The California Medical Board received 8,679 complaints in fiscal year 2015-16 according to its latest comprehensive enforcement activity report.  During that same period, 299 accusations were filed by the Medical Board of California.  Medical license defense cases came from complaints overwhelmingly from the public, but also from complaints from license and professional groups and other governmental agencies.  Physician license defense cases in that period resulted in 120 cases of license probation, 129 cases where the physician’s license was revoked or surrendered, and 62 public reprimands.  Unfortunately, statistically most medical license defense cases in California ended with loss of a license or probation.  This illustrates the importance of an experienced and effective California physician license defense attorney.

Our attorneys that defend medical licenses are seeing a spike in the number of cases involving opioid abuse by patients.  As lawyers who defend medical licenses on a daily basis, were are seeing more and more medical licenses being disciplined due to the proactive approach taken by the Medical Board of California to investigate licenses of doctors who are targeted for improper prescribing practices based upon their CURES reports.  Attorneys who defend Medical Board licenses are also seeing cases that stem from the California Department of Public Health reporting of opioid-related deaths to the Medical Board, as well as information from pharmaceutical companies that may point to physician prescribing problems.  Accusations against California medical licenses are also being triggered by investigator review of websites and news articles to find complaints and adverse incidents involving physicians.  Our attorneys are keenly aware of these issues in medical license defense cases.

Opioid abuse-related cases are typically brought under Business and Professions Code sections 2234 (referring to gross negligence, repeated negligent acts and incompetence), Business and Professions Code section 2242, prescribing dangerous drugs without an appropriate prior examination and a medical indication, and Business and Professions Code section 2241, prescribing prescription drugs to an addict for a purpose other than addiction treatment.

As is apparent from the number of complaints versus the number of accusations filed, it can be possible to resolve a Medical Board physician license investigation and defend the physician’s license at the investigation stage with effective attorney representation.  However, to successfully defend a physician’s license, the medical license defense attorney must draw upon expert opinion, experience, legal research, and knowledge of remediation measures.  At Ray & Bishop, PLC, we do expect to defend an increasing number of medical license accusations due to opioid abuse cases this year and beyond.

Our licensing clients, most often traveling Registered Nurses or Department of Insurance agents who work for multistate companies, sometimes have licenses in more than one state.  They also could be on their way to California to continue their career in our great state.  Either way, licensees who hold licenses in different states have specific, unique problems that need to be addressed by a qualified Nurse Attorney or a Department of Insurance attorney.

When we ask clients about their licensing history, they’ll often tell us something like “Oh, I used to hold a license in Arizona, but I gave it up years ago,” or an advanced practitioner might say “I’m a nurse practitioner now, but I used to be a registered nurse and before that I was a licensed vocational nurse.”  What they don’t realize is that licenses, in most states, never go away.  When you are granted a license by a state agency, that agency has jurisdiction over you forever, regardless of when you got it or whether you renew it.  Keeping a license active allows you to keep using your license to practice, but an inactive or “lapsed” license doesn’t just disappear.  You can’t use it to practice, but the agency that issued it to you can discipline you anytime you violate its laws for the rest of your life—no matter where that violation occurs!

Why does this matter?  Because licensees in California who hold licenses in other states run the risk of “reciprocal discipline”.  Most licensing agencies have laws that define “unprofessional conduct” as “discipline by another licensing agency in any state or territory.”  So if California’s Department of Insurance disciplines a licensee, that licensee could be subject to discipline by California’s Board of Behavioral Sciences.  Or, if Arizona’s State Board of Nursing puts a nurse on probation, that nurse could be disciplined by the California Board of Registered Nursing.  Imagine a traveling nurse who holds licenses in Nevada, Washington, California, and Maine.  If that nurse is disciplined in Maine, Nevada, Washington, and California could all seek discipline, even if the licensee hasn’t practiced in California for 15, 20, or 30 years!  Additionally, most states consider it “unprofessional conduct” for a licensee to fail to report discipline from another agency, so the hypothetical nurse above would be responsible for informing four different state agencies in four different states about one disciplinary action.

The solution to the complex problem of reciprocal discipline is a qualified, experienced professional license defense attorney.  Make sure you have somebody who understands the way licensing agencies think in each state where you hold a license, including California.  Don’t let one potential issue turn into a major headache for your career.

As professional license defense attorneys, we try to negotiate a settlement offer for our clients in every case.  The more options we can provide to our clients, the better, and some clients want to avoid the cost and uncertainty of hearing no matter what.  Sometimes the agency digs in against the client and refuses to settle, but more often than not, we are able to convince the agency to offer settlement terms.  But what if the licensee doesn’t like the terms they’re being offered?  What if the terms involve a disciplinary record that will stick with the client for life?  What if the terms would preclude the client from working at their current job?

