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Medical Board of California Procedures & Terms
A Closed System of Investigation
The California Medical Board and the Osteopathic medical board of California procedures are similar to those of many other medical boards. The investigation process often keeps your in the dark. It is not a partnership and the investigator is not your friend. Even unfounded complaints can lead to investigations that are invasive and threatening.
A. Central File
Many boards including the Medical Board of California, keep two files relating to a board complaint. One is the main/central file which will contain the complaint against you. Access to that file is generally open although the complaint itself may be withheld, redacted or presented in a summary form.
B. Investigative File
The “investigative” file is kept from the doctor. You will see as much of this as the investigator chooses. The reviewing doctors and reviewing lawyers have full access. When you are interviewed the people questioning you know everything. You know what they choose to disclose plus what you uncover in your own, independent investigation.
C. Tactics for Complaining Entities / Persons
A sophisticated complainer will file a very brief complaint knowing that this goes into the central file and can be viewed by the doctor. Once an investigator reaches out to the complainer, those contacts are protected and generally withheld. Weeks later the doctor walks into an interview with an investigator, Deputy Attorney General (in some cases) and a medical expert. All three know full details of the complaint but the doctor and the doctor’s lawyer are partially in the dark.
You may be tempted to contact the person or entity that filed the complaint. Don’t. In most states, contacting the physician, patient, employee or entity that submitted a complaint can be used against you.
D. Outside Reviewer
The matter is then referred to another outside reviewer and charges may or may not be filed.
This outside reviewer is picked by the medical board and is a mystery figure. This doctor can be a competitor, an enemy or … well it can be anyone who passes the rather basic qualification process to be a reviewer.
Elements of the Medical License Defense
A. Negotiate to Avoid a Formal Filing
Medical license defense focuses on mitigation by preventing the filing of an Accusation. If an Accusation is filed the focus is on winning the case and/or mitigation of penalty. In many cases a citation or other outcome can protect your California Medical License and leave you with a clean public record.
The first notice of a possible medical board action will be requests for records or contacts with patients.
This is the time to act. Don’t wait. Many physicians interact without a lawyer hoping to “explain” the situation to the “friendly” investigator. 99% of the time this does not work. There are many excellent and honest investigators but they expect to work with an attorney and hiring legal counsel does not escalate the problem.
B. Prepare for the Interview
An investigation will ultimately lead to a request for an interview. The interview may be with an investigator alone but usually involves a medical expert and often an attorney representing the board.
You need to prepare for the interview right at the start. An experienced medical lawyer understands the direction the investigation is going and preparing weeks in advance is far superior to a last minute rush.
Remember that there are usually two steps to the interview process. After an investigation and interview are concluded there will usually be a second medical review by a Medical Board “Expert Reviewer”. When you prepare for the “interview” you must also be preparing for the “expert review”.
At that point, in most cases, an Accusation may be filed. This is the document that lists the charges the Board has filed against the physician and that facts which (if true), would support the Accusation.
The doctor has to dispute the Accusation in writing within fifteen days after the accusation is served. The Accusation package will include a document titled “Notice of Defense”. This has to be filed by delivering or mailing to BOTH the Deputy Attorney General and the Medical Board of California. You can do this yourself but if there is time, an attorney can add some objections and twists that might be of use.
A physician can negotiate once an Accusation is filed. In fact the administrative law process encourages negotiation and provides for settlement conferences to facilitate negotiation.
Prior to those conferences, both sides file briefs with the settlement judge who attempts to bring the parties together. The Attorney General usually represents the board and in most cases will file a confidential brief. The doctor’s lawyer may choose to file a non-confidential brief with a copy sent to the Attorney General. This allows the Attorney General to discuss in advance, settlement possibilities with its client – the board.
Administrative Law Judge Decision
If the case goes to hearing, the administrative law judge issues a non-binding decision. The “Decision” describes both the legal and factual findings made by the judge and reasoning behind those findings. The findings track the charges filed in the Accusation and contains recommended discipline (assuming an adverse finding) and identifying any conditions or limitations imposed on the physician’s license. The Medical Board often, but not always follows these recommendations. Click this link to learn about the Office of Administrative Hearings (where the administrative law judges in California “work”).
Judicial Suspension Orders
These are Orders issued by either a Superior Court judge or administrative law judge to suspend or limit a physician’s practice immediately. These interplay with the Accusation and Decision process described above. The order is authorized under California Business and Professions Code § 2310. This section specifically allows the Medical Board of California to suspend a license in California if another state has acted against that doctor and suspended or revoked his/her license in that other state.
The rules get complex and the statute has also been interpreted by various published cases. The suspension is “temporary” and the board must file a formal Accusation within 90 days of issuing the temporary suspension.
Medical Board Public Letter of Reprimand
When the process completes, a negative result can include a “Public Letter of Reprimand”. This is a taint to the physician’s reputation and usually has terms and conditions such as further training, education, counseling or other remedial requirements. However, this is a low level of “punishment” and the main harm is to your tarnished image and reputation. We will often produce a “dossier” for physicians who have suffered a reprimand. This is used for malpractice insurance renewals, job searches, credentialing and other professional reviews.
