What Doctors Wish Their Attorneys Knew

What Doctors Wish their Attorneys Knew from Thompson Burton on Vimeo.

When doctors find themselves on the wrong side of a complaint against their professional license, they usually hire a lawyer who doesn’t understand their practice or predicament. In this interview, administrative lawyer Alex Fisher interviews Dr. Wayne Henderson about what doctors wish their attorneys knew about the practice of medicine.

In this interview, Alex and Dr. Henderson discuss:

1. The nervousness physicians experience when interacting with the legal world–particularly when a physician practices pain management.

2. How physicians can properly care for patients and not worry about the Board of Medical Examiners always looking over their shoulder to see if they have done something wrong.

3. The benefit of electronic record keeping over paper record keeping.

4. The potential for a physician to change his or her practice style when nervous about being criticized of doing something wrong.

5. The fact that physicians want an attorney to represent them who (1) they feel comfortable with, (2) who is specialized in the administrative law field, and (3) who has a basic knowledge of the practice of medicine.

6. The importance of documentation interventions and conversations with patients so that a physician knows exactly what happen and what he was thinking in each patient encounter.

 I hope you find the video informative.  If you learned anything, feel free to share or contact me here.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Nursing Discipline Article Published in Tennessee Nursing Extra

tn nursing extra 2Tennessee Nursing Extra’s Summer 2014 edition features an article titled “What Should You Do If You Receive a 4-5-320(c) Notification Letter From the Tennessee Department of Health?” written by Alex Scarbrough Fisher. The article begins on page ten, and can be accessed here.

The article is a republication of this blog’s September 18, 2013 post of the same title. However, the article in Tennessee Nursing Extra contains specific references to a nursing rather than a medical license.

Tennessee Nursing Extra is a widely read and respected publication that coveys information regarding licensing, regulatory updates, scope of practice, and disciplinary actions. The professionals professionals is published four times a year, and is distributed to over 150,000 nurses, students, educators, and other healthcare professionals.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Spotlight on the Vanderbilt Center for Professional Health

Vandy&SkylineThe Vanderbilt Center for Professional Health (“CPH”) was established in 1998 to provide education and training to physicians and other healthcare professionals. Last week the co-directors of CPH, Dr. Charlene Dewey and Mr. William Swiggart, took a few moments out of their day to explain the purpose and process behind the work they do at the Center for Professional Health.

What the Center for Professional Health Offers for Health Care Providers

One of the main educational offerings of CPH is its three-day Continuing Medical Education courses on Maintaining Proper Boundaries, Prescribing Controlled Drugs, and a Program for Distressed Physicians. Each course is offered at least four times a year with the most highly attended course, Prescribing Controlled Drugs, offered seven times throughout the year.

Physicians, physician assistants, and nurse practitioners from around the country attend all three courses. Some of these individuals attend on their own initiative, while others attend as part of a Consent Order or Final Order issued by their state’s Board of Medical Examiners. Attendees of the Distressed Physicians course are often referred by their hospital board or employer.

“We wanted to give the Board[s] of Medical Examiners an option between revoking someone’s license and letting them continue to practice,” stated Mr. Swiggart, who has been involved in the practice of psychotherapy for forty years. “Becoming a physician is an enormous investment,” added Dr. Dewey, who is also a faculty member at the Vanderbilt University School of Medicine. “We want to allow physicians to continue in their profession for as long as possible.”

How CPH Accomplishes Teaching and Healing for Physicians

In order to accomplish this goal, the Center for Professional Health begins by putting their course attendees at ease in a comfortable group-learning environment. Mr. Swiggart stated that when CPH began its Prescribing Controlled Substances course, the theory was that physicians who overprescribed were likely addicts as well. However, as it turns out, the majority of physicians who were disciplined for overprescribing were usually conflict avoidance individuals, often in isolated communities, rather than addicts.

By bringing these individuals together with others who have had similar difficulties, CPH is able to first impress upon these doctors that they are not alone. “The relief in the room is palpable,” states Mr. Swiggart. Next, the courses use the Socratic method to deal with the shame and guilt that the physicians are experiencing as a result of their licensure discipline or other legal action. The courses then move into a skills based approach whereby physicians are taught various tools and techniques to help them avoid their prior behavior.

