California Medical Board Disciplinary Action Defense
Medical Board of California: Investigation, Accusation and Disciplinary Actions Guide
Everyone makes mistakes, but a mistake or an unreasonable claim from a disgruntled patient or colleague might lead to a medical investigation, accusation, and disciplinary action against a physician. The new “Patient’s Right to Know Act” in California includes required patient disclosures, which can dramatically compound the negative impact of official charges and discipline on a medical practice and a doctor’s image.
California Medical Board Investigations and the Department of Consumer Affairs
Physician disciplinary actions frequently begin with something seemingly benign, such as a patient’s request for records or a letter in the mail demanding basic information. The letter or email could be from the Division of Investigation of the Department of Consumer Affairs (DCA), not the Medical Board of California. Many naïve physicians and their office personnel may be unaware that they are being investigated by the Medical Board.
In fiscal year 2020, the Medical Board of California received 10,868 complaints and initiated 1,956 investigations. We represent California physicians at all stages of the disciplinary process, including pre-investigation analysis, investigation, interviews, allegation defense, hearing, appeal, and penalty relief, at Spodek Law Group.
The Medical Board of California (MBC)
With the purpose of protecting health-care consumers, the Medical Board of California (MBC) licenses and regulates physicians, surgeons, and other health-care professionals. Complaints, allegations of inadequate care, and reports of criminal conduct are thoroughly investigated by the MBC Enforcement Program and the Central Complaint Unit (CCU).
By the year 2020, California had 152,402 licensed physicians and surgeons, 668 licensed polysomnographic technicians, and 460 certified midwives. For infractions of the Medical Practice Act, the MBC has the authority to revoke, suspend, or otherwise discipline licensees.
Medical Board of California is located at 2005 Evergreen Street, Suite 1200, Sacramento, California 95815. You can call them toll free at (800) 633-2322 Toll Free or call (916) 263-2382 to speak to someone at the Central Complaint Unit
California’s Osteopathic Medical Board
The objective of the Osteopathic Medical Board of California (OMBC) is to safeguard health care consumers and promote the highest professional standards by licensing and regulating osteopathic physicians and surgeons.
Consumer complaints are investigated, and physician compliance with the California Business and Professions Code and the Medical Practice Act is enforced. As of 2020, California has 11,926 OMBC licensed physicians and surgeons.
Osteopathic Medical Board of California is located at 1300 National Drive, Suite #150, Sacramento, California, 95834-1991, (916) 928-8390
The Disciplinary Process of the Medical Board: 6 Stages
Even the greatest doctors can be surprised by a complaint or a charge of malpractice when they least expect it. Disgruntled patients and others wanting to smear a doctor’s reputation are easy targets. The most important thing is to ensure that you understand the disciplinary process, your rights, and when to seek legal advice.
Unfortunately, after someone has filed a complaint, you’ll be stuck in the California Medical Board’s long, drawn-out procedure. Board actions against physicians, unlike malpractice cases, are often based on substandard or unethical conduct and do not require proof of actual patient injury.
While certain concerns, such as price disputes or improper remarks, may appear trivial at first, they can quickly escalate into more serious problems. A records request, for example, could disclose a failure to acquire informed patient consent or poor record keeping. As a result, it’s a good idea to take any complaint seriously and answer thoughtfully.
1. A Report of a Crime or a Complaint is Filed
When the California Medical Board receives the following information, enforcement action is initiated:
- Someone’s complaint against you,
- In the event of a criminal charge or conviction, a notification
- A report from an 805 peer review,
- Notification of disciplinary action taken against you in another state, or
- Other disclosures include a medical malpractice settlement or award, an adverse event at an outpatient surgical facility, a coroner report of a death caused by physician gross negligence, or a medical procedure performed outside of an acute care hospital that resulted in patient death.
Anyone, even anonymous parties, can make complaints online for alleged infractions of the Medical Practice Act. The complaint will be submitted to the DCA Division of Investigation for additional investigation if the Central Complaint Unit analyst evaluation concludes that a violation occurred that is within the board’s jurisdiction.
Criminal arrests and convictions are reported to the MBC via CORI notification by the California Department of Justice. A physician should expect an investigation if they submit an 802 criminal action form to report a criminal arrest or conviction.
2. The Medical Investigation and Interview
The MBC has the power to investigate licensees for a variety of reasons. Some common examples include:
Poor Quality of Patient Care: Substandard care, misdiagnosis, negligent care, surgery complications, and patient abandonment.
Office Practices: Deficient record keeping, billing practices, failure to sign death certificate, failure to provide records.
