TO DO WHEN THE MEDICAL BOARD CALLS
the letter all physicians dread to receive. It starts out something
"The Medical Board of California is conducting an investigation
regarding your treatment of Jane Doe, [pursuant to a Report of
a Judgment/Settlement/Arbitration Award/Complaint initiated thereby
[or as required by Section 801 of the Business and Professions
Code]. As part of our investigation, the Board would like to afford
you the opportunity to personally discuss your treatment of Jane
Doe. The Board has scheduled an interview with you on ________,
200_ at our office located at _____________. You will meet with
Dr. X, the District Medical Consultant, and myself.
The interview is an informal meeting and not a legal hearing.
It is not necessary for you to bring an attorney with you; however,
you may do so, if you wish. Please bring all medical and related
records and a copy of your curriculum vitae with you.
Please be advised that it is the Medical Board of California's
policy to tape-record all interviews in order to obtain and preserve
a detailed and accurate record...
Now, what do you do? Panic? Throw the letter away? Call the patient
and confront him with this accusation? Call your fellow M.D.s
to get their support on the factual or expert issues which might
be involved? Shred the patient's records?
The answer is: none of the above. Instead, this is the
time to contact knowledgeable counsel and get them on board as
soon as possible.
The failure to do so may result in the loss of your license, your
medical practice, and even your personal freedom. Before addressing what to do when the Medical Board calls, a brief discussion of the history of the Medical Board is in order.
A BRIEF HISTORY OF THE CALIFORNIA MEDICAL BOARD AND ITS INVESTIGATION
The genesis of the current-day Medical Board of California goes
back to at least 1876, when the practice of medicine came under
formal, statewide regulation. Two years later, in April 1878,
an "act supplemental to and amendatory of an act to regulate
the practice of medicine
requiring persons practicing medicine
and surgery to possess certain qualifications, and to have a certificate
from a board of examiners, which certificate might be revoked
by the board for unprofessional conduct
," was passed by the legislature and subsequently upheld by the California Supreme Court.
In 1913, the Medical Practice Act (Business & Professions
Code §2000 et seq.) (1) was added to
California law, creating the State Board of Medical Examiners.
The title of that Board has changed throughout the years, and
until 1980, was known as the Bureau of Medical Quality Assurance.
Since 1980, it has been known as the Medical Board of California
("CMB") (B&P Code §2002). The CMB is currently part of the Department
of Consumer Affairs in the State and Consumer Services Agency.
According to statute, 17 of the 19 members of the Board are appointed
by the governor, subject to senate confirmation, while the remaining
two members of the Board are appointed by the Senate Rules Committee
and Speaker of the Assembly. (§2001). The CMB consists of
two divisions: Medical Quality, and Licensing (§2001). It
is the Division of Medical Quality ("DMQ") which has
the responsibility to enforce the "disciplinary and criminal
provisions of the Medical Practice Act," including reviewing
"the quality of medical practice carried out by physician
and surgeon holders under jurisdiction of the board." (§2004).
Sections 2220 and 2234 are two of the main provisions, which vests
the DMQ with the duty to act against physicians. Section 2220
requires the DMQ to investigate any physician where any of the
following are shown:
(a) A Section
805 report has been issued against the physician, or a complaint
has been received from the public, other licensees, health care
facilities, or from a division of the board, alleging unprofessional
conduct. In the case of an 805 report, it must be investigated
within 30 days to determine if interim suspension or a temporary
restraining order should issue; otherwise, such report is to
be disposed of with "timely disposition;"
(b) A judgment,
settlement or arbitration award has been issued requiring the
physician or his malpractice carrier to pay more than $30,000
for any error, negligence or omission proximately causing injury
or damage; or
(c) "[A] high number of judgments, settlements, or arbitration
awards against a physician or surgeon," has been reported
to the Board (note: this is regardless of the cash amount of judgments,
settlements or awards.)
