Doctors Can Lose Their Right to Practice without Due Process
Doctors do not have a constitutional right to their license and concepts such as the presumption of innocence and due process are very limited when it comes to a physician.
California law allows the Medical Board, hospital, MEC or other employer to suspend you without a hearing and create a reportable event.
Triggering Medical Board 805 Report
Hostile conduct orchestrated by a medical group, professional affiliate, hospital or other entity with reporting obligations will trigger Medical Board review. This is the hammer that the corporate medical lawyers use to crush individual doctors into submission. These lawyers will act as if they are “forced” to report a physician but that “forced report” is their pressure point to demand immediate acquiescence.
A Business & Professions Code § 805 Report must be filed within 15 days after:
1. A medical facility denies or rejects an application for staff privileges;
2. A physician suffers the revocation staff privileges, membership, or employment;
3. A physician’s privileges are restricted for a total of 30 days or more within any 12 month period;
4. There is a summary suspension of staff privileges, membership, or employment for a period in excess of 14 days even if no fair hearing has been held.
5. The doctor resigns, takes a leave of absence, withdraws or abandons the application for privileges or the application to renew privileges after notice of an investigation.
This means that a hostile medical group or individual can target you for an unfounded summary suspension and you can’t leave without being reported. You have to compromise with them within 14 days or …. you get reported. Of course, under Business and Professions Code Sections 800 and 805(f), you can file “additional exculpatory or explanatory statements” to supplement the 805 report but the Medical Board investigation will commence regardless. The doctors or hospital targeting you undoubtedly has received advice from the best medical lawyers in town. That means the best lawyers for protecting hospitals or large groups against individual doctors. The accusations against you will fit snugly into categories of the greatest concern for the medical board. This is not based upon truth it is the planned and orchestrated tactic of this medical practice lawyers.
Summary Suspensions as the Primary Pressure Tactic
Other doctors can suspend you without a hearing. These Summary Suspensions by a hospital, MEC or other controlling group can result in reporting even though you haven’t had a hearing. It doesn’t matter if they are unjustified. They trigger board or NPDB investigations and reporting which is like inflicting you with a dreaded disease. It is the ultimate pressure tactic and if the hospital lawyers execute well on their plan, you have very limited recourse.
If you decide to sue, beware of the California (or other state) SLAPP statute. If your abuse arose in the context of “peer review”, your lawsuit will be turned against you and you can lose the case. Worse, you have to pay the legal fees for the very lawyers who set you up and schemed against you. Here is what the California Supreme Court said on that point in the Bonni case.
The Hospitals filed an anti-SLAPP motion seeking to strike the retaliation cause of action. (See Code Civ. Proc., § 425.16 (section 425.16).)1 They argued that this cause of action arose from medical peer review proceedings; that medical peer review proceedings are protected activity under this court’s decision in Kibler v Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th at pages 198–199, 46 Cal.Rptr.3d 41, 138 P.3d 193 (Kibler);
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1007 [281 Cal.Rptr.3d 678, 686, 491 P.3d 1058, 1064]
Other suspensions without less than full due process of law include California Business and Professions Code § 2310 which lets the Medical Board take your license away simply because you are licensed in another state and license is suspended or revoked and is reported to the National Practitioners Data Bank”.
Medical Boards are Not Physician Friendly
The Medical Board wears the robe of invincibility because it is a “consumer protection agency within the state Department of Consumer Affairs (DCA).”
You are a vendor, a store, a provider of a product. Per their website “the primary purpose of MBC is to protect consumers from incompetent, grossly negligent, unlicensed, impaired, or unethical practitioners by responding to complaints from the public and reports from health care facilities and other mandated reporters.”
Once you are in their field of view, the consumer is first and your individual interests are secondary.
State medical boards have four main functions:
A. Applying generally accepted standards to ensure that only qualified people
are licensed as physicians.
B. Investigate and make determinations on complaints that relate to quality of care violations, impact physician competence (e.g. drugs, alcohol, arrests, lying on applications, mental health issues), violations of the “Medical Practice Act” applicable to that state.
