6 Stages in the Medical Board disciplinary process
Even the best physicians can get hit with an unexpected complaint or claim of misconduct when they least expect it. Medical professionals are easy targets for disgruntled patients or others looking to damage a reputation. The most important thing to do is make sure you understand the discipline system, your rights, and when to consult legal counsel.
Unfortunately, once a complaint is filed, you will be caught up in the California Medical Board’s slow, unrelenting process. Unlike in malpractice claims, board actions against physicians are typically based on substandard or unethical conduct that does not require proving actual patient harm.
While some complaints such as fee disputes or inappropriate comments may seem minor, they can grow into different, more severe issues. For example, a records request could reveal a failure to obtain informed patient consent or deficient record keeping. It is, therefore, wise to treat any complaint as a serious matter and respond carefully.
Physician discipline and administrative actions proceed through six stages:
1. Physician Complaint or Crime Reported
Enforcement activity is triggered when the California Medical Board receives:
- A complaint,
- Notification of a criminal charge or conviction,
- An 805 peer review report,
- Notification of a disciplinary action in another state, or
- Other disclosures such as a medical malpractice settlement or award, outpatient surgery center adverse event, coroner report of death due to physician gross negligence, or medical procedure outside of an acute care hospital resulting in patient death.
Complaints can be filed online by anyone, including anonymous parties for alleged violations of the Medical Practice Act. If the Central Complaint Unit analyst review finds that a violation may have occurred that is within the board’s jurisdiction, the complaint will be forwarded to the DCA Division of Investigation for further investigation.
The California Department of Justice sends notification of criminal arrests and convictions to the MBC via CORI notification. When a physician submits an 802 criminal action form to report a criminal arrest or conviction, they can expect an investigation of the matter.
RELATED: Physician criminal reporting requirements
2. Medical Investigation, Interview
The MBC has authority to investigate licensees for a wide variety of complaints. Some of the most common examples include:
- Quality of Care: Substandard care issues, misdiagnosis, negligent care, surgery complications, patient abandonment.
- Office Practices: Deficient record keeping, billing practices, failure to sign death certificate, failure to provide records.
- Unprofessional Conduct: Altering records, breach of confidence, filing fraudulent insurance claims, misleading advertising, arrest or conviction of a crime.
- Provider Impairment. Practicing under the influence of drugs or alcohol, mental or physical impairment.
- Inappropriate Prescribing: Violation of DEA and other drug laws, opioid, excessive/under prescribing.
- Sexual Misconduct.
- Unlicensed Practice or aiding and abetting unlicensed practice.
Physicians usually become aware an investigation has been initiated when they receive:
- Unannounced office visit from an investigator.
- Department of Consumer Affairs Division of Investigation call, request, letter or subpoena for medical or other records.
- Request for an investigator and/or MBC expert reviewer interview.
- Medical Board contact requesting medical or other records.
Medical Board investigators are usually veteran detectives with years of experience in the art of interrogation. They often take a casual, friendly approach that lulls physicians into saying more than they should or releasing information that can cause problems later.
Once a physician becomes aware an investigation has been initiated, it is important to retain a qualified medical license defense attorney with expertise in resolving medical board investigations and license disciplinary matters. Your responses should be reviewed by a lawyer to consider any legal ramifications.
California Medical Board proceedings are very different from medical malpractice litigation – they are handled in different legal venues (Office of Administrative Hearings vs civil court) with different rules, prosecutors, procedures, and statutes of limitations.
MBC investigators conduct investigations that can include:
- Interviewing physicians, witnesses and the complainant.
- Setting up and executing undercover sting operations.
- Draft and execute any needed subpoenas and search warrants.
- Obtain relevant medical and other records.
- Obtain review by an MBC Expert Reviewer.
- Examine the location of the alleged act(s).
Important Note: If your matter is closed in the investigation stage, the allegation against you will not be published on the Medical Board’s website or Breeze.
3. Medical Board Accusation
When an investigation finds evidence that a physician has violated the Medical Practice Act and the violation deserves disciplinary action, the matter is advanced to the Attorney General’s Office. If a Deputy Attorney General believes the legal standard has been met for a violation, a formal accusation will be filed and served on the physician. An accusation is a charging document that lists the alleged violations and the applicable laws.
Once the Attorney General files an accusation, the matter will become public record on the MBC website and Breeze database. A physician has the right to dispute the allegations in a hearing at the Office of Administrative Hearings as long as request for hearing (“notice of defense”) is filed within 15 days of receipt of the accusation (Gov Code Section 11506). Otherwise you will be deemed to have waived your right to a hearing and the board can take action as outlined in the Accusation.
If you have received an Accusation, contact us as soon as possible to review your case and how to protect your license.
4. Hearing at the Office of Administrative Hearings
If your Accusation is not resolved through negotiation with the Deputy Attorney General, then it will be decided via a hearing at the Office of Administrative Hearings (OAH). Administrative hearings are similar to court trials, but are held at four OAH locations in Los Angeles, Oakland, Sacramento or San Diego. The matter is argued in front of an Administrative Judge by your counsel and a Deputy Attorney General.
During the hearing, the burden of proof is on the Deputy Attorney General to prove their case. As Medical Board guidelines state, the standard of proof is “clear and convincing evidence to a reasonable certainty.” This challenging standard is much higher than in civil litigation cases. If “gross negligence,” “repeated negligent acts,” or “substantially-related” conduct is alleged, expert testimony is necessary to prove the violations.
After the hearing, the Administrative Law Judge has 30 days to render a proposed decision. The proposed decision is then sent to a seven-member panel of the California Medical Review Board for consideration. The MBC panel makes a final determination on disciplinary matters and can restrict, revoke, or suspend the medical license; reject the proposed decision, or impose other administrative actions. Licensees can petition the MBC to reconsider the decision for up to 30 days after it is adopted.
Attorneys Robert Weinberg, Melissa DuChene, and Suzanne Crouts have over 50 years experience defending health care licensees in OAH proceedings, DEA, California courts, and Federal courts for administrative law, licensure, and criminal law matters. They have handled over 6,500 cases and trials and are prepared to vigorously defend you against any allegations.
RELATED: Medical Board decision review guidelines
5. Appeal / Writ of Mandate
A writ of mandate (CCP § 1094.5) is the method of appealing a loss in an administrative hearing. The appeal allows a California Superior Court judge to review the decision to determine if the administrative judge abused their discretion or made errors. Licensees typically have 30 days after the effective date of the decision in order to file a writ of mandate in Superior Court.
6. Petition for Penalty Relief or License Reinstatement
In California, disciplined physicians can file a petition with the Medical Board requesting reinstatement of a revoked license, early termination of probation, or a reduction in disciplinary action penalties. Eligibility rules are complex and there are conditions physicians must demonstrate for a successful outcome.
To learn more about your eligibility and options, call us at (844) 325-1444 to setup a consultation with our experienced attorney.