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All Florida physicians should be increasingly concerned about the ease and frequency of complaints submitted to the State of Florida Department of Health against practicing physicians. The increasing frequency of complaints may be explained in part by the ease of going to the Department's Web site and downloading the necessary complaint form. Whether the complaint is generated from a dissatisfied patient or the existence of a medical malpractice claim, the physician must be ready to respond in the same manner as being sued in a medical malpractice case.

A complaint originating with the Department of Health will typically take the form of correspondence from the medical quality assurance division to the physician advising of the need to file a formal response within 45 days of receiving the letter. The response must include all available medical records relating to the patient, and a copy of the doctor's curriculum vitae. However, the response a physician makes to this notification should never be taken lightly. The letter itself is only the first step.

The department may have been investigating the matter for some time before requesting a response from the physician. This investigation can include reviewing documents, legal actions and information obtained through their investigators. For this reason, any formal response should be drafted only after consultation with an attorney. In most instances, complaints will concern a standard of care violation. Your attorney will be able to retain the services of another physician in your specialty to conduct a file review and provide a candid opinion on the matter. When your attorney requests this file review from another physician, the results of these reviews will have certain privileges such as confidentiality as a matter of Florida law. A proper response to the Department of Health's complaint alleging a standard of care violation should contain an affidavit supporting the physician whenever possible.

In order for the Department of Health to proceed any further against a physician, it will require the services of another physician to generate a standard of care affidavit adverse to the physician. A discussion of the process which takes place once the Department of Health reaches a decision concerning probable cause and whether to file an administrative complaint against the physician exceeds the scope of this article. It should be noted, your defense is very similar to defending a medical malpractice case. For this reason, a preliminary response is of utmost importance. It sets the stage for how you are going to defend the matter as it proceeds, if it proceeds.

Unfortunately, the cost of defending administrative actions initiated by the Department of Health can easily exceed $20,000. The costs of retaining experts for testimony can be a significant part of this amount. Fortunately, stand alone coverage can be purchased to cover Department of Health complaints, Medicare/Medicaid audits, and complaints for privacy violations under HIPPA. This coverage may be purchased as a stand alone product or as an addition to coverage provided under primary medical malpractice policies.

Medicare and Medicaid audits and privacy complaints initiated and administered through agencies separate from the Department of Health can be costly and should be treated with the same amount of attention as a Department of Health complaint. In many instances, physicians will be notified by the administrative entity processing Medicare and Medicaid billings that a physician's coding is not accepted or incorrect. Depending upon the amount of your billings being submitted, the demand for recapture of these amounts can be quite significant. Your first response to these matters should be prompt and detailed. The administrative appellate process rarely overturns the decision making of the initial agency. In the case of Medicare and Medicaid audits, specialists licensed by the State of Florida should be consulted in determining compliance with all state and federal requirements. This consultation should be conducted through your attorney and can be incorporated in your initial response to the agency.

In summary, a strong and professional initial response should be made to each and every complaint and inquiry for information. The days of informally replying to these matters are at an end.


George K. Brew, Esq., is general counsel for the Florida Physicians Association Legal Defense Insurance Company. Mr. Brew has been licensed to practice law in the State of Florida since 1990 and practices primarily in the areas of litigation and healthcare law.

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