Protecting Patients from Egregious Wrongdoing by Physicians: Consensus Recommendations from State Medical Board Members and Staff

A primary objective of state medical boards (SMBs) is to protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice.¹  Yet, SMBs vary considerably in the regulation of physicians and the rate of severe disciplinary actions against physicians, such as revoking a medical license.^2–4  This project focused on egregious wrongdoing, which is defined as the type of charge that, if found to be true, would merit suspension or revocation of a physician’s medical license (e.g., sexual abuse of patients, unnecessary invasive procedures, or improper prescribing of controlled substances).⁵  About 0.1% of physicians each year are subject to disciplinary action that involves medical license suspension, surrender or revocation.^1,3,6  This rate is similar to annual occurrences of new breast cancer diagnoses.⁷  However, this is an underestimation of actual occurrences of egregious wrongdoing in medicine. It is rare for egregious wrongdoing by physicians to be reported to SMBs.^8–11  When SMBs do receive reports about egregious physician wrongdoing, they seldom take severe disciplinary action.^2,3 

There is also wide variability in the severity of disciplinary actions, which might include an increase in oversight, mandated education, restrictions on practice, publishing disciplinary letters while allowing the physician to continue practicing, license revocation and fines.^3,12–16  In particular, there is a 7.89-fold variation across SMBs in rates of severe disciplinary actions taken against physicians.⁴  For example, in cases when a physician is found guilty of sexual abuse, many boards would revoke the physician’s license, whereas other boards would not remove the physician from practice and, instead, enforce less severe punishments (e.g., boundary or ethics classes, mandated chaperones, limit clinical privileges) or permit the physician to resign, enabling them to obtain a license in another state.¹⁷ 

Little data exist on the barriers to taking timely action against a physician’s license when this is warranted. However, a few reports suggest that variability across SMBs may be due to concerns about over-scrutinization of physicians by SMBs, limitations imposed by state legislation, scarcity of resources available to SMBs, reluctance to strip licenses of physicians working in underserved areas, lack of disciplinary guidelines and ambiguity as to what constitutes an egregious violation that warrants severe disciplinary action.^18–20  State laws afford different requirements for board composition and levels of authority and autonomy to SMBs, including how boards investigate and discipline physicians. Practical and actionable solutions are needed by SMBs to more effectively protect patients from harmful physicians.

Variability in SMB practices is problematic for myriad reasons. In certain cases, egregious wrongdoing by physicians persists because SMBs did not take swift action against offending physicians, failed to remove offending physicians from practice, or did not publicly report disciplinary actions taken, enabling offending physicians to relocate to different states and continue practicing medicine.^21,22  Studies examining cases of egregious wrongdoing by physicians have found that physicians who engaged in egregious wrongdoing frequently were allowed to continue practicing medicine and continued committing egregious offenses even after being referred to SMBs.^11,21,23  This behavior causes serious harm to patients and undermines public trust in the health care system and health care providers.^24,25  As a result, patients may be reluctant to seek care from physicians or adhere to care plans prescribed by physicians.²⁶ 

Past reviews of SMB performance have identified several features of SMBs that are associated with higher rates of severe disciplinary actions taken by boards, including independence from regional government and state medical societies and adequate SMB budget and staffing.³  However, these past studies do not control for key variables that might affect rates of severe disciplinary actions, including rates of egregious wrongdoing and rates of reporting.

It is unclear what measures would make SMBs more effective at promptly removing from practice physicians who commit egregious wrongdoing. In light of this uncertainty and the variation in discipline across SMBs, we sought to identify cutting-edge and particularly effective practices, resources and statutory provisions that SMBs can use to more uniformly: 1) encourage and enable reporting of physicians who engage in egregious wrongdoing, 2) investigate physicians who have been accused of egregious wrongdoing, 3) discipline physicians determined to have engaged in egregious wrongdoing, and 4) deter physicians from engaging in egregious wrongdoing, protect and empower patients and increase transparency. This list of recommendations can be used to update Federation of State Medical Boards (FSMB) guidelines and by SMBs as a guide for updating and adopting practices to better protect patients. Prior research involving case studies of six SMBs has identified how boards operate and strategies for improving board disciplinary practices.²⁷  The present project is the first to foster a consensus on a wider range of board practices, resources, and provisions, directly involving SMB members and staff from more than 50% of SMBs in the United States and its territories.

