Furthermore, a settlement is rarely reached or negotiated, and penalties are potentially far more serious, such as public posting of an adverse decision and restriction or actual loss of licensure.
Reputational loss also is arguably more devastating with board censure, because an adverse action taken by a medical board indicates a violation of the Medical Practice Act. In contrast, malpractice settlements or verdicts are regularly viewed as unreliable measures of a physician’s competence.
Still, two features work in favor of the doctor facing a board hearing. First, the misconduct typically has to be recurrent or grossly negligent, rather than an isolated case of carelessness. And second, some boards (only a small minority) require evidentiary proof of fault to be “clear and convincing,” instead of the familiar “more probable than not” standard that is used in a civil negligence suit. This makes it theoretically harder to reach a finding of culpability against the doctor.
References
1. Md. Code Ann. Health Occ. section 14-404.
2. Prosser and Keeton on Torts, 5th ed., 1984.
3. Van Meter v. Bent Construction Co., 297 P.2d 644 (Cal. 1956).
4. Texas Civil Practice & Remedies Code section 41.001(7).
5. Dempsey v. Phelps, 700 So.2d 1340 (Ala. 1997).
6. Jackson v. Taylor, 912 F.2d 795 (5th Cir. 1990).
7. Fox v. Oklahoma Memorial Hospital, 774 P.2d 459 (Ok. 1989).
8. Boone v. William W. Backus Hospital, 864 A.2d 1 (Conn. 2005).
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at siang@hawaii.edu.