“After a course, we usually follow up with the class one to two times throughout the next year,” stated Dr. Dewey. “The groups almost become like families—they will email the rest of the class about job updates, weddings, whatever else big is going on in their life.” “I’m not sure if the doctors who come to our courses are any different than the doctors who don’t have complaints against them,” mused Mr. Swiggart.

Physicians who go through a disciplinary proceeding have to realize that they must go through a process to heal and change, stated Dr. Dewey. “The most important part to me is that we can keep people in their careers.”

Programs like those offered by the Center for Professional Health can make a difference in a physician’s ability to continue practicing medicine, as well as their ability to effectively treat and care for their patients. For physicians facing licensure discipline, educational options such as those at CPH can provide a welcome alternative to revocation and other harsh discipline against his or her medical license.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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What You Should Know Before You Sign a Consent Order: Is It Reportable to the National Practitioner Data Bank?

CT  MET-AJ-UNDISCLIPINED-DOCTORSThe National Practitioner Data Bank, or NPDB, is a repository of information created by the federal government to provide a comprehensive review of the professional credentials of health care practitioners, including, but not limited to, any discipline a health care practitioner receives from a state medical board.

Federal regulations govern what state medical boards must report to the National Practitioner Data Bank, and the National Practitioner Data Bank Guidebook helps summarize and interpret these regulations.

What Discipline is Reportable to the National Practitioner Data Bank?

Federal regulation requires that “any adverse action taken by the licensing or certification authority of that state [i.e., the State Board of Medical Examiners] including revocation or suspension of a license…reprimand, censure, or probation….any negative actions or findings by such authority, organization or entity regarding the health care practitioner” be reported to the NPDB. 45 C.F.R. § 60.9(a)(1) and (4).

What does this mean, exactly?

Well, federal regulations define a negative action as anything placing a “limitation on the scope of practice,” for example, a restriction on a physician’s ability to prescribe certain schedules of drugs.

What is NOT Reportable to the National Practitioner Data Bank?

The definition of what is reportable specifically excludes “administrative fines or citations and corrective action plans and other personnel actions.” 45 C.F.R. § 60.3.

The National Practitioner Data Bank Guidebook goes on to confirm that fines and other monetary sanctions should not be reported to the Data Bank, along with settlement agreements that impose monitoring, unless such monitoring restricts the individual’s license.

Why Does it Matter if an Action is Reported to the NPDB?

Almost every employer will query an individual in the NPDB before hiring him or her to work at a hospital, clinic, or pharmacy. If you have reported discipline on your profile, this will adversely affect your desirability as an employee as well as your ability to obtain and maintain employment.

If you are offered a consent order in lieu of a formal disciplinary proceeding, carefully consider negotiating your consent order to reflect actions that are NOT reportable to the NPDB such as corrective action plans, civil penalties, and monitoring agreements that do not restrict your license.

Additionally, it is crucial to be aware of your state medical board’s policies on reporting—even though the NPDB specifically excludes civil penalties from reportable action, some boards report such action to the NPDB anyway. Such policies are worth fighting, because they directly contradict the intent and purpose of the NPDB.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Use Only As Directed: Medical Renegades Push the Envelope for Unconventional Rx Uses

Film Review Dallas Buyers ClubOne problem body builders encounter when increasing their testosterone levels is that estrogen increases as a natural byproduct. A solution that body builders have found? Using breast cancer drugs such as Arimidex, which acts to inhibit the synthesis of estrogen. Today, anti-estrogens are only marketed for use in the treatment of breast cancer.

However, despite a concern that physicians are prescribing anti-estrogens for unintended purposes, or that body builders are purchasing them online through unregulated means, it seems that such drugs do, in fact, do a pretty good job of blocking estrogen, which allows for the increase of testosterone in proportion to estrogen, and thus, allow a body builder to gain more muscle. The point is, even if anti-estrogens are marketed for breast cancer treatment, they are also effective at helping body builders grow muscle. Through the free market system, those willing to take a risk on experimentation have found a solution to a problem, however trivial this problem may seem to the general public.