Researchers at Washington University School of Medicine (WU) and Saint Louis University School of Law conducted a modified Delphi consensus panel using Zoom meetings and online surveys administered via Qualtrics, an online survey software system. Delphi panels are intended to establish expert consensus on a topic, such as prioritizing policies, and enabling the sharing of anonymous perspectives from individuals without undue influence from other panelists.^28,29  During a Delphi panel, multiple rounds of questionnaires are administered to panelists with the purpose of identifying recommendations that are agreed upon by the majority of panelists.³⁰ 

The WU Human Research Protection Office determined that the project did not constitute human subjects research because its purpose was to foster a consensus among experts, not to produce generalizable knowledge. Panelists volunteered to participate and were paid up to $1,200 as an honorarium for their participation, depending on the number of Delphi panel rounds they completed. Several declined payment.

Panelists were recruited between November 2019 and February 2020. We solicited panelist recommendations from our project advisory board, which included the Past Chair of the FSMB, leading health lawyers, leaders of physician remediation training programs, leaders in health care ethics, a patient advocate and member of the Patient Safety Action Network, and members of SMBs. We asked our advisory board to recommend SMB members who had at least two years of experience serving on a SMB, had a robust knowledge base about SMB practices, exhibited good critical thinking and communication skills, would be strongly committed to the project and were willing to consider the perspectives of other panelists. It was important that relevant stakeholders and end-users were engaged throughout this process to maximize buy-in and increase the likelihood of recommendation uptake by SMBs and their members.³¹ 

We received more than 70 nominations of possible panelists. A total of 40 individuals from approximately 50% of the 71 SMBs that serve the United States and its territories were selected to participate in the panel. One of the 40 panelists opted out of participating, leaving a total of 39 panelists. Of the 39 panelists, 14 were executive members, four were legal counsel to SMBs, 14 were physician members and seven were public members. The names and short bio-sketches of panelists are included in  Appendix A.

Prior to administering the first-round survey, we held an orientation webinar via videoconference with all panelists to share background information, data and stories to illustrate the significance of the project and cultivate informed engagement. We shared the prompts that would be presented in all four Delphi rounds to ensure that panelists understood what was being asked of them and so that panelists could begin critically thinking about their responses to the prompts. Allowing panelists to plan their responses in advance enabled them to consult with their SMBs as needed to provide accurate and robust responses to the Delphi surveys. Figure 1 depicts an overview of the four Delphi rounds.

Round 1: Panelist responses were solicited in Round 1 using an open-ended prompt. The prompt asked panelists to describe any cutting-edge or particularly effective practices, resources or provisions that: 1) their SMB currently has, or 2) their SMB currently lacks but urgently needs to protect the public from egregious wrongdoing by physicians. We received 499 recommendations from panelists.

Two members of the project team read through the recommendations and sorted the recommendations into 11 clusters representing different SMB features and processes: 1) board composition and characteristics, 2) board funding, 3) board duty, power, and responsibility, 4) prevention strategies and education, 5) standards and definitions, 6) partnering with allies and other stakeholders, 7) tools and technology, 8) reporting to the board, 9) investigation, 10) suspensions, and 11) rehabilitation and disciplinary approaches. Redundant or similar recommendations within each cluster were consolidated and reworded slightly for readability, anonymity and generalizability of language. Round 1 yielded a total of 63 unique recommendations that proceeded to Round 2 after multiple rounds of review and edits by all authors.

Round 2: Panelists were presented with the 63 recommendations from Round 1. They were asked to indicate whether their SMB currently has the practice, resource or provision. Panelists were also asked to rate, on a scale of one (not at all important) to nine (extremely important), how important each individual practice, resource or provision is or would be to SMB efforts to protect patients from egregious wrongdoing by physicians. Low importance recommendations were rated as a 1, 2 or 3. Moderate importance recommendations were rated as a 4, 5 or 6. High importance recommendations were rated as a 7, 8 or 9.

Following the convention set by the Rand Corporation, recommendations were considered to have reached consensus if ≥75% of panelists rated the recommendation as a 7, 8 or 9 on the 9-point scale.³²  A total of 49 recommendations reached consensus during this second round. The remaining 14 recommendations that did not reach consensus moved to Round 3. Additionally, 20 recommendations that were rated by panelists as important but had low board-adoption (<60% of panelists reporting adoption), as reported by panelists, moved to Round 3. These high-importance, low-adoption recommendations were expected to be recommendations with the greatest opportunity for policy and practice changes in SMBs.

Round 3: For the 14 recommendations from Round 2 that did not reach consensus, panelists were presented with the percentage of panelists who rated each recommendation as being of low, moderate or high importance. After reviewing these percentages, panelists were asked to rate the recommendations’ importance a second time and were then asked to provide an open-ended rationale for each of their ratings. Panelists were then presented with the 20 high-importance, low-adoption recommendations from Round 2. They were asked to indicate again whether their SMB currently has each policy, practice or provision and were asked to provide an open-ended description of the barriers their board needed to overcome or would need to overcome to implement the policy, practice or provision. Given the large scope of this project and its extensive results, we report on our barrier findings in a separate paper.

