WHAT
EVERY PHYSICIAN SHOULD KNOW ABOUT APPEARING BEFORE THE MEDICAL BOARD OF CALIFORNIA
By Brock Phillips
Question: What are some of the ways physicians come into contact with
the Medical Board of California on disciplinary matters?
Answer: Medical Board disciplinary matters can arise out of complaints
made by patients, a medical malpractice action, or actions taken by a physician, hospital,
or HMO.
Q: How serious should the doctor take contact with the Board?
A: An inquiry by the Medical Board is very serious. It could be the
initial step toward revocation or limitation on a physician’s license to practice
medicine.
Q: What can the Board do?
A: The Board usually contacts the doctor and requests his or her
records and other information. They can then request a meeting with a Board investigator
or a physician assisting the Board. The next step can be the filing of an accusation
against the physician and the involvement of the state attorney general’s office.
Finally, the matter can go before a hearing in front of a state administrative law judge
who will consider whether the license should be revoked, the physician be put on
probation, or the matter dismissed.
Q: Should the doctor retain a lawyer?
A: An attorney should be retained at the earliest possible moment.
Doctors are unfamiliar with Medical Board procedures and what a doctor says to the Board
can be used against them. The initial inquiry by an investigator may sound benign and the
request for a meeting may sound innocent, but statements made by a physician and a tape
recorded meeting can be used against the physician at the hearing before the
administrative
law judge.
Q: Do doctors really need an attorney to just meet with the
investigator?
A: Yes. The Medical Board has already investigated the facts when they
reviewed the medical records and interviewed the patient and may know more about the case
than the doctor. An attorney may be able to prevent the investigator from asking the
doctor unfair or poorly worded questions to elicit admissions that are tape recorded and
later used against the doctor. An attorney can help the doctor prepare for the meeting by
reviewing the medical records with the doctor and preparing the doctor for the questions
that will probably be asked. An attorney protect the doctor’s interests and can get a
copy of the tape recorded interview.
Q: What else can attorneys do for physicians in this case?
A: Attorneys can get information from other physicians in the case and
their lawyers. If the inquiry arose from a malpractice action, the doctor’s attorney
in that case should be contacted immediately. In certain cases, my partners and I have
obtained letters from the expert witnesses we retained to defend a doctor in a malpractice
case to use in case the Medical Board starts an investigation. We have been able to
convince the Board to drop an investigation with letters from our expert witnesses.
Lawyers can discuss the case with the Board investigator in an attempt to convince them to
drop the investigation, or discuss the case with the deputy attorney general assigned to
prosecute the case.
Q: What can doctors do to fight the accusation by the Board?
A: Defending physicians before the Board is very costly. It may cost
between $15,000 to $20,000 to defend the case before the hearing occurs. It may cost
another $15,000 to $20,000 to defend the case in front of the administrative law judge. The
attorney will need to prepare documents, charts, and other materials for the judge and
retain experts witnesses on the doctor’s behalf. These physicians will charge the
doctor between $300 and $500 an hour for their time. Furthermore, if the doctor loses, the
judge can make the doctor pay for the deputy attorney general’s time which is between
$1,500 and $2,000 a day, plus their costs. Most importantly, there is no guarantee of a
favorable result in an administrative law hearing. Accordingly, the doctor needs to
consider settling with the attorney general.
Q: What kinds of cases will result in an accusation by the Board?
A: The Board represents the public to protect them against incompetent
physicians. The attorney general is assigned to prosecute these cases and is interested in
winning. Cases involving sexual accusations, drug use, or fraud are of interest to the
media. Fortunately, we have obtained a number of excellent results for physicians in
Medical Board matters.
Q: What kinds of cases should be settled with the Board?
A: Cases where the doctor did not do everything required for the
patient are a problem. Cases where the records do not reflect the treatment or
prescriptions given, the reasons why testing was done or not done, or where the records
reflect a poor attitude by the physician are of interest to the Board. Communication
problems reflective of age or language difficulties are of concern.
Q: What should a physician do if he or she is contacted by the Medical
Board?
A: The physician should immediately contact a lawyer experienced in
handling accusations before the Medical Board and the its special administrative hearing
procedures. The physician should call his or her insurer to find out if they can help pay
for your attorney or if they can recommend an attorney. The physician should find out from
their attorney about the number of Board investigations and accusations they have handled
and their results, and their philosophy about defending Board accusations. If the lawyer
routinely recommends against settlement, the doctor should be aware that Board matters can
be negotiated away without risking the doctor’s license or a reduction in his or her
practice. The physician should ask for references from other doctors and lawyers about his
or her attorney.
Q: What can the physician expect during the process?
A: The physician should expect his or her lawyer to keep them informed
about what is happening in part by reviewing all correspondence between the lawyer and the
Medical Board and the attorney general. The physician should attend the meeting with the
Board and the attorney general. The physician must be satisfied with the quality of the
legal representation and retains the right to fire the attorney and hire another.
