We Care !
A California physician license is earned by years of exhausting work and sacrifice. Our physician lawyers understand your investment. When our lawyers promise to fight for you, our word is our attorney’s bond. We see you as a “whole person” and as a firm of lawyers for doctors, we understand how intertwined your career and life truly are.
Decades of Expertise
Daniel Horowitz has over 40 years experience as an attorney for doctors fighting Medical Board investigations and defending MD’s at Medical Board administrative hearings. His physician defense team consists of seasoned professionals including a physician lawyer (who is actively practicing medicine), an MBA and a former Naval Intelligence officer. The team will provide you with the highest quality defense.
News articles documenting Daniel’s successful million dollar judgments for his clients, his vigorous protection of the finest doctors against the attacks of jealous competitors and his international legal work can be found HERE. See: San Francisco Chronicle article profiling Horowitz.
Daniel Horowitz is a National Trial Lawyers Top 100 Lawyer and a California Super Lawyer and top rated by Martindale-Hubbell (AV1), AVVO (10) and a member of the National Association of Distinguished Counsel Top 1%. Daniel is also a certified criminal defense specialist certified by the State Bar of California, Board of Legal Specialization.
The core strategy for a Medical Board case is to contain and limit the scope of the investigation. Prefiling negotiation can often resolve an issue with a vindication, citation or minor discipline. If the Board through the Attorney General, makes an offer that you must refuse, we will set an administrative hearing to litigate the contested issues. (To learn more about the administrative hearing process, visit the OAH website. The hearings are conducted by administrative law judges.
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Every Case is Different
Every case is different. The medical landscape is every changing. Discipline and Accusations follow politics.
We look at the local politics, national trends, criminal law trends, and the specific motives of the persons who are initiating and pursuing the case against you. We never forget that a Medical Board complaint is often the opening salvo to a career challenge or civil lawsuit for damages.
Attorneys Must Be 100% Up to Date
Yesterday’s successful defense may be today’s disaster. Times change and a top medical board defense lawyer never stops updating his/her strategies and case preparation. Recycled solutions are rarely adequate. We review the boards current list of Accusations, disciplinary guidelines, meeting agendas and the political advocacy that is intended to influence board decisions.
Our Firm Considers Matters Other Lawyers Ignore
The Horowitz law firm consists of attorneys and team members with broad expertise. Our experience and insight runs deep and we raise issues that other lawyers do not even consider. Our teams include a physician/lawyer, MBA, licensed chiropractor law school graduate and investigators with law enforcement and national security experience. We take in the total picture.
How can this help you ? Consider this question: Can criminal law affect you as a physician when you are facing a non-criminal medical board inquiry ? We know the answer to this question.
What rules apply to opiate prescribing ? Are there state rules ? Medical Board rules ? Do local rules matter ? We dig deep to answer these questions so that your defense is cutting edge and completely up to date.
In the Opioid Example: Can You Use a Criminal Supreme Court Case ?
The answer would fill many web pages but consider this. Does the Board have to consider the doctor’s state of mind in making the prescriptions ? If you are honest in your belief that you are helping the patient, should that be considered ? In the criminal context the Supreme Court just ruled a resounding “Yes !”. (See: CNN’s write up of this case which was decided in favor of the doctors). A careful review of that case contains nuggets that can be used in the Board defense context. Consider this – if state of mind is relevant to whether a crime has been committed isn’t there a relationship between the physician’s state of mind, judgment and rational decision making ?
In the Opioid Example: Can You Use Local Standards ?
What about local standards ? These are not “law” but they need to be reviewed. If you are in compliance with those suggested guidelines the absence of specific official legal force does not change the fact that these rules are strong evidence that you are acting within the standard of care. (See: ACCMA standards). The same is true of pending regulations, submissions supporting changes in regulations and rules for other states. Even if the standards seem unreasonable to you, be familiar with the CDC Clinical Practice Guideline for Prescribing Opioids for Pain — United States, 2022. The Osteopathic Medical Board of California (OMBC) has an excellent pamphlet on the use of CURES with opioid prescriptions. Likewise the Medical Board of California has a similar pamphlet. Whether or not you agree with these recommendations it is the safe choice to institutionalize and adopt these standards.
