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Nicole Irmer | Posted in Medical Malpractice on July 1, 2020
Each year, the Medical Board of California (MBC) receives more than 8,000 complaints about physicians and surgeons licensed to practice in the state. As part of its authority over doctors, the Board investigates these complaints. If it finds that there is a basis for the complaint, it may result in a formal Accusation being filed against the physician in question.
An Accusation is filed by the California Department of Justice after an investigation and review of the complaint. It is a formal pleading document that lists all of the charges against the physician or surgeon. The Accusation is publicly available on the licensees Breeze Profile. At the end of the Accusation, the Board will request disciplinary action against the doctor, with consequences including suspension, revocation, probation, or a public reprimand. Under a new law, the Board may also seek recovery of its investigation and enforcement costs.
Receiving a “Notice of Accusation” can be devastating, particularly because it may mean the loss of a career that you have worked your entire life to have. The new cost recovery law can make it more challenging to fight the allegations against you, as many physicians worry that the cost of their own defense combined with a cost recovery order will be financially devastating. With the help of an experienced California medical license defense attorney, you can develop a strategy to protect your license and your livelihood.
An Accusation is the culmination of the California Medical Board’s enforcement process, which starts when a complaint is filed. A complaint may be filed by a patient, family member, fellow healthcare practitioner, a hospital, or even an insurance company. The most common type of complaint received by the Board’s Central Complaint Unit (CCU) involves alleged negligent care or treatment of a patient. The Board also investigates other violations of the law, including criminal offenses, medical record errors, substance abuse issues, and overprescribing.
Once the CCU receives a complaint, it reviews it to determine if the allegations fall within the Board’s jurisdiction. As part of this process, the CCU will request and review a patient’s medical records, along with other relevant information. At this point, the CCU may contact you to request a response to the complaint. If you receive a phone call or letter about a complaint, you should contact an attorney immediately. Anything said to the investigator can be used against you later in your matter.
If it appears that a violation may have occurred, the CCU will refer the matter to the Board’s District Office for further investigation. This may result in a situation and fine for minor violations of the Business and Professions Code, a referral to a local District Attorney for a criminal prosecution, or a referral to a Deputy Attorney General. The Attorney General’s Office will then review the complaint, and decide whether or not to file a formal Accusation.
The Accusation will list all of the charges and/or sections of the law that the physician allegedly violated. These charges and/or violations form the basis of disciplinary action. Once a formal Accusation has been filed, a doctor may face penalties that range from a public reprimand, probation, suspension, or even revocation of their license. As discussed in greater detail below, a doctor may also be charged with the Board’s costs for investigating and enforcing the disciplinary action against them.
If you receive a Notice of Accusation, you should take it very seriously. The outcome of the Accusation may depend, in part, on what you do over the coming days and weeks. A seasoned medical license defense lawyer can develop a strategy to protect your interests, which may include presenting mitigating evidence, developing a factual defense to the charges against you, or negotiating a stipulated settlement.
You are legally entitled to a hearing to defend yourself, but you’ll have to respond to the Accusation to state your intention of attending a hearing. If you fail to submit a request for a hearing (Notice of Defense) in a timely manner, it may result in the waiver of certain rights, like the right to a hearing. Without a hearing or a defense from you, the Board may act on the accusation without a hearing and take action.
While you do not have to have a lawyer to request a hearing and file the Notice of Defense, an experienced defense lawyer can advise you on how best to respond in your Notice of Defense, and help strategize for your hearing.
As an initial matter, you should check the Accusation to find the date of the proof of service. You have 15 days from this date to file a “Notice of Defense.” Doing this serves two purposes: (1) acknowledging your receipt of the Accusation and (2) providing notice of your intent to defend yourself against the allegations. Typically, the Notice of Defense form is included with the Accusation packet you will receive from the Attorney General’s office.
You can use the Notice of Defense to request a hearing, object to the Accusation, and/or present new information. You may state that the Accusation may be incorrect, that the investigation omitted information, or that it doesn’t have substance.
If you have not already contacted a healthcare licensing defense lawyer, you should do so as soon as possible after receiving a Notice of Accusation. These matters are complex, and governed by the Rules of Administrative Procedures. An experienced attorney can advocate for you in several important ways, including:
In this way, your lawyer can help you achieve the best possible outcome for your case. With so much at stake, it is vital to retain legal counsel immediately after learning of a complaint against you or after receiving a Notice of Accusation. Early intervention by a knowledgeable California Medical License Defense Attorney can make the difference between having the complaint resolved with minimal penalties, being put on probation, or having your license suspended or revoked.
