Colorado Medical Board Statistics Show Trend Towards More Severe Discipline

Every year or so, the Colorado Board of Medical Examiners releases a “Board Action Summary” showing the number and types of disciplinary actions over the prior decade. The most recent summary (from June 2009*) reveals a trend towards more severe discipline for doctors and physician assistants over the past several years. The BME licenses more than 23,000 physicians and physician assistants. Statistically, the number of complaints received is relatively small (778 complaints in 2009) with about 3-6% of licensees receiving complaints in any given year. In recent years, however, although complaints have decreased, the Board has disciplined more licensees and imposed more severe sanctions.

In 2000, the Board disciplined 75 licensees on 867 complaints (8.6%). In 2009, the Board disciplined 140 licensees on 788 complaints (17.8%). Moreover, it appears that the severity of discipline has increased. In 2008 and 2009, “serious” Board actions (i.e. revocation, license surrender, and suspensions) reached their highest level of the decade and increased significantly over the previous two years. In 2008 and 2009, the Board, revocations, surrenders and suspensions accounted for 81 of the Board’s 261 actions (31%); while in 2006-07 the same actions accounted for only 11% of Board actions (23/199). This suggests one of two things: 1) physicians are committing more disciplinary offenses or 2) the Colorado Medical Board is handing out more severe discipline for the same offenses.

Regardless of the reason, those that come before the Board risk more severe discipline than in years past. Over the next few months, I’ll be discussing the different types of “unprofessional conduct” that can result in discipline (for not only doctors, but nurses and other health care providers), how to respond to Board complaints, and more importantly, how to minimize the chance of popping up on the BME’s radar, based on my experience both as an attorney representing the Colorado Medical Board and defending physicians and others against complaint.

GUEST POST: Tom McMahon on a Physician’s Right to Sue over Faulty Peer Review Process

One frustration many physicians have with their hospitals is the failure to follow peer review procedures as adopted in the medical staff bylaws. One such situation led to a lawsuit handled by Miller | Kabler senior litigator Tom McMahon against Penrose hospital. In that case, the Colorado Supreme Court ruled in 2007 that a physician may file suit for damages against a hospital arising out of a faulty peer review process as soon as that administrative proceeding is complete.

Consequently, once the physician in question completed the peer review process at Penrose, he filed a breach of contract action against the hospital for damages. Penrose immediately moved to dismiss, arguing that – despite what the Colorado Supreme Court had just said – completing the administrative proceeding wasn’t enough after all. According to Penrose, a physician must also first file a separate suit seeking judicial review of the peer review process and obtain a reversal there of the administrative result before filing a damages suit against the hospital. The trial court agreed with Penrose and dismissed the suit.

On appeal, in 2010 the Colorado Court of Appeals reversed the lower court and upheld the physician’s right to sue the hospital over a flawed peer review process as soon as the administrative proceeding is completed. Penrose then sought review by the Colorado Supreme Court in an attempt to have the trial court ruling reinstated, but that was denied, thereby preserving the two appellate court rulings.

Taken together, these appellate decisions ensure that physicians subject to peer review have recourse against hospitals that fail to play by the rules which they themselves have adopted. For more information contact Tom McMahon at tmcmahon@joneskeller.com or visit his website, www.coloradoantitrustlaw.com, or the Miller | Kabler website, www.joneskeller.com.