(DRAFT - Not approved by the Full Board)

Arizona Board of Medical Examiners
GUIDELINES FOR DISCIPLINE

Preamble

The Arizona Board of Medical Examiners (Board) has broad authority to discipline physicians pursuant to the Medical Practice Act. The Board has the discretion to apply disciplinary guidelines when appropriate and deviate from them when circumstances dictate. The Board has the responsibility to consider the breadth and depth of the complaint as well as the aggravating and mitigating circumstances associated with it. These guidelines provide a framework for consistent and uniform disciplinary action, although each case is evaluated on its merits.

In establishing guidelines for discipline:

·        The Board must fully exercise its responsibility as defined in A.R.S. 32-1403 to protect the public from unlawful, incompetent, unqualified, impaired, or unprofessional physicians by taking appropriate disciplinary or rehabilitative actions.

·        The Board must strive to be consistent in the application of remedial measures and discipline while insuring the establishment of a proper public record that trends medical errors and violations of the Medical Practice Act. This information is considered in supporting and determining the need for future disciplinary or remedial actions for similar or related infractions or acts.

The actions of the Board may be broadly defined into the following categories:

1. To mandate remedial measures and/or restrict the practice of those physicians who are unable to safely practice medicine.

2. To remove permanently from practice those physicians who cannot or refuse to be remediated, and/or those who demonstrate a repetitive pattern of errors that endanger the public and/or those who engage in egregious violations of the Medical Practice Act.

3. To take appropriate remedial or disciplinary action against those physicians who appear to have made an isolated technical or judgment error.

4. To take appropriate disciplinary or non-disciplinary measures against those physicians who violate statutes not involving quality of care.

5. To remediate or remove from practice those physicians who lack the moral and ethical standards appropriate for the practice of medicine.

DEFINITIONS

Board Actions

Advisory Letter: a non-disciplinary Board action consisting of a notification to the licensee and the public that due to evidence being insufficient to support disciplinary action, the error being a minor technical violation, or the physician having demonstrated substantial compliance through remediation or rehabilitation, a given complaint does not rise to the level of discipline.  An advisory letter indicates that the Board believes that the physician should modify or eliminate certain practices and that continuation of the activities may result in discipline.

Probation: a disciplinary action of the Board which is designed to assist the licensee in remediating violations of the medical practice act, and/or provide the Board and the public with a mechanism for monitoring the physician's continuing practice to assure that the issues of concern are complied with and are not repetitive.  Probation also provides a mechanism for monitoring the safety of a physician's practice and behavior when there have been issues of psychiatric or physical impairment or behavioral issues that affect patient care. In addition to a standard Probationary order, there are three other categories of Probation:

• Probation in combination with additional continuing medical education or other rehabilitation measures

• Probation in combination with another disciplinary action

• Probation with a Practice Restriction

Letter of Reprimand: a disciplinary action of the Board issued for violations of the standard of care or the Medical Practice Act; this includes violations of a technical nature and isolated violations. A Letter of Reprimand may or may not involve patient harm and generally does not involve issues of serious moral or ethical lapses in conduct or repetitive issues.

Decree of Censure: a disciplinary action of the Board issued for serious or repetitive deviations from the standard of care or the Medical Practice Act, and/or unprofessional conduct on the part of the licensee that has the potential for serious harm to a patient or to the public. A Decree of Censure may also be issued when there have been serious moral and ethical lapses in conduct.

Cease and Desist: a disciplinary action of the Board that immediately suspends an aspect of a physician’s practice while awaiting permanent disposition of the case. This provision allows the Board to further evaluate the physician’s practice before taking a final action.

Suspension: a disciplinary action of the Board that prohibits the physician from practicing for a defined period of time.  It is issued when the physician has not remediated prior unprofessional conduct or when a specific act is particularly egregious. It is also used when a licensee commits an act of medical fraud and/or other means of monetary benefit derived from the unprofessional conduct. Suspension is also used when there is serious quality of care or behavioral issues which require remediation prior to the resumption of active practice.

Inactive With Cause: A disciplinary action requested by a physician who is impaired by drug or alcohol abuse and who was under a Board Stipulation or Probationary Order that is no longer in effect. The Board may reactivate a physician’s license that is inactive with cause upon successful completion of a diversion program.

Surrender: a disciplinary action entered into voluntarily by a physician and voted upon by the Board that immediately removes a physician from practice.  A Consent Agreement for Surrender is used when the Board believes the physician violated the Medical Practice Act or is incompetent, negligent and/or grossly negligent. A physician may also voluntarily surrender if unable to practice because of a physical or mental impairment.

