Heal Thyself? Thoughts From The Front Lines Of Medical Board Actions and Investigations

Imagine the following: crouched over your desk at the end of a busy work day, you listen to a voicemail from an unfamiliar name and voice.  They identify themselves as a special investigator for the Medical Board of California, and with a smooth crisp summative tone, they briskly inform you that a complaint has been filed against you and they would like to discuss the facts and set up an interview with you.  Nothing in your prior training prepared you for this moment.  There was no course in medical school and no CME module in residency entitled “Dealing With the Board” and you had never been the subject of a lawsuit, complaint, or discipline of any kind.

As you scribble down the investigator’s number, you panic and immediately contemplate the worst.  “Medical Board” equals “Medical License” and the odyssey of your pre-medical, medical and residency training flashes through your mind for a moment.

The formality and brash probing nature of it all is daunting.  You had never had occasion to realize how vulnerable your medical license and ability to practice actually is.  No one told you that the ironic twist in the completion of the medical training gauntlet is that the process to revoke or suspend your right to practice is shockingly fast and shockingly lacking in process protections.  It takes seven to ten years to become a doctor and complete residency, but it can take a fraction of that time to have the privilege revoked or suspended.

The reality is that medical licensure and the oversight and enforcement of health care practice in California can be shockingly swift and final.  The same process protections afforded civil litigants are often abbreviated and/or absent in defending against a board action. For example, discovery, a right to obtain information usually afforded even the most basic civil litigant and criminal defendants, is severely limited in licensing proceedings.  Moreover, the proposed penalties enforced against medical board licensees can be severe and in some cases are dictated by statutory presumptions which categorize respondents and mete out penalties in a corresponding manner. In addition, unlike in conventional criminal proceedings, there is not the same fundamental right to counsel.

For these reasons, it is imperative for any physician that is the subject of medical board action to consider the following:

  • Engage counsel as soon as possible. While it is possible to navigate the process without counsel, rest assured the regulatory board will have counsel, investigators, and other staff advising on every step taken.
  • Be careful with all third party dialogue. It is often the case that health care providers who become aware of pending investigations begin conducting their own inquiries.  While preparation for any proceeding or investigation is of course needed, it needs to be done carefully and with a careful eye to not interfering with an ongoing investigation and with a careful eye to not creating a paper trial of incriminatory statements or questionable corrective conduct that can be used against the licensee if discovered.
  • Consider and get ahead of credentialing issues. In many (though not all) cases, there are strategic advantages to early disclosure to a current employer, particularly one where a credentialing deadline is pending. But the disclosure needs to be appropriately timed and planned.
  • Be prepared for collateral consequences. The harsh reality is that MBC actions can have several collateral consequences including consequences for your insurability, credentialing, and billing.  It is best to enlist help of your employer’s HR and admin as soon as possible, but to time disclosure to them once you have assessed liability and exposure.  Early disorganized disclosure is not advisable—far better to make sure you are clear on the best case and worst case scenario of the MBC proceedings, discuss the risks fully with counsel, and then to disclose to your employer in a fashion that alerts them to the steps you are taking to handle the situation and what information they may need to address administrative concerns.

The privilege to practice medicine is no doubt a hard earned one. On the other hand, the MBC will argue that it has a duty to the public to protect them from the unsafe practice of medicine.  Navigating the tension between these two perspectives can be challenging and stressful, especially where the license to practice is in jeopardy.  Adopting an early, aggressive and informed strategy to address board investigations, actions and discipline is essential.

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