Of the 14 no-consensus recommendations presented in Round 3, one recommendation reached consensus as being of high importance. Four recommendations failed to achieve even weak consensus (>50%) and therefore did not advance to Round 4. The research team discarded one other recommendation because it was determined to be beyond the scope of the project. This recommendation read, “Board reports impaired physicians to the National Practitioners Data Bank (NPDB).”

Round 4: Only the eight recommendations from Round 3 that already had a weak consensus (>50% but less than 75% agreement) advanced to Round 4. Panelists were presented with the percentage of panelists who rated each recommendation as being of low, medium or high importance, along with example rationales for low, medium and high ratings provided by panelists in Round 3. Table 1 presents a sample recommendation with the rationales presented to panelists. Participants were asked to read the rationales provided by their peers, reconsider their position, and provide a final rating of importance.

One recommendation from Round 4 reached strong consensus (>75% agreement), four reached a moderate consensus (between 60% and 75%) and three recommendations failed to reach consensus.

A total of 56 cutting-edge or particularly effective recommendations reached moderate or strong consensus. Consensus recommendations were sorted into five clusters of topics by the research team, as shown in Tables 2 through 7. The research team met to classify the recommendations and collectively agreed upon the classifications in consultation with the project advisory board. Table 2 presents a rank-ordered list of nine recommendations about board composition and characteristics.

Example recommendations include, “Board is required to be racially diverse,” and, “Sexual misconduct cases are investigated by specialized gender-diverse teams.”

Table 3 presents a rank-ordered list of seven recommendations about board website, outreach, and education. Example recommendations include, “Board website includes information about state laws and board policy on sexual misconduct,” and “Board markets its purpose via social media, professional organizations, and liaising with hospitals and other relevant groups.”

Table 4 presents a rank-ordered list of 11 recommendations about internal board operations and investigations. Example recommendations include, “Board requires all physicians to complete a criminal background check at the time of their application,” and “Board has a screening committee that triages incoming complaints.”

Table 5 presents a rank-ordered list of 15 recommendations about improved coordination and information-sharing between stakeholders. Example recommendations include, “Board requires medical schools and post-graduate training programs to report egregious wrongdoing as a condition to licensure eligibility,” and “Board informs law enforcement that they can report accusations against a physician to the board even if criminal charges are not filed.”

Table 6 presents a rank-ordered list of 14 recommendations about licensing and disciplinary considerations. Example recommendations include, “Certain criminal acts by physicians (e.g., sexual misconduct) are raised to the felony level, subjecting them to mandatory reporting,” and “Board imposes penalties on physicians for not reporting peers who engage in egregious wrongdoing.”

Table 7 presents a rank-ordered list of the seven recommendations with weak consensus.

The recommendations in these tables of recommendations point to a mix of practices, resources and legal provisions. All tables with recommendations indicate what percentage of panelists rated that recommendation as being of high importance, the Delphi round when consensus was obtained and the percentage of panelists who reported that their SMB already has the recommendation in practice.

The Delphi panel achieved a consensus on 56 recommendations for SMBs as they address the problem of egregious wrongdoing by physicians. Some of these recommendations will require, or would benefit from, legislative action. SMBs could adopt others without legislative action. Each SMB has its own constraints, including budgets, staffing, limitations imposed by state laws and norms and unique barriers that need to be overcome to implement some of these recommendations.

Policies that address the composition of boards, including gender diversity, racial diversity, and role diversity (e.g., the number of public versus physician and legal board members) promote fairness, impartiality and a well-functioning board. Some data indicate that diverse corporate boards perform better and make higher-quality decisions than boards that lack diversity.³³  Having board members of different races, genders and backgrounds may protect against biases and prejudices; it may also help diverse patients and advocates to feel more comfortable reporting to boards.

Gender diversity may be of particular concern when investigating cases of alleged sexual misconduct, as women and children are disproportionately assaulted by physicians.²⁵  The racial and ethnic composition of the population of some states lends itself to diversity, yet it may be difficult in states where the population is less diverse to recruit people of color to serve on SMBs. The composition of the board in terms of license types represented (e.g., MD or DO), geographic distribution and public members is established by law in some states. Frequently the SMB does not evaluate candidates, as board members are appointed by the governor or state agencies, such as the Department of Health. However, the board can often make recommendations to decision makers. States that have made little progress in this area should assess the composition of their boards, examine the demographics of the populations they serve, and strategize to create racial, gender and role concordance in their board. Boards that have already diversified the composition of their boards in some ways should consider expanding their efforts by increasing diversity in other areas.

