Believing that his spotless 25-year record spoke for itself, one DC decided to handle a Board investigation by himself instead of using an attorney. Did it pay off?
Posted in Case Studies on Friday, January 10, 2025
You go to grab your mail during a lull in afternoon appointments. Flipping through the stack, you see the usual: A utility bill, a flyer from the restaurant down the street and—something from your state licensing board?!
This panic-inducing scenario happened to Dr. Thomas Alexander, a well-respected chiropractor who operated his clinic, Balance Chiropractic, for 25 years with his business partner, Dr. Diego Silva. Dr. Alexander had an active patient roster and was frequently sought by his peers to speak at continuing education seminars. In his decades of practice, he never had an issue with his licensing Board or been subject to a Board investigation.
Shelby Michaelson, a patient of Dr. Silva’s, had been coming into the clinic bi-weekly for about 18 months. Unhappy with her lack of improvement over that year-and-a-half, she complained to Dr. Silva about the cost of her treatment. After consulting with both Dr. Silva and Dr. Alexander, Ms. Michaelson agreed to continue treatment, with Dr. Alexander assuming her care. After four months, both Dr. Alexander and Ms. Michaelson agreed that her treatment had plateaued, and she was discharged as a patient from Balance Chiropractic.
The Board Complaint and Investigation
Several weeks later, Dr. Alexander received a letter from his state regulatory board responding to a complaint levied by Ms. Michaelson. The complaint claimed that Dr. Alexander’s chiropractic care was substandard, and he wrongly continued treating (and thereby billing) her for several months despite knowing her condition was medically stationary. The notice from the Board seemed simple, asking for the following:
- Ms. Michaelson’s complete patient file
- Certification that he is up to date on his continuing education
- Clinic billing records for Ms. Michaelson
- Staffing schedules for everyone at the facility
The Board gave Dr. Alexander 14 days to respond. Because the information needed seemed straightforward and easy to procure, Dr. Alexander tried to gather and send it to the Board himself.
- Dr. Alexander tried to touch up his sloppy, handwritten records with a pen, also improving his grammar and altering his diagnosis.
- Having difficulty accessing the complete patient file, he sent records for just four of Ms. Michaelson’s visits.
- Dr. Alexander omitted his continuing education certificate, figuring his years of practice and speaking at events would speak for themselves.
- He sent a complete copy of Ms. Michaelson’s billing to the Board.
- Finding it irrelevant, Dr. Alexander did not provide any employee schedules or documents indicating who was present during treatment.
- Dr. Alexander is four days late sending the information to the Board due to a vacation.
Intrigued by the incomplete and untimely production, the Board investigator then requested a written narrative from Dr. Alexander supporting his care and decision-making. Irritated, Dr. Alexander immediately e-mailed a response, saying that his records speak for themselves and that he provided care which exceeded any standard. He also volunteered that Dr. Silva would speak favorably of his care.
Dr. Silva Hires an Attorney
Unknown to Dr. Alexander, Dr. Silva was also under investigation by the Board for issues relating to Ms. Michaelson. Dr. Silva contacted NCMIC. His malpractice insurance policy included Audit and Legal Defense Coverage, so they hired an attorney to assist in his response:
- He produced Ms. Michaelson’s entire file, including records from himself and Dr. Alexander.
- He included all billing information, full staffing schedules, and a complete continuing education transcript.
- Dr. Silva wrote a narrative response explaining his decision-making in regards to Ms. Michaelson’s care, highlighting that when problems arose, he referred her to other providers and documented her choice of Dr. Alexander.
- He and his attorney sought supporting expert opinion to substantiate that Dr. Silva’s actions exceeded the standard.
In his interview with the Board investigator, Dr. Silva learned that Dr. Alexander and his alleged overbilling was the true focus of the investigation. Dr. Alexander had also been accused of having a non-licensed staff member perform massage therapy on Ms. Michaelson. Dr. Silva’s records show that the staff member was not employed by the clinic prior to Ms. Michaelson’s care transferring to Dr. Alexander. Dr. Silva also mentions that Dr. Alexander usually takes about 25 minutes with a patient. The investigator indicates that the complaint against Dr. Silva does not have much merit and he recommends to the Board that they dismiss the claim against him.
Dr. Alexander is Unprepared for His Interview
Dr. Alexander showed up late for his Board interview and had not reviewed any of the materials; given his experience as a chiropractor for 25 years, he expected the interview to be a formality and a “rubber stamp” to his care. The investigator immediately highlighted that Dr. Alexander’s records did not match the files provided by Dr. Silva, including different diagnoses and inconsistent time-in and time-out records for the appointments.