Medical Board Citation
This is usually considered a victory for the doctor. It is a public reckoning and usually usually includes a fine imposed by the Board. It is limited to small matters and technical violations of the law. Citations are not a disciplinary action by the Medical Board’s definitions and they vanish three years after the issue addressed in the citation has been fixed.
WHO IS THIS “EXPERT REVIEWER” ?
Per the California Medical Board – Role of an Expert Reviewer
- Reviews facts independently and impartially.
- Provides clinical expertise and testimony regarding complaints about the practice of medicine.
- Establishes whether or not a departure from the standard of care occurred.
- Assists investigators, prosecutors, and administrative law judges in understanding the medical aspects of a case.
- Simplifies complexity and clearly articulates findings and the basis for opinions to lay persons throughout the disciplinary process.
- Complies with Board requirements when performing reviews or evaluations.
- Able to complete and submit a written opinion within 30 days of receipt of case materials.
An Expert Reviewer is NOT an advocate for the Medical Board or the respondent physician.
But who is this person? How much do they get paid to review other people’s work ? There are some frightening facts. The person could be a competitor. The person’s qualifications need not be exceptional. The pay is low so the reviewer is either doing the work as a contribution to the profession, to be able to work from home or because they have some other reason for wanting a rather low paying job. Bear in mind that most reviewers also have a regular practice.
Remember that these experts in most states are secret. You don’t get the opportunity to explain why a different person should review your work.
Medical Board Reviewers are Protected by Statute
California as most other states, protect reviewers. Here are two California laws that protect medical board experts.
Civil Code Section 43.8 provides immunity from civil liability for expert reviewers acting within the scope of their duties in evaluating and testifying in cases brought before the Board.
Business and Professions Code Section 2316 states the Office of the Attorney General will provide representation in connection with specialty board disciplinary proceedings, should a complaint be filed.
Conflicts of Interest
Unfortunately, medical board reviewers are not heavily vetted for conflicts of interest. They may have competitive conflicts with the physician whose file they are reviewing. They may have industry ties which are not explored. The “Star Chamber” pejorative is not unfair when applied to a situation where one’s entire career is in the hands of a secret group that is not well vetted for conflicts of interest.
Medical Boards in Washington & New York
Boards across the country have more similarities than differences. Below we do a brief review of Washington state and California Medical Board / Commissions.
Washington Uniform Disciplinary Act
Most states are highly transparent in how the approach physician discipline. Consider Washington’s statute, titled the “Uniform Disciplinary Act”. ” The uniform disciplinary act. The state legislature says that 18.130 RCW, shall govern the issuance and denial of certificates, unauthorized practice, and the discipline of persons certified under this chapter. The secretary shall be the disciplining authority under this chapter.” That section can be reviewed here. It is light reading in the sense that while some of the sections may seem odd, they are rather clear. For example if you ever wondered whether there was a rule concerning students doing pelvic exams, here it is.
(1) A health care provider licensed under this title may not knowingly perform or authorize a student practicing under their authority to perform a pelvic examination on a patient who is anesthetized or unconscious unless:(a) The patient or a person authorized to make health care decisions for the patient gave specific informed consent to the examination;(b) The examination is necessary for diagnostic or treatment purposes; or(c) Sexual assault is suspected, evidence may be collected if the patient is not capable of informed consent due to longer term medical condition, or if evidence will be lost.(2) A licensed health care provider who violates subsection (1) of this section is subject to discipline pursuant to this chapter, the uniform disciplinary act.
Other sections may be more generally applicable. For example, if you are applying for (or applied for) a Washington license and forgot to include a disturbing the peace arrest when you were drunk in college, is that a violation of some sort ? The following section may send you scrambling to review the exact wording of your license application.
Fraud or misrepresentation in obtaining or maintaining a license—Penalty.
A person who attempts to obtain, obtains, or attempts to maintain a license by willful misrepresentation or fraudulent representation is guilty of a gross misdemeanor.
New York has the Office of Professional Medical Conduct (OPMC). This site is less detailed than some others. It defines “medical misconduct” as follows:
“What is misconduct?
Examples of medical misconduct include (but are not limited to): practicing fraudulently, practicing with gross incompetence or gross negligence; practicing while impaired by alcohol, drugs, physical or mental disability; being convicted of a crime; filing a false report; guaranteeing that treatment will result in a cure; refusing to provide services because of race, creed, color or national origin; performing services not authorized by the patient; harassing, abusing or intimidating a patient; ordering excessive tests; and abandoning or neglecting a patient in need of immediate care.”
