Table 3. Possible Disciplinary Actions by State Medical Boards 1
Administrative action
Non-punitive action
Fine
Monetary penalty against physician Physician required to complete CME
Continuing medical education required (CME)
Conditions required License denied License restricted
Physician must fulfill certain conditions to avoid further sanction
Physician’s application/renewal denied
Physician may practice medicine within limitations (e.g., loss of prescribing privileges)
License revoked
Physician can no longer practice medicine within state or territory
License surrendered License suspended
Physician voluntarily surrenders medical license, sometimes during disciplinary investigation Physician may not practice medicine for specified period, perhaps due to investigation or until board requirements fulfilled
Probation Reprimand
Physician’s license monitored by state board for specified period
Physician issued warning or letter of concern 1. Federation of State Medical Boards (FSMB). About Physician Discipline: How State Medical Boards Regulate Physicians after Licensing. https://www.fsmb.org/u.s.-medical- regulatory-trends-and-actions/guide-to-medical-regulation-in-the-united-states/about-physician-discipline/ Accessed December 13, 2021.
Some states detail what behaviors are considered sexual misconduct while others give only brief definitions. 14 Furthermore, variation in state responses to physician misconduct has had the effect of sending many physicians with severe disciplinary actions back to practice. 38 Recommendations to help heighten boards’ consistency and prevent egregious misconduct include the following: 38 • Permanently revoke or suspend medical licenses for first-time egregious offenses (e.g., rape) • Permanently revoke or suspend medical licenses for repeated lesser offenses following remediation efforts • Routinely ask victims of sexual abuse whether they want to pursue criminal charges and respect patient wishes (knowing requirements of mandatory reporting) • Be cognizant that boards have the authority to remove physicians from medical practice more swiftly than the criminal justice system. To prevent the physicians from changing jurisdictions undetected, medical boards voluntarily share licensee data with the FSMB’s Physician Data Center. This information can allow the FSMB Disciplinary Alert Service to alert state boards within 24 hours when one of their physician- licensees receives disciplinary action in another state or territory. 29 Public disclosure of information regarding the outcome of investigative findings and any disciplinary actions is important to guard patient welfare but also restricted by state statute in many jurisdictions. With the public welfare in mind, the FSMB workgroup favors making information available via state medical board websites, the FSMB Physician Data Center, and the NPDB. 1 Certain states, including California and Washington, require patient notification at the point of making an appointment when a physician’s license has any restrictions related to sexual misconduct. 1 Other states may follow suit.
Remediation emphasizes the role of judgment and self-regulation. This and similar programs of remediation are in line with FSMB recommendations when there are “some less egregious forms of sexual impropriety with mitigating circumstances.” 1 Successful remediation includes the following components: 1 • Have clearly outlined goals • Outline expectations for acceptable physician performance • Be completed in person (online or distance learning is insufficient) • Be related to the offense (which is fully disclosed) • Be targeted to individual vulnerabilities and risks for committing sexual misconduct • Have tailored remedial education particular to the context of misconduct • Have a longitudinal mechanism for maintaining the physician’s engagement • Ensure longitudinal mechanism demonstrates the physician’s commitment to accountability and the board’s monitoring reach When a license has been revoked, the potential goal of remediation is to reinstate the license, but medical boards are to remain mindful that remediation and reinstatement should be abandoned if the physician demonstrates any risk of reoffending. 1 Petitions to remove license restrictions should be considered in coordination with any treating professionals and the state PHP or other approved evaluation team. 1 The PHP model provides therapeutic alternatives to discipline for physicians with substance-use and mental health disorders; however, in cases that involve sexual misconduct, PHPs offer support to state medical boards but cannot serve as an alternative to discipline. 30 If asked, PHPs may coordinate comprehensive, multidisciplinary assessments or forensic evaluations to identify any treatable condition that may have contributed to poor judgment or assist with determining fitness for duty, sometimes with restrictions. 30
Remediation and Education Remedial educational programs can be one component of disciplinary orders. Current risk stratification for choosing remediation involves considering severity of actions along with mitigating and aggravating factors, such as: 1 • Physician character • Physician insight and remorse • Physician understanding of how actions violated ethics and legislative strictures • Consequences to patient and public of allowing remediation/practice re-entry Remediation efforts should be aimed at stopping offenders both initially and before they can reoffend, and in setting and enforcing professional guidelines for basic and intimate patient examinations that include recommended chaperones and other best practices. Partners in remediation are to be given access to investigative information so as to tailor remedial education to the context in which the sexual misconduct took place. To successfully complete remediation, participants must articulate why their actions were wrong, how they arrived at the point of committing the actions, and how they intend to guard against committing such actions in the future. Following remediation efforts, the physician is monitored during practice to ensure avoidance of circumstances similar to those of the sexual misconduct. The ProBE Program (an acronym for “Professional Problem-Based Ethics) is one source of professional ethical remediation for physicians with disciplinary orders. 36 Between 1992 and 2013, 11.4 percent of ProBE participants were referred for sexual misconduct. 36 The program uses small- group settings to help participants discover and articulate how their misconduct violated ethical and professional responsibilities and recommit to professional ideals. The program parameters do not include predatory or addictive sexual behavior but rather sexual boundary violations with patients in which physicians “exercised poor judgment in a personal relationship that created a professional vulnerability.”
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