Summary Suspension: a disciplinary action of the Board that immediately removes the physician from practice. This is used when there is evidence of an imminent danger to the public health and safety if the physician is allowed to continue practicing during the normal complaint resolution or formal hearing process.

Revocation: a disciplinary action of the Board that removes the physician from practice. The Board revokes a physician’s license in cases where there is a violation of the Medical Practice Act involving severe moral turpitude or ethical misconduct, or the physician is unable to safely practice medicine and that other remedial actions have either failed or are unlikely to be successful. The Board also revokes a license in instances of gross or repetitive incompetence and/or gross or repetitive negligence.

Other Definitions

Disciplinary Action: A formal action taken by the Board against a physician when there is evidence that the physician violated the Medical Practice Act.

Non-disciplinary Action: A warning (Advisory Letter [formerly a Letter of Concern]) that informs the physician that although there is insufficient evidence to discipline, repeated offenses may result in disciplinary action against his/her license.

Standard of Care: The care and treatment of patients that demonstrates a level of skill, judgment, knowledge, and documentation ordinarily performed by a physician with similar background, training, and experience in a similar practice setting.  Standard of care does not require perfection.

Moral turpitude: Conduct on the part of the physician that is contrary to justice, honesty, modesty or good morals. Moral Turpitude is described as "an act of depravity and baseness".  It usually connotes a fraudulent or dishonest intent.[1]

Negligence: A breach of duty through inadvertence or incompetence. It is the failure to follow what an ordinary physician would do under the circumstances.

Gross Negligence: Willfully acting or failing to act in a manner that not only creates unreasonable risk of bodily harm to others, but also involves a high degree of probability that substantial harm will result. It is an extreme departure from the standard of care.

Incompetence: Lacking sufficient knowledge or skills, or both, to a degree likely to endanger the health of patients. It is also the inability to perform physically or mentally.

Remediation: A program or probationary term set by the Board that provides for physician retraining in current standards of care in the practice of medicine. There is no limit as to how long the Board may order remediation, but typically, the period reflects the level of retraining necessary in order to protect the public’s health and safety.

Consent Agreement: A written agreement negotiated between the physician and the Board which closes an open investigation by imposing discipline on the licensee prior to or following a formal interview or formal hearing by the Board. Typically a consent agreement will contain language which waives the physician’s right of appeal.

Preponderance of Evidence: Evidence that is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.[2]

Aggravation/aggravating circumstances: Any considerations, or factors that may justify an increase in the degree of discipline to be imposed. Aggravating factors include, but are not limited to:

a)     Prior disciplinary offenses
b)     Dishonest or selfish motive
c)     Pattern of misconduct; multiple offenses
d)     Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the Board
e)     Submission of false evidence, false statements or other deceptive practices during the investigative or disciplinary process
f)       Refusal to acknowledge wrongful nature of conduct;
g)     Vulnerability of the victim
h)     Indifference to making restitution[3]

Mitigation/mitigating circumstances: Any considerations or factors that may justify a reduction in the degree of discipline to be imposed. Mitigating factors include but are not limited to:

a)     Absence of prior disciplinary record
b)     Absence of dishonest or selfish motive
c)     Timely good faith effort to make restitution or to rectify consequences of misconduct
d)     Interim rehabilitation
e)     Remorse
f)       Remoteness of prior offenses[4]

Toll/Tolled: To suspend or stop temporarily.[5]

COMPLAINT CATEGORIES

Complaints to the Board fall roughly into the following categories:

1. Moral and ethical, including prescribing and dispensing

2. Technical/Legal (Non-clinical)

3. Standard of Care
1. Technical Errors (Clinical)
2. System and Documentation Errors
3. Cognitive Errors

4. Behavioral and Health
1. Substance Abuse/Chemical Dependency
2. Psychiatric Impairment/ Behavioral Disorders
3. Physical and Mental Impairment

MORAL AND ETHICAL

If the complaint investigation sustains that a moral or ethical violation, as defined in A.R.S. §32-1401, has occurred, the Board will consider the egregiousness of the offense and whether or not it is likely to reoccur.  The following are examples of moral and ethical violations not involving prescribing and dispensing violations. They include, but are not limited to:

a.     Sexual misconduct with a patient
b.     Commission of a felony, or of a misdemeanor involving moral turpitude
c.     Fraudulent billing
d.     False or fraudulent statement in connection with the practice of medicine
e.     False or fraudulent statement to the Board or in a credentialing application or during the course of an investigation.

·        A one-time offense unlikely to reoccur will result in discipline, either a Letter of Reprimand or Decree of Censure, and may include Probation. 

