California Medical Board Licensing

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defense cases in that period resulted in 120 cases of license probation, 129 cases where the physician’s license was revoked or surrendered, and 62 public reprimands.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.

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.

The Medical Board of California investigates complaints against physicians using its team of investigators who work from its headquarters in Sacramento and from its field offices.  Complaints may come from CURES reports reviews, 805 reports, lawsuits, or patient complaints.  For many complaints, an assigned investigator will contact the physician and ask the physician to come into a Medical Board field office to be interviewed.  The Medical Board has field offices, known as District Offices, in Cerritos, Fresno, San Bernardino, Glendale, San Diego, San Dimas, San Jose, Pleasant Hill, Rancho Cucamonga, Tustin and Valencia, in addition to Sacramento.   We routinely represent physicians in these interviews.  The physician interview is often the last step or one of the last steps before the investigator submits their investigation report to Medical Board Enforcement for it to decide if formal disciplinary action should be taken against the physician.

In these interviews, we have over the last several years increasingly seen the Medical Board have a physician expert in the investigation to join in questioning.  A Medical Board investigation interview may be conducted by the investigator, possibly a supervisor (if the investigator is relatively new or in training), a Deputy Attorney General, and a medical expert, who may be either an expert reviewer or the District Medical Consultant.  District Medical Consultants, or DMCs, working in the field offices, supervise medical expert review of cases or themselves may review cases.  The DMCs provide medical expertise, help decide when and whether to involve an expert reviewer physician, coordinate the involvement of expert reviewers at interviews or may themselves serve as the expert reviewer at the interview, and weigh into the decision whether to recommend discipline against a physician.

An investigator is charged with obtaining medical records from the physician or facility, gathering any other needed information or evidence, then usually submitting that information to the DMC for an evaluation.  The DMC usually makes the call whether to involve an expert reviewer (which will more often happen if the medical practice area involved is outside the expertise of the DMC).   The investigator coordinates with the physician and/or the physician’s attorney, a Deputy Attorney General and the DMC to set up an interview of the physician.  At any interview involving patient care and treatment issues, in addition to an investigator or investigators and usually the Deputy Attorney General, either the DMC or a medical expert reviewer physician will attend to all ask questions of the physician.

The job of the expert reviewer is primarily to assist the investigator in obtaining high quality information for Board Enforcement to prepare the case for disciplinary action.  The expert reviewer or DMC can be sizing up the disciplinary case at the interview and seek evidence to use to discipline the physician later.  The information disparity between physician and Board is highly asymmetric with the Board having a great deal more information than the physician, so the interview is an opportunity for this panel of questioners to seek key admissions and get unfiltered information.  The leverage the Board has over the physician at this stage can make the interview quite perilous for the physician being investigated.

It goes without saying that it is absolutely critical that the physician have legal counsel in one of these interviews.  An attorney can provide a physician with protection in a number of critical ways.  First, understanding the process alone, which this article just partially addresses,  provides valuable insights.  Second, as the license lawyer for the physician we may use a variety of techniques to assemble as complete of a picture as possible of what is happening in the Board investigation.  Third, the lawyer can exercise a degree of control over the process and determine the level of participation in the interview, which can range from asserting the physician’s right to remain silent or even rejecting an interview request, up to providing additional or unsolicited information to the Board through the interview process to help explain and contextualize the subject of the investigation.

As California’s premier license law firm, we defend California physicians on a daily basis.  See our website, www.calicenselaw.com, for more information or to get in touch with us.

Since late 2015, the Medical Board of California and the California Board of Pharmacy have begun to increase enforcement actions and penalties for perceived overprescribing of prescription drugs, particularly opioid drugs such as hydrocodone and oxycodone (Vicodin and OxyContin/Percocet).  High-profile celebrity deaths due to opioid overdose, coupled with rising addiction rates nationwide, have created political pressure on California agencies to do something about prescription drug abuse.  Physicians in California must be particularly careful, because state agencies are carefully reviewing the prescribing practices of physicians, including those in general practice, if there is a suspicion of over-prescribing.  Pharmacists, under the corresponding responsibility rules, face pressure from the Board of Pharmacy to report suspected prescription drug abuse, which may include notifying the Board of the source of prescriptions for suspected drug abusers.  Traditionally, our physician clients think of overprescribing as strictly a question of quantity—if the number of pills is within traditional limits, they reason, then they can’t be accused of prescribing too much.  In addition, responsible physicians often see their patients regularly, and so as long as they don’t prescribe pain medications “in bulk,” so to speak, they assume that they’re not overprescribing.