The investigator also asked Dr. Alexander to walk him through a traditional patient exam. Dr. Alexander stated that he typically spent 20-25 minutes with patients providing various modalities. The investigator notes to Dr. Alexander that he has been billing Ms. Michaelson for 50- to 60-minute exams, despite his indication that exams were traditionally 25 minutes.
Lastly, the investigator asked about the staff member providing massage care at Dr. Alexander’s instruction, which Dr. Alexander claimed he could not recall. The investigator’s previous interviews had already uncovered that a staff member had provided massage therapy without a license, at the direction of Dr. Alexander, as a cost-effective measure so more patients could be seen by more therapists.
Reflecting on his interview some days later, Dr. Alexander went back and modified other patient records to show that many of his examinations frequently exceeded 50 minutes. Tipped off by Ms. Michaelson’s billing issues, the Board requested billing information for all patients under Dr. Alexander’s care and observed the discrepancies.
The Outcome
After reviewing Dr. Alexander’s file, and at the recommendation of the investigator, the Board fined Dr. Alexander $10,000 and suspended his license for six months. Upon reinstatement of his license, Dr. Alexander was required to practice under supervision for an additional six months and complete 10 hours of continuing education, with a focus on billing and ethics.
What Can We Learn?
Never alter your records.
Even if you think you’re being helpful by providing clarity or even improved handwriting, altering records will always hurt your case whether it’s a board investigation or a full trial.
The way you respond to an investigation can greatly impact its outcome.
Most of Dr. Alexander’s issues could have been avoided had he simply been organized and prepared. Contacting your malpractice insurance provider to retain an attorney, which is an included part of your malpractice coverage at NCMIC, greatly aids in this process. NCMIC’s experienced attorneys will ensure your rights are protected and your case is presented in the best possible light. This includes:
- Generating supportive evidence. This can include interviewing witnesses or staff members who can corroborate your version of events and relaying this evidence to the investigator.
- Compiling, organizing, and digesting requested documents. This ensures that the documents produced are complete, organized, and responsive. Having organized, accurate documentation will help demonstrate that you have adhered to the necessary medical and ethical standards and are prepared to defend your care.
- Tailoring a defense specific to the allegations from the Complaint. Complaints and other notices from the licensing board can be complex to the point that it is unclear exactly what the investigator is seeking. Collaborating with an attorney aids in understanding the nature of the Complaint and investigation and helps you and your attorney formulate an appropriate response.
- Another set of eyes, ears, and editing. Aside from the interview, the Narrative Response is perhaps the most important, yet often overlooked, aspects of a Board investigation. The Narrative is your chance to put into your own words what happened, defend yourself and your care, and address the claims levied in the Complaint. This takes time and an understanding of both your care and what the investigation is looking for. Doctors are the experts in their field, but putting their actions into layman’s terms can be challenging. Attorney assistance with the development, synthesis, and editing of your Narrative will help you portray your version of events in a positive, clear, and well-understood light.
- Preparation help for your interview. The investigator will know far more than you think about the case, your care, and the facts. Working with an attorney can help you understand your own actions and formulate responses to hypothetical questions likely posed by the investigator. Being prepared for your interview goes a long way in ensuring that your position is accurately captured during the investigation.
- Negotiation. In certain circumstances, it may be possible to negotiate a resolution with your licensing Board. Your attorney is your advocate in these negotiations and can counsel and advise you on options including additional training or probation instead of harsher penalties, including significant fines or a license suspension.
The tale of Dr. Alexander and Dr. Silva is best understood by comparing the actions of each in response to the Board investigation. Where Dr. Alexander was sloppy, ill-prepared, and lacking, Dr. Silva was organized, diligent, and strong. Dr. Silva sought assistance knowing his professional license was at stake. Dr. Silva avoided discipline from a suspect claim, but because Dr. Alexander did not prepare a proper defense, the Board continued to investigate him, leading Dr. Alexander to compound his mistakes and suffer disciplinary consequences that may have been avoided.
Your malpractice policy with NCMIC includes up to $60,000 in legal defense costs at no additional cost to you. These resources should be fully utilized for the benefit of you, your reputation, and your practice.
About the Authors
Joseph A. Pickels is a Senior Associate with Brisbee & Stockton, LLC in Hillsboro, Oregon. He focuses his practice on healthcare and professional liability defense and represents healthcare providers and employers before state and federal courts, administrative and licensing boards, and with OSHA and HIPAA compliance in Oregon and Washington.
Lori H. Lindley is Senior of Counsel at Brisbee & Stockton, LLC in Hillsboro, Oregon. She focuses on professional liability defense and represents healthcare providers and employers before state and federal courts and administrative and licensing boards. Prior to joining Brisbee & Stockton, Ms. Lindley served as a Senior Assistant Attorney General for the State of Oregon Business Activities Section and was responsible for representing several State of Oregon medical regulatory agencies.