·        Repetitive or non-remediable offenses will result in Suspension, Revocation, or voluntary Surrender of License.

Prescribing and Dispensing violations generally fall under moral and ethical complaints. A physician who violates prescribing, dispensing, or other statutes to procure substances for abuse will be subject to discipline.

·        A one-time offense will result in a Letter of Reprimand or Decree of Censure, the latter penalty for serious violations and may include Probation.

·        Repetitive or egregious offenses will result in Decree of Censure with Probation, Suspension or Revocation.

Related Statutes:

TECHNICAL/LEGAL

This category refers to violations of law that are not quality of care issues and includes failure to transfer records in a timely fashion, failure to notify the Board of an address change, false advertising, violations of statutes regarding fees and violations of Board orders. (At some future date the Board may want to consider a cite and fine provision in statute for handling minor violations of these issues.)

• A one-time occurrence of a minor nature that does not depart from the standard of care may be issued an Advisory Letter.
  
  
• Repetitive or non-remediable offenses will result in a minimum of a Letter of Reprimand.

Violations of Board orders will be adjudicated depending on severity.

• A one-time offense will result in a minimum penalty of a Letter of Reprimand.
  
  
• Repetitive or egregious offenses may result in a Decree of Censure with Probation, Suspension, Summary Suspension, and/ or Revocation if appropriate.

Related Statutes:

STANDARD OF CARE

This category encompasses the bulk of the Board's complaint issues.  It can be roughly divided into technical errors, system and documentation errors, and cognitive/performance errors. When evaluating a physician’s competency, the Board has the option to seek advice from any of the following assessment tools before determining whether disciplinary action is appropriate:

• Special Purpose Examination (SPEX): SPEX is a computer-administered examination with approximately 420 multiple-choice questions that assess knowledge required of all physicians, regardless of specialty. It is used by the Board to determine basic competency issues.

• Post-Licensure Assessment System (PLAS): PLAS is a comprehensive system used to profile a physician’s clinical performance and competency. The PLAS system utilizes computer based multiple-choice questions, computer based patient simulations, standardized patients, structured oral examinations, chart simulated recall interviews and other established methods of evaluation.

• Physician Assessment and Clinical Education Program (PACE): PACE is a two-day program which assesses mental health; neuropsychological performance; basic clinical and communication skills common to all physicians; and medical knowledge, skill and judgment pertaining to the specialty or subspecialty of the individual physician.

Technical Errors

Technical clinical errors are involved in the performance of procedures or surgery. When a Board complaint involves a technical error, the Board will consider, but is not limited to, the following factors when deciding if Board action is appropriate:

·       Was the procedure otherwise performed within the Standard of Care?

·       Is the complication one that is documented to occur when otherwise competently performed?

·       Was the complication recognized in a timely fashion and treated appropriately?

·       Was proper informed consent obtained from the patient prior to the procedure or surgery?

·        A one-time technical error that affirms the above questions will be adjudicated with an Advisory Letter to trend the specific error.

·        Repetitive or egregious technical errors will result in discipline ranging from a Letter of Reprimand to Suspension or Revocation, depending on severity, frequency, the potential for remediation and other aggravating circumstances. The Board may also consider a Cease and Desist provision that would suspend the area of a physician’s practice that is in question while awaiting final disposition.

System and Documentation Errors

Examples of system and documentation errors involve issues of record keeping, follow-up of lab and X-ray reports, and the institution of procedures that insure that patients are appropriately triaged for timely appointments and treatment.

A.R.S. §32-1403.3 gives the Board the responsibility of "developing and recommending standards governing the profession.”  No physician keeps perfect records. Yet the Board frequently sees charts where the documentation is clearly inadequate to define and evaluate the patient's complaint.  Sparse history of present illness and absent or extremely abbreviated physical exams are grounds for Board action.

• A one-time occurrence that is isolated and is not egregious does not typically rise to discipline and may warrant an Advisory Letter for poor record keeping. This trends the action so that if repeat complaints of a similar nature occur, further action can be taken.

• Repetitive or egregious offenses will result in a Letter of Reprimand or Decree of Censure, depending on their severity and other aggravating circumstances. Repetitive or egregious offenses may also include a term of Probation for remediation measures and future office surveys. If, after remediation measures, the physician continues to depart from the standard of care, the offense may result in Suspension or Revocation or Surrender of License.

Failures to follow-up appropriately on lab, x-ray or consultation reports because of system errors in the practice setting will be adjudicated depending on their severity.

• A one-time occurrence that is isolated and is not egregious does not typically rise to discipline and may warrant an Advisory Letter to trend the complaint. 

