• Federal Appeals Court "Clocks" Nebraska Doc on Board's Letter of Concern
  • January 13, 2009
  • Law Firm: Holland & Hart LLP - Denver Office
  • The Eigth Circuit Court of Appeals reversed a summary judgment in favor of the plaintiff physician in Kloch v. Kohl, No. 07-2120 ( 8th Cir.2008). Dr. Kloch received a Letter of Concern from the Nebraska Board of Medicine and Surgery, which was placed in his public file. Under Nebrasak statutes investigations of complaints against physicians are referred to the Nebraksa Attorney General for assessment. The AG can refer the matter back to the board and recommend closing the case with a letter of concern, which is not technically discipline, which precipitates due process rights and protections under Nebraska law.

    Dr. Kloch, a primary care physician, was under investigation for failing to keep proper medical records on a patient treated in an emergency situation. He allegedly wrote in the medical record that the patient did not have a palpable pulse and that the surgeon, rather than the patient underwent a thoracotomy. (Sounds like a problem in transcription or a really amazing surgeon). Letters of concern are generally meant to be "friendly warnings" to physicians who commit technical or insubstantial violations, not rising to a level requiring discipline. The problem here is that such letters are public, and therefore not so friendly. The trial court enjoined the letter of concern and its publication in the public record, but dismissed all of the defendants, except the attorney general on the basis of qualified immunity or good faith in the performance of their duties. The attorney general was excluded from the trial court dismissal because the court felt that as a lawyer he should have known the letter of concern was unconstitutional because of its harm to the plaintiff without due process. The Federal Eigth Circuit Court of Appeals found that the letter of concern was not discipline and not the equivalent to formal censure, even though published. It found the Letter of concern was qualitiatively distinguishable in tone and impression than a letter of admonition or censure and therefore not unconstitutional. A letter of concern carries no forward operating prejudice or impact in the event of later disciplinary actions involving the doctor. The Court refused to clean Dr. Kloch's public record and ordered the case dismissed.