Clear & Convincing Evidence

An Administrative Law Judge hears the evidence and makes factual and legal findings at a medical board hearing. The doctor doesn’t have to prove anything he/she can just sit there like a potted plant and win. The Deputy Attorney General has to prove the Medical Board’s case. The standard is high. It is not being more likely right than wrong. It is proof of their case by clear evidence and convincing evidence to a “reasonable certainty”. The legal phrase is “clear and convincing” evidence but we prefer to break it down to its constituent parts.

What does “clear” mean. Not disputed at all ? Is it proof beyond a reasonable doubt ? (No!) Is it more likely than not ? (No!) Clear and convincing evidence lies somewhere in between but in real life it is hard to precisely define this phrase.

How the Ninth Circuit Defines “Clear & Convincing Evidence”

The Ninth Circuit Court of Appeals has a pattern jury instruction that defines the phrase this way:

1.7 Burden of Proof—Clear and Convincing Evidence

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.

Time Frames for a Judicial Decision & Board Review

The law requires that the Administrative Law Judge render a decision in 30 days or less. It is called a “proposed decision” because the Administrative Law Judge has less power than you would expect. The proposed decision is sent to a panel of the California Medical Review Board which has 7 members. They review the decision and they make the final call.

They can adopt or reject (or modify) what the judge recommends. This panel is the final arbiter of what the Board decides. Suspension, citation, restrictions, conditions – all of the discipline comes from this Star Chamber. You finally get input after the SC issues its decisoin. You can MBC to reconsider the decision (you have 30 days to do this).

Medical Board Seeks to Reduce the Burden of Proof

Despite this, in January of 2002, here (in relevant part) is the entreaty that the Medical Board sent to the California State Legislature asking that the burden of proof be dropped to a preponderance of evidence. A preponderance of evidence means that the judge believes them more than you. The strength of their evidence does not matter. If it is more likely than not that they are right – they win.

Here is how the Board framed their “plight”.

Change the Evidentiary Standard to Preponderance of Evidence

Under California law, the Board is at a significant disadvantage, in comparison to most other medical boards, when attempting to investigate and prosecute a licensee suspected of failing to properly care for their patients or otherwise act in an unprofessional manner. Prior to taking disciplinary action, the Board must first investigate to gather evidence sufficient to prove that discipline is appropriate and necessary. Discipline is tailored to the facts and circumstances of each case and, generally, may include public reprimands, probation, suspension, or revocation.

The Board is required, under current case law, to obtain “clear and convincing proof to a reasonable certainty.” This is a higher burden of proof than in 41 other jurisdictions throughout the U.S. states and territories, which generally apply a “preponderance of evidence” standard. As a result, California is out of step with most other jurisdictions, making
it more difficult, time consuming, and expensive to prosecute instances of unprofessional conduct in this state.

The “clear and convincing” standard requires less evidence than the “beyond a reasonable doubt” standard which is used in criminal prosecutions, but is higher than “preponderance of evidence,” which is also used in civil litigation and is defined typically as “evidence that shows it is more likely than not that a fact is true.”

Requested change in statute: Add a section to the Medical Practice Act stating preponderance of evidence is the standard of proof for the Board’s disciplinary proceedings.

Can a Physician Self-Represent?

Yes. You can represent yourself. In most cases self-representation is a red flag that the physician is not mainstream, typical, organized etc. In some cases if you are admitting guilt and want to work out a mitigation plan, a reasonable Attorney General may be willing to work with you cooperatively. In most cases, they expect that you will retain counsel and doing so does not “amp up” the conflict.

Most cases resolve through a reasoned back and forth/give and take. In cases where a fair compromise cannot be reached, the Horowitz Medical Law Group has a level of trial expertise that is likely unmatched in any other physician based practice. Daniel Horowitz, Dan Russo, Tom Kensok and Mark Ravis (MD / JD) have literally hundreds of jury trials and thousands of evidentiary hearings under their belts. We can honestly make a proper evidentiary objection in less than 1/2 a second during an Administrative Hearing. Many lawyers can do this but these “many lawyers” are primarily criminal prosecutors, criminal defense attorneys and trial judges. Even the most intelligent office lawyer cannot plan a trial, prepare witnesses and function in the amorphous fugue of a trial as well as true courtroom veterans.

For expert Medical Board representation, call the Horowitz Medical Law Group – (925) 283-1863