MEDICAL BOARD ACCUSATION (An Overview)
The Attorney General of California controls the California Medical Board. It supplies the lawyers and criminal investigators who research whether accusations against a doctor merit proceeding against him/her. A California Medical Board complaint but be filed anonymously. Even if the Board knows the name of the complainant, that identity can be kept secret.
As Joseph Stalin once said “Show me the man and I’ll show you the crime.“
The Medical Board receives many absurd complaints and in most cases these end up in the “round file”. But if a complaint passes the initial screening, they often proceed to investigation. Once a case is “investigated”, the chances are very high that an Accusation will be filed. One problem is that the round file or go forward decision can be political. If a major entity such as Kaiser or an insurance company complains, this filing may be considered even if it is retaliatory and unfounded. The current hot button issues are opioid prescriptions, sexual misconduct, unnecessary testing and kickbacks.
To Violate a Regulation You Must Know of the Regulation
The charging review is often done by a slightly medically trained, law enforcement officer who is likely involved in a variety of “anti-fraud” groups that predispose the officer to look for and find guilt.
A supposedly independent file and case review is often referred to someone with medical expertise. However, this reviewing doctor will be limited to the facts supplied by the complainant and law enforcement unless, you are contacted and asked to provide “your side of the story”. [This a dangerous choice and whether to cooperate or not cooperate is a case by case decision.]
Knowledge of the fine points of the law is the reason that the Lawyers in Lafayette are an excellent choice for a medical board defense. Tom Kensok, one of our trial attorneys served for 30 years as a prosecutor in Contra Costa County. He is well aware that “the making of a false statement, in and of itself, does not violate the statute; rather, a violation requires knowledge of the wrongfulness of the false statement.” People v. Gregory (1990) 217 Cal.App.3d 665, 678 Knowledge of these legal principles in the context of medical accusations and the standard body of criminal law is critical if you are to be effectively defended.
If the investigation finds evidence that the physician has violated the Medical Practice Act and the violation warrants disciplinary action, the case is forwarded to the Attorney General’s Office for the filing of an accusation. An accusation is a legal document that lists the charges and/or the section(s) of law alleged to have been violated and is served on the physician. There are strict time limits on when to answer and procedural rules that are peculiar to administrative hearings. (“Peculiar” is a term we use because the procedural rules tend to favor the accuser and disadvantage even the most innocent of MD’s.)
As the Board points out on its website: “The physician is entitled to dispute the charges at an administrative hearing. The request for a hearing must be received within fifteen (15) days after the accusation is served pursuant to Government Code Section 11506. The request for a hearing may be made by delivering or mailing a “Notice of Defense” to both the Deputy Attorney General and the Medical Board of California. The Deputy Attorney General’s name, address and telephone number appears on the front page of the accusation. The notice to the Medical Board should be directed to the Discipline Coordination Unit, 2005 Evergreen Street, Suite 1200, Sacramento, CA 95815-3831. If a request for a hearing (or Notice of Defense) is not received, the physician will be deemed to have waived the right to a hearing and the Board may proceed to act on the accusation without a hearing and may take action as provided by law.”
As you review the board website you will see the statement: “The physician may, but need not, be represented by counsel at any or all stages of these proceedings.” Representing yourself before the board is like having one of your patient’s ignore your advice and find a cure on the internet. Enough said on that point.
CALIFORNIA MEDICAL BOARD COMPLAINTS
HOW A TOP MEDICAL LAWYER CAN MAKE A DIFFERENCE
How do medical law specialty firms differ in their approach ? Consider the following situation.
The Two Common Medical Board Triggers
California Medical Board investigations are most often triggered by patient complaints or a filing by a disgruntled employee. The Medical Board of California has a streamlined consumer complaint form https://www.mbc.ca.gov/Download/Forms/consr-07i-61.pdf which you may wish to look at to understand how simple it is for a complaint to be generated. Assume that an employee who was recently fired has hired a law firm and they orchestrate a complaint against you.
The Central File & the Secret File
An experienced medical license attorney knows that there are two file “boxes” maintained by the board. The first is your central file which includes the basic complaint. Less experienced license defense lawyers may be satisified with the mandatory disclosure of that central file or a summary of its contents provided by a medical board investigator. You may suspect that this fired employee is manufacturing evidence through their employment lawyers – but how do you gather the evidence to prove it ?
Get the Facts Early in the Investigation
Remember, the first stage is their investigation. The second stage is your forced interview. Knowing as much as possible at the interview stage is an important tactic in stopping the investigation before it is referred to the Attorney General for filing. We use former police officers, a former Naval Intelligence officer and other highly respected investigators to find the source of the complaint and to prove that it is wrong. We do this professionally so that no “retaliation” allegations are made against you.
Get The Medical Board’s Files When Possible
Getting the standard file is easy. You ask, they comply. Getting the “secret file” takes work, negotiation and may fail. But the efforts to get additional information is the difference between a standard lawyer providing a cookie cutter defense and the highest level defense the you expect from best medical board attorneys.