WHAT TO DO WHEN THE MEDICAL BOARD CALLS


1. INTRODUCTION

It's the letter all physicians dread to receive. It starts out something like this:

"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...

Sincerely,


Investigator."

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.

2. A BRIEF HISTORY OF THE CALIFORNIA MEDICAL BOARD AND ITS INVESTIGATION PURVIEW.

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). (2)

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;

(d) Incompetence;

(e) Committing any act involving dishonesty or corruption substantially related to the physician's qualifications, functions or duties;

(f) Any act which would have warranted denial of a certificate to practice; and

(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 dispute.(3) Thankfully, 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.

3. 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 445, 457.

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.

4. 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 proceeding.

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.

5. 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 instructions:

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 favorable outcome.

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 -- against you.

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 the complaint.

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.

6. CONCLUSION

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)

(1) Unless otherwise stated, all statutory citations are to the California Business & Professions Code.

(2) The California Medical Board ("CMB") and the Division of Medical Quality ("DMQ") will be referred to interchangeably throughout this article.

(3) 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.

(4) Note 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.

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