Spokane Journal of Business

Attorney here defends docs, dentists in disciplinary cases

While malpractice suits can be costly, state actions can be more damaging

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Spokane attorney Steve Lambersons legal practice includes a little-known specialty in which he defends physicians and dentists against threats to their careers that he believes are more serious than malpractice lawsuits.

Lamberson, a partner in Etter McMahon Lamberson & Clary PC, represents health-care professionals who face possible disciplinary action by the Washington state Department of Health, and says the outcomes of such proceedings can be far more damaging than civil lawsuits.

They can effectively end your career, he says.

Though such cases comprise less than 20 percent of Lambersons practice, which also includes defense work in malpractice and municipal-liability cases as well as construction litigation, he believes hes one of only a handful of Spokane lawyers who handle them. He declines to disclose examples of the some 40 disciplinary cases hes handled each year over the past 18 years, but sheds light on a process that gets little attention.

Lamberson says most physicians and dentists here, in addition to their malpractice insurance policies, have insurance coverage that pays their attorneys fees if they must face state disciplinary proceedings.

He says about 45 percent of the clients he represents in disciplinary cases are physicians, 45 percent are dentists, and the rest are either nurses or chiropractors. In disciplinary cases, he says, his role is clear: While the Department of Healths objective is to protect the public, his is to protect the interests of his client.

That state agency oversees four commissions, the Medical Quality Assurance Commission (MQAC), Dental Quality Assurance Commission, Nursing Care Quality Assurance Commission, and Chiropractic Quality Assurance Commission, says Blake Maresh, executive director of the MQAC. He says those commissions handle complaints that can trigger disciplinary action against providers.

Lamberson says, Although most complaints come from patients, they also are generated by colleagues, pharmacists, insurance providers, and other agencies.

The power those commissions have over health-care providers is huge, he says.

Generally, they can put any restrictions they want on your license, Lamberson says. They can revoke or suspend the license of a physician, dentist, nurse, or chiropractor; put a practitioner on probation; or limit a professionals practice by prohibiting him or her from seeing certain types of patients, including females, or children, for instance, he says. They also can prohibit physicians and dentists from prescribing drugs without the co-signature of another provider, and even trigger limits on how they get paid.

More often than not, if you have any restrictions placed on your license by a disciplinary board, you cant be reimbursed by Medicaid or Medicare, Lamberson says. Plus, such restrictions on ones license can cause that practitioner to lose preferred-status coverage with a major insurance provider, which means they cant bill such insurers for the services they provide. That, he says, typically forces patients to look elsewhere for treatment, rather than paying for care out of their own pockets.

Although similar in some ways, malpractice lawsuits and state disciplinary complaints differ in how and by whom issues are resolved. While malpractice often stems from an accusation that a practitioner has been derelict in performing his or her duty, state disciplinary procedures can be triggered by any of a long list of unprofessional actions that arent related necessarily to incompetence or negligence, Lamberson says.

Among the 25 examples of unprofessional conduct listed in state law that can lead to disciplinary procedures before the Department of Health are: abuse of or sexual contact with a client or patient; misuse of alcohol or drugs; willful betrayal of practitioner-patient privileges; failure to cooperate with the disciplinary authority; and false, fraudulent, or misleading advertising.

While malpractice lawsuits that arent dropped or settled end up in court, complaints against providers to the Department of Health, if they go far enough, end up in an administrative hearing before one of the departments commissions, he says.

Lamberson says a high percentage of such complaints never make it that far. Instead, theyre dropped for lack of merit or settled through a compromise that could include continued education for the practitioner, he says. When a case ends up in an administrative hearing, its heard by three or more commission members, who also are health-care providers, and that group decides the fate of the physician, dentist, nurse, or chiropractor, he says, adding that the provider, or even the Department of Health, then has the right to appeal the ruling in a court of law.

A health-care law judge presides over administrative hearings and sits in on the deliberation process, but doesnt have a say in the outcome; rather he or she serves as a legal adviser to the commission, Lamberson says. In such hearings, the state attorney generals office prosecutes the case, he says.

The disciplinary process begins after a complaint is registered with a Department of Health commission regarding alleged misconduct of a provider. The first step is for the state to assign an investigator, often a former law officer, or team of investigators to study the case and determine the initial validity of the claims, says Lamberson.

Normally, some of that investigative work is done before the physician is notified of the complaint and is given the opportunity to respond to the allegations, Lamberson says.

He says some providers respond to the allegations themselves, but asserts, Its very risky to deal with the commission without an attorney.

Commonly, its at that point when his services are called upon.

Lamberson typically then does his own investigation, interviewing his client; witnesses, such as employees where the practitioner works; and the commissions investigators. When necessary, hell retain a consultant to help review documentation of the complaint, he says. From what he finds, he drafts a response to the allegations against his client.

Once the commissions investigators have completed their work, their findings are turned over to one member of the state commission, who studies the information and recommends to the full commission whether the case should be dismissed, settled in a compromise manner, or continued to the administrative-hearing stage, says Lamberson. If the matter proceeds to the administrative-hearing stage, administrative charges are filed with the Department of Health by the appropriate commission, says Lamberson.

He says about 80 percent of complaints brought against health-care providers are dropped at the recommendation of the one commissioner after he has reviewed the investigatory information.

Just because the patient had a bad outcome or was treated badly by the front office doesnt mean necessarily there was unprofessional conduct on the part of the practitioner, he says.

Of the 160 disciplinary cases decided by the MQAC in the July 2003-June 2005 biennium, 43 reached the administrative-hearing stage, says Maresh. He says 131 cases were decided by the dental commission during that period, and 21 proceeded to an administrative hearing. The number of cases decided by the nursing-care commission over that two-year span, 407, was much higher than either the physician or dental commissions decided, but only 18 of them were ruled upon at the administrative-hearing level, Maresh says. The comparable numbers for chiropractors were much lower, with 35 cases decided by that commission and only three of them reaching administrative hearings, he says.

A 1982 graduate of Gonzaga University School of Law and a Spokane resident most of his life, Lamberson says he received no special training to defend health-care providers in disciplinary matters. Like most lawyers, he learned his specialty while working at the job, he says.

Contact Rocky Wilson at (509) 344-1264 or via e-mail at rockyw@spokanejournal.com.

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