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MEDICAL BOARD ACCUSATIONS

Many doctors find that years of practice suddenly are “incorrect”. Politicians and insurance companies can change the standard of care and subject you to discipline. We are seeing these changes in a flood of opiate prescription medical board cases.

Opiates – The Latest Landmine

You truly have been encouraged to deprive patients in need of their pain medication. If you don’t, your license can be at risk. Note: The CDC is about to publish improved guidelines – but beware. See request for comment by the CDC. Here are the present (onerous) guidelines.

SOURCES OF COMPLAINTS TO MEDICAL BOARD

Complaints typically arise from other physicians, disgruntled employees and patients. Ongoing investigations of other physicians may involve your office (perhaps as a referral source) or some of your patients. Opioid complaints have been coming from insurance companies and pharmacies. If you get a warning letter from either, contact an attorney right away.

Other complaints are more obvious. Suspensions, denials of privileges, arrests can all trigger board investigations. There is little consistency between states except on issues like opiate prescriptions, DME or Genetic Testing remote chart review and other issues that have a national publicity aspect to them.

As an example, some states are very harsh on substance abuse by MD’s. Others look for a treatment option as the first choice. But beware agencies that administer these programs. Once you enter their world of supervision, they own your soul.

SCOPE OF MEDICAL BOARD AUTHORITY

All boards are charged with investigating and disciplining licensees found to be engaged in misconduct as defined in the professions’ respective practice acts. This includes illegal, unethical or incompetent conduct. An area of growing concern are insurance company investigations. These are often statistically triggered by a computer algorithm and investigated by retired law enforcement officers who them make a referral to state licensing agency which then involves the board.

ACCUSATIONS

The term “Accusation” is archaic and it includes actions against doctors with medical problems that interfere with practice. It is generally “accusatory” and the mere filing of a medical board accusation damages your reputation permanently.

Checking on whether a physician has been simply accused is easy. Finding the records of discipline is likewise easy. Here is a story by CBS News that has a drop down menu that allows anyone to search state databases to review physician discipline. Attorneys representing doctors often comment on the incredible harm and peril that physicians face by board actions and MEC Committee / peer review. The result matters but the harm is caused simply by the accusation.

If you are under attack you are in great peril for long term harm. We try to work miracles (and as a physician you have the same orientation) but the cold hard reality is that even the most experienced and talented physician’s lawyer is fighting against tremendous odds. More than many, physician clients have more to lose than the normal professional under similar circumstances.

On the other side of these medical board, peer review and other hostile action cases, the governmental entities, medical groups, peer review groups and hospitals generally feel impervious to any counter attack.

We hear many attorneys and doctors denigrate the hospital attorneys. We respectfully disagree. The attorneys for “the other side” are generally not hacks. Most are highly skilled, very well trained and well paid. You cannot underestimate them and if you are your attorney underestimate these corporate lawyers, you do so at your personal peril.

With this honest caveats, I can and will provide you with an exceptionally high level of expertise and genuine caring for you and your future. My teams focus on ending the stress and pressure and reviving your dreams and vision for your future.

Major Triggers of Medical Board Inquiries

Healthcare fraud investigations by state or federal agencies are often done in partnership with the state medical board.

Health Care Fraud covers a very wide range of conduct but in general consists
of conduct done with the intent to deceive a state, federal or private health
care payor so that the payor provides money or benefits that are not justified.
The FBI is the primary federal agency for investigating health care fraud and
the scope of their authority includes federally funded programs and private
insurance programs as well. Certain states such as California, have very
active state run health care fraud investigatory agencies such as the
department of insurance.

Peer Review

AMA Code of Medical Ethics Opinion 9.4.1 Describing Purpose of Peer Review

“Physicians have mutual obligations to hold one another to the ethical standards of their profession. Peer review, by the ethics committees of medical societies, hospital credentials and utilization committees, or other bodies, has long been established by organized medicine to scrutinize professional conduct. Peer review is recognized and accepted as a means of promoting professionalism and maintaining trust. The peer review process is intended to balance physicians’ right to exercise medical judgment freely with the obligation to do so wisely and temperately.”
For More on Peer Review Click Here

However, the “fair hearing” concept does not mean that reporting to medical boards or medical commissions are always delayed. Summary suspensions, unfair peer review findings, denials of privileges, resignation while under investigation can all trigger medical board reporting and investigation.

