The Medical Board of California maintains a Central File that you can access but investigations reside in a confidential file to which access is limited. The complaint process usually starts with an outside entity filing a complaint. Former employees, pharmacies, insurance companies and competitors are frequent sources of a complaint. Patient complaints usually center on contested billings, sexual misconduct complaints and complaints of treatment after a patient switches MD’s and interprets a new treatment plan as a criticism of your work. The more obvious trigger is the filing of felony charges (and beware the self reporting requirements). Peer Review reports (Business & Professions Code section 805); Medical malpractice reporting requirements (Business & Professions Code section 801.01); coroner reports that are written to trigger an investigation (Business & Professions Code section 802.5); adverse event reports either at an outpatient center (Business & Professions Code section 2216.3 or 2240(a)) will also trigger an investigation. The Medical Board can also self initiate an investigation as they have in the Ailee Jong case against John Muir Hospital. (Link to News Article)
A license complaint will often result in a subpoena for medical records. This means the complaint has past the “frivolous throw in the garbage” stage and is getting serious consideration. You need an attorney at this stage.
DUI (Driving Under the Influence)
An electrician can get a DUI conviction and go to work the next day and wire your house, or the OR at your hospital. A physician will be considered at risk for being an alcoholic. The Board may demand that you take a PEth blood test measures the level of phosphatidylethanol, a direct alcohol biomarker which is found in human blood following moderate to high (episodic) alcohol use. A DUI charge is a serious charge for a physician and the standard defense for DUI’s is often inadequate for a physician.
Sexual Misconduct & Crimes
Obviously a certain number of physicians truly commit sexual assaults. However, most of the charges that we see are areas where interpretation of conduct can swing with the political winds. The physician who is warm and caring is more at risk than the cold mechanistic doctor. Who is the better physician ? Who gets a better patient history ? This is an area that requires immediate legal intervention as it tends to get priority treatment from credentialing entities, hospitals and district attorney’s offices.
Large practices and corporations follow expensive and established templates for billing and record keeping. There are many lesser software systems or back of the envelope systems in use. These systems are fraught with danger. While a large corporate medical group can demand that their PCP’s see a patient every 15 minutes, a smaller practice can be scrutinized for choices of billing codes. This scrutiny can lead to reimbursement disputes and referral for fraud to law enforcement. The fact that the treatment was necessary and the billing genuine may not convince pencil pushers and computers that compare your practice to the corporate norm. Penal Code section 550 is often used in California to charge physicians for any billing irregularities that affect claims for insurance reimbursement. Stark violations and AKS violations are a different matter. These criminal charges often arise when a physician’s practice branches into untested treatments or business practices related to the primary practice. The Stark and anti-kickback rules are vague. They are a case by case / judgment call set of crimes. Fair warning and other constitutional protections may apply to Stark and AKS charges. We specialize in this area of physician law.
For more information on our Criminal Defense Specialists (Board Certified by the State Bar of California, Board of Legal Specialization) CLICK HERE
Stark Law Violations
If you refer Medicare patients for health services to an entity or where you have a financial interest the Stark law may apply. A financial interest can be an ownership interest or even a referral (back and forth) relationship. The interest can be personal or through a family member. Interlinking corporate relationships may seem to provide isolation from the Stark law but these often unravel.
The law is most frequently applied to categories of patients who are vulnerable to manipulation. Medicare patients who are elderly and prescribed DME’s such as knee braces, neck braces (etc) may be viewed as vulnerable to manipulation. Genetic testing for cancer gene clusters and other cutting edge (not well established) genetic disease markers will be scrutinized as well. If referrals result in profit to you, Stark violations may be taking place.
WHEN TO HIRE A LAWYER
Physicians tend to wait until it is certain that board or other official action is being taken. The hope for the best attitude is the right choice when everything goes away. It is the worst choice when the case proceeds. So it is gambling. If you are in the 1% or 5% lucky group you’ve saved a few dollars. If you are in the vast majority, you will have lost time, witnesses and certain strategic advantages.
When you contact our office we game analyze the possible outcomes. It is as if you are playing chess against a known opponent but you only know what chess opening is being played. Soon the variations will exlode with possibilities. This explosion comes quickly and to make the proper choices preparation is needed.
When you first retain our office we review the medical records, consider the factual issues and interview witnesses when possible. We investigate the complaining witness(es) using background techniques that are available to our investigators. In the appropriate case we will retain medical experts to review records. If your mental condition or practice procedures are in question, we have experts to work in these areas preemptively so that any discussions can focus on present reforms done in anticipation of formal criticism. For drug or alcohol issues, mental health and behavioral issues, we have experts and facilitiess that can provide treatment and support while helping the physician maintain his/her license.
For subpoenas and interviews, our highly experienced team can limit or challenge the requests and prepare you for any interview. (And yes, your attorney can be present.)
We have had great success in preventing the filing of an Accusation or in negotiating a filing with a stipulation to reasonable level of discipline. The investigation is conducted by a law enforcement investigator who assembles the evidence in preparation for an interview. The interview often includes a Deputy Attorney General and will most often include the investigator and a board appointed physician. The material is then sent for a comprehensive overview with an “expert MD” considering the evidence. A decision is then made to file (or not file) an Accusation.
The evidence is the considered by a Deputy Attorney General. These AG’s are assigned to the Health Quality Enforcement Section of the Attorney General’s Office which is a specialized section that reviews evidence, files Accusations and prosecutes the Accusations. These attorneys are highly experienced. Our attorneys have extensive background in medical and criminal matters so that our courtroom experience usually (far) exceed that of the Deputy Attorney General assigned to a case. Our legal team includes veteran trial lawyers, a lawyer/doctor and former (top level) prosecutor.
If an Accusation is filed is a public record and can easily be accessed on the Medical Board website.
You will receive notice in the mail and you will get a form that you must file in 15 days to establish your defense. (See Government Code section 11505) It is called a “Notice of Defense”.
The pay the other side’s attorney fee clock starts ticking. If you contest the Accusation and lose, the DAG will submit a bill for attorney’s fees and by statute, you have to pay. This is a strong incentive to negotiate a “Stipulated Settlement” at an early stage.
If you don’t stipulate, our office will prepare your Notice of Defense and assert the proper state and federal objections (both substantive and procedural). The matter will be set for a rather quick hearing in front of an administrative law judge through the Office of Administrative Hearings (OAH). Even if you win at that hearing, the Medical Board can review the facts and take adverse action. You don’t get in front of a Superior Court judge until after that process is completed. It is important to proceed before the OAH and Medical Board with an eye on an a request for Superior Court intervention.
We have had good experiences with many Deputy Attorney Generals. It is a bad tactic to demonize the opposition. We have had cases dismissed after the filing of an Accusation. We have had charges narrowed and fair resolutions negotiated. One can litigate aggressively while still maintaining respect and civility.
Please contact our office at the first sign of an investigation. (925) 283-1863