However, the Medical Board has taken a different view.  For every opioid prescription, Medical Board investigators will be looking specifically for an injury, a diagnosis, or a cause—a specific, charted reason why an opioid medication was necessary.  The Medical Board will also want to know what the long-term plan was to address the diagnosis, injury, or cause.  The longer a patient has been receiving opioids, the more suspicious the treatment will look to a reviewing physician or to an investigator.  The Board will reason that the more frequently a patient visits the facility, the more suspicion the patient should arouse in the physician.  Finally, the Medical Board will want to see referrals—to pain management if the issue is pain only, but also to neurologists, orthopedists, or other specialties depending on the problem.  Without referrals, the Medical Board may assume that the physician is not diligently reviewing the patient’s need for pain medication and will consider that overprescribing.

In late 2016, California Health & Safety Code section 11165.4 came into effect, which requires health care practitioners to “consult the CURES database to review a patient’s controlled substance history before prescribing a Schedule II, Schedule III, or Schedule IV controlled substance” on the first time and a four month intervals thereafter.   Failure to consult with CURES within the parameters of the law can result in referral to the professional’s state licensing board for “appropriate” administrative sanctions.

The enhanced expectations of the Medical Board combined with new rules for checking the CURES report place a heavy burden on physicians to carefully monitor and regulate prescribing practices.  A Medical Board investigator request for patient records which contain schedule II, III or IV controlled substance prescriptions can be a red flag that overprescribing is the target of the investigation.  For help with a California Medical Board overprescribing investigation or disciplinary action, please contact our firm for a consultation.

In California professional licensing law, a second or greater drunk driving conviction seems to invite certain discipline.  However, in certain circumstances, the Medical Board of California has been known to investigate and discipline physicians for a single drunk driving conviction.  Although there is but a single conviction, the Board invariably seeks to paint the physician as an alcoholic, addict, or abuser of alcohol and drugs.  With this mindset, the Board attempts to impose long periods of probation with draconian conditions.  A probationary license can do damage enough – potential loss of privileges, jeopardizing credentials, problems with insurance carriers, problems with employment and employability, and a cost of about $4,000 a year in probation fees.  But drug and alcohol disciplinary cases typically carry with them mandated medical examinations of the physician, daily call-ins for drug and alcohol testing, frequent and expensive testing in sometimes remote locations, and possible treatment and therapy, commonly for a five year probationary period.

The Medical Board of California can find an even sometimes rather small aggravating fact to use to justify punishing a physician with a single drunk driving conviction.  In 2014, the Medical Board filed an accusation against a physician who was arrested for having a blood alcohol level of 0.10%, just slightly above the legal limit.  The physician was stopped by police when a CHP officer allegedly saw him run a red light.  Although we can only surmise the alleged facts from the accusation document (which I do not post here out of respect to the physician), the aggravating factor in this case in my view was that the physician sent a letter to the board in which he wrote that his conviction “was in no way related to work.”  This statement can be seen as lacking an appreciation for the seriousness of the offense and minimizing the conduct, in other words, showing a failure to take responsibility.  This, in my view, caused the board to lose trust in the physician’s judgment.

There are several keys to successfully defending a physician who is subject to discipline for a single drunk driving conviction.  An evaluation and testimony by a carefully selected expert addictionologist, combined with careful packaging and presentation of the case by an experienced attorney, can remove suspicion of alcoholism or alcohol abuse and allay the board’s public protection concerns.  An attorney should be retained from the time of filing of the 802 report, through the Medical Board investigation, and continuing on to the disciplinary case if one is filed.  The physician’s attorney should fight for the lowest possible penalty provided the evidence supports that outcome.

