We talk every day to folks who suspect they might have a potential claim against a medical provider for malpractice. One comment we frequently hear is some version of: “I just don’t want this to happen to someone else.” The conversation will often turn to the question of whether the injured person or her family can seek an avenue of discipline through the state medical licensing board. We tell almost all of these folks that they are unlikely to get any satisfying response from the state licensing board. Why is that, though?

The board, in Washington it is called the Medical Medical Commission, investigates claims filed by a person or business for unprofessional conduct, and makes determinations about how to discipline the practitioner. Note the difference in language here – unprofessional conduct is different from (and on its face quite a bit more variable than) violating the standard of care. This means the board may discipline a provider for egregious negligence or for breaking the law, such as overprescribing opioids. The thing is, if there is a meritorious case for negligence, 99% of the time the only real path to justice for an aggrieved party is through a civil lawsuit.

Offhand I think of one surgeon who was a defendant in a case of mine a couple of years back. In discovery we typically ask a defendant about any prior claims for malpractice and if the provider has ever been disciplined by a state medical board. The answers to both questions are almost always “no.” In that case, however, the response to the first question came in the form of a listing of cases three pages long – lawsuits, verdicts, and settlements, all of which he had been a defendant in. Yet, the answer to the second question (discipline by the commission) was “no.”

How can that be? A dozen meritorious claims that ended in plaintiff verdicts or settlements, and the licensing board had never found the surgeon acted unprofessionally. We settled the case; yet another for his growing list. The surgeon still practices medicine in the state.