Likewise, Section 2234 requires that DMQ take action against any
physician charged with "unprofessional conduct," which
is defined as (but not limited to) the following:
(a) Violating or attempting to violate, directly or indirectly,
or assisting in or abetting the violation or conspiring to violate,
any provision of the Medical Practice Act;
(b) Gross negligence;
(c) Repeated negligent acts;
any act involving dishonesty or corruption substantially related
to the physician's qualifications, functions or duties;
act which would have warranted denial of a certificate to practice;
(g) Practicing medicine from this state into another state or
country without being authorized to do so.
Although most of the above-described misdeeds are self-explanatory,
certain of these provisions are not what they would appear to
be. For example, Section 2220(c) speaks of a "high number"
of resolutions against a physician, presumably for negligent acts,
whereas Section 2234(c) speaks of "repeated negligent acts."
Until recently, Section 2220(c) required the showing of an unusually
high number of reported instances before an investigation would
trigger. However, the term "unusually" has since been
eliminated from the statute, and all that is now needed to be
shown is repetition. Thus, we may see a rise in Section 2220(c)
investigations when DMQ receives notice of only two settlements
or other resolutions -- regardless of the dollar amount in
in interpreting the term "unprofessional conduct," the
courts have held that the alleged offense must relate to conduct
which indicates an unfitness to practice medicine. Shea v.
Board of Medical Examiners (1978) 81 Cal.App.3d 564.
WHAT TRIGGERS A CMB INVESTIGATION?
As a general proposition, most investigations are triggered by
a complaint being filed by a patient against a member, a resolution
exceeding $30,000 being lodged with the CMB, or by the issuance
of an 805 report. Contrary to popular myth, there is no need for
the Board to have probable cause prior to conducting an investigation
of a doctor. Bradley v. Medical Board (1997) 56 Cal.App.4th
Not infrequently, a letter is issued by the DMQ to the physician,
indicating that an investigation is underway, and requesting copies
of the patient's medical "and related" records -- without
an interview being demanded. (Note: this "step" is not
always followed and, in many cases, an interview letter like that
quoted in the Introduction section above, is issued in lieu of
-- or subsequent to -- a records request letter). However,
regardless of whether a records request, or an interview, letter
is initially issued, the physician is at risk of further, potentially
detrimental, proceedings against him and his license. (4)
In any event, after the records request letter is issued and those
records (among other things) are reviewed, a determination is
made whether to proceed further. Investigations are not infrequently
closed at this stage without a physician interview being conducted,
when it is determined by the DMQ that there is inadequate cause
to proceed further.
However, depending on the nature and seriousness of the allegations,
whether other complaints or problems with the physician have been
noted, and/or whether the physician has had prior dealings with
CMB, further proceedings may take place before the DMQ -- either
before or after its receipt of the patient's medical records.
Thus, the next "stage" of the physician/DMQ encounter
is: the physician interview.
THE INTERVIEW, AND ITS OUTCOME
If -- after a review of the complaint, its own files, and any
of the patient's medical records it may possess (among other things)
-- the CMB determines a physician interview is warranted, it will
notify the physician with a letter similar to that quoted in the
Introduction above. The reason for the interview may range from
CMB's simple inability to read the physician's handwriting and
chart entries, to its grave concern that the physician may have
committed serious act(s) potentially requiring license revocation
and possible imprisonment. The physician is almost never told
ahead of time -- let alone during the interview -- of what it
is they are "looking for." That is why the standard
interview letter is careful to note that the physician may bring
an attorney if he "wishes," least a physician subsequently
claim he was denied counsel during an important stage of the investigatory
A physician, as well as an investigator from the state, will then
ask the physician a series of questions potentially covering 1)
the physician's background, training and expertise, 2) his or
her care and treatment of the particular patient, and 3) various
other questions which may or may not necessarily relate to this
particular patient or complaint. The meeting is tape-recorded.
As mentioned above, the examiners may or may not reveal what they
are looking for (i.e., what the basis of the investigation is).
