By: Attorney Peyton Engel
Professional Discipline: A Bigger Picture
The Wisconsin Medical Examining Board imposed 100 disciplinary orders in 2014. Many who have never been subject to professional discipline assume that in any given case, the reprimand, limitation, suspension, or other order that the Board imposes is the end of the story. A physician who has had a brush with the professional discipline system would tell a different tale: the discipline itself is just one consequence among many.
Wisconsin law requires the Medical Examining Board to “investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license, certificate or limited permit granted by the board.” Each grievance is assigned to an investigator from the Department of Safety and Professional Services (the agency that administers all professional licenses in Wisconsin, except for attorney licenses). Many grievances are obviously unworthy of follow-up, and are dismissed at that stage. But assuming the grievance is not dismissed, the investigation begins.
An investigation can take many forms. Generally, the physician receives notice of the grievance, and is asked to provide information. Investigators may interview physicians in person, request documents, or require releases to obtain documents from third parties. There is no discipline at this point, and the grievance may still be dismissed (either with or without an administrative warning), but the collateral consequences have already begun: the physician will spend time responding to the DSPS investigator’s requests, may have had to notify his or her employer and/or hospitals of the issue, may have had to hire an attorney to assist, and must deal with the stress of an allegation of professional misconduct.
The Duty to Cooperate
Unprofessional conduct includes “violating or attempting to violate […] any provision, condition, or term of a valid rule or order of the board.” In other words, a physician must cooperate with an investigator’s requests because they are, in effect, orders of the Medical Examining Board. In addition, “knowingly engaging in fraud or misrepresentation or dishonesty” in maintaining licensure is also unprofessional conduct.
These are common-sense rules: we don’t want doctors to be obstructive or deceptive when we’re trying to figure out whether they’ve done something wrong. At the same time, these rules have teeth: even if the underlying grievance is eventually dismissed, a physician can be subject to discipline for the way he or she responds to DSPS’s inquiries. More to the point, a physician under investigation for unprofessional conduct lacks an important right that a citizen under investigation for criminal conduct has: the right to remain silent.
The Medical Examining Board can require a physician to undergo “one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.” This, too, is a more invasive power than a criminal prosecutor’s. A criminal defendant can be required to provide a biological sample, or fingerprints, or a writing sample, but this is subject to an order from the court—DSPS has no such constraint.
The fact that a physician must answer DSPS’s questions raises the possibility that those answers might be obtained by third parties. For example, a physician accused of abusing prescription drugs might also be investigated criminally. Likewise, a physician accused of inappropriate contact with a patient might also be sued civilly or prosecuted criminally. In both of these hypotheticals, the defendant physician has different duties of disclosure to the State or to the plaintiff than to DSPS. In situations like these, the mere fact of a DSPS investigation prompts some physicians to surrender their licenses rather than bear the risk that information provided to DSPS might be obtained by the opposing party in a lawsuit and lead to a guilty verdict or a substantial finding of liability. Again, note that the formal disciplinary process has not yet begun.
The Disciplinary Process
Once an investigation is complete, if the Medical Examining Board feels the results warrant the imposition of discipline, the disciplinary process begins. This happens in roughly 11% of cases, and the first step is to transfer the case to a prosecuting attorney, who takes charge.
The Opening Offer
Although there is no requirement to do so, the prosecuting attorney will typically begin by making an offer: if the physician will stipulate to the entry of a proposed disciplinary order, there will be no further proceedings. The proposed order contains three main sections:
1. Findings of fact. The “who, what, where, and when” of the matter: the story of what the DSPS investigation uncovered.
2. Conclusions of law. The rule violations that DSPS believes occurred as a result of the conduct described above.
3. Order. The sanctions to be imposed: a reprimand, a limitation of license, a requirement for monitoring, a suspension, etc.
In theory, there is no “plea bargaining” at this stage, and there is strong incentive to take the offer, because the alternative to signing the stipulation is to litigate the case—time-consuming, stressful, expensive, and not guaranteed to yield a different outcome.
Suppose the conclusions of law in a proposed order alleges five instances of unprofessional conduct, and the proposed sanction is a short suspension and a requirement for monitoring of sobriety. The physician might prevail at a hearing with respect to three of those five instances, but if the other two instances are proven, the ultimate sanction may well remain the same. Additionally, the physician will be responsible not only for his or her own legal fees in the matter, but also DSPS’s costs.
As a practical matter, there can be room for some flexibility. For example, in a case where DSPS seeks to suspend a physician’s license because of substance abuse issues and to require sobriety monitoring, if the physician has proactively begun a treatment program substantially similar what DSPS envisions, that can sometimes shorten the length of suspension or monitoring sought. It should be noted that DSPS treats substance abuse differently than it does other allegations – if the physician is compliant, and hasn’t involved others in obtaining drugs, there may be relatively light discipline in contrast to a situation where improper contact with a patient is alleged.
