Defending a Complaint before the North Carolina Medical Board
If you have been contacted by an investigator or received a letter from the North Carolina Medical Board about a complaint, you may be uncertain about what to do next, what the procedures are, and what the results may be. You may also be trying to decide whether you need to retain an attorney. Our firm represents physicians, physician assistants and nurse practitioners (hereafter, “licensees”) in responding to the Medical Board and defending against allegations of misconduct.
Learn More
In the sections below, we attempt to address some of the questions you may have and explain the general process, procedures, and possible results.
North Carolina Medical Board
As background, the North Carolina Medical Board was established by the General Assembly to regulate the practice of medicine. The Board consists of 12 members appointed by the Governor: eight are licensed physicians; one is a licensed physician assistant or approved nurse practitioner; and three are public members. The Board meets monthly and holds disciplinary and licensing hearings on even-numbered months.
Possible Outcomes of a Complaint against a Licensee
In general, complaints are most often resolved in one of three ways:
- No formal action. Typically, this is the result when no violation of the Medical Practice Act has occurred. However, the licensee is notified and the information is kept on file.
- Private action is taken. There may be no violation of the Medical Practice Act that warrants public action, but the Board is nonetheless concerned about some aspect of the licensee’s conduct or performance. In such cases, the Board takes private action, such as a confidential letter of concern to the licensee that cautions against repeating similar conduct. Alternatively, licensees may be brought before the Board for a private interview. The contents of both the letter and interview are confidential.
- Public action is taken. In these cases, the Board determines there was a violation of the Medical Practice Act and takes formal public action. For example, this may be in the form of a public letter of concern, a reprimand, an order imposing conditions or restrictions on the license, a suspension or revocation of the licensee’s authority to practice, or some other type of action.
Disciplinary Authority of the Board
The Board has the authority to impose discipline against any person who has been found by the Board to have committed the following acts or conduct, or for any of the following reasons, among others:
- Immoral or dishonorable conduct;
- Producing or attempting to produce an abortion contrary to law;
- Making false statements or representations to the Board, or willfully concealing material information from the Board;
- Being unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of alcohol, drugs, chemicals, or any other type of material or by reason of any physical or mental abnormality;
- Committing unprofessional conduct, including the departure from or the failure to conform to the standards of acceptable and prevailing medical practice or the ethics of the medical profession;
- Being convicted of a crime involving moral turpitude, a crime involving the practice of medicine, or a felony;
- Making false representations to obtain money or anything of value;
- Advertising or publicly professing to treat human ailments under a system or school of treatment or practice other than that for which the physician has been educated;
- Being adjudicated of mental incompetency, which shall automatically suspend a license unless the Board orders otherwise;
- Lacking professional competence to practice medicine with a reasonable degree of skill and safety for patients or failing to maintain acceptable standards of one or more areas of professional physician practice;
- Promoting the sale of drugs, devices, appliances or goods for a patient, or providing services to a patient, in such a manner as to exploit the patient;
- Having a license to practice medicine or the authority to practice medicine revoked, suspended, restricted, or denied by the licensing authority of any jurisdiction;
- Failing to respond, within a reasonable period of time and in a reasonable manner as determined by the Board, to inquiries from the Board concerning any matter affecting the license to practice medicine;
- Failure to complete required continuing medical education during any three consecutive calendar years pursuant to rules adopted by the Board.
Responding to an Inquiry Letter
After the Board receives a complaint concerning a licensee, the Board may send an initial letter to the licensee requesting a response to the allegations. The licensee is required to fully cooperate and submit a written response to a complaint, typically within 45 days of receipt.
In drafting a response to an inquiry, it is important for you to include all information and documentation necessary to fairly and fully respond to the allegations. However, it is equally important for you to include only the pertinent information and documentation. We help our clients make these judgments and determinations from an objective standpoint and with knowledge of and experience with the process in defending matters before the Medical Board.
Non-public Interview
The Medical Board may also ask a physician or other licensee to attend a non-public interview with members of the Board and staff to discuss a pending complaint or investigation. A licensee may retain and be represented by an attorney during the interview. Statements made or information provided by a licensee during this interview may be used against the licensee in any subsequent formal hearing.
As a result of the interview, the Board may: (1) dismiss the matter; (2) ask the licensee to take certain actions, (3) offer the licensee the opportunity to enter into a consent order or other public agreement; (4) institute a formal public hearing concerning the licensee; or (5) take other action.
The Pre-charge Conference
If the matter is dismissed or a settlement is not reached, the Board will initiate formal public proceedings. Prior to doing so, however, the Board will inform the licensee of the right to request a pre-charge conference. Upon receipt of a request for a pre-charge conference, the coordinator will schedule the conference to occur within 45 days and serve notice of the date and time of the conference on the licensee or on counsel for the licensee.