At the conclusion of the interview, the examiners may or may not
indicate that: 1) the matter will resolve with a letter indicating
that no further investigation is warranted, and that the file
will be closed, 2) a further review will be undertaken of the
matter by an expert(s) prior to a determination whether to further
proceed, or 3) they will be "back in touch."
Sometime after the completion of the investigation and interview
process, one of two things happens. Either the physician is ultimately
notified that the matter has been closed, or the CMB files a disciplinary
action charging the physician with the offense(s) in question
and what it proposes to do with the member (e.g., that CMB will
be seeking license revocation proceedings thereagainst). If the
latter occurs -- and unless a resolution regarding, inter alia,
the physician's license and continued practice can be reached
-- a hearing will be scheduled before an administrative law judge
("ALJ") and prosecuted by the California State Attorney
General's Office, pursuant to Section 2020. Assuming the ALJ decides
against the physician, the latter may file a writ of mandamus
in the California Superior Court, where that court will review
the proceedings conducted before, and findings of, the ALJ and
determine whether or not those will be adopted by the Court.
WHAT SHOULD YOU DO WHEN THE MEDICAL BOARD CALLS?
This brings us to the question: What should you do when the Medical
Board indicates an interest in looking at your patient(s)' charts,
or interviewing you? One thing you should not do: wait until proceedings
are initiated before you do the below-identified mandates. Nor
should you even wait until the day before the interview to do
these things. At the very first contact from the CMB - either
by phone call, records request, or by a letter requesting an interview,
you should strongly consider (and follow through on) the following
A. Don't Panic, But Don't Relax Either
It is natural to feel anxious when you receive notification from
the Medical Board of its interest in you. However, it is not time
to panic. Remember that the Board is required to investigate all
of the complaints referenced in Section 2220 and 2234 -- and some
of those complaints have their genesis in a simple miscommunication
or misunderstanding with a patient, or otherwise do not rise to
the dignity of a truly actionable offense.
On the other hand, this is not a time to relax either. The Medical
Board has taken an interest in one --or more-- of your cases.
The allegations of the patient may evidence serious failings in
you or your practice, and these must be appropriately responded
to by you -- or the Medical Board may conclude they are true. Thus,
even if the investigation involves a "wacko" patient,
the medical records are in good shape, and/or your conduct is
"totally defensible," you will need to prepare an appropriate
and reasoned response.
You will therefore -- absent instructions by an experienced attorney
to the contrary -- need to respond to such medical records and
interview request. However, under no circumstances should you
contact or attempt to contact the patient about the complaint.
You will only make matters worse. And, by no means should you
speak to fellow practitioners -- or anyone else (other than counsel)
about the matter. If you do, those conversations will potentially
be discoverable during any interview or other proceedings that
may follow: That could prove quite detrimental to your case, especially
if the information you obtain is not helpful to your defense.
B. Obtain Knowledgeable and Effective Counsel
Although you may be thinking to yourself that you can deal with
the Medical Board on your own, since you purportedly "did
nothing wrong," this attitude is similar to that of the surgeon
who believes he can do nothing wrong in his surgeries -- and,
therefore, can effectively operate on himself. Such physician
has a fool for a patient -- or client, in the case where he tries
to serve as his own attorney. Remember what Abraham Lincoln said:
"It is the innocent man who needs an attorney. The guilty
can lie for himself."
Mr. Lincoln's observation notwithstanding, it is crucial to hire
qualified counsel at the earliest indication of Medical Board
interest in you or your practice. Indeed, in off-the-record discussions
I have had with those involved in CMB investigations, they have
commented on the attitude some at the CMB seem to take toward
unrepresented physicians --they consider them to be "low
budget, hand to mouth" practitioners who may well be guilty
of the alleged offense(s) since they are "too cheap"
to hire an attorney. It is therefore very important to have experienced
counsel as part of your efforts to maximize your chances for a
You must be completely truthful with your attorney, and tell him
or her everything they should know about you, the patient,
or any medical practice problems you may have had. You should
trust your lawyer with this information, knowing that your conversations
with counsel are subject to the attorney-client privilege -- which
prohibits disclosure of any information which you two share together.