Rejecting the Offer
If the physician rejects the stipulation, the case proceeds to a hearing. This means spending a lot of time, energy, and money without the guarantee of accomplishing anything significant, whereas the stipulation is a sure thing. There is no hard-and-fast rule, but generally litigation of a disciplinary allegation is only worthwhile when it would be possible to prevail on all significant claims in the case, or when there is no other alternative (i.e., the proposed order is for revocation of the physician’s license).
Entry of Discipline
The entry of a disciplinary order has numerous effects. First and most obviously, the physician must comply with the order itself. The text of the order will be publicly available, and anyone who cares to look it up can see the full contents; in some cases, the press might take an interest. Notice of the sanction will be posted to the National Practitioner Data Bank (NPDB), so that potential employers and licensing agencies can be aware of the adverse action against the physician’s license. These are the immediate and direct consequences of the entry of a disciplinary order, but they are not the only ones.
Like nearly every licensing agency, Wisconsin’s Medical Examining Board requires that licensees report any professional discipline imposed by another agency. This creates two possibilities for further exposure.
The most common case is that of a physician licensed in more than one state. An adverse action in one state must be reported to the other state’s licensing agency.  The other state will generally seek to impose a sanction of its own, usually the rough equivalent of the original state’s sanction. This creates another round of administrative proceedings, another set of public records, and another NPDB report.
Some physicians may hold other credentials “pertaining to the practice of medicine and surgery,” such as a nursing license. Adverse actions against such licenses must also be reported to the Medical Examining Board. Differing licenses often have different codes of professional conduct, and as a result discipline under a non-physician license might expose a physician to discipline for conduct that would otherwise not be grounds for discipline by the Medical Examining Board.
One of the sanctions at the Medical Examining Board’s disposal is limitation of a physician’s license. Limitations can include restrictions on the manner or location of practice, or requirements of compliance with conditions (e.g., substance abuse monitoring). Limitations can have their own set of side-effects with respect to changing jobs, insurance, and ongoing management of the limitations themselves.
Credentialing and Malpractice Insurance
If a physician is employed at the time his or her license is limited, and the limitation does not materially interfere with the job requirements, there is often no problem: the physician can simply continue to work, complying with the conditions imposed, until the restriction is lifted. But if the physician is terminated or attempts to change jobs, the limitation can be a major issue. Healthcare providers who accept payment from multiple payers have stringent standards as to new hires, and it may not be possible to get hired with a limited license, regardless of the specific limitation. Malpractice insurance is likely to be expensive as well, as the applicant will probably be considered “high risk.”
Medical Board Action
Most license limitations include the possibility to petition the Board to lift some or all of the limitation. This, too, carries unexpected baggage. If a petition is denied, this will be reflected in the Medical Examining Board’s minutes, which are public. The Board will generally also make a new report to the NPDB reflecting the denial.
Professional discipline for physicians is a complex and nuanced area. It is difficult, especially during one’s first encounter with the disciplinary system, to anticipate all the potential consequences of any given aspect of the process, from responding to initial inquiries to deciding how to address objectionable wording in an NPDB report. A physician’s medical license is a crucial asset, and physicians should be wary of any threat to it. Seeking experienced guidance is one way to minimize the risk associated with any encounter with the professional disciplinary system.
 Medical Examining Board Annual Report: January 1, 2014 – December 31, 2014, http://dsps.wi.gov/Boards-Councils/Agendas/Medical-Examining-Board-Annual-Report (follow “2014” hyperlink; see p. 8 of the report) (last visited March 1, 2016).
 Wis. Stat. § 448.02(3)(a).
 In fact, roughly 60% of matters are closed at screening, and 27% after investigation. See Medical Examining Board Annual Report: January 1, 2014 – December 31, 2014, cited above, p. 6.
 Wis. Admin. Code Med. § 10.03(1)(a).
 Wis. Admin. Code Med. § 10.03(1)(b).
 Wis. Stat. § 448.02(3)(a).
 Medical Examining Board Annual Report: January 1, 2014 – December 31, 2014, cited above, p. 6.
 Wis. Admin. Code Med. § 10.03(3)(a).
 Wis. Admin. Code Med. § 10.03(3)(c).
 Medical Examining Board Minutes, http://dsps.wi.gov/Boards-Councils/Board-Pages/Medical-Examining-Board-Main-Page (follow “Minutes link) (last visited March 3, 2016).
 A successful petition will be reported as well (along with entry of an order modifying the restriction), but that isn’t a negative consequence.