State Medical Boards: Are the Regulators Regulated?

• Author: Segal, David

1. ARE THE REGULATORS REGULATED? 286 A. Excessive Action by the Iowa Board of Medicine 286 B. Iowa's Physician Shortage 288 II. BACKGROUND 290 A. Process of Policing Physicians in Iowa 291 1. The Investigative Process 292 2. Pseudo-Criminal Charges and Disproportionate Punishment 292 III. ANALYSIS 294 A. Illustrative Case that Represents IBOM Procedure 295 1. Appeal and Aftermath 296 B. Broad Discretion 298 C. Lack of Procedural Due Process 299 1. All in One Accuser, Judge, and Jury 300 2. Immunity of Peer Reviewers and Sham Peer Review 301 3. The Problem with Preponderance of Evidence 302 4. Risk of Erroneous Deprivation of Livelihood 304 5. Secrecy and Lack of Transparency 305 D. Unrealistic Standards and Standard of Care 305 IV. RECOMMENDATIONS 306 A. Public Policy Pendulum Shift 307 B. Restructuring of Current System 307 1. Ensuring Due Process 308 2. Professional Competency Review by an Independent Tribunal 308 3. Heightened Standard for Peer Review Liability 309 4. Clear and Convincing Burden of Proof 309 V. CONCLUSION 310 I. ARE THE REGULATORS REGULATED?

   In the United States, high-impact professions such as law and medicine are monitored by statutorily empowered regulation. (1) In both the legal and medical regulatory realms, a board composed of a majority of professionals in that specific field enforce quality care standards through professional discipline, with the goal of protecting the public from substandard practice. However, as noble a cause as this may be, the system as it stands now does not work because it fails to adequately protect the public from poor medical treatment standards. The system as is also encourages and rewards reporting of frivolous and false charges against quality professionals--who are in short supply--and provides these accused professionals with little legal protection or recourse when they are faced with such false charges. This can result in the careers of quality practitioners being ruined, and the populace's options in quality medical care shrinking dangerously.

   1. Excessive Action by the Iowa Board of Medicine

      This Note will examine the harm that can result from a government agency wielding its administrative power over the careers and livelihood of public citizens, many of whom have little in the way of protections for substantive or procedural due process. (2) Many states, like Iowa, have critical physician shortages, and need a public policy that attracts and retains competent physicians to the state. (3) Looking specifically at the Iowa Board of Medicine, current practices do not accomplish this. A medical board investigation into any physician, even those who provide competent care, can be devastating professionally and personally, especially if the charges are public. (4)

      The consumer advocacy group, Public Citizen, grades state medical boards. Each state has been ranked by the number of medical board disciplinary actions per 1000 physicians. The top rank is the most punitive--the state taking the most such actions. As displayed by their ranking system, Public Citizen considers such harsh punishments desirable; and, between the years 2003 and 2011, Iowa ranked between seventh and fifteenth most punitive, with Alaska averaging the most punitive and Minnesota the least punitive through that time period. (5) Analyzing the statistics further, in 2012 the IBOM disciplined 30% of physicians they investigated; in 2015 that number rose to 43%. (6) In contrast, Ohio, which was ranked by Public Citizen as the third most punitive state in 2011, (7) disciplined 28% of the physicians investigated in 2015. (8) Ohio ranks 14 in physicians per capita, compared with Iowa's ranking of 42. (9) The higher rate of discipline in Iowa indicates the state's haste to act on complaints against physicians, despite the state's public policy interests in attracting such physicians.

      One example of excessive IBOM discipline is exhibited in Glowacki v. IBOM, where an anesthesiologist was charged with fraudulent billing. (10) Testimony portrayed this physician as honest, respected, competent, and caring. (11) The evidence showed that the alleged violation concerned the definition of billable "anesthesia time," for which there was no agreement or clear accepted practice. (12) Despite this ambiguity, the IBOM suspended this physician's medical license, charging him with "knowingly making fraudulent representations." (13) The IBOM reasoned that though this physician had not intended to mislead, this physician knew that he was billing, and the fact that his records could have been misleading was sufficient. (14) The Iowa Supreme Court overturned the IBOM ruling, holding that there was not substantial evidence to support it. (15)