C. Institute regulations and policies that establish standards of conduct, disciplinary
standards and otherwise regulate doctors.
But we said FOUR …. what is the Fourth Medical Board Function ?
The fourth function is to act as a political conduit that creates treatment protocols and standards through the use of the disciplinary process. It practices medicine without a license and enforces its medical judgments under the guise of regulating the practice of medicine in order to protect the patients.
This fourth function can lead the board to presume that you are guilty and to orchestrate events so that discipline or suspension of your license are a predetermined outcome.
What You Didn’t Learn in Medical School
The real day to day issues that can lead to peer review, suspension or negative writeups are rarely addressed in medical school. Here are some examples.
- When is coaching at my first job an admission of incompetence ?
- If I agree to special supervision and then get another job will I get reported to the Medical Board ?
- My patient has been receiving opiates for several years from another doctor, can I follow the existing treatment plan ?
- I have been written up for inappropriate personal conduct with a co-worker. All I did was ask him to go to lunch! Is this practice related for reporting purposes ?
- My supervisor is upcoding with patients. He spends five minutes with a patient and bills it as 30. If I report him what can happen to me ?
- My (former) patient disagrees with my chart notes. Do I have to add his/her comments even though he is wrong ?
- An MEC committee member wants to talk about another physician. Do I have to talk to him ?
Repeatedly disputes within medical groups lead to one side contacting an attorney. There are medical law specialists who are the Darth Vaders of the legal profession. They instruct medical groups in the protocols necessary to set up other physicians. They design the initially employment contract to trigger peer review threats upon termination. Compensation and partnership shares are sacrificed due to invented misconduct or “for cause” termination provisions.
Fear of employment lawsuits trigger punitive firings so that doctors settle for pennies on the dollar and abandon legitimate work condition complaints simply to avoid peer review or medical board sanctions. In other words, it is better from them to decimate you and leave you underfunded and damaged. That way you lack the energy or funding to go after them for wrongdoing.
Professional jealousy is common. An old surgeon who is past his prime may write up a young surgeon from small errors in order to thwart his career. How do you deal with that ?
What Rights Do Doctors Have ?
Let’s start with what you don’t have. You don’t have the right to be innocent until proven guilty. In California a 14 day summary suspension is going to get you reported to the state Medical Board. If you are under investigation and it drags on for months, you better not resign and go elsewhere unless you are ready to reported – nationally! At a peer review hearing the “judge” is hired by the hospital or medical staff. The panelists are supplied by the very people who are subjecting you to the peer review in the first place.
This means that established and powerful interests can quickly quash young doctors. In fact, we had a case where we found an e-mail where the leader of a medical group instructed a managing partner to “Squash” a partner with whom they had a dispute. Squash can translate into an unfounded peer review proceeding, summary suspension or firing. All of these can be engineered by a expert medical lawyer so also trigger a Medical Board inquiry.
The Medical Board may not pursue you but it will not ever vindicate you. If the Medical Board turns against you, there a presumption of guilt inherent in their actions. This a state agency with political pull and incredible power. If you fight them and the administrative law judge says “YOU WIN !!!!” – you can still lose. The board can ignore the administrative law judge and still rule against you. Then you have to petition a real court and hope for justice.
A Doctor Needs a Lawyer
A doctor who ventures into the legal world is identical to a patient who comes to your office with his Google diagnosis in hand.
Even when Google is right, in most cases, overall, Google is wrong.
Our website has many links for physicians to follow on medical-legal issues. BUT, this is to assist your understanding as we discuss your case and not to create a Google Zombie Doctor who acts like a lawyer and screws everything up. We work very CLOSELY with our doctors. We collaborate. We discuss and we weigh options together. That is the only proper way to approach a medical-legal matter.
Put differently, the best lawyer is not a doctor, the best lawyer is a lawyer.
Call our California medical license lawyers at (925) 283-1863. You will reach a real member of our team and not an answering service. You can also click on the icon below and fill out a brief initial contract form and we will call you.