What NOT TO DO — Medical Board Investigations
A variety of reasons can result in an investigation by the Medical Board of California. Most of the time, the physician under investigation will be cleared of any wrongdoing and/or misconduct. Based on my professional experience in representing California physicians under investigation by the Medical Board, here is my list of what NOT TO DO if you are being investigated:
1: Do NOT ever take a board investigation lightly. You have worked hard to get your license and your livelihood depends on your ability to practice medicine. Treat the investigation as if your career depends on it.
2: Do NOT ignore a board investigation. Understand that you may be required to respond within a certain time frame and it is in your best interest to respond. Despite what you think the merit of the complaint is, take it seriously. The Board’s duty is to protect the public, and they can revoke or suspend your license, fine you, or refer you over to the District Attorney for criminal charges.
3: Do NOT assume that your innocence will be acknowledged. Never assume that the complaint lacks merit, the accuser is not believable, and that as soon as you explain to the Board, the matter will be dismissed or forgotten. The Board has a very complex and detailed protocol to follow in order to fulfill their mandate to protect the public.
4: Do NOT respond to a letter from the Board or the investigator unless you have consulted with an experienced attorney first.
5: Do NOT turn any documents or records over to the Board without speaking to an attorney first. Do not sign any authorizations for release of personal records or information without speaking to an attorney first. The Board may have a right to obtain and review the case material related to an investigation but you should speak to an attorney so that your attorney can advise you about what to turn over to the Board. Indiscriminately turning records over to the board can result in additional or more serious charges than were originally intended.
6: Do NOT ever meet with the board investigator without legal representation. Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make. It can cost you your license. Do not meet with a board investigator in person or talk to him/her on the phone without an attorney present, even if you are confident that you can positively respond to the accusation, and you think you can explain it away. The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself. Most therapists do not know their rights and need an attorney to advise them.
7: Do NOT ever discuss anything, without legal representation, with the board investigator if they unexpectedly show up at your office. Even if the investigator seems friendly, informal, and chatty, neither talk to them about the case nor release any records without legal representation. If an investigator unexpectedly shows up at your office or home, politely ask for their business card and tell them that your attorney will contact them soon. Chatting “informally” with an investigator without your attorney present or turning records over to them can be the two most professionally dangerous errors you can make. It can cost you your license. Do not allow them to pressure you to do anything right then and there. You have the right for legal representation.
8: Do NOT assume that lack of harm to client or patient will end the board’s inquiry. You must understand that boards often focus on whether you operated below the standard of care or not rather than on harm to the patient. They are more concerned about whether you violated any state laws or administrative or professional binding guidelines than whether your patient was harmed by your treatment. While the element of harm is a crucial part of a malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed.
What To Do When You are contacted by The Board:
1: Contact your malpractice insurance carrier as soon as you hear from the board that you are being investigated. It is often required by your policy.
2: Contact a knowledgeable and experienced attorney immediately who has direct experience in administrative law and with your state’s administrative code. Preferably, contact an attorney who has dealt with your board many times before on similar issues. When it comes to licensing boards, not any attorney will do. Beware of Attorneys who “dabbles” in administrative law. Do not leave your license and career in the hands of an attorney who does not have the knowledge and experience.
3: Help your attorney identify top experts. Ask professionals you know who have expertise on the issues at hand and whether a certain expert’s stance on the issue is likely to help you or not. Your attorney most likely will not have a medical degree. Be active in your defense. Help your attorney understand the nature and context of the case.