Chapter 119, decisions of the State Medical Board can be appealed to the Franklin County Courts. The Court will then determine if the decision of the Board was based on reliable, probative and substantial evidence and is in accordance with law. Pons v. Ohio St. Med. Bd., 66 Ohio St.3rd 619, 621. However, case-law exists in Ohio that the Courts will not reverse a decision of the Medical Board purely on the belief that the sanction is too harsh. Henry’s Cafe, Inc. v. Bd. of Liquor Control, (1950), 170 Ohio St.233. Even if the evidence is clear that the Ohio Medical Board imposed a sanction that was different or harsher than was imposed in other similarly situated cases, the Courts still not reverse a Medical Board decision.

The only way to obtain relief from a Medical Board decision by the Courts is to show that the Board based its decision on evidence that was contrary to law or was not reliable, probative or substantial. While it is not unheard of to have a Medical Board decision reversed by the Court, it is certainly an uphill battle.

It is the intent of Ohio administrative procedure law that state agencies be given the authority to regulate others in their profession. Arlen v. State Med. Bd (1980), 61 Ohio St.2d 168. Therefore, if a physician is issued a Notice of Opportunity for Hearing (citation letter), it is important to put your best case forward at the administrative hearing before the Medical Board.  The Court will rarely disturb the final decision of the Medical Board.  Unlike Illinois, Ohio courts will not reverse a Medical Board decision because the Court thinks the sanction is too harsh.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to email me at beth@collislaw.com or call me at (614) 486-3909 or see our firm website at www.collislaw.com.

State Medical Board of Ohio, Uncategorized

Physician/patient relationship = power imbalance

The State Medical Board of Ohio addressed two cases at its March meeting concerning the physician-patient relationship.  http://www.med.ohio.gov/pdf/Agenda/Agenda%20-2012/03-12agenda.pdf

In one case, the Medical Board suspended the license of a physician for 180 days after a hearing based on the finding that the physician had engaged in a sexual relationship with an indigent patient after providing the patient with “free” medical care and “free” medicine. From the physician’s perspective, she honestly believed that she was providing a medical service to the patient that he could not otherwise afford and that she should not then be “punished” for providing this care.   The physician did not comprehend that having a personal (read: sexual) relationship with the patient violated the physician/patient relationship.  Regardless of the fact that the medical care provided to the patient without charge, a physician-patient relationship was created.  The Board suspended the physician’s license for 180 days for the boundary violation.

In the second case, the State’s attorney offered for Board approval a Consent Agreement  for a physician who had engaged in a sexual relationship with a patient, which proposed to impose no active suspension on the physician’s license. The rationale given by the State’s attorney for no suspension was the fact that the patient was also the corporate attorney for the medical practice and therefore the legal staff did not believe that there was the same imbalance of power between the physician and the patient that usually leads to physician discipline. The state’s attorney argued that the physician and attorney/patient were on a more even footing.  The state’s attorney argued there was no imbalance of power and consequently no suspension should be imposed on the physician’s license.

The Board members did not agree with this argument. In a rarely seen move by the Board, the proposed Consent Agreement, was rejected by the Board.  While this is a very unusual fact pattern, it clearly shows the Board believes strongly about the inherent imbalance of power in a physician-patient relationship.

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