Certain information that the attorney may discover on your behalf is
also ordinarily protected from disclosure by the attorney work-product
rule. Thus, for example, counsel is usually able to speak to your
fellow practitioners/others, to obtain helpful information for
you -- without the risk of having to disclose detrimental information
to CMB investigators. Counsel can also speak with impunity to
experts in your field in order to determine whether your care
in the particular matter at hand was appropriate, and to provide
you with potential defenses or helpful information which you may
never have thought of. However, as mentioned above, if you on
your own attempt to obtain information which turns out to not
be so helpful, that information may come back to haunt you if
you are ever asked by the CMB about any non-attorney discussions
you may have had about the matter.
Remember, the CMB serves two roles: investigator and prosecutor.
In other words, they are like a policeman and a district attorney
combined in one. Indeed, CMB investigators have the status of
California peace officers while conducting such investigations
(§160). Their stated purpose is to "protect consumers
through the vigorous, objective enforcement of the Medical
Practice Act." (§2000). It is highly unwise for you
to "go it alone," under these circumstances.
During the interview, in fact, you are placed in a situation not
dissimilar to being questioned in a police department's interrogation
room. The physician hired by the CMB to potentially approve an
action against your license, and the investigator, paid by the
state to potentially assist in your prosecution, thereupon question
you while everything you say is being recorded -- and can subsequently
be used against you. To make matters worse, you often have
no idea what they are looking for. What did the patient tell them,
that they are not telling you? What have they uncovered that you
may have forgotten (and therefore deny on the record) -- only
to later reveal it and thereby attempt to demonstrate your alleged
dishonesty and potential unfitness to practice medicine? Finally,
the interview process has been known on occasion to stray from
concerns about the immediate patient, and to delve into other
complaints or problems the physician may have had -- but was unprepared
to discuss during the interview. The physician under those circumstances
is highly vulnerable, and may even be tempted to "admit anything"
just to get out of the room.
Had an experienced attorney been there with you to protect your
interests, take a recess when necessary, and potentially object
to any improper questioning which might occur, your chances in
reaching a favorable resolution may well have improved.
Over the years, we have assisted in numerous requests for
physicians' records, and about a dozen instances where the physician
had to appear before the Board for an interview. Although we cannot
guarantee that your case will be like any of these, it should
be pointed out that none of these dozen matters went anywhere
after the initial interview. Of the many matters in which we have
represented physicians in license revocation proceedings against
the California Attorney General's Office, however, none of those
physicians had hired counsel to represent them at the interview.
Do these facts indicate that, if you have counsel, the matter
will go no further than an interview? Hardly. However, your chances
would arguably appear to be better with experienced counsel's
assistance and instructions, than without. Each case will of course
turn on its own merits. However, it is at these times in your
career that you cannot be "cheap," hope the Medical
Board sees things your way, and respond to them without attorney
input. The consequences to such course of action can be disastrous.
Given what is on the line -- your license, your livelihood and,
possibly, your personal freedom -- it is crucial to obtain knowledgeable
counsel to help you as soon as the Medical Board calls.
C. Prepare Well In Advance for the Interview
The best way to avoid a CMB investigation is, of course, to practice
high quality medicine, chart well, and always have perfect relationships
with your patients. However, for all of us mortals, perfection
is usually never possible. And, even if you treat patients well
and practice high quality medicine, that will not of itself preclude
the malcontent from filing a complaint -- however frivolous --
Thus, assuming the CMB becomes "interested" in you and
you, in turn, have hired experienced counsel to assist you, they
will often start the preparation process by setting a meeting
to prepare you for what may be expected. This usually takes place
well in advance of the interview, to allow them adequate time
to review the complaint, medical records, and to meet with you
and, perhaps, other physicians, experts, and witnesses. The attorney
will also carefully review the records request to ensure the documents
requested by the Medical Board must be legally produced. In a
recent case we handled, the physician was asked for all writings
about or concerning the patient, some of which were potentially
protected by the attorney-client privilege or work-product-rule.