The pre-charge conference will typically be conducted by telephone conference. During the conference, the Board will provide information to the licensee regarding the possibility of settlement of the pending matter. We help our clients evaluate and determine whether they should accept a proposed settlement, including whether to negotiate the terms. The Board generally has more flexibility regarding disciplinary actions in negotiating and entering into settlements than it does after formal hearings. This flexibility is one reason we attempt to reach a consent order and avoid a formal hearing, whenever possible and in our client’s best interests.
Formal Disciplinary Proceedings
If a settlement cannot be reached, the Board will issue a Notice of Charges and Allegations and the case will be scheduled for a formal public hearing. The Board will hold a public hearing no less than 30 days from the date of the service of notice on the licensee. The licensee may personally or through counsel appear and cross examine witnesses, present evidence in defense, assert objections and make arguments. The North Carolina Rules of Evidence generally apply to contested disciplinary hearings. Many physicians or other licensees decide to retain a firm or attorney to represent them at the formal stage, if they have not done so already.
A pre-hearing conference will usually be held not less than seven days before the hearing date. The purpose of the conference is to simplify the issues, obtain stipulations, consider the proposed witnesses for each party, identify and exchange documentary evidence intended to be introduced at the hearing, and consider such other matters that may be necessary or advisable for the efficient and expeditious conduct of the hearing. All agreements, stipulations, amendments, or other matters resulting from the pre-hearing conference must be in writing, signed by the presiding officer, the licensee or the licensee’s counsel and Board counsel, and introduced into the record at the beginning of the disciplinary hearing.
Disciplinary hearings generally are conducted before a majority of Board members and are held at the Board’s office. Hearings conducted by the Medical Board generally are open to the public but portions may be closed to protect the identity of patients. The Medical Board President or his or her designee will preside at the hearing. The Medical Board retains an independent legal counsel to provide advice to the presiding officer and other board members participating at the hearing. The quorum of the Medical Board will hear all evidence, make findings of fact and conclusions of law, and issue an order reflecting the decision of the majority of the quorum of the Board.
The Board may issue an Order dismissing the matter or it may determine there has been a violation and impose discipline. An Order issued by the Board may be appealed to Superior Court. Generally, it is much more difficult for a licensee to prevail once the matter reaches the court system on an appeal, even if he or she retains legal counsel at that point.
The North Carolina Physicians Health Program
The Board refers to the North Carolina Physicians Health Program [“PHP”] licensees whose health and effectiveness have been significantly impaired by alcohol, drug addiction or mental illness. PHP offers identification, intervention, and rehabilitation programs that are non-disciplinary and confidential. PHP was established to promote a coordinated and effective peer review process.
Information concerning potential impairments may be received by PHP through reports from sources other than the Board. Upon receipt of information of a potential impairment, PHP will conduct an assessment as soon as possible. Licensees with potential impairments may be required to submit to personal interviews before the PHP Medical Director or a designee. When an initial assessment reveals that further assessment, treatment or monitoring is indicated, PHP will advise the licensee and the referral source of its findings and recommendations. PHP will develop a treatment plan designed to ensure that the licensee is safe to practice.
If a licensee is referred to PHP by the Board, and if it finds that treatment or monitoring are appropriate, PHP will ask the licensee to sign a monitoring contract in order to become an active participant in the Program. If the licensee chooses not to sign a monitoring contract, PHP may refer the licensee to the Board for potential disciplinary action.
If a licensee is self-referred and if PHP finds that treatment or monitoring are appropriate, the Program will ask the licensee to sign a monitoring contract in order to become a participant in the Program. Participants generally are required to submit urine or other specimens if requested by the Program. Participants may be required to submit to periodic personal interviews with the Medical Director or a designee. Treatment providers are required to submit reports regarding a licensee’s rehabilitation and performance to PHP. PHP also may require and monitor any post-treatment support. Post-treatment support may include family counseling, advocacy, after care support groups, self-help groups and other services and programs deemed appropriate to improve recoveries.
Licensure Applications and Hearings
Our firm also represents and assists applicants in licensure hearings before the Medical Board. An applicant denied a license has a right to a formal hearing before the Board upon request filed within 10 days after receipt of the Board’s denial decision, stating the reasons for such request. The Board will notify the applicant of the time and place of a public hearing. The burden of satisfying the Board of his or her qualifications for licensure is on the applicant. Following the hearing, the Board will determine whether the applicant is entitled to be licensed.
Impact of Decision of Whether to Retain an Experienced Law Firm
If you have received a letter from the Medical Board or have a pending formal hearing, you should consider retaining a firm like ours that has experience representing physicians and other licensees before the North Carolina Medical Board. We have a good working relationship with counsel for the Medical Board and often can negotiate an acceptable resolution without the need for a formal hearing, if the complaint is not dismissed. Disciplinary action could have a significant and permanent impact on your reputation and license, which also can substantially affect you financially and personally. Representation at the informal stage is significantly less expensive than in a formal evidentiary hearing. The investment in protecting your reputation, license and livelihood generally is more cost-effective in the early stages and it is our firm’s best opportunity to assist you in obtaining a favorable or acceptable outcome.