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.

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