Hard Dollar Cost & Damage to Your “Brand”

A medical board investigation if public or if known generally in the community will cause your personal goodwill to nosedive. This is a major economic loss.

Your personal goodwill is literally your own reputation and skills. In most states that reputation belongs to you. You can sell your reputation just as clearly as a corporation can sell a brand name. Even an unfounded peer review will devalue your “brand”. We will at least fight to have wrongful accusations withdrawn. We will make “deals” when necessary but we have no hesitation to litigate if the damage to your reputation is so severe that a settlement is no better than a surrender of your license.

What is a “Disruptive Physician” ?

Attorneys representing physicians often argue that the phrase “disruptive physician” is overused and may sometimes be a justification for
discrimination against the medical practitioner. Employers often counter that a bad attitude at work has a negative impact on the work environment and
hence impacts the quality of care provided at a facility. Many hospitals have software that encourages staff to lodge anonymous complaints which are then used against a doctor. Whisper campaigns get organizational support through repetition and recording.

Often “Performance Improvement Plan(s)” are offered as a way to “calm” a situation. This is usually a trap. Once on the plan, the physician cannot resign without reporting to the National Practitioner Data Bank. (We do not like the term “data bank”. It is a database. Banks keep your money and your financial transactions somewhat private. The National Practitioner “database” is as leaky and public as most databases and in our experience does not deserve to be associated with the word “bank”.

So many peer review, resignation, malpractice and other disagreements result in the NPDB kiss of death. Earlier legal intervention is important prior to actual data bank reporting as the purging process is tedious and difficult.

MEDICAL BOARD ACCUSATION

Slightly ahead of Peer Review in the list of painful stumbling blocks to a medical career, is the Medical Board Accusation. The accusations often follow negative peer review findings but perhaps more damaging are the inquiries triggered by pharmacy or insurance carrier triggered opiate prescription audits, complaints from staff and criminal matters (often unrelated to your practice). We are trial lawyers and we aggressively defend medical board cases. We are capable of negotiating when that is the proper resolution for you but we are known for our litigation and trial / hearing skills. We approach negotiation as seeking a mutually acceptable middle ground and we never negotiate without reserving the option of presenting a vigorous and intelligent defense at hearing.

Watch a 30 minute video outlining the California Medical Board’s Disciplinary Guidelines (What penalty for what conduct)

What is a “Medical Board Accusation” ?

From the Medical Board of California (annotated)

Medical Board Investigation Forwarded to the State Attorney General

If the investigation finds evidence that the physician has violated the Medical Practice Act and the violation warrants disciplinary action, the case is forwarded to the Attorney General’s Office to prepare an accusation. An accusation is a legal document that lists the charges and/or the section(s) of law alleged to have been violated and is served on the licensee.

You will usually have significant contacts with the board investigators prior to this state so you should not be surprised when they choose to proceed.

In California only 15 Days to Dispute the Charges

The physician is entitled to dispute the charges at an administrative hearing. The request for a hearing must be received within fifteen (15) days after the accusation is served pursuant to Government Code Section 11506.

The simple filing can be supplemented by a variety of objections, demands for specific items of “discovery” and other matters that generally are better handled by an attorney.

Key Document – “Notice of Defense”

The actual document to be filed is a form which will be provided with the Accusation.

The request for a hearing may be made by delivering or mailing a “Notice of Defense” to both the Deputy Attorney General and the Medical Board of California. The Deputy Attorney General’s name, address, and telephone number appears on the front page of the accusation. … If a request for a hearing (or Notice of Defense) is not received, the physician will be deemed to have waived the right to a hearing and the Board may proceed to act on the accusation without a hearing and may take action as provided by law.

The physician may, but need not, be represented by counsel at any or all stages of these proceedings. The hearing is an administrative proceeding that closely resembles a court trial and is presided over by an Administrative Law Judge. After the hearing, the Administrative Law Judge writes a proposed decision. The proposed decision is then sent to a panel of the Board for consideration. The members make the final decision on disciplinary matters and can either adopt, modify, or reject the proposed decision.