Business and Professions Code section 2239 empowers the Medical Board of California to discipline a physician for dangerous use of alcoholic beverages or drugs.  The statute provides that conviction of even a misdemeanor offense involving the consumption of alcohol or dangerous drugs “constitutes unprofessional conduct” and that the record of conviction “is conclusive evidence of such unprofessional conduct”.  Such a conviction can be a single drunk driving conviction or even a “wet reckless” conviction.  And if the board can prove the alleged unprofessional conduct based upon evidence, a conviction may not be required at all.

For experienced legal assistance with a drunk driving conviction that must be reported, has become a Medical Board of California investigation, or has resulted in an accusation, call Ray & Bishop, PLC at 949-557-4888, or visit our website at www.calicenselaw.com.  Legal advertisement

 

Our firm just received a decision from the fourth consecutive disciplinary case against a physician by the Medical Board of California.  The physician was already on probation, and in two prior cases, the physician’s probation had been extended.  The Board accused the physician of misconduct while on probation, and forced the physician to make statements because he was on probation.  Since the standard of proof is much lower to discipline someone on probation – probation can be violated on a showing of only a preponderance of the evidence – the Medical Board of California filed a petition to revoke probation in addition to an accusation.

However, fortunately for the physician, an administrative law judge agreed with our arguments that the Medical Board of California did not meet its burden of proof and dismissed the disciplinary case.   The physician’s license was saved.

This case result does not constitute a guaranty, warranty or prediction of the outcome of any other license discipline case.  Every case is unique.  For more information about how we can fight to save your license, call Ray & Bishop, PLC at 949-557-4888, or find more information at www.calicenselaw.com.  Legal advertisement.

The Medical Board of California’s physician license application asks about "unusual circumstances" in both medical school and during residency.  These questions can be a trap for the unwary.  First off, the applicant sends forms to the medical school and residency program(s) which have identical "unusual circumstances" questions.  The program or school responds directly to the Medical Board.  Expect the program to be thorough, honest and candid. Therefore, any type of investigation, discipline, probation or leave of absence must be disclosed and explained on the physician’s license application to match the program’s answers.  The only exception would be if some sort of incident was disposed of in an entirely informal way without any break in study/work or effect upon study/work, and only then if the applicant is 100% sure that the school or program would never disclose the event in any circumstances.  If your program checks "yes" and you check "no", the Board assumes applicant dishonesty until they are persuaded, or a judge finds otherwise.

Another issue is that even if the "yes" answers acknowledging "unusual circumstances" match on both the application and the L2 returned from the medical school or the L3 returned from the residency program, the school or program director must send a letter explaining the "unusual circumstances".   The applicant must also send in an explanation of the "unusual circumstances" with the application.  If the applicant’s explanation is inaccurate or misleading because it significantly fails to match the program’s explanation, the Board may view that as dishonesty, the same as if the applicant failed to answer "yes" acknowledging an adverse event.

It is a good idea for medical students or residents who have suffered from an adverse action or have taken a leave of absence to ask their program for the program’s records of the action.  At the time of license application, this information can be used to draft an accurate disclosure.  If the program’s disclosure differs, the source documents can be cited.

California has a well-earned reputation as a tough state for professional licensing.  The questions posed on the application are far more detailed and thorough than most other states.  The best course of action is to seek legal counsel experienced with the application to ensure that full, accurate disclosures are made.

The California Medical Board routinely investigates criminal convictions and often even criminal arrests suffered by California physicians.  These investigations are handled by Board investigators out of field offices throughout California, including offices in Tustin, Cerritos and Valencia in southern California.  Thoughtful preparation for one of these interviews can make the difference between receiving a career devastating accusation or the matter being simply closed without action.

How the Medical Board Learns of Criminal Convictions and Arrests

There are four main ways that the Medical Board can learn of a criminal conviction or felony charges.  The first way is if a court clerk or prosecutor files a report with the Central Complaint Unit.  Court clerks and prosecutors are supposed to file a reporting form with the Board under Business and Professions Code section 803.5.  However, as a practical matter, busy court clerks and prosecutors are often unaware of the reporting duty and do not file the report.

The second way is that the Department of Justice can notify the agency that a licensee has suffered an arrest or conviction.  The DOJ is aware of licensure from the initial Livescan done at the time the license application is made.

