Mandatory Reporting For Physician-Defendants

By Mary Kay Schwemmer and Mary E. Dixon

On March 20, 2002, then-Governor Schweiker signed into law the Medical Care Availability and Reduction of Error Act (“MCARE”). Among its goals, MCARE seeks to alleviate Pennsylvania’s well-documented medical malpractice crisis which threatens to close hospital doors and send physicians into to other states. MCARE promotes the availability of and access to the highest quality of medical care for all citizens. It encourages affordable liability insurance for hospitals and doctors, and urges prompt and fair determination of medical negligence cases.

Importantly, however, and in an undoubted legislative concession to the personal injury lawyers lobby, MCARE also contains a provision that now requires physicians to report to the State Board of Medicine any time litigation is begun against them for alleged medical negligence. It even empowers the State Board of Medicine to initiate an investigation against physicians based on the mere filing of a malpractice lawsuit. Physicians need to be aware of this troubling aspect of MCARE.

Pursuant to Section 903 of the Act, a physician has sixty (60) days from receiving notice of the complaint to report to the State Board of Medicine. To satisfy the reporting requirement, the physician must provide the Board with the docket number of the case, the jurisdiction in which the complaint was filed and a description of the allegations contained in the complaint. Importantly, the Board also mandates that the physician file a complete copy of the complaint. Physicians are subject to disciplinary action by the Board for failing to comply with the mandatory reporting requirement under MCARE.

Upon receiving notice that a complaint has been filed against a physician for medical negligence, the Board may then commence an independent investigation of the physician based on the allegations of the complaint. The Board is given the authority under MCARE to develop the criteria and standards for reviewing complaints and conducting investigations. Notably, the Board has a lengthy four years within which to commence its investigation of a physician based on notice that a medical malpractice action has been filed - which itself may be brought years after the medical treatment at issue.

In addition to reporting medical negligence claims brought against them, physicians are also required under MCARE to report to the Board information regarding disciplinary action taken against them by a board of another state, information regarding arrests for certain criminal offenses as well as information regarding violations of the Medical Practice Act.

In addition to now being empowered to review allegations of single acts of simple negligence against a physician, the Board is also permitted to impose disciplinary sanctions or corrective measures against a practitioner based on the results of its investigation. Thus, in addition to being exposed to a potential jury verdict, physicians are now also exposed to disciplinary actions and/or fines by the Board based on a single claim of medical negligence. Among its available penalties, the Board may revoke, suspend or otherwise restrict a license, require a practitioner to take certain educational courses, impose monetary penalties and/or require a physician to obtain counseling or other treatment. Moreover, MCARE specifically allows the Board to impose civil penalties of up to $10,000 against a physician who violates any provision of MCARE or the Medical Practice Act.

Physician defendants need to consult an experienced health care defense attorney as soon as possible after learning of a complaint against them. In addition to defending the malpractice action, legal representation is necessary both to insure that the physician complies with the reporting requirements of MCARE, as well as to insure that the physician’s interests are fully represented before the Board as the Board undertakes its investigation.

Mary Kay Schwemmer is a partner in the Health Care Group which represents healthcare practitioners in malpractice and disciplinary proceedings. You can reach Mary Kay at 215-864-6276 or schwemmerm@whiteandwilliams.com.

Mary Dixon is an associate in the Appellate Practice Group and can be reached at 215-864-7068 or dixonm@whiteandwilliams.com.