The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5331

July 19, 1978

MEDICAL PRACTICE BOARD:

Duty to maintain permanent historical record of licensee

Duty to include information provided by Insurance Commissioner relative to malpractice insurance

WORDS AND PHRASES:

'Permanent historical record'

The Medical Practice Board is required to maintain a permanent record of events during the career of a licensee of the Board. By rule, the board may list other items concerning a licensee's record or medical practice which will assist it in its periodic review of the licensee.

A complaint has been substantiated so that it must be included in the permanent historical record when the board has reason to believe that the allegations in the written complaint have some credible support.

The permanent record should also include statements or written documents provided by the licensee.

All information provided to the board by the Insurance Commissioner pursuant to 1956 PA 218, Sec. 244 should become part of a licensee's permanent historical record.

Mr. Bert C. Brennan

Executive Director

Medical Practice Board

905 Southland

Lansing, Michigan 48910

The Medical Practice Act (1) was amended by enactment of 1976 PA 198 which added section 11b. As a result of this amendment, you have requested my opinion on the following questions:

1. What does the term 'permanent historical record' mean and what specific items should be included in the permanent historical record?

2. What does the term 'other items' mean?

3. Who must determine whether a complaint 'has been substantiated'?

4. How should the fact of a malpractice insurance claim be handled by the Medical Practice Board in compiling a licensee's historical record?

Your questions will be addressed seriatim. However, becuase of their close relationship, Questions 1 and 2 will be discussed together.

1. What does the term 'permanent historical record' mean and what specific items should be included in the permanent historical record?

2. What does the term 'other items' mean?

1973 PA 185, supra, Sec. 11b, as added by 1976 PA 198, states:

'(1) The board shall create and maintain a permanent historical record for each licensee with respect to information and data transmitted pursuant to law.

'(2) The individual historical record shall include any written complaint against the licensee which has been substantiated after investigation.

'(3) The individual historical record may include other items concerning a licensee's record of medical practice the board determines will facilitate proper and periodic review, but only those items as designated by rules of the board.

'(4) The board shall promptly review the entire file of a licensee, including all prior matters with respect to which no action was taken at the time, with respect to whom there has been received:

'(a) A notice of revocation, suspension, or limitation of staff privileges by a licensed hospital.

'(b) A written complaint which has been substantiated after investigation.

'(c) A notice of disciplinary action by any medical society or specialty group.

'(d) An adverse malpractice settlement, award, or judgment.

'(e) Written notice of a conviction of a felony.

'(5) Within 60 days of receipt of the information, the board shall determine whether or not to institute disciplinary proceedings against the licensee and shall indorse that determination on the licensee's individual historical record. If disciplinary proceedings are authorized, they shall be commenced immediately.

'(6) The board shall devise forms on which members of the public and other licensees may file written complaints against a licensee alleging acts of unprofessional conduct and unprofessional and dishonest conduct as defined in section 11. A complaint submitted by means other than the form shall be accepted by the board.

'(7) The filing of a complaint or the transmittal of data or information to the board shall not be of itself a ground for discipline.

'(8) A licensee or applicant may review his or her individual historical record. A licensee or applicant shall be provided written notice within 30 days of any information in his or her historical record which was not submitted to the board by that person.' [Emphasis added]

This provision of the act clearly indicates that the board is required to establish a historical record for each licensee. The common understanding of the term 'historical' is that it is a narrative of events of a real person or career. Webster's Third New International Dictionary. This narrative would be kept over a period of time. See Jarvis v State Land Department, City of Tuscon, 113 Ariz 230; 550 P2d 227 (1976). Thus, the legislature has intended that a permanent record of events during the career of the licensee be maintained by the Board. In addition, certain specific provisions clearly indicate the information which must be included in this historical record, these being:

1. A written complaint against the licensee which has been substantiated after an investigation [Sec. 11b(2)].

2. A notice of revocation, suspension or limitation of staff privileges by a licensed hospital [Sec. 11b(4)(a)].

3. A notice of disciplinary action by any medical society or specialty group [Sec. 11b(4)(c)].

4. An adverse malpractice settlement, award or judgment [Sec. 11b(4)(d)].

5. Written notice of a conviction of a felony [Sec. 11b(4)(e)].

In addition, 1973 PA 185, supra, Sec. 11b(3), as added by 1976 PA 198, requires the board to include other items concerning a licensee's record of medical practice which the board determines will substantially facilitate proper periodic review. This subsection, however, requires the board to designate those items by the adoption of rules since the legislature has recognized that it is within the expertise of the board to determine which other items will assist it in making its review of the licensee's record. The board may adopt reasonable rules which require the inclusion of relevant, objective information which will assist it in reviewing a licensee's record of medical practice.

