Going public with a disciplinary hearing is a difficult decision to make. On the one hand you want to make sure you get a fair hearing and a public hearing seems to some extent to make that more likely. But on the other hand allegations of wrongdoing or professional incompetence are just that, allegations with a bad connotation. Add in concerns about patient confidentiality and the decision gets tougher yet. Then there are the complexities of the issues involved. The exercise of professional judgment and the making of life, death or quality of life decisions may not be understood by a layperson that sees only a bad result.
So what do you do? Well first you have to know what choices the law allows. The law does allow the professional, the right to exercise a private hearing before the Iowa Board of Medicine. See Iowa Code Chapter 272C.6(1) below.
To make this decision, the one that is right for you, a physician should discuss the matter with their lawyer and then take a step back while they very carefully consider the issues to be explored by the Board at the hearing and the possible ramifications of a public airing of senstive evidence, on their medical practice.
Here are some things to think about:
- Are the facts sensitive in a way that confidences should be maintained?
- Is patient confidentiality a consideration?
- Are there facts that would destroy reputations and any possibility of future employment?
- If there is a substance abuse problem what is the likelihood of successful treatment?
- How might a public discussion benefit or hurt the professional reputation of the accused?
- How might a public discussion benefit the public?
- How might a public discussion benefit the practice of medicine in general?
- How strong is the Board’s case?
- Is provable discrimination present in the case?
Here is the relevant law as of 2012:
272C.6 Hearings — power of subpoena — decisions.
1. Disciplinary hearings held pursuant to this chapter shall be heard by the board sitting as the hearing panel, or by a panel of not less than three board members who are licensed in the profession, or by a panel of not less than three members appointed pursuant to subsection 2. Notwithstanding chapters 17A and 21 a disciplinary hearing shall be open to the public at the discretion of the licensee.
2. When, in the opinion of a majority of the board, it is desirable to obtain specialists within an area of practice of a profession when holding disciplinary hearings, a licensing board may appoint licensees not having a conflict of interest to make findings of fact and to report to the board. Such findings shall not include any recommendation for or against licensee discipline.
3. a. The presiding officer of a hearing panel may issue subpoenas pursuant to rules of the board on behalf of the board or on behalf of the licensee. A licensee may have subpoenas issued on the licensee's behalf.
(1) A subpoena issued under the authority of a licensing board may compel the attendance of witnesses and the production of professional records, books, papers, correspondence and other records, whether or not privileged or confidential under law, which are deemed necessary as evidence in connection with a disciplinary proceeding.
(2) Nothing in this subsection shall be deemed to enable a licensing board to compel an attorney of the licensee, or stenographer or confidential clerk of the attorney, to disclose any information when privileged against disclosure by section 622.10.
(3) In the event of a refusal to obey a subpoena, the licensing board may petition the district court for its enforcement. Upon proper showing, the district court shall order the person to obey the subpoena, and if the person fails to obey the order of the court the person may be found guilty of contempt of court.
b. The presiding officer of a hearing panel may also administer oaths and affirmations, take or order that depositions be taken, and pursuant to rules of the board, grant immunity to a witness from disciplinary proceedings initiated either by the board or by other state agencies which might otherwise result from the testimony to be given by the witness to the panel.
4. a. In order to assure a free flow of information for accomplishing the purposes of this section, and notwithstanding section 622.10, all complaint files, investigation files, other investigation reports, and other investigative information in the possession of a licensing board or peer review committee acting under the authority of a licensing board or its employees or agents which relates to licensee discipline are privileged and confidential, and are not subject to discovery, subpoena, or other means of legal compulsion for their release to a person other than the licensee and the boards, their employees and agents involved in licensee discipline, and are not admissible in evidence in a judicial or administrative proceeding other than the proceeding involving licensee discipline. However, investigative information in the possession of a licensing board or its employees or agents which relates to licensee discipline may be disclosed to appropriate licensing authorities within this state, the appropriate licensing authority in another state, the coordinated licensure information system provided for in the nurse licensure compact contained in section 152E.1 or the advanced practice registered nurse compact contained in section 152E.3, the District of Columbia, or a territory or country in which the licensee is licensed or has applied for a license. If the investigative information in the possession of a licensing board or its employees or agents indicates a crime has been committed, the information shall be reported to the proper law enforcement agency. However, a final written decision and finding of fact of a licensing board in a disciplinary proceeding, including a decision referred to in section 272C.3, subsection 4, is a public record.
b. Pursuant to the provisions of section 17A.19, subsection 6, a licensing board upon an appeal by the licensee of the decision by the licensing board, shall transmit the entire record of the contested case to the reviewing court.
c. Notwithstanding the provisions of section 17A.19, subsection 6, if a waiver of privilege has been involuntary and evidence has been received at a disciplinary hearing, the court shall order withheld the identity of the individual whose privilege was waived.
5. Licensee discipline shall not be imposed except upon the affirmative vote of a majority of the licensing board.
6. a. A board created pursuant to chapter 147, 154A, 155, 169, 542, 542B, 543B, 543D, 544A, or 544B may charge a fee not to exceed seventy-five dollars for conducting a disciplinary hearing pursuant to this chapter which results in disciplinary action taken against the licensee by the board, and in addition to the fee, may recover from a licensee the costs for the following procedures and associated personnel:
(2) Witness fees and expenses.
(4) Medical examination fees incurred relating to a person licensed under chapter 147, 154A, 155, or 169.
b. The department of agriculture and land stewardship, the department of commerce, and the Iowa department of public health shall each adopt rules pursuant to chapter 17A which provide for the allocation of fees and costs collected pursuant to this section to the board under its jurisdiction collecting the fees and costs. The fees and costs shall be considered repayment receipts as defined in section 8.2.
[C79, 81, §258A.6; 82 Acts, ch 1005, §8]
86 Acts, ch 1211, §15; 92 Acts, ch 1125, §1
2000 Acts, ch 1008, §13; 2001 Acts, ch 55, §29, 38; 2005 Acts, ch 53, §10; 2010 Acts, ch 1061, §94
Board of medicine, see §148.2A, 148.7