Every medical professional must meet strict criteria for patient care. If there is an allegation of substandard care – whether it proves to be true or false – a board, composed of unbiased and knowledgeable professionals is charged with investigating the actions of the responsible practitioner. In the case of dentists and orthodontists in Texas, that board is the State Board of Dental Examiners.
The challenging job of investigating substandard medical care is made more difficult for this board when the claim originates from a disgruntled ex-employee because it may not be valid. When this situation occurs, a dental practice owner must make a business decision about retaining legal representation for these administrative proceedings.
Nathanial Martinez, of the Dallas-based law firm of Palter Stokley Sims PLLC, specializes in representing dentists and orthodontists in cases before the State Board of Dental Examiners. As such, he has valuable insights about navigating this often frustrating process.
An Attempt at Retaliation
“In most cases, false accusations made by an employee to a professional board are an attempt at retaliation by the employee as a result of some adverse action taken by the employer,” Martinez noted. “In the case of a dental practice, this may occur if the managing dentist puts the employee on probation, penalizes them in some other way, or terminates the employee.
“In some cases this report to the professional board can result from a personal affront – either real or imagined – to the employee by the practice owner. However, in most cases, this situation will occur when the employee has been fired and they are unhappy with this termination.”
What to do Before the Claim is Filed
“An owner of a practice must take every claim seriously and conduct a thorough investigation of the claim, even if the owner believes them to be false,” he said. “It is important for dentists to keep detailed records of every patient they see, in accordance with the generally accepted procedures for patient care in their profession. For dentists and orthodontists, there are standards for maintaining patient records and they must ensure that they are honoring those standards in everything they do.
“If an employee leaves, the practice owner should send a letter to the employee reminding them of their obligation to keep patient records confidential. It is important for the owner of the practice to keep thorough records on every patient they see and the recommendations which are made. It is also important for all staff to be trained appropriately and aware of the standards of care.
“Basically, before any claim is brought to the professional board, the owner of the practice must be able to show and demonstrate clearly that the claim is false,” Martinez said.
Legal Steps to Take
“In the context of the (Texas) State Boa
rd of Dental Examiners, when this board receives a complaint they must take it seriously,” Martinez said. “They are required to investigate every claim made.
“When a dentist or orthodontist receives notification of a claim, it is important for them to retain an attorney who should then reach out to the board and immediately advise the board of this representation. I recommend they retain an attorney who has experience in navigating the various procedures of the professional board, because this will allow the practice owner to stay focused on their business. Retaining an attorney will also ensure a timely response to any inquiries by the board. You would be surprised at how many deadlines a busy dentist might miss simply because he or she has too much on their plate,” he said.
“It’s important to remember that the actions of board are not inherently adversarial. It may ‘feel’ that way because the dentist may be responding to a false complaint which is being filed by a former employee. Unlike a lawsuit, where all parties examine the complaint and charges, complaints filed with a professional board are not typically examined by the practice owner. The professional board is very cautious about the information it discloses to the parties involved with the claim. The objective of the board is to determine whether the standards of care have been met.
“The board is just doing its job,” Martinez noted. “It is conducting an investigation of an allegation. The practice owner must attempt to avoid being defensive, which will go a long way towards getting his name cleared, especially if it is a false claim. If the documentation has been correctly done, the dentist can quickly prove that the claim is false.”
Procedures of a Professional Board are Different
“The procedures of a medical professional board are very different from that of a lawsuit,” Martinez said. “These are all administrative, are governed by the rules of the state board and have their own policies and procedures on how these claims are investigated. These proceedings are all public, but the information received from the dentist is completely confidential because this is patient information.
“It’s important to retain an attorney for this appearance before the board for several reasons. The practice owner needs an attorney who is experienced in dealing with the board and the investigators for the board. These investigators are going to be the ‘eyes and ears’ of the practice owners as the claim moves through the system. This is somewhat of a long process and keeping up with this can be onerous for the dentist. By hiring an experienced attorney, the dentist can continue to focus on his or her business while this process continues.
Criteria for Choosing an Attorney
“There are attorneys, myself included, who specialize in this type of work,” Martinez noted. “We enjoy dealing with administrative boards and this is the type of attorney a practice owner should retain.
“The criteria for choosing an attorney should include someone who has had experience in managing these types of cases before dental or other professional boards. It’s important to remember, the investigators for the board are typically long-term employees, and an attorney with an existing business relationship and professional rapport with them can speed the process along.
“Another important consideration in choosing an attorney for this specialized proceeding is to find a lawyer who will not be confrontational or adversarial with the board. In this type of situation, where the board is just trying conduct an investigation, having an attorney who is cooperative with the board – someone who is doing everything he can do to help discover the facts – will go a long way towards debunking a false claim.
“I can’t stress this enough: the professional board and its investigators are not the ‘bad guys,’” Martinez concluded. “They are just trying to investigate a claim. While the practice owner may feel that this claim made by a former employee is distracting and frankly untrue, he or she still has an obligation to respond and cooperate with the investigation to the best of their ability.”