Once you’ve responded to the Accusation, you will be scheduled for a hearing. Hearings are deemed public, and the information discussed during your hearing could be disclosed to the public. There are exceptions to what is available to the public like warning letters, professional competency examinations or other matters made confidential, privileged by existing law or order of the ALJ.
The hearing is an administrative proceeding that is presided over by an Administrative Law Judge and is formatted much like a court trial. The Judge will propose a decision after they have heard all of the facts and arguments, and the decision is reviewed by a panel of the Board. The panel can adopt, modify, or reject the proposed decision and they will ultimately make the final decision on the appropriate disciplinary action.
By filing the Notice of Defense, you preserve your right to be heard and defend yourself against the following disciplinary action:
While a public reprimand may stay on your record, it typically does not include any type of practice restriction. Public Reprimands address minor violations and are generally considered to be a lesser form of discipline.
In 2022, an update to the Business and Professions Code (BPC) added a new element to the Accusation process for licensed physicians and surgeons. Senate Bill 806 reimposed the MBC’s ability to recover costs incurred as a result of investigating or prosecuting physicians. In other words, if you face disciplinary action from the MBC, you may be required to pay for any expenses that the Board incurs as a result. Cost recovery was already permitted by all other licensing Boards.
Under section 125.3 of the BPC, the Medical Board of California and the Osteopathic Medical Board can request that a licensee be ordered to pay the reasonable costs of investigation and enforcement of the case. The Board must make this request of the administrative law judge (ALJ) handling the case and must include a certified copy of either the actual costs or a good faith estimate of the costs. These expenses can include the amount of investigative and enforcement costs up to the date of the administrative hearing, including charges from the Office of the Attorney General.
Cost recovery is only permitted in cases where the Board successfully prosecutes a licensee for a disciplinary violation. Similarly, the Board can seek cost recovery as part of a stipulated settlement. If a complaint is dismissed or a physician wins at an administrative hearing and the Board adopts the ALJ’s decision, then they will not be liable for costs.
The ALJ will then make a proposed finding of the amount of reasonable costs. This order cannot be increased by the Board, but it may reduce or eliminate the cost award. Once the order has been made, the Board can enforce the order in court if a licensee fails to pay. In addition, the physician’s license may not be renewed or reinstated until they have paid the costs in accordance with the order.
The Medical Board advocated for this cost recovery provision to be added back to the BPC for two primary reasons. First, the Board hopes that the prospect of cost recovery will encourage physicians to settle cases instead of going to an administrative hearing. Second, the Board believes that the law will speed up the disciplinary process, as physicians now have the incentive to settle cases rather than go to a hearing.
For doctors, the cost recovery law can make it difficult – or even impossible to fight the Medical Board. Even if you have a solid defense to the allegations against you, the possibility of paying your own costs on top of the Board’s costs (including expenses for the Office of the Attorney General) can be daunting. Facing the possibility of a significant cost recovery order on top of disciplinary action, many physicians will choose to enter into a stipulated settlement rather than take their chances at a hearing.
Importantly, the Board may seek cost recovery as part of a stipulated settlement agreement. A skilled California medical license defense attorney can work with you to help you understand how a potential cost recovery may affect your case, including providing a rough estimate of what the cost recovery amount may be in your case. They can also advise you of your options, including what may happen at a hearing if you choose to fight the charges against you. Finally, your lawyer can negotiate a fair settlement that protects your interests.
As a physician, you have dedicated your career to helping people who need your skill and expertise. Learning that you may lose your ability to practice medicine can be heartbreaking, and provoke significant anxiety. While an Accusation by the Medical Board is incredibly serious, you may be able to resolve the matter in a more favorable manner by working with a compassionate, knowledgeable lawyer.
At the Law Office of Nicole Irmer, our medical license defense lawyers are dedicated to helping medical professionals who are facing complaints and Accusations. From the initial request for an interview through the final resolution of your case, we will stand by your side. For a confidential, no-risk discussion of your legal options, we encourage you to contact us right away at (619) 237-6310 or email us at any time.