Lessons from the Board of Medicine
Chapter 2
by Ron Pace, PA-C

On Friday, February 8th I attended the Florida Board of Medicine meeting at the Renaissance Hotel in Orlando. At noon I was joined by Pat and Juhan Mixon. I was there from 8:30 a.m. until 6 p.m. Our issue was on the schedule as an “Untimed” issue and could have been brought up at any time so one had to be there all day until it was addressed. The good thing was I received five hours of CME in Risk Management. Let’s see 8 hours of sitting in a chair all day equals five hours of CME. With math like that no wonder the Board is in the red financially. I did have lunch with Pat and Juhan Mixon. Dr. Vijay and Dr. Hamas from the Board joined us and it was a nice pleasant lunch that gave FAPA some good exposure.

I recognize this is a long report but for those of you who have never had the “pleasure” of attending a Board meeting I hope to give you some insight into what goes on at the meeting. I think it would be a good idea at some conference in the future to have a lecture or two on how the Board functions, disciplinary procedures and such.

Let’s get to the good stuff first. Right after lunch the PA Council Report was addressed. In this was included the rule change on the Co-Signature issue. It passed without discussion. This took all of five minutes at the most. But I, Pat and Juhan had to be there just in case some Board member had questions or objected. We were there to protect our interests. After fighting this battle for two years we did not want to take any chances. We were elated to say the least. The FMA lobbyist was also there with us to speak if necessary.

The portion of the meeting I attended dealt mainly with disciplinary actions by the Board. The Respondents (physicians being disciplined) had made prior Consent Agreements with the Department of Health attorneys and were simply appearing to have the Consent Agreement accepted by the Board. The Consent Agreements are reviewed by the Board prior to the meeting and when presented to the Board at the meeting any Board member can request that it be discussed. This is when it can get a little confrontational. Just having a Consent Agreement (Consent) with the DOH attorney does not necessarily mean it will be accepted by the Board. The Board and the DOH attorneys do not always see eye to eye. There were also several cases there for an Informal Hearing. At various times during the course of the day members of the Board would make editorial type comments on various issues. The Board is a cohesive group but there were obvious differences of opinion on multiple topics and policies.

The Chairman of the Board announces which case is next, calls the respondent and their attorney to the front, and asks if anyone would like to discuss this case. If there is no request for discussion, then the Chair calls for a resolution and second to accept the Consent. They then vote and in this case it is usually a unanimous vote. The respondent is there for just a couple of minutes and does not have to say anything.

If however just one member of the Board requests to “discuss” the case, then the fun begins. I saw Board members disagree with terms of the Consent for various reasons. It did not fall in line with the usual penalties given in the past for that type of case. Certain types of charges have set penalties that are usually placed on the Respondent. And one of the Board members will catch it if the DOH attorney has been less than diligent in this matter. Notice I did not say usually catch it, someone always did. Several members of the Board were more outspoken than others, but not in a bad way. They were just very diligent in their duties.

Another reason is that a Board member may disagree with the findings or contents of the Consent. They may not agree with what the Expert Opinion was in the case. They may want to clarify what happened in the case by questioning the physician. They may want to just put a comment in the record regarding that case. This is when it can get a little confrontational. Members of the Board may not agree among themselves on the case, and doctors being doctors that happened a great deal. Sometimes it appears they discuss the case and just ignore the fact that they physician is sitting there. Their comments can be quite caustic at times. But then the truth does hurt occasionally. And several times during the meeting one Board member would remind the others that their purpose there is to protect the citizens of Florida from providers who practic bad or unsafe medicine.

So they discuss, question, and debate and then they vote on whether or not to accept the Consent. In most cases like this, they vote not to accept the Consent. Then someone on the Board proposes a new Consent Agreement. This usually means a larger fine; more CME; a letter of guidance/concern/reprimand; possible probation or restriction of license; or other penalties such as community service. They discuss it, add or delete or change portions. Then they vote again. It is passed because they discuss it before putting it to a vote to make sure everyone is in agreement. The respondent’s attorney can question and comment during this process as well. In cases I saw evaluated, the fines ranged from $1000 to $25,000. Costs are assessed based on a very technical scale and ranged from $500 to $52,000 . They were given anywhere from 30 days to 90 days to pay the fines, and one to four years to pay all the costs assessed.

They could have been required to get CME in a specific clinical area, Risk Management, Medical Record Keeping, or an Ethics Course. All of which has to be done at their expense and usually provide proof of course completion to the Board within one year. There is also a course called UF C.A.R.E.S. This is a “Comprehensive Assessment Remediation and Education Service” developed by the University of Florida. It is an exhausting three day course in Gainesville that the physician undergoes. They then make recommendations to the Board on a course of action that may include further education, CME, restriction, supervision or any number of things that they feel needs to occur to help this doctor practice safely and within the law. It costs $5,000. You can read more about this on the UF Cares webpage.

UF Cares

So then the respondent is told he has seven days to reply in writing as to whether he will accept the new Consent Agreement. Some say right there that they will, but in some cases the Attorney just says we will get back to you. It was my observation that the less an attorney or physician says, the better off they are before the Board.