Dismissals Depend Upon Persuasion & Preparation
We take a comprehensive and aggressive approach to front load your defense. Stopping an investigation before it grows to an Accusation is the highest priority. Time is of the essence. A Medical Board complaint takes on a life of its own and grows like a weed.
However, even with our best efforts we cannot always succeed in preventing the filing of an Accusation. However, the work we do to attempt to head off the Accusation can be used as the case moves forward. Also, the Board’s filing of an Accusation and the setting an administrative hearing is not the end of negotiation. The Horowitz office has obtained full voluntary dismissals after an Accusation has been filed.
In cases where an evidentiary hearing must be held, few attorneys have the trial experience of Daniel Horowitz. He has been lead counsel in thousands of evidentiary hearings and has over 200 trials to his credit. Daniel has been a law school professor teaching trial law and he lectures and publishes on this subject. Our experience is unmatched among physician lawyers and it is a major differentiator for you to consider in selecting the best lawyer for your needs.
Beware Peer Review “Coaching” & Deals
Do not believe for a minute that a congenial resolution resulting in a “coaching agreement” or other collegial resolution is a safe choice. It may be the only choice but there is a reason that the medical staff/hospital has adopted a formal resolution process. Their attorneys are involved. They have a roadmap. Your initial concession makes later actions against you seem reasonable and fair – even if they are not. Beware resigning. Beware changing jobs. Informal agreements can trigger Medical Board or NPDB (National Practioner Data Bank) reporting. Legal advice is not a sign of bad faith or contentiousness on your part. It is a prudent backstop to protect your career and your license. Norman T. Reynolds, California Public Protection & Physician Health (CPPPH) made a presentation at the San Francisco Bay Area Regional Workshop on January 24, 2015. VIEW HERE His presentation is the genuine, caring approach to mental health issues that manifest as being a “disruptive physician”. However, these same criteria are often weaponized by healthcare lawyers to marginalize physician partners and to justify driving them out of practice. Samuel D. Hodge Jr. has published a lengthy article titled What Can Be Done About A Disruptive Physician? A Legal Analysis, 40 Pace L. Rev. 126 (2020) This is an excellent medical-legal analysis of the disruptive physician label can be found HERE.
Should I Use My “Medical Malpractice” Lawyer ?
If the Medical Board action arises out of a medical malpractice lawsuit the answer is “yes” – 100% of the time your medical malpractice attorney must know what is going on. If the Medical Board action presages a later malpractice lawsuit you should contact your malpractice insurance carrier. (We can help you with that.) Remember that attorneys who do malpractice defense often do little Medical Board work. The same is true for Medical Board lawyers. Our office does not generally defend (or prosecute) medical malpractice cases. We do at times get brought in at the trial stage. We advise other lawyers on jury selection, complex evidentiary issues or as the actual “face” in the courtroom (e.g. the trial lawyer). Your lawyers should communicate with each other and work together.
Medical Malpractice Settlements and Credentialing (Later On)
A medical malpractice judgment or arbitration above $ 29,999.99 ($30,000 or more) is reportable to the medical board. The grey area is that the award must relate to a licensee’s alleged negligence, error or omission in practice. The argument is often whether a billing dispute or other ancillary dispute should be reported,. MICRA is routinely invoked to limit the scope of a legal action against a physician. The flip side is that the invocation of that protection tends to make any settlement reportable. If a report is made, the Medical Board Central Complaint Unit reviews whatever information has been provided. Subpoenas for additional detail may issue. The CCU determines whether a violation of the Medical Practice Act occurred. The physician can respond and in some instances the board takes the judgment and initiates further action.
As medical credentialing attorneys we may see a malpractice judgment or settlement on the doctor’s record. The outcome of a malpractice case may be protected by the settlement agreement. We can review settlement agreements before they are signed to ensure that you can defend yourself when the malpractice case is raised during credentialing. If your settlement agreement is restrictive we can often negotiate a relaxation of the restriction. If all negotiation fails we can seek a court order to allow you to modify the settlement restrictions to explain your position as part of your credentialing application.