We often speak to licensed professionals who are on some form of board or agency probation, and they are unhappy with the terms and conditions.  Sometimes they were told that the settlement offer they received was “the best they could do,” and it would be a waste of time to go to hearing.  In fact, the government attorney will tell us that our clients should settle, and that we won’t do any better at an administrative proceeding.  Every case is different, but just because an agency attorney tells you that you won’t do better in court, it doesn’t mean they’re right.  The Board of Registered Nursing offered two of our clients probation just this year.  Neither client accepted, both went to hearing, and both had their Accusations dismissed by the ALJ and then those dismissals were accepted by the Board.  The Department of Social Services wanted to shut down two licensed day care facilities this year.  The Department refused to entertain settlement, instead demanding license revocation.  However, one, our client, was placed on probation after hearing, and the other client’s matter was dismissed entirely.  The Medical Board of California wanted to place our client’s license on probation, but after fighting for our client at hearing, our physician earned a public reproval instead, preserving the physician’s career as a well-earning, respected practitioner.

In all of these cases, a board or agency counsel insisted to the licensee that only one result was possible.  The truth is, with quality representation and a good case, we can achieve great results, sometimes even better than the best that the board is willing to offer.  In some of our cases, we recommend settlement, and it’s only through our intervention that the board is even willing to offer a settlement.  The only way to know for sure is to consult with an attorney who regularly appears at administrative hearings at the Office of Administrative Hearings.  Don’t be pressured into giving up a license or into taking a settlement offer without first talking to an experienced professional license defense attorney.

A licensed vocational nurse applicant was denied a license by the Board of Vocational Nursing and Psychiatric Technicians after the applicant disclosed that he had another healthcare license that had been disciplined in the past. In the prior disciplinary case, the LVN license applicant had been placed on three years of probation for negligence, making incorrect entries on a patient record, a dishonest act and unprofessional conduct. The Board took the position that the new LVN license should also be put on probation just as the prior healthcare license had been.

We took the position that the outcome offered by the Board in settlement and advanced at hearing was unreasonable and would be extremely unfair to the license applicant. The applicant had successfully completed the prior probation, was appropriately remorseful, and had a serious and respectful demeanor at the proceeding.  After our presentation of all of the carefully prepared mitigation and rehabilitation evidence and legal arguments, the Administrative Law Judge granted a clear, unrestricted license, which was adopted by the Board. This result demonstrates the principle that the right law firm, which is not afraid to go to trial and push for a better result, can achieve a superior outcome.  This client was represented by Matthew Truong, Associate Attorney at Ray & Bishop, PLC.

A Board of Registered Nursing case against an RN who was accused of discrepancies in the handling of controlled substances was resolved by negotiation for an order of public reproval, also known as a public reprimand.  A public reproval involves no probation conditions and will drop off of the RN’s license record after three years.  The RN was not required to admit to the truth of the allegations in the accusation.

The Board initially accused the nurse of unprofessional conduct due to incorrect medication entries, as well as gross negligence for the mishandling of controlled substances.  The Board sought to place the RN on probation.  However, through advocacy with the Board and effectively explaining all of the circumstances surrounding the events, we persuaded the Board to drop its insistence on probation and settle for a public reproval.

Cases involving controlled substance errors and Pyxis machine data errors are very difficult to litigate because the reporting party (usually a hospital) may strongly suspect and infer drug diversion, including theft or abuse of drugs.  However, wasting, dosage and documentation errors can and do occur and can be explained and put into context by an effective attorney.  Ray & Bishop, PLC, represents and defends nurses in these types of very difficult cases that can have a severe impact on the careers of nurses.

 

After a licensing board has issued an order revoking a license, the very next step to keep the license valid and the licensed practice or business running can be to seek a stay from the agency or from a Superior Court judge.  A “stay” is an order to stop the license revocation order from taking effect.  Stay orders can also be used to stop license probation from starting, or to delay a license suspension.

Seeking a stay is an essential part of asking a licensing agency to reconsider its decision, or asking a Superior Court judge to issue a writ of administrative mandamus setting aside the discipline.  A stay can be requested when a petition for reconsideration is filed with a licensing agency under Government Code section 11521.  A stay for reconsideration is usually short – only 10 days.  A stay for a court to consider a petition for writ of administrative mandamus is usually longer, perhaps several months or more.

The short stay of up to 10 days for a board or agency to reconsider its decision is sometimes easy to get, because it is so short.  The purpose is to give the board or agency head days to decide a petition for reconsideration.  A Superior Court stay can be more difficult to get, because the attorney seeking the stay must usually persuade the court that the licensee is likely to win on appeal and the public interest will not suffer due to the stay.  Although strictly speaking not a part of the law, a judge may also consider the hardship upon the licensee, the effect upon a business, how serious the disciplinary case was, and whether an order short of revocation can adequately protect the public.  This calculation can be complicated, and is best presented by an attorney experienced with writs of administrative mandamus.

A stay can provide a valuable lifeline to remain at a job or in business while a licensee fights harsh or unjust board or agency discipline.  Even if an appeal is ultimately unsuccessful, a stay can provide valuable time to prepare one’s finances or business for the fallout from a license revocation.  A business might be sold or passed to a partner or family member, a past career resuscitated, or a spouse might be given time to get back into the workforce to cushion the blow.  Ray & Bishop, PLC, has won many stays for clients in the very difficult aftermath of an order of license revocation.  Contact us to see if we can help you at www.calicenselaw.com.