Let’s focus on another problem, this time faced by many cancer patients: wasting syndrome, the process by which a debilitating disease causes muscles and fat tissues to “waste” away, resulting in weakness, inability to continue treatment, and ultimately, death. Ghrelin, known as the hunger hormone, has been a potential targeted treatment for wasting in the form of synthetic Ghrelin, known as Ghrelin mimetic, but it’s not available commercially to the public. It can be obtained, of course, by other means, though such covert methods necessitate a lack of quality control

Anti-estrogens and ghrelin mimetics are currently not included in FDA regulations, and they are not on the controlled substances list. Such drugs fall in a gray area of federal regulatory overlay along with other unregulated supplements and substances. Though physicians recommend that medicine only be used for its intended medicinal purposes, many patients and individuals don’t have time to wait until a medicine is commercially available to see if it works.

Many cancer patients are willing to risk buying research grade ghrelin over the internet if it will increase their odds of survival during chemotherapy. Whereas doctors are concerned with a potential lawsuit by prescribing the wrong drug (and rightly so, in the current litigious culture we live in), patients should be allowed the autonomy to take a risk when it involves their own life their own life hanging in the balance.

Take for example the recent film, Dallas Buyers Club, based on the true story of Ron Woodroof, who formed a Buyers Club in the late 1980s to provide non-FDA approved drugs to fellow AIDS patients like himself. Such medications were slow to be approved by the FDA, and Woodroof gave himself and other AIDS patients an option for survival, albeit a risky one, as an alternative to certain death. And Woodroof? He was given six months to live when he was diagnosed with AIDS. Due to his own tenacity and non-FDA approved treatments, he lived another six years.

Innovation and scientific advancement requires a certain element of risk taking, including an acceptance of danger. For those facing serious medical diagnosis, federal regulatory standards shouldn’t stand in the way of hope, despite the dangers involved.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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How Little Does the Government Have to Prove to Revoke Your Medical License?

scales of justiceThis post looks at the legal standard required to prove facts in a contested case hearing in order to impose discipline on a physician or nurse. Even though this delves into more technical legal concepts than normal on this blog, it’s significant to understand how much, or rather, how little, the Department of Health has to prove in a licensure action against a health care practitioner.

Burden of Proof

In a contested case hearing involving a discipline action brought against one’s medical or nursing license, the Department of Health carries the burden of proof. The burden of proof is the legal term used to describe the threshold a party seeking to prove a fact has to reach in order to have the fact legally established. In a criminal court case, the burden of proof the prosecutor has to reach to establish facts is that of beyond a reasonable doubt. In a civil action, generally, as well as in a contested case hearing involving licensure discipline before the Tennessee Department of Health, the burden of proof required is preponderance of the evidence.

Preponderance of the Evidence: What does that mean?

Preponderance of the evidence requires demonstrating that a fact is more likely true than not. In simple terms, this means that the Department of Health has to convince the Board of Medical Examiners or Board of Nursing that the Department has least 51% of the proof in their favor, while you have only 49% of the proof in your favor.

Proof can be established in a contested case hearing through the testimony of witnesses, the introduction of relevant, nonhearsay documents, or the introduction of affidavits, agreed to by both parties. One of the most important roles of a physician’s attorney in preparing for a contested case hearing is to gather evidence to disprove the allegations that the Department has set forth in the formal notice of charges.

Why does the burden of proof matter?

The preponderance of the evidence standard is significant for an individual preparing for a hearing before the Board of Medical Examiners because it conveys what level of proof the Department is required to reach in order to prove that an individual has violated a law or regulation and deserves punishment. Preponderance of the evidence is an important standard to consider when preparing one’s defense for a contested case hearing.

Finally, preponderance of the evidence is simply a low threshold requirement for the Department of Health to meet in order to revoke an individual’s license to practice medicine or nursing. A physician going before the Board of Medical Examiners needs to be aware of this low standard, and prepared to properly rebut it in a contested case hearing.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Spotlight on the Tennessee Medical Foundation

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Dr. Roland Gray is the medical director of the Tennessee Medical Foundation, which offers professional assistance to physicians suffering from chemical dependence, mental or emotional illness. He took a few minutes to sit down with me last week and explain the mission of the Tennessee Medical Foundation (“TMF”), as well as the services it offers to physicians across the state.

 The Tennessee Medical Foundation exists to serve physicians across the state of Tennessee. Friends, family members, or business partners refer the majority of the clients to TMF, while a minority of physicians become clients after referral by their attorney or the Board of Medical Examiners.

