The Retinal Detachment Complaint and the Private Emails
Dr. Aaron White examines a 58-year-old patient who complains of flashes and floaters. He documents a dilated fundus examination, diagnoses posterior vitreous detachment, and schedules follow-up in six weeks. Three weeks later the patient sees a retina specialist and is found to have a retinal detachment involving the macula. The patient files a complaint with the Board, alleging the examination was inadequate. The Board opens an investigation and assigns a case number. Dr. White receives a letter asking for a written response and copies of records. He emails two optometrist Board members personally, explaining that the patient was noncompliant and asking them to "make this go away." He also asks the Board to keep the complaint confidential because his employer is a large health system.
1. Evaluate Dr. White's emails to the two Board members.
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The emails are improper ex parte communications. Board members sit in a quasi-adjudicative role when a complaint is pending; they must decide on the record, not on private lobbying. Contacting them individually to "make this go away" creates an appearance of impropriety and can violate due process, the Board's ethics rules, and potentially the Open Meetings Act if it becomes a serial private discussion among members. The proper channel is the Board office or executive secretary, with copies to staff and, if counsel is retained, through counsel. If a member has already formed an opinion, recusal may be required. The emails may themselves become evidence of unprofessional conduct.
2. Is the complaint and investigation confidential? What can the Board disclose?
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Complaints and investigative files are generally treated as confidential while the matter is under investigation, under the Board's rules and the individual-privacy exception to Montana's public records law. The Board may disclose the complaint to the licensee to allow a response and may share information with investigators, counsel, or other regulators with a need to know. Once formal charges are filed and the matter becomes a contested case, the notice and final action are generally public, although patient identifiers may be protected. Dr. White cannot demand blanket secrecy from his employer; the Board's confidentiality is not a shield against his own professional obligations or malpractice disclosure.
3. What must he do in response to the investigation, and what are the risks of noncooperation?
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He must respond truthfully and completely within the deadline, produce the requested records, and preserve the original chart. He may consult counsel and his malpractice carrier, but he cannot ignore the Board or let staff respond for him. Altering or "clarifying" the record after the complaint is a serious aggravating factor. Failure to cooperate is itself unprofessional conduct and can lead to separate discipline, including suspension, even if the underlying care was defensible. A concise timeline, the fundus examination findings, the follow-up plan, and any patient noncompliance should be presented factually, without attacking the complainant.