Nearly seven in 10 Americans do not know that SMBs are the best resource to contact regarding a complaint against a physician’s competence or conduct.³⁴  Policies that address the lack of awareness that communities have about the SMBs’ purpose through increased education and outreach may help curb egregious wrongdoing through multiple mechanisms. SMBs can use social media and their websites to share messages about their function; they can engage with the public, law enforcement, physicians and physicians’ employers; and they can advocate reporting of egregious wrongdoing. SMBs could find success in leveraging online platforms to engage stakeholder groups that may otherwise be difficult to reach. By increasing the public’s awareness of the SMBs’ function, patients will have a better understanding of what constitutes egregious wrongdoing and how to report it. Employers and patients should be able to easily find information about physicians and learn if they have been disciplined for prior egregious wrongdoing.

Some patients may not understand standards of care (e.g., when a pelvic exam is indicated or that pelvic exams should be performed while gloved). Boards should provide patients with access to educational materials that address these matters. Examples of such resources can be found at https://brcinitiatives.org/resources/.³⁵ 

It is important for boards to have the ability to freely gather all relevant information needed for investigations. This includes the ability to open investigations if there is a credible reason to do so, make reporting less burdensome on victims (e.g., allow anonymous or confidential reporting), and access the resources and personnel needed to investigate complaints and act quickly to stop egregious wrongdoing. Many barriers stand in the way to implementing policies that would allow boards this autonomy, including a lack of funding and staff. A lack of trained personnel and investigative staff hinders boards’ ability to perform quick and thorough investigations. Most state legislatures set SMB budgets, and state leadership appoints board members. SMBs should work closely with decision makers to advocate for policies that would allow them unfettered access to experts who can be consulted during investigations, an adequate number of administrative staff and information that would help them expeditiously investigate allegations.

Patient safety depends on the ability of stakeholders to collect and share pertinent information. Information-sharing requires collaboration between law enforcement, policy makers, physician employers, health insurance companies and all SMBs. Effective communications strike a balance between sharing information with stakeholders that could benefit from having it while considering the privacy of victims and the physician at issue. One of the challenges with information-sharing is that it is not always possible to know in advance who will need the information. At the same time, providing unlimited access to the most sensitive information is not a viable option. Stakeholders should work together to minimize the risks of sharing sensitive information, rather than avoiding sharing it altogether. At a minimum, when egregious wrongdoing is proven and a physician’s license is revoked, that information should be shared with all of the SMBs where the physician is licensed in order to prevent the physician from perpetrating similar wrongdoing in other states.

The public is safer when SMBs act quickly to stop egregious wrongdoing and are given access to strong enforcement mechanisms. SMBs should work closely with legislative decision makers to advocate for policies that would allow them to suspend licenses and recommend disciplinary actions that protect the public. Boards do not perform criminal investigations, but should work closely with law enforcement when physicians are convicted of certain criminal acts that would warrant possible revocation of a license (e.g., some sexual misconduct). When physicians repeatedly commit lesser acts of wrongdoing, boards should be able to impose stricter penalties following remedial efforts.

Taken together, these recommendations are likely to be of value to SMBs seeking to improve SMB policies and practices that better serve the needs of patients and the public. If adopted by boards and implemented consistently, these recommendations can, either directly or indirectly, help cultivate more uniform and timely disciplinary action.

This project has a few limitations. First, only half of SMBs in the United States were represented in the Delphi panel. There may be some in the community of SMBs who disagree with the recommendations and the importance attributed to these recommendations by panelists. It cannot be assumed that consensus among our panelists would be identical to the consensus among a different subset of SMB members. Moreover, the majority of SMBs represented in our Delphi panel only had one representative who participated. There may be disagreement among members within SMBs about the recommendations and their importance. It may be the case that some SMB members have a different understanding of existing board policies and procedures than other members of that same board. While most panelists had at least two years of experience serving on SMBs, differences in respondent-awareness of policies and procedures are expected. Panelists may have reported policy adoption or a lack of policy incorrectly. Similarly, there may be other viable and effective recommendations not provided in the list of recommendations because they were not generated by panelists. Finally, a consensus that a policy or resource should be adopted does not mean that it will be effective in achieving its aim. Implementing many of these recommendations will require substantial financial support. Most of the recommendations have intuitive appeal and some are supported by panelists’ experience; however, this project does not provide anything like experimental evidence in support of the recommendations.

