ADMINISTRATIVE LAW HEARINGS AND THE MEDICAL BOARD
Physicians and
other licensed health professionals who face disciplinary action by the
Medical Board of California or other applicable licensing authorities in
the form of a formal Accusation often seek to negotiate an equitable
disposition of the charges against them. When settlement is not possible,
the allegations against the physician or other health professional will be
adjudicated at an administrative law hearing before an administrative law
judge. This article will briefly discuss what the physician can expect
when he or she decides to go to trial against the Medical Board.
The prosecutor
will be a deputy Attorney General well versed in Board Accusations against
physicians. The trial will be held before an administrative law judge
from the state Office of Administrative Hearings who is familiar with
adjudicating license revocation hearings against licensed professionals.
At the conclusion of the trial, the judge will issue a recommended
disposition that the Board will accept, modify, or reject. Typically, the
Board will accept the findings of the judge.
While civil
lawsuits often are not set for trial for nearly a year after filing,
Accusations can be set for hearing within a few months after filing.
Discovery in
the form of interrogatories and depositions are generally not permitted.
While the physician is entitled to a copy of the materials relied upon by
the Attorney General in prosecuting the action against the physician,
relevant and potentially exculpatory materials in the possession of the
Board investigators may not necessarily be transmitted to the Attorney
General and thus, will not be subject to discovery. Physicians must
demand production of all materials in the possession of not only the
Attorney General, but also the Board and its investigators.
Declarations in
the place of live testimony may be used if sufficient notice is given to
the Attorney General.
The hearing is
conducted in a courtroom before an administrative law judge. These
courtrooms are not in the county courthouses, but are located in state
office buildings. The hearing is essentially a court trial without a
jury. Witnesses are called by the Attorney General and the physician and
testify under oath. Legal objections are made by the parties and ruled
upon by the court. The rules of evidence are relaxed and the judge may
permit the introduction of evidence that might not be admissible in a
civil trial. Physicians should be alert to the potential pitfalls of
stipulated evidence and a relaxed order of proof so as not to prejudice
their own defense.
The court
typically allows the parties to make opening statements at the beginning
of the trial and closing arguments at the end of the trial. The Attorney
General will make an opening and a closing argument at the end of the
trial because they have the burden of proving their Accusation with clear
and convincing evidence.
The court
typically issues its findings by mail shortly after the conclusion of the
hearing. As noted above, those findings are typically adopted by the
Board.
A physician who
seeks judicial relief from a decision by the Board must file a petition
for a peremptory writ of administrative mandate with the state Superior
Court. Such petitions are usually unsuccessful because absent a clear
abuse of discretion by the Board, state courts are reluctant to overturn
findings that are made after hearing by administrative law judges.
Trials brought
by the Attorney General before administrative law judges are problematic
for physicians for two primary reasons. First, the cost of defending a
physician through a trial before an administrative law judge is extremely
high. Although many professional liability insurance policies may cover
the initial cost of defense, the total cost of the defense through an
administrative law hearing may equal or exceed the amount covered under
the policy. Second, administrative law judges are more likely to revoke a
physician’s license than a jury because administrative law judges are
simply more used to license revocations as an administrative law judge and
would find it easier to end a physician’s livelihood than a jury.
Needless to say, physicians who face
an administrative law hearing as a result of an Accusation by the Medical
Board must retain legal counsel experienced in defending physicians before
an administrative law judge. Failure to retain legal counsel will put the
physician at the mercy of an experienced prosecuting Deputy Attorney
General and the Medical Board.
This article is equally applicable to Accusations filed by the Board
of Chiropractic Examiners against chiropractors and by the Osteopathic
Medical Board against osteopaths.