The Medical Board is authorized to discipline a medical licensee who commits “unprofessional conduct.” (See: Business & Professions Code § 2234. Unprofessional conduct includes: (1) the “commission of any act involving dishonesty … that is substantially related to the qualifications, functions, or duties of a physician and surgeon”; (2) the “conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon”; and (3) “conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession.” (§ 2234, subd. (e); § 2236, subd. (a). See also: Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 575
A DUI may or may not rise to this level but if you are arrested for and convicted of driving under the influence a review of your treatment of patients may lead to a seemingly simple offense morphing into an unprofessional conduct inquiry. Certainly billing disputes with insurance companies have the potential of triggering a larger inquiry by the board. When a doctor is found to have committed unprofessional conduct, the Medical Board has the authority to discipline the licensee in various ways.
- Public reprimand (which may include a requirement that the licensee complete relevant educational courses).
- Revocation of the physician’s license
See: Business & Professions Code § 2227, subd. (a).
The maximum discipline—revocation—deprives the licensee of a “fundamental right” to practice his or her profession (see Bixby v. Pierno (1971) 4 Cal.3d 130, 143)
To some degree you have substantive and procedural due process because the constitution protects the right of doctors or any individual “to engage in any of the common occupations of life”] ), and loss of the license is considered a “drastic penalty” (Cooper v. State Board of Medical Examiners (1950) 35 Cal.2d 242, 252) For this reason the Board may stay a revocation subject to specified terms and conditions. (See Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 563–564; Medical Board of Cal., Manual of Model Disciplinary Orders and Disciplinary Guidelines (11th ed.2011) pp. 9 & 27.) However, “may stay” and “due process” are concepts not dictates. In practice, the board itself has tremendous discretion to select among penalties. There is a requirement of fairness in terms of punishment meted out to people in similar circumstances but the board has many ways to distinguish cases so that seemingly disparate penalties can be justified.
In exercising its disciplinary authority, the Board is required to give “highest priority” to “protection of the public.” (§ 2229, subd. (a)) The statute says that priority shall also be “given to those measures, including further education, restrictions from practice, or other means, that will remove” the physician’s “demonstrat2d deficiencies in competency.” (Business & Professions Code § 2229(c).) In addition, the Board “shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence.” (Business & Professions Code § 2229(b).)
The board will justify its decision claiming that its conduct is “not to punish” but “rather, ‘to protect the life, health and welfare of the people at large and to set up a plan whereby those who practice medicine will have the qualifications which will prevent, as far as possible, the evils which could result from … a lack of honesty and integrity.’ In short, the purpose of discipline is to make the [physician] a better physician.” (Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 473, quoting Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 331)
For these reasons a mitigation packet and a mitigation strategy has to be in place at the same time you prepare a vigorous defense. Charting out the end result of a hearing leads to realistic decisions as to when and how to reach a resolution. If you are intending to resolve a vigorous defense is not a hinderance but it rarely is proper to focus only on attacking the board position without consideration for a middle ground that protects the ability to practice.
REVIEW OF A BOARD DECISION
Review of a Board decision is done via a petition for administrative mandamus. Your first stop is superior court. (Code of Civil Procedure § 1094.5) The Superior Court court must determine whether the Board “proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) “Abuse of discretion is established if the medical board did not act in a manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” In most cases the Superior Court will find that the Board’s decision affected a doctor’s fundamental rights which allows the court to exercise its independent judgment based on the administrative record.
The negative though is that the “starting point” for the trial court is a presumption of correctness concerning the Board’s decision”. Fortunately the next step is that the trial court “is free to substitute its own findings after first giving due respect to the agency’s findings.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817–818)
If the trial court rules against the doctor, appellate review of a superior court’s decision is available. You file a petition for an extraordinary writ. (Business & Professions Code § 2337; Sela v. Medical Bd. of California (2015) 237 Cal.App.4th 221, 230) The appellate court can review the Superior Court’s factual findings to determine whether the findings are supported by substantial evidence. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627) This is a deferential standard. Even if the decision is wrong it is upheld (on the facts) if it is not totally absurd.
More favorable to the doctor is the analysis of pure questions of law and “issues regarding the nature or degree of an administrative penalty. These are given a de novo review which means the Court of Appeal uses its own judgment in deciding what is right or wrong. However there is a negative twist. Right or wrong is not to substitute the Court of Appeal’s decision for the board. The Court of Appeal makes its own choice as to whether whether the administrative agency (the board) “abused its discretion.” (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 851. In essence this bypasses the Superior Court views but still gives deference to the board.
An abuse of discretion may be found if, under all the facts and circumstances, “the penalty imposed was … clearly excessive.” (Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 921) As shown above, the process is best handled by an attorney so that your rights are fully protected and so that a proper assessment of risks and rewards can be made.
145 Cal.Rptr. 396.)
II. Unprofessional Conduct
In California Business & Professions Code § 802.1
Physicians are required to report to the Medical Board Central Complaint Unit when charged with a felony offense in an indictment or information, or if convicted of a misdemeanor or felony offense (Cal. Bus. & Pro 802.1). This report must be made within 30 days of the date of the bringing of the indictment or information or of the conviction. A Board investigator will follow-up in writing requesting additional information if necessary and/or may request an interview. Peer Review reports are required to be disclosed to the Board in certain circumstances such as:
- Medical license
- license defense