For a Confidential Consultation Call (925) 283-1863
DANIEL HOROWITZ – Memberships & Recognition
- American Health Law Association
- American Bar Association – Health Law Section
- California Society for Healthcare Attorneys
- Alameda-Contra Costa County Trial Lawyers Association
- Lecturer Pinkus Professional Education
- Lecturer Alameda-Contra Costa County Trial Lawyers Association
- Recognition – Top 100 Trial Lawyers (The National Trial Lawyers Association)
- Recognition – Top 1% (National Association of Distinguished Counsel)
- Recognition – Super Lawyers
- Certified Specialist – Criminal Defense (State Bar of Ca. Board of Legal Specialization)
- Lecturer CPDA/CACJ
- Publications numerous including CEB, The Verdict, ACCTLA
- Admitted – United States Supreme Court (1999)
- Admitted – United States Court of Appeals 9th Circuit (1998)
- Admitted – Supreme Court of California
- Court Appearance Cyprus
- Court Appearance Israel
- Court Appearance Canada
- Court Appearance The Netherlands
Professional Board Basics (Law Enforcement Focus * Pitfalls * Traps & Tips)
Structure of Professional Boards – DCA on Top
Other than the Chiropractic Board, the 36 professional boards are directly supervised by the Department of Consumer Affairs. The DCA is a branch of the Attorney General so the supervisorial boards while staffed by the public and professionals in your field are legally advised by the Attorney General and for most purposes controlled by the AG’s office.
To learn about the structure of the DCA, CLICK HERE.
Physician Investigations are “Triggered”
Investigations by the particular board are triggered. There are few if any routine reviews.
If you are a doctor with a DUI (drunk driving) you are going to be looked at to see why you put yourself in a situation of excessive drinking. While you may view your DUI as situational, the investigator will presume that the arrest is emblematic of a broader problem. In selecting a disciplinary defense attorney consider retaining counsel at an early stage, even before your DUI case is final. A fact that applies to any of the medical boards is that prompt and proper mitigation is best initiated before conviction and before the investigation is formally commenced.
Other triggers include angry ex-employees, patients who do not want to pay bills and competitors who question your advertising or billing practices.
If a physician, laboratory, billing company that you have contact with gets arrested for Stark violations, anti-kickback violations, billing fraud and other heatlthcare fraud based criminal charges, there is one absolute fact you must know. In 90% of those cases the doctor arrested will scramble to “make a deal”.
The deal means that he/she goes undercover and tries to set up other medical professionals. This will happen before the arrest is announced in public. Even after arrest the entity or doctor will debrief and discuss any doctor or medical practice that can be tainted by the arrested entity in order to lessen his/her exposure. We have seen situations where the main criminal actor gives the names of doctors using his/her urine tests, formulated pharmaceuticals, DME (you get the point). The leader goes free or gets a slap on the wrist and the people turned over lose their licenses.
Remember our warnings. Do not alter, correct, modify medical records when you feel threatened. You need a lawyer to review the files and to make corrections or additions in a lawful (safe to you), manner.
When Do You Need a License Lawyer ?
If you have already experienced a level of board interaction including public reproval, peer review discipline or even peer review investigation, it is wise to consult a medical license attorney before you report the discipline to credentialing entities and certainly before you initiate any new applications. A medical credentialing attorney will know what needs to be disclosed and how to package disclosures so that you are completely compliant but not compounding any harm. Employment disputes can often escalate into reportable conflicts. Our office uses Karina Johnson (formerly working with Physicians Advocates in Walnut Creek, California) and Daniel Horowitz for physician contract review. We spot provisions that at times encourage conflict. Certain provisions trigger and encourage negative (professional) reporting and escalate what would otherwise be simple business disputes to a license threatening process. If you’ve already signed one of those troublesome contracts, we can try to minimize the damage.
During peer review negotiations the language of any referral to the medical board, nursing board, dental board (etc) can help determine the scope of the investigation.
Avoid these Obvious Errors
Some common errors that we see when medical board or peer review investigations and during healthcare audits is the correction or supplemention of medical records without the proper notations of changes. An innocent supplementation of records can be viewed as “falsifying medical records”. Patient disagreements on records and rules regarding patient annotations are not well known but also must be followed in contentious situations. Our general advice is that a physician must be 100% compliant with the professional rules even if a patient or patient lawyer are wielding these rules to gain an unfair advantage.