Under Business and Professions Code section 805, a hospital peer review committee makes a required report to the Medical Board of California.  An “805 Report,” as it’s called, is typically filed if a physician is denied hospital privileges or loses hospital privileges for longer than 30 days.  Suspensions longer than 14 days can require an 805 report, as can abandoning an application or resigning privileges with an investigation pending.  An 805 report must be filed within 15 days after the adverse event.  805 reports are not only filed by hospitals for loss or denial of privileges, but also by organizations such as Kaiser Permanente for loss of employment.

The 805 report is the vehicle by which hospitals and employers can inform the Medical Board of California about physician discipline.  The 805 report is required due to discipline for a “medical disciplinary cause or reason.”  Under Business and Professions Code section 805(a)(6), a “medical disciplinary cause or reason” is “that aspect of a licentiate’s competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.”

The best way to avoid the Medical Board investigation and resulting discipline that can be caused by an 805 report is to never get one filed.  Since a $50,000 fine awaits a hospital that fails to file a required report, a required report must be filed.  However, if a triggering event can be avoided – for example, by shortening suspension to under 14 days or a restriction of privileges to under 30 days – the 805 report can be avoided.  If an outcome is expected that will trigger an 805 report, a physician should resist the urge to take the easy way out and resign or accept reportable discipline without a fight.  An 805 report, in the long run, can result in discipline that can devastate a physician’s license.

For legal assistance with peer review, negotiating with medical staff regarding hospital sanctions, or dealing with the Medical Board fallout from an 805 report, contact us for legal help with your matter.

In response to a patient complaint, a report of a large malpractice settlement, or a report of a loss of privileges, among other reasons, the Medical Board of California may choose to investigate patient care.  Often, to an unsuspecting California physician, the first sign of trouble is receipt of a request for patient records from something called the “Division of Investigation.”  The request for patient records usually comes in the mail, but may be served by an investigator.  The letter is addressed “Dear Custodian of Records.”   With the letter, there should be a certification form for the custodian of records to fill out to certify what, if any, records are being provided, an authorization of release of records form signed by the patient, and a page with a printout of the applicable law.

There can be some confusion because these documents say they come from “Division of Investigation” at the “Health Quality Investigation Unit.”  In fact, there is no mention at all of the Medical Board of California in these documents.  However, rest assured, it is a Medical Board investigation.  This request for records often will eventually lead to further investigation, and, at a later date, questioning of the treating physician by a Medical Board investigator, an expert medical reviewer (physician), and a Deputy Attorney General.

A physician (or other healthcare professional) served with one of these requests has 15 days to produce the records requested.  If the records are not produced (or a certification that says the person receiving the request has no records), a civil penalty of $1,000.00 for each day that passes beyond the deadline can be assessed.  The rules are contained in Business and Professions Code sections 2225(d) and 2225.5.

A request for patient records is a valuable early warning that a physician disciplinary case may be on the horizon.  Months or years later, resulting events can lead to license probation, suspension or revocation, suspension of board certification, loss of Medicare or MediCal privileges, and other consequences.  A professional license defense attorney can use this opportunity to prepare the physician to defend their license and privileges in the coming investigation.

After a license hearing, the administrative law judge (ALJ) will issue a proposed decision.  Under Government Code section 11517(c)(1), the ALJ has 30 days to issue the proposed decision.  (However, there is no penalty if this deadline is not met.)  Thirty days after the ALJ issues the proposed decision, each side in the case has the right to get a copy of the decision.  Under 11517(c)(2), starting with the date the agency receives the proposed decision, the licensing board or agency has 100 days to decide whether to adopt the proposed decision, reject it, make changes to it that don’t require rejection.

The proposed decision is a unique feature of administrative law.  Most of the time, the proposed decision is an accurate sneak peak of the final outcome of the case.  If the proposed decision is favorable, the licensee or license applicant can breathe a sigh of relief knowing that a good outcome may be just around the corner.  If the proposed decision is unfavorable, the licensee or license applicant can review their options for reconsideration or appeal and consider the career impact of the likely final decision.

However, sometimes a licensing agency will reject a proposed decision.  This most often happens because, 1) the proposed decision imposes a result that is too lenient or generous, or 2) the proposed decision has a technical flaw that is so serious it must be rewritten or decided again.  This rejection is called “non-adoption”.  ALJs try to write proposed decisions that square with the practices and expectations of licensing agencies, and ALJs also try to avoid mistakes, because “non-adoption” is a big headache for everyone – the government attorney, the defense attorney, and the clients on each side.  A non-adoption means extra work, added expense for the client, and months of uncertainty.

If a proposed decision is rejected, under law, it becomes a nullity.  The case can be re-litigated to a completely different decision by the licensing board or agency.  However, as a practical matter, the proposed decision still looms large as an influence on the process.  If a board or agency makes a different decision after non-adoption, it usually will copy large parts of the proposed decision into its final decision.

If you have a proposed decision you are not happy with, or your good proposed decision has been non-adopted, call us for legal advice.  Don’t wait until your non-adoption or adverse proposed decision becomes a final, bad result.