Who Does the Tennessee Medical Foundation Help?

 Most physicians who seek assistance from the TMF suffer from alcohol or substance abuse. Once a physician is referred to TMA, he or she undergoes assessment, and in the case of a chemical dependency, will be recommended to undergo in-patient or outpatient treatment, depending on the situation. Once treatment is complete, the TMF typically will recommend a period of monitoring, usually around five years, in which the physician will be required to continue any recommended outpatient treatment and regularly check in with the TMF. If the physician is successful as a result of his treatment, the TMF will serve as an advocate for the physician, whether before the Board of Medical Examiners or through letters of advocacy or support before a physician’s employer.

 The TMF also provides support for distressed physicians who may have difficulties with disruptive behavior. The goal in addressing this behavior is to work in collaborate with the physician, his or her supervisor, and supportively identify the behavior in question in order to alter it. Many physicians are under a great deal of pressure in their professional environments, so it can be helpful to have a third party such as the TMF to serve as a referee in tense personnel situations.

Why Seek Assistance?

 “The goal of the Tennessee Medical Foundation is to be there to support, and turn whatever they are going through into a rehabilitative rather than disciplinary situation,” states Dr. Gray. This goal is best accomplished through early intervention, he adds.

If you or a physician you know is experiencing chemical dependency, mental or emotional illness, consider seeking assistance through the Tennessee Medical Foundation. In addition to potential harm to patients and oneself, a failure to seek early assistance can lead to professional discipline from the Board of Medical Examiners, resulting in probation, suspension, or even revocation of a practitioner’s license.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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What Doctors Need to Know About Prescribing Controlled Substances

Prescriptions- DrugsMost physicians are aware of the increased regulations surrounding the prescribing of controlled substances. Just this year in the state of Tennessee, the Tennessee Department of Health began requiring providers to register with the Tennessee Controlled Substance Monitoring Database, new state legislation dictated that opioids and benzodiazepines cannot be dispensed in quantities greater than 30-day supplies, and physicians are required to report prescription drug overdose deaths beginning later this month. Tennessee is not alone in the strong position the government has taken against the abuse of prescription drugs. What do you as a physician need to know to avoid legal pitfalls surrounding the prescribing of controlled substances?

Is it Fair to Regulate Healthcare Providers Rather than Prescription Drug Abusers?

First, it is important to note that the majority of the legislation regarding the prescribing of controlled substances is targeted at healthcare providers rather than at the abusers of these substances. Despite the lack of fairness in this targeting of healthcare providers, it is simply more efficient for lawmakers and regulatory bodies to do so. One, there are substantially less healthcare providers than drug abusers, making healthcare providers easier to regulate. Two, healthcare providers have more to lose by declining to follow prescribing laws. Physicians and nurse practitioners depend on their ability to practice medicine for their livelihood and the livelihood of others such as their families and staff members. Thus, healthcare providers have a greater incentive to comply with the law than those seeking to abuse prescription drugs.

How can Healthcare Providers Safely Prescribe Controlled Substances?

Physicians and nurse practitioners with the power to prescribe should be meticulous in their record keeping. Every visit by a patient should be properly noted in that patient’s medical record, along with notes of the physician explaining the patient’s condition requiring the prescribing of a controlled substance. Electronic health records are a valuable way to ensure that patient records are time stamped, properly stored, and cannot be removed from the office, lost, or misplaced.

Physicians should consider requiring random drug testing for patients who are prescribed controlled substances to ensure that only the drug prescribed, in the amount prescribed, is in the patient’s system at any given time. Additionally, physicians should consider addiction screening as part of new patient intake in an effort to avoid the intake of patients who are at a high risk of prescription drug abuse.

Ultimately, however, physicians are not expected to behave like DEA agents and investigate any possible doctor shopping by patients. As a healthcare provider, your primary job is to do just that: provide for the health of your patients. Physicians should have policies in place to ensure compliance with state and federal laws regulating the prescribing of controlled substances to avoid legal issues that could affect a physician’s ability to provide care for patients.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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10 Ways to Avoid Losing your Medical License: Part III

iStock_MedRecords000005513877XSmallThis is the third article in a three part series designed to inform physicians and other health care providers about proactive steps that can be taken to avoid licensure discipline by the Department of Health.

