Defending Incompetency Complaints
Complaints alleging “incompetency” are among the most difficult for physicians to handle. Doctors rightfully take pride in their professional skills and abilities. An allegation of incompetence can deeply impact a physician’s professional reputation and practice. Defending these complaints often involves the preparation and application of complex facts to nuanced legal principles under Missouri law. Representation by an attorney with extensive experience representing health care professionals and a deep understanding of Missouri law is crucial. If you receive a complaint from the Board of Registration for the Healing Arts alleging incompetency, contact the Law Offices of Kevin J. Dolley today.
What is “Incompetency” by a Physician?
Under Missouri Law, the Board may discipline a physician’s license for “incompetency.” § 334.100.2(5) RSMo.Incompetency is “a general lack of present ability or lack of disposition to use a present ability to perform a given duty.” Tendai v. Missouri State Bd. of Registration for the Healing Arts, 161 S.W.3d 358, 369 (Mo. banc 2005). An incompetent physician is either “unable or unwilling to function properly.” Albanna v. State Bd. of Registration for the Healing Arts, 293 S.W.3d 423, 435-36 (Mo. banc 2009). A doctor with a general lack of present ability is “unable.” This includes being not legally qualified to practice, being incapable of practicing, and lacking the qualities needed for effective action. A doctor who lacks disposition to use a present ability to perform a given duty is “unwilling.” Id.; Tendai, 161 S.W.3d at 370.
An unwillingness or lack of disposition to perform a given duty refers to “a state of being” in relation to said duty. Tendai, 161 S.W.3d at 369. It is something more than a failure to perform professional duties. Indeed, a physician’s “repeated violations of the standard of care constitute repeated negligence, but in themselves, they do not constitute sufficient evidence to prove incompetency.” Albanna, 293 S.W.3d at 436. Doctors are not subject to discipline for “incompetent” acts. Id. A doctor who is generally competent (i.e., has a present ability to perform duties) is not “incompetent” based solely upon a series of unrelated actions or failures to act. Id. Put differently, to prove someone is “unwilling” to perform a given duty (as opposed to “unable”), one must prove some state of mind or level of intent specific to failures to properly act. See Seger v. Downey, 969 S.W.2d 298, 299-300 (Mo. Ct. App. 1998).
Successfully defending an incompetency complaint requires applying the unique facts of each case to the law as stated above. These cases are often fact-intensive and legally complex. Retaining an attorney who can navigate and understand both the day-to-day realities and challenges of medical practice and substantive Missouri law is critical to working toward the best possible outcome when accused of incompetency.
Our Firm has extensive experience representing physicians and other health care professionals in incompetency cases and can help protect your license and professional reputation. If you are a physician or other health care professional who is accused of incompetency, contact the Law Offices of Kevin J. Dolley at (314) 645-4100 or email@example.com to schedule a consultation.