Subpar Professional Conduct: Adjusting records, breach of confidence, filing falsified insurance claims, deceptive advertising, arrest or conviction of an offence.
Impairment of the provider: Impaired mental or physical performance while under the influence of drugs or alcohol.
Improper Prescribing: Excessive/inadequate prescribing, DEA and other drug laws violations.
Sexual Misconduct.
Unlicensed Practice (also aiding and abetting the unlicensed practice of another).
When a physician receives an unannounced office visit from an investigator, they are usually aware that an investigation has been launched. Other indicators include:
- A call, request, letter, or subpoena for medical or other documents from the Department of Consumer Affairs Division of Investigation.
- Request for an interview with an investigator and/or an MBC expert reviewer.
- Request for medical or other records from the Medical Board.
Medical Board investigators are usually seasoned detectives with years of interrogation expertise. They frequently adopt a laid-back, friendly demeanor that lulls doctors into speaking more than they should or disclosing information that could later cause issues.
It is critical for a physician to contact an experienced medical license defense attorney with experience resolving medical board investigations and license disciplinary proceedings once an inquiry has been launched. A lawyer should analyze your comments to see if there are any legal implications.
California Medical Board proceedings are very different from medical malpractice litigation – they are handled in different legal venues (Office of Administrative Hearings vs civil court) with different rules, prosecutors, procedures, and statutes of limitations.
MBC investigators can look into a variety of things, including:
- Physicians, witnesses, and the complainant interviewed.
- Organizing and carrying out undercover sting operations.
- Subpoenas and search warrants drafted and excuted.
- They may obtain medical and other records that are relevant.
- They may obtain an MBC Expert Reviewer’s opinion.
- They might examine the alleged act’s location (s).
Important: If your case is closed while it is still under investigation, the allegation against you will not be published on the Medical Board’s website or BreEZe.
3. An accusation from the Medical Board
The Attorney General’s Office is notified when an investigation uncovers evidence that a physician has broken the Medical Practice Act and that the violation warrants disciplinary action. A formal accusation will be issued and served on the physician if a Deputy Attorney General believes the legal criteria has been fulfilled for a violation. An accusation is a charging document that outlines the claimed infractions as well as the laws that apply.
The matter will become public record on the MBC website and the BreEZe database once the Attorney General files an accusation. A physician has the right to contest the charges in a hearing before the Office of Administrative Hearings if he or she files a request for hearing (“notice of defense”) within 15 days of receiving the accusation (Gov Code Section 11506). Otherwise, you will be deemed to have forfeited your right to a hearing, and the board will be able to proceed with the charges as laid out in the Accusation.
4. The Office of Administrative Hearings – Appearing before an Administrative Judge
If your Accusation cannot be addressed through discussion with the Deputy Attorney General, a hearing at the Office of Administrative Hearings (OAH) will be scheduled. Administrative hearings are held at four OAH facilities in Los Angeles, Oakland, Sacramento, and San Diego, and are identical to court trials. Your attorney and a Deputy Attorney General dispute the case in front of an Administrative Judge.
During the hearing
The burden of proof is on the Deputy Attorney General to prove their case at the hearing. The standard of proof, according to Medical Board rules, is “clear and compelling evidence to a reasonable certainty.” This is a considerably more difficult criterion than in civil action. Expert testimony is required to substantiate violations of “gross carelessness,” “repeated negligent acts,” or “substantially related” conduct.
After the hearing
The Administrative Law Judge has 30 days from the completion of the hearing to make a proposed ruling. The proposed decision is subsequently referred to the California Medical Review Board’s seven-member panel for review. The MBC panel makes the final decision on disciplinary matters and has the authority to restrict, revoke, or suspend a medical license, as well as reject recommended decisions and take other administrative actions. For up to 30 days after the decision is made, licensees can ask the MBC to revisit it.
5. Appealing a Negative Result via Writ of Mandate
An administrative hearing loss can be appealed via a writ of mandate (CCP § 1094.5). The appeal allows a California Superior Court judge to evaluate the administrative judge’s decision to see if they abused their discretion or made mistakes. Licensees normally have 30 days to file a writ of mandate in Superior Court once the ruling becomes effective.
6. Petitioning for License Restoration or other Relief
Disciplined physicians in California can petition the Medical Board for reinstatement of their license, an early termination of probation, or a reduction in disciplinary action penalties. Eligibility standards are complicated, and physicians must meet certain criteria in order to be approved.
If you have received an Accusation, contact Spodek Law Group as soon as possible to review your case and how to protect your license.