7. Maintain proper medical records.

A physician should ensure that he has records of a patient visit including a healthcare provider evaluation every time he writes a prescription for a patient, particularly if the prescription is for a controlled substance. If a physician’s office has not done so already, they should consider implementing an electronic health records system. Electronic records cannot be lost or misplaced the way that paper records can. Additionally, electronic records are time stamped with the exact day and time the information about a patient was entered into the record, which prevents discrepancies in record keeping or confusion over when a visit or prescription was recorded.

8. Complete your Continuing Medical Education courses in a timely manner.

Under the Rules of the Tennessee Board of Medical Examiners, all licensees must complete forty hours of continuing medical education courses during the two calendar years that precede the licensure renewal year, including at least one hour specifically about prescribing practices. If a physician fails to complete his CME hours, he would be subject to disciplinary action. Although the action would likely be minimal, such as a reprimand, the action will remain on a physician’s record forever and could be used against him in any disciplinary action or proceeding in the future. In Middle Tennessee, Vanderbilt University School of Medicine offers a number of continuing medical education courses as well as regularly scheduled series throughout the year.

9. Maintain Appropriate Surgery Centers.

The Tennessee Board of Medical Examiners has specific rules on what resources and protocols are required in an office based surgery center. Additionally, the rules dictate what sort of surgery can be performed and on whom, and what sort of relationship is required with a licensed hospital within a “reasonable proximity” of the surgery center. If an office based surgery does not meet these standards, the Board of Medical Examiners has the authority to suspend a physician’s license until his surgery center is in compliance, which can result in a significant financial loss, as well as the loss of credibility in one’s practice by patients and the public. Each state has their own promulgated guidelines for office based surgery, so a physician should review the applicable state rules when ensuring that one’s office based surgery meets the proper requirements.

10. Think like a patient.

“Would you want a doctor treating you who was in your current physical, mental or emotional condition?” Occasionally asking one’s self this question will help physicians maintain proper self-awareness. This self-awareness may lead a physician to better understand and maintain his own physical and mental health, which in turn sets a strong precedent for the cultivation of healthy patients. A self-aware doctor is more likely to comply with healthcare regulation personally and professionally, leading to better results for patients, and an exponentially decreased likelihood of licensure or legal issues in the future.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Ten Ways to Avoid Losing your Medical License: Part II

doctor-meditatingThis is the second article in a three part series designed to inform physicians and other health care providers about proactive steps that can be taken to avoid licensure discipline by the Department of Health.

4. Be cautious about your use of intoxicating liquors, narcotics, controlled substances, or other drugs or stimulants that would effect your ability to practice medicine.

Out of those physicians who receive severe discipline from a medical board, i.e., revocation or voluntary surrender of their license to practice medicine, the top three offenses are (1) sexual abuse, (2) murder, and (3) alcohol abuse. State medical boards take substance and alcohol abuse very seriously, so if a physician realizes he or she has a substance or alcohol addiction, he should proactively seek help, rather than waiting until his license is disciplined, or even worse—a patient is injured. Organizations such as the Tennessee Medical Foundation exist for the purpose of providing such professional assistance to physicians.

5. Be cautious about the prescribing of controlled substances.

Tennessee Code prohibits the prescribing of a controlled substance “not in good faith to relieve pain and suffering…or in amounts and/or durations not medically necessary, advisable, or justified for a diagnosed condition.” T.C.A. § 63-6-214(b)(12). Physicians should be cautious when patients request specific controlled substances, and use discernment to determine whether a patient is requesting pain management in good faith. Additionally, physicians would benefit from having protocols in place to provide safely provide appropriate pain management to patients—for example, requiring patients to sign controlled-substance agreement forms and implementing randomized toxicology screening.

6. Cultivate self-awareness about your mental and physical health.

It is a violate of Tennessee law to “engaging in the practice of medicine when mentally or physically unable to safely do so.” T.C.A. § 63-6-214(b)(18). If a physician is going through a period of intense mental or emotional stress—the death of a loved one, a divorce, a difficult diagnosis of a family member—he should step back and consider how this may be affecting his work. If necessary, it is preferable for a physician to scale back duties rather than risk harming a patient or losing one’s medical license. A physician should be aware of his physical limitations and be aware that there may come a day when he needs to limit the scope of his practice based on his own health.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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