• Repetitive or egregious offenses will result in Probation with remediation measures and may also result in a Letter of Reprimand or a Decree of Censure.  In considering errors in this category the Board may consider mitigating factors of how much control the doctor has of the processes in the specific practice setting and what measures the doctor has taken to address these matters.

Medical errors that result from failure to provide timely follow-up to patients that are the result of office procedural problems may be treated similarly to the above.

Cognitive Errors

This is a very broad category and involves those issues that concern judgment, medical decision-making, the physician's fund of knowledge, and how these are applied to individual patients.  Almost all complaints involve some element of medical decision-making and the quality of the physician's judgment.

The major elements that the Board may consider in dealing with cognitive errors are whether the incident is isolated or repetitive, and the degree to which it departs from the standard of care.  The Board may also consider whether there are issues of overall competence involved and whether or not these are likely to be remediable.

• A one-time occurrence may result in Probation with a provision for remedial training or an Advisory Letter if the physician appears to be otherwise careful and competent and there are no aggravating factors.

• Repetitive or egregious offenses will result in Probation with a Letter of Reprimand or a Decree of Censure. Offenses that are not or are unlikely to be remediated will result in Suspension or Revocation. Offenses that pose an immediate danger to the public are grounds for Summary Suspension.

Related Statutes:

BEHAVIORAL AND HEALTH

Behavioral and health problems are comprised of three main categories: substance abuse/chemical dependency, psychiatric impairment, and physical and/or mental impairment.

Substance Abuse/Chemical Dependency

• A physician who relapses after successfully completing a voluntary confidential diversion program may be placed on Inactive Status with Cause. Before the license is reactivated, the physician must successfully complete long-term inpatient treatment for substance abuse. If the physician successfully completes inpatient treatment, then the physician can request reactivation of license. The request for reactivation shall go to the Board and the Board may place the physician on an Order of Probation that is structured so that a third offense shall result in Revocation or Surrender of License.
  
  
• If a physician relapses while currently being monitored in a voluntary program, the physician may be offered a Consent Agreement to not practice medicine until successful completion of long-term treatment and receives the Board’s approval to return to the practice. The Board may then place the physician on an Order of Probation which is structured so that a third offense shall result in Revocation or Surrender of License and so that the physician cannot reapply for licensure for a minimum of 5 years. If a physician refuses to consent to not practice, the Board may immediately Suspend the physician.

• If a physician is reported to the Board as a result of a third party complaint for illegal activities related to chemical dependency: After opening an investigation the physician may be ordered to undergo further evaluation. Upon successful completion of the investigation, the physician may be placed on Probation or voluntarily enter the Board’s diversion program if there is no finding of illegal activities.

A physician who departs from the standard of care because of chemical dependency or abuse is subject to discipline. 

• A one-time offense may be resolved with Probation. A violation with a significant departure from the standard of care will result in a minimum of a Letter of Reprimand and Probation. 

• Repetitive or egregious offenses will result in a minimum of Decree of Censure and Probation.  Suspension or revocation may be appropriate in some cases.

Psychiatric Impairment/Behavioral Disorders

Some Board complaints involve the behavioral and/or psychiatric impairment of physicians. A complaint of alleged psychiatric impairment requires psychiatric, psychometric, and/or physical exam. Board action may be appropriate if the evaluation determines there is a psychiatric impairment.

• Psychiatric impairment may require Probation if it is treatable and remediable.
  
  
• Psychiatric impairment that is unlikely to be remediated may result in Suspension, Revocation or voluntary Surrender of License.

Some physicians demonstrate behavioral problems which may not be psychiatric impairments but may require Probation and remediation, for example: a Probation mandating anger management therapy, or restriction of work hours.

Physical and/or Mental Impairment

Allegation of physical and/or mental impairment may require physical or psychometric evaluations. Board action may be appropriate if the evaluation determines there is impairment. If, after determining the extent of a physician’s physical or mental impairment, the Board decides that the physician is a threat to public health and safety, it may take action to restrict or remove a physician from practice.

• Physical and/or mental impairment may result in Probation if it is treatable and remediable.

• Physical and/or mental impairment that is unlikely to be remediated will result in Probation with License Restriction, Suspension, Revocation or voluntary Surrender of License.

Related Statute:

STATUTORY REFERENCE TO DISCIPLINARY GUIDELINES

[5] Black’s Law Dictionary with Pronunciations, Abridged Fifth Edition, 1983.

Your input regarding these Proposed Guidelines for Discipline is encouraged.

Click Here to Submit Comments via Email