These records were not produced, and we notified CMB that such
would not be produced absent court order, given these legal privileges.
That ended that matter. However, had those writings been produced
by a self-represented physician (who might not know otherwise),
it could have made a significant difference in his defense of
Another matter for which you need to be prepared is: How do you
come across as a physician-witness-respondent/defendant? Remember:
It is not always the witness who tells the truth that it is believed.
Rather, it is the witness who is perceived to be telling the truth
that is usually believed. Much of this process has to do with
the impressions of the examiners and their perceptions of you.
If you appear to be dishonest or negligent -- even if you
are not -- that appearance may well translate into an ultimate
determination by the Medical Board that you are. Therefore,
witness preparation well in advance of the interview is in order.
During your meetings with the attorney, you will often be instructed
regarding how to answer questions appropriately. You may not realize
it, but you might have mannerisms that are distracting, irritating,
or even give the impression you are not being truthful. Thus,
sometimes a videotape of you is created by the attorney to demonstrate
how to -- and not to -- answer the questions or testify before
the Board. Remember, that videotape is yours, and should not properly
be revealed to anyone other than your attorney or his assistants.
Also, there may be studies, journals or reports that will help
your position in the matter that the attorney can provide for
you. Recently, we had the pleasure of representing a surgeon before
the Board who had several, consecutive malpractice settlements/judgments
(regrettably, we did not represent him in any of those matters).
The attorneys in those cases purportedly were unable to locate
an expert witness willing to defend that surgeon. We, however,
had little difficulty in locating such an expert, who quickly
pulled together the definitive studies involved in these kinds
of surgeries, and we used them at the interview. While the Medical
Board has yet to make a final determination, we are reasonably
confident that -- with this additional information -- the Board
should hopefully dismiss the proceedings.
Finally, the experienced attorney will be able to assist you in
dealing with the occasional case where you may have in fact done
something wrong. This is where "art" supersedes "science."
In other words, there are sometimes several different ways --
none absolutely right or wrong, best or worst -- in dealing with
these situations. Some attorneys take a "hard-line"
approach with the Board, and fight tooth and nail at every encounter.
They many, for example, refuse to produce you at an interview
-- especially where it becomes apparent that the Board will ultimately
charge you whether or not you attend that proceeding. Others recommend
a "cooperative" response in the hopes that such cooperation
-- and "remorse/promise not to do it again/it was an honest
mistake, and here's how we have corrected it, etc." response
-- will be met with a conciliatory gesture from the Board. Exactly
what response works best, is something you and your attorney should
address based upon the circumstances of your case.
It is hoped that, whenever you must respond to a Medical Board
inquiry, through careful preparation and legal assistance you
will be able to obtain a prompt resolution in your favor. And,
should the matter need to go further -- i.e., to formal proceedings
before the ALJ -- the preparation and work you have done in response
to CMB's inquiries, as well as in anticipation of the proceedings
themselves --will result in a just determination thereby.
This article appears in Cosmetic Surgery Times (June 2002)
otherwise stated, all statutory citations are to the California
Business & Professions Code.
The California Medical Board ("CMB") and the Division
of Medical Quality ("DMQ") will be referred to interchangeably
throughout this article.
In Zabetian v. Medical Board of California (2000) 80 Cal.App.4th
462, for example, the Court of Appeal held that Section 2234(c)
is violated by (only) two negligent acts -- even if they
involve the same patient. Whether that reasoning will ultimately
be applied to Section 2220(c) to allow for more wide-ranging investigations
of physicians, remains to be seen.
that in certain matters involving serious allegations of wrongdoing,
the Medical Board may proceed by way of criminal action or by
expedited proceedings in the administrative forum -- which essentially
by-pass the initial interview process. Usually, however, the interview
process is the mechanism by which the CMB disposes of inadequate
cases or "builds a case" against the physician.