What should you do if you received a 4-5-320(c) notification letter from the Tennessee Department of Health?

Although the following is a description of the basic discipline process for a licensed physician before the Board of Medical Examiners, the process is substantially identical for licensees before other health related boards in Tennessee, such as the Board of Nursing and the Board of Pharmacy.

A 4-5-320(c) letter is statutorily required notice by the Tennessee Department of Health to a physician charged with a violation of the Tennessee Medical Practice Act. Prior to this letter being sent, a complaint was filed against the physician. When a complaint is filed, a Board consultant and a Department of Health attorney review the complaint to determine if a violation of the Medical Practice Act has occurred. If so, an investigation is initiated, and an investigator from the Department of Health Office of Investigations interviews the physicians’ patients, nurses, and anyone else she deems relevant to the complaint, as well as reviewing the physician’s medical records. The investigator reports her findings to a Board consultant and Department of Health attorney. They decide whether to close the complaint with no violation, close the complaint, but send the physician a letter of warning or concern, or to send the complaint  to the Department of Health General Counsel to proceed with formal charges.

Once an attorney from the Department of Health General Counsel sends a 4-5-320(c) letter, the physician will likely have fifteen days from receipt of the letter to respond. Included with the letter will be a consent order stating the stipulated facts with which the physician is charged and the discipline the Department of Health seeks to impose. At this point, the physician has three options. He can (1) sign the consent order and send it back to the Department of Health, (2) negotiate the facts and discipline in the consent order before signing, or (3) not sign the consent order, at which point the Department of Health will file a notice of charges and initiate formal proceedings, resulting in a contested case hearing before the Board of Medical Examiners.

It is strongly recommended that a physician retain counsel at this point. Even if the facts and discipline in the consent order seem acceptable to the physician, an attorney can likely negotiate more favorable discipline and craft the stipulated facts language in the consent order in a more favorable manner for the physician. The consent order language is important because once signed and approved by the Board of Medical Examiners, a consent order becomes part of the public record. Any action taken by the Board against a licensee, even a reprimand, is reported to the National Practitioner DataBank, which can effect everything from a physician’s reputation and job prospects to his ability to maintain malpractice insurance.

A physician can refuse to sign the consent order, and proceed to have his case heard before the Board of Medical Examiners. If pursuing this path, a physician is strongly recommended to hire counsel, since the case before the Board of Medical Examiners is similar to a litigation proceeding, and requires the subpoena of witnesses and evidence, as well as the formal presentation of proof. A word of caution before pursuing this option—if a physician receives any sort of discipline, he will be assessed costs by the Department of Health, which includes the cost of the investigation, any experts fees, and attorneys fees, which once a contested case proceeding has been initiated, these costs can quickly amount to tens of thousands of dollars. Depending on the situation, it might be preferable for a physician to agree to a harsher consent order rather than contesting a case and incurring the associated expenses.

The administrative process of responding to a disciplinary action by the Department of Health can be convoluted at best, in addition to the emotional and personal distress a physician may experience as a result of the charges brought against him, but with the aid of competent legal counsel, a 4-5-320(c) letter can be handled efficiently, allowing a physician to correct the offending conduct and resume the practice of medicine.