Our research team plans to create an inventory or checklist of the Delphi panel recommendations with brief explanations that SMBs can use to assess their practices and identify areas for improvement. We also plan to develop select model statutory provisions, with explanation and commentary, which SMBs and others could use to advocate for legislative action. Beyond these products, we plan to publish manuscripts discussing panelists’ reported barriers to adopting certain recommendations, partner with FSMB leaders to update the “Guidelines for the Structure and Function of a State Medical and Osteopathic Board,”³⁶  and disseminate the recommendations from this project to SMBs and other policymakers.

Given the variability in the frequency and severity of disciplinary actions imposed by SMBs on physicians who engage in egregious wrongdoing, we sought to identify cutting-edge and particularly effective practices, resources and legal provisions that SMBs can implement to better protect patients from harmful physicians. The consensus recommendations of the Delphi expert panel can help support more uniform, transparent and effective actions by SMBs.

This project was supported by funding from the Greenwall Foundation Making a Difference Program (PI: McIntosh). The authors thank all project advisory board members and Delphi panelists for their participation in this project.

For more complete biographical information about the Delphi panelists, please visit http://dx.doi.org/10.13140/RG.2.2.11793.15207.

George M. Abraham, MD, MPH, FACP, FIDSA

Physician Member

Massachusetts Board of Registration

Susan H. Allen, DrPH, MBA

Director, Research and Education

Louisiana State Board of Medical Examiners

Andrea Antoinette Anderson, MD, FAAFP

Physician Member

DC Board of Medicine

Sharon J. Barnes, MBA

Executive Member

Texas Medical Board

Brian Blankenship, JD

Legal Counsel Member

North Carolina Medical Board

Stephen Brint Carlton, JD, MBA, MHA

Executive Member

Texas Medical Board

Susan Chambers, MD

Executive Member

Oklahoma Board of Medical Examiners

Connie Clarkston

Executive Member

Missouri State Board of Registration for the Healing Arts

Kenneth Cleveland, MD

Executive Member

Executive Director

Mississippi State Board of Medical Licensure

Edward O. Cousineau, JD

Executive Member

Nevada State Board of Medical Examiners

Ronald E. Domen, MD, FACP, FCAP

Physician Member

Pennsylvania State Board of Medicine

Joseph A. Fraioli, JD

Legal Counsel Member

Director of Legal Affairs

Iowa Board of Medicine

Maroulla S. Gleaton, MD

Physician Member

Maine Board of Licensure in Medicine

William Lee Harp, MD

Executive Member

Executive Director

Virginia Board of Medicine

Ruth Horowitz, PhD

Public Member

New York Office of Professional Medical Conduct (OPMC)

LaSharn Hughes, MBA, CMBE

Executive Member

Georgia Composite Medical Board

April Jaeger, MD

Physician Member

Washington State Medical Commission

William Reeves Johnson, Jr., MD

Physician Member

Tennessee Board of Medical Examiners

Nicole Krishnaswami, JD

Executive Member

Oregon Medical Board

Jerry G. Landau, JD

Public Member

Past President

Arizona Osteopathic Board

Anne K. Lawler, JD, RN, MA

Executive Member

Former Executive Director

Idaho State Board of Medicine

Vladimir Lozovskiy, JD, RN

Legal Counsel Member

Attorney, Illinois Department of Financial and Professional Regulation

Medical Prosecution Unit

John R. Massey, MD

Physician Member

Nebraska Board of Medicine and Surgery

Sarah Hardy McClain, BS

Public Member

Vermont Board of Medical Practice

James V. McDonald, MD, MPH

Executive Member

Rhode Island Board of Medical Licensure and Discipline

Mark D. Olszyk, MD, MBA

Physician Member

Maryland Board of Physicians

Sindy Michelle Paul, MD, MPH

Physician Member

New Jersey Board of Medical Examiners, Retired

Ramanathan Raju, MD

Physician Member

New York State Office of Medical Conduct

Jean Rexford, BS

Public Member

Connecticut

Veronica Rodriguez-de la Cruz, MD

Physician Member

Puerto Rico Board of Medical Licensure and Discipline

Thomas Ryan, JD, MPA

Legal Counsel Member

Wisconsin Medical Examining Board

Michael Stephen Schottenstein, MD

Physician Member

State Medical Board of Ohio

Diana K. Shepard, BBA, CMBE

Executive Member

Former Executive Director

West Virginia Board of Osteopathic Medicine

Kimberly Templeton, MD, FAAOS, FAOA, FAMWA

Physician Member

Kansas State Board of Healing Arts

Yanling Yu, PhD

Public Member

Washington State Medical Commission

Joseph A. Zammuto, DO

Physician Member

Osteopathic Medical Board of California