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Facing A Medical Board Investigation? Go For The Trifecta.

A disciplinary inquiry by the Medical Board of California may also implicate employment and criminal consequences. This article explores defense strategy.

An accusation of professional misconduct may trigger a formal investigation by the Medical Board of California, which is no small matter. If the Central Complaint Unit finds there is sufficient evidence to support the complaint, the board investigators may refer the matter to the Office of Administrative Hearings. In that forum, the procedural rules of administrative law apply.

Yet depending on the underlying allegation, a physician or medical professional may also have to defend against adverse actions from his or her employer. As if that weren't enough, there's also the threat of potential criminal charges. For example, the California Medical Act enumerates impairment, fraud, sexual misconduct and prescribing violations, in addition to quality of care complaints, as examples of professional misconduct.

Administrative hearings, criminal indictments and internal employer policies each have their own forums and procedures. Does that mean a medical professional may require representation from three different lawyers? In the hands of an experienced medical license defense lawyer, the answer is a resounding "no." An attorney can help an individual prepare a strong defense that may result in a trifecta in all three arenas: administrative, employment and criminal.

Bet 1: Administrative Hearing Defense

Administrative hearings in California are conducted in accordance with the Administrative Procedure Act. There is no jury, and the discovery and evidentiary procedures are more relaxed and less technical than in civil or criminal trials. However, it would be a mistake to approach an administrative hearing casually.

For one, there's a lot at stake: A negative outcome in the administrative hearing could result in license suspension or even revocation. For that reason, a medical professional should not directly answer informal questions requests for information from the Board without consulting with his or her attorney.

Bet 2: Preserving Employment Status

A professional who has come under investigation by the Board should contact his or her malpractice insurance carrier. However, the issues in a medical malpractice lawsuit are not necessarily the same as in a medical disciplinary action. Whereas the civil lawsuit may focus primarily on the extent of a patient's injuries, the investigation by the Medical Board of California will typically examine whether the conduct at issue fell below the professional standard of care expected from comparable professionals in the industry.

That distinction in focus may actually prove helpful in minimizing an employer's reaction to an administrative proceeding. Although patient injuries may attract media attention, it is important for an employer to await the Board's determination, as well as the exhaustion of any appeals.

Bet 3: Safeguarding Against A Criminal Indictment

The Board also has the authority to refer matters to the District Attorney, which may result in potential criminal charges. In a criminal proceeding, prosecutors must prove guilt beyond a reasonable doubt, which is a higher standard than the clear and convincing evidence required to establish professional misconduct in an administrative hearing.

Nevertheless, much of the evidence presented in the administrative forum might prove useful. In both the criminal and administrative forums, the attorneys may make their case through opening and closing statements, examining witnesses, and introducing evidentiary exhibits. In addition, the presiding judge may not have a medical degree. Accordingly, an attorney may also enlist the testimony of medical experts to explain the procedures and cares that were provided by the physician or medical professional in question.

If you are facing a medical board investigation, you may need a strategy that considers the potential administrative, employment and criminal issues. A medical license defense lawyer can help professionals present a strong case in each forum.

Keywords: medical license defense, administrative hearing, Medical Board of California, professional misconduct, medical board investigation

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