3. Who must determine whether a complaint 'has been substantiated'?

Because 1973 PA 185, supra, Sec. 11b(2) as added by 1976 PA 198, permits the inclusion in a historical record only of written complaints which have been substantiated after an investigation, it is clear that an unsubstantiated complaint is not to be included. The reference in this subsection to a complaint must be read in conjunction with 1973 PA 185, supra, Sec. 5(1)(b) which states:

'Authorize investigations either upon complaint or upon its own motion made by 1 or more members of the board and hold hearings in connection with the denial, issuance, limitation, suspension, or revocation of licenses. The hearing shall be conducted by a panel composed of 2 members of the board and a hearings officer. The members serving on a hearing's panel may participate in the boards's review of the panel's findings and recommendations but shall not vote on the final disposition of the matter. The board shall not actively solicit complaints from patients of a doctor unless a reasonable basis exists for believing that the patient's testimony is relevant to an existing complaint.' [Emphasis added]

Such a complaint must refer to a violation of the Medical Practice Act which can result in disciplinary action being imposed upon the licensee. Such a list is provided in 1973 PA 185, supra, Sec. 11, which states that the board may revoke, suspend, place on probation or reprimand the holder of a license for any of the 19 items listed. Obviously, a complaint which cannot result in disciplinary action being taken against a licensee is not to be included in a historical record of the licensee.

Since the board may only include in the permanent historical record a written complaint which 'has been substantiated after investigation', it is necessary to consider the extent to which the allegations contained in the written complaint are factually supported. In my opinion, before the board may determine whether a complaint has been substantiated so as to include it in the historical record of a licensee, it must, employing its investigatory powers contained in 1973 PA 185, supra, Sec. 5 develop facts which establish that there is reason for the board to believe that the allegations, or some of them, contained in the written complaint have some credible support. The factual data may be gathered in the form of oral statements made to an investigator or by written documents which appear to be authentic on their face and should include oral statements or written documents provided by the licensee.

4. How should the fact of a malpractice insurance claim be handled by the Medical Practice Board in compiling a licensee's historical record? 1973 PA 185, supra, Sec. 11c(1) provides:

'Within 30 days after the receipt of information or data pursuant to section 2477 of Act No. 218 of the Public Acts of 1956, as amended, being section 500.2477 of the Michigan Compiled Laws, the insurance commissioner shall transmit to the board the data or information under section 2477(2) and (3) which is relevant to the regulatory function of this act.' [Emphasis added]

Consideration must be given to section 2477 which was added to the Insurance Code of 1956 (2) by 1975 PA 44. Subsections (1), (2) and (3) of Section 2477 state:

'(1) Every insurer providing professional liability insurance to a person licensed by the medical practice board, the board of osteopathic registration and examination, the board of podiatry, the board of dentistry, and the hospitals licensed by the department of public health in this state shall submit the following data at the times prescribed to the state insurance commissioner. All data shall be provided with respect to any complaint filed against such insured in any court, if the complaint seeks damages for personal injury claimed to have been caused by the negligence of the insured relating to the insured's professional services, or the performance of professional services by the insured without consent or informed consent, or a branch of warranty or contract for a medical result relating to the insured's professional services.

'(2) The following data and information shall be furnished to the commissioner within 30 days of the filing of an answer on behalf of the insured:

'(a) The name of such insured.

'(b) The policy number.

'(c) The policy limits.

'(d) A copy of the complaint.

'(e) A copy of the answer filed on behalf of the insured.

'(f) To the extent the insurer has knowledge, the name of any other insurer providing professional liability coverage with respect to the case, whether excess coverage or otherwise, including the other insurer's policy number and limits or liability, if known.

'(3) The following data and information shall be furnished to the commissioner within 30 days from any judgment, settlement, or other dismissal involving the insured:

'(a) The data of any judgment, settlement, or other dismissal.

'(b) Whether any appeal has been taken and by which party.

'(c) The amount of any judgment against the insured.

'(d) The amount of any settlement paid on behalf of the insured, whether such settlement was negotiated by suit or without the filing of a complaint for damages.

'(e) In the event consideration was not paid on behalf of the insured and a judgment of no cause for action was not entered, the reason for any dismissal.

'(f) Any such other information as the commissioner may require.'

When information described in 1956 PA 218, Sec. 2477(2) and (3), as added by 1975 PA 44, supra, is transmitted to the Medical Practice Board from the insurance commissioner, it automatically becomes part of a licensee's historical record by virtue of 1973 PA 185, supra, Sec. 11b(1) which states:

'The board shall create and maintain a permanent historical record for each licensee with respect to information and data transmitted pursuant to law.'

It is my opinion, therefore, that all of the information provided to the Medical Practice Board by the insurance commissioner pursuant to section 2477 is relevant and becomes part of a licensee's historical record.

Frank J. Kelley

Attorney General

(1) 1973 PA 185, MCLA 338.1801 et seq; MSA 14.542(1) et seq.

(2) 1956 PA 218, MCLA 500.100 et seq; MSA 24.1100 et seq.