The third way is that a physician must report a conviction pursuant to Business and Professions Code section 802.1.  The "Physician Reporting – Criminal Convictions" form requires that the physician report any criminal conviction or the filing of an indictment or information charging a felony.  If a physician fails to make that report, the physician can be cited and fined.  A common fine is $750.00, but can rise up to $5,000.00.

The fourth way is that a physician must report a criminal conviction on the license renewal form.  Checking the "no" box when untrue can be grounds for discipline against a licensee, not only for non-reporting, but for dishonesty. 

Once the Board Becomes Aware of A Conviction

After the Board learns of a felony indictment or information, or any conviction or even sometimes an arrest, the Board can take a couple of approaches.  Less frequently, an enforcement analyst will obtain police reports and court records then contact the physician for a written statement.  Most often, a Board investigator in a field office will obtain the court documents and police records, take statements from any third party witnesses, and then finally interview the physician.  The interview will be digitally recorded.  Questioning is usually conducted by a Board investigator with a Deputy Attorney General present to ask additional questions and evaluate the case for possible discipline.

Topics of Questioning at the Board Interview

A physician may believe that the Board is interested in the conviction itself, but that would be a mistake.  The Board is not so interested in the actual arrest or conviction, but instead focuses on what the conviction or arrest reveals about the physician.  The Board in reality is looking for evidence of impairment, such as addiction or mental illness, dangerous or reckless behaviors, or illness that can affect competency.  As such, the scope of questioning can be very broad and enter areas that surprise or trouble the physician being questioned.

Preparation for the Interview

In some cases, it is best for the physician to answer no questions at all, particularly if an arrest has not resulted in a conviction and there is still a danger of criminal prosecution.  However, in almost all cases the conviction is a settled or decided matter.  In such cases, the interview is necessary to address troubling concerns the Board may have about the physician.  The extent to which the physician puts those concerns to rest and reassures the Board will determine whether or not the investigation will lead to disciplinary charges.

In any interview, it is critical that the physician be honest and forthright.  The concerns that arise from the arrest reports and court records should be addressed.  Evidence of mitigation not present in those documents can provide important context, and rehabilitation evidence can show that a behavioral issue has been addressed by education, counseling or other remediation.

The Role of an Attorney

Board investigators expect physicians to be represented by counsel in an investigation, although they will sometimes tell a physician they don’t really need a lawyer.  However, the Board investigator himself or herself will often have their lawyer, the Attorney General, involved in the case and present in the interview.  Every investigated physician should have legal counsel.

A lawyer serves many critical purposes.  The first purpose is to shield the physician from intrusive and disruptive surprise contacts or interviews.  The second purpose is to regulate the flow of information, both documentary and verbal, between the Board and physician.  The third purpose is to ensure the physician is treated fairly, with respect, and not bullied or harassed.  The fourth purpose is to prepare the physician to respond to questioning.  The fifth purpose is to advocate on the physician’s behalf and employ strategies to seek closure of the case without discipline.

 

 

 

Facing possible "sunset" this year (expiration of the legal authorization to exist), the Medical Board of California is nearing a renewal for another four years after having successfully avoided a major overhaul.  SB 304 will move the Medical Board’s investigators to the Department of Consumer Affairs.  The Medical Board currently maintains its own force of investigators.  Earlier proposals would have consolidated the investigation and prosecution functions of the Medical Board under the California Department of Justice.  Preserving the separation of these functions maintains a greater measure of Board enforcement control over its own investigations and should closely resemble the present status quo.

Although major reforms are not being enacted, significant criticism of the Medical Board in the press has been a shot across the Board’s bow.  Since the Board has been shaken by this negative attention, physicians should expect more aggressive investigations, greater cooperation between the Attorney General’s Office and Board investigators, and more disciplinary cases filed. 

In this environment, it is more important than ever for any physician who is being investigated or is likely to be investigated to seek experienced license defense counsel.  The importance of an experienced attorney to make critical tactical decisions cannot be underestimated.  Doctors who are assured by an investigator that he :"just wants to ask a few questions" are usually shocked to find themselves facing across a table a  thoroughly prepared investigator, a deputy attorney general, and sometimes even an expert physician, an assembled prosecution team attentive to any missteps the physician may make on which to build a prosecution case.

If you have received a call or letter from the Medical Board of California or an associated board, please call our office today for a consultation at (714)558-8488.