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.