      Legislators and organized medicine have made no attempt to correct the state medical board's misapplication of the law or its lack of oversight, accountability, or constraints on its authority. This is mostly due to political pressures from consumer advocacy groups, such as Public Citizen, (16) and state medical boards, along with distorted public policy motives disguised within the abstraction of protecting the public. While the government has a duty to protect the public, this duty is not a license for abuse of power, especially when the issues do not directly involve public safety, as seen in Glowacki. (17) This lack of oversight, coupled with overzealousness, can result in decreased access to medical care for patients if their competent physicians are unfortunate enough to be singled out for heightened scrutiny by the state medical board. (18) The seemingly unjust practices of Iowa's professional boards were the subject of a recent report from the Iowa Ombudsman office that highlighted the secrecy and lack of oversight. (19) In that report, the Iowa Ombudsman office found that incomplete investigations that lacked oversight led to false charges, poor documentation, unprofessional behavior, conflicts of interest, and a lack of transparency. (20) Physicians should be subject to a high bar for professional conduct, as well as high levels of scrutiny and oversight. Medical boards should exist with reliable mechanisms for identifying and correcting physicians who do not comply with a national standard of care. However, the current process of the IBOM does not fairly or accurately judge physicians and does not protect the public. (21)

   2. Iowa's Physician Shortage

      The future course of healthcare reform in our country is uncertain. The escalating physician shortage is an under-appreciated obstacle toward reforming the current healthcare delivery system. (22) States that have the worst physician shortages will find it increasingly difficult to implement expanded Medicaid or Affordable Care Act (ACA) exchanges, because the limited physician supply will allow physicians to selectively treat patients with higher reimbursing commercial insurance. (23) As mentioned above, Iowa ranked 42 in the US for the number of physicians per population and last in some important subspecialties. (24)

      On May 5, 2017, former Iowa Governor Terry Branstad signed the Iowa Tort Reform bill into law in an effort to retain and attract more physicians to Iowa. (25) This law enacts a $250,000 cap on noneconomic damages (i.e., pain and suffering), expands expert witness requirements, and requires a certificate of merit (26) in medical liability suits. (27) Opponents of the Iowa Tort Reform bill, mainly consumer advocate groups and plaintiff's malpractice counsel, highlighted that Iowa is not a litigation-heavy state for physicians. (28) Data shows that medical malpractice lawsuits substantially decreased in Iowa in the last decade. (29)

      However, the Iowa Tort Reform bill did not address the harshness of the state medical board disciplinary process. The manner and fairness with which a state medical board punishes its physicians is another prominent metric (and weighed as being as important as malpractice climate) for ranking a state's ability to attract and retain physicians. (30) Experiences in other states show that when tort reform is enacted, complaints to medical boards rise. (31) This may reasonably result in an exodus of competent and qualified physicians from that state.

      Iowa was overall ranked best state for physicians in 2017 by WalletHub and fourth best by Medscape for a variety of economic and lifestyle metrics. (32) However, Medscape noted that Iowa had "a fairly harsh medical board." (33) The IBOM's harsh tactics and actions may have negative and far reaching effects. Competent and qualified physicians may become familiar with aggressive IBOM actions and choose to practice elsewhere. Physicians who consider leaving Iowa may weigh personal experiences or observed accounts of IBOM harshness as a factor in their decision to move out of state. Any disadvantage Iowa faces in attracting or retaining physicians needs to be remedied.

      This Note will discuss how the current process of broad IBOM discretion can punish and devastate the careers of competent, qualified physicians when physicians are in short supply in Iowa. The current practices of the IBOM will be examined with a focus on the processes of filing complaints, investigating those complaints, and charging physicians based on those complaints. This Note will examine how the current procedures lack sufficient due process protections relative to the risks faced by physicians. This analysis will focus on the problem of the IBOM acting as prosecutor, judge, and jury, how the all-important peer review process is fatally biased, and how the IBOM requires a low burden of proof relative to the risk of erroneous deprivation. The current system grants the IBOM too much power at the expense of the medical profession and those they serve. These flaws in the system result in arbitrary and irreversible damage to the careers of competent physicians. To remedy the current flawed process, the state should increase protections for practicing...