Investigators, with More Resources, Dig for Evidence of Abuse, Impairment, Health Issues and Errors Beyond Received Complaints

According to the Medical Board of California’s 2022 Sunset Review, the Medical Board of California conducted nearly 10,000 investigations in its 2021-2022 fiscal year. According to the report, during the pandemic the Board struggled with investigations. The Board had previously relied on a paper-based system that could not accommodate remote work and staffing issues.

However, the Sunset Review report plus anecdotal evidence suggests that the Board has adapted to working remotely and handling digital documents, and it has filled in staffing gaps. As the Medical Board investigation units come out of the pandemic, there appears to be more bandwidth for the Board to thoroughly and aggressively investigate complaints. In the Sunset Review, the Board identified changes made and planned to increase investigation efficiency. These changes include eliminating restricting investigations from a particular geographic area to a particular office (allowing statewide sharing of resources), increasing early review of cases by in-house medical experts, sharing more documents via email and the cloud, and increasing staff.

The Medical Board in the Media’s Crosshairs

In 2021, the Medical Board of California was the subject of a series of unflattering articles about their oversight of physicians in the California media, such as a July 2021 Los Angeles Times’ article entitled “How California Medical Board Keeps Negligent Doctors in Business”. This media attention amplified the complaints of critics that the California Medical Board, in the critics’ view, had been too lenient on doctors. This attention, quickly triggered legislative action, including increased license fees, new licensing requirements, and reinstatement of Board cost recovery for investigation costs.

A History of Aggressive Investigative Practices

For some time, California Medical Board investigators have shown no reluctance to mine a physician’s personal HIPAA protected medical information for evidence of impairment or disability upon which to build a case. CURES prescribing information regarding the prescriptions prescribed to a physician can lead Medical Board investigators to seek a physician’s personal medical, psychiatric or psychological treatment records. Investigators may show up unannounced at a physician’s workplace or home hoping to extract information or make unflattering observations in an unguarded moment. In interviews, Medical Board investigators ask questions about a physician’s health, ailments, and alcohol and drug use.

Mandatory Psychiatric and Medical Examinations

Data points from these aggressive investigative techniques can lead Medical Board investigators to request that the Medical Board issue an order for a psychiatric or medical examination of a doctor under Business and Professions Code section 820. If a physician refuses to undergo this examination, to be conducted by a Board-selected physician, that refusal alone empowers the Medical Board to seek suspension or revocation of a physician’s license.

Looking for Physician Shortcomings Beyond the Initial Case

Even in cases where impairment or disability are not suspected, the Medical Board may search for grounds for discipline beyond the four corners of a complaint or report originally received. For example, the CURES report may reveal prescribing patterns that may give rise to suspicions of overprescribing or prescribing without a good faith examination. An unannounced visit to a medical practice may cause the Board to suspect that a physician is not properly supervising other staff such as registered nurses or is not keeping proper medical records. Further, visits by Medical Board of California investigators can cause great alarm among employers and facility administrators, resulting in turn in greater scrutiny of a physician.

If you are contacted by a Medical Board of California investigator, you can contact Ray & Bishop, PLC for assistance. Ray & Bishop’s attorneys have extensive experience in defending California physicians in investigations and against Board accusations and license denials.