There were a good number of Consents that were approved without discussion. And then there were a couple that were not simple approved. These were the interesting ones.

There was one FMG who had had a license as a temporary PA. She had been disciplined by the Board some two years ago, and was fined $2000. I am not sure what the other penalties placed on her were at that time. Nonetheless, she never paid the fine. She was seeking to have her license reinstated so she could go back to work and pay the fine. Dr. Miguel, the PA Council member on the Board asked her if she had ever taken and passed the state exam. Answer,” No”. He then asked her if she had graduated from an accredited PA program, answer, “No.” He then noted there is no longer a temporary PA license available to her and her only recourse was to go to PA school and take the NCCPA exam. She was told, sorry, since you are not a licensed PA or MD now the Board has no jurisdiction over you. But if you ever apply for a license in the state of Florida, you will have to pay the fine before consideration is given. The Board apparently does not go after people in civil court to try and collect fines. You just don’t get a license. There followed about 15 minutes of discussion between her attorney from Miami, who note he was there pro bono since she could not afford to pay him, and the Board over the payment of the fine and her credit problems. One member told her lawyer that was nice of him, but had no bearing on the decision. Her attorney could have saved himself a trip if he had read the law.

There was one case involving an older physician who was there on a Consent Agreement over being charged with “fondling a patient’s breast during an exam”. He did not have a female standby in the room with him for the exam. There was question as to whether or not it happened. The patient saw him for neck pain and he referred her to Ortho, but she came back to him and asked for a refill of Tylenol #3 and he refused. A few days later she filed the complaint. It was as they described “a she said, he said” type problem. At any rate he was grilled as to why he did not have a standby in there and his excuse was he was “old school” and had just never done it. But he does now. One member of the Board said it was incredulous that in this litigious day and time that he should put himself in such a position. At any rate he received a fine and had to some extra CME and an ethics course. The doctor looked shell shocked as he left.

Another case involved a physician who supervises a PA. The PA saw the patient for an initial visit in an inner city clinic and then presented him to his supervising physician. He saw the patient also and agreed with the diagnosis and treatment plan. The patient presented later to the ER and died. Not a good patient outcome. Both the PA and physician made some errors the Board felt. But the patient had unknown end stage cardiomyopathy disease and nothing would have helped in hindsight. The Board came down on the physician but not the PA. In fact they said the PA had done what he was supposed to do but the physician had made the error. They felt the physician had let the PA over influence his decision making in this case. It is bad enough to appear before the Board for any reason, and worse if you are a repeat offender. This was the second case for this physician for a similar problem. The Board recognized that the physician is a good physician but felt there were some questions about the way he manages his practice and may be seeing too many patients, and may expect too much of the PA. He was fined and will have a Risk Management Assessment of his practice.

There were several cases reviewed of wrong site, wrong side surgery. The standard fine for such is now only $10,000. They discussed each of these cases in detail and took other punitive action as felt necessary in each case. Fortunately, for each of these cases it was a first time offense for the physician. And in each case there were also errors by nursing staff and OR staff involved, but the physician is always seen as “the Captain of the ship” so they bear the responsibility and suffer the consequences. The physicians were questioned in detail and I do not think they will have that problem again.

The last case of the day was the most interesting. A physician was being disciplined on eleven various charges involving among other things, ethics, coercion, and violation of a previous disciplinary order against him. This was his third time before the Board. The do not like repeat offenders, trust me. Several Board members asked to discuss this Consent when it came up. The Consent originally had been a mere slap on the wrist. And several Board members were very upset. He had advertised himself as Board certified and was not certified by a recognized Board. He tried to sell patients Amway and offered them discounts on medical care if they did so. He had eleven charges against him this time. I could not keep track of them. The Board felt the Consent was extremely too lenient, so they rejected it. One doctor noted that this was his third time before the Board for essentially the same thing and that he obviously had not learned anything from his prior appearances. Another noted that the first appearance had 21 charges, the second had 19 charges, and this one had 11 charges. He looked at the Board and commented, “Well, at least he is getting better.” The questioning from the Board was rather intense to this physician and his attorney, and things became a little hot at times. They got a little nasty with the Attorney over his comments at times. When all was said and done the Board came down very harsh on this physician. Two Board members wanted to revoke his license. In the end he received a $25,000 dollar fine, five years probation, costs of $52,000 dollars, a letter of reprimand and numerous other penalties. It is going to cost him a small fortune and five years of his life to get his license back to unrestricted. From listening to him and his attorney, this guy is going to be back before the Board at sometime in the future. The physician came to the Board meeting under the impression that he was going to get off lightly with the Consent agreed to prior and now he was being punished much more harshly than expected. He and his lawyer both left as very unhappy men.

After the Board adjourned there were still two committee meetings that several of them had to participate in that evening. It is apparent that being on the Board is very time consuming. The records they have to review were on two CD-ROM disks. The observers could review the data on two books in the back of the room. They were four to five inches thick with several thousand pages each. The thought of having to review that much materiel every two months is mind boggling, in addition to teleconferences and other obligations. You have to admire them.