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Nicole Irmer | Posted in Licensing Defense,News on April 22, 2020
Each year, the Medical Board of California (MBC) receives more than 8,000 complaints about physicians. Once a complaint is received, it is reviewed by the MBC’s Central Complaint Unit (CCU) to determine if the issue is within the Board’s jurisdiction. If so, then the CCU staff will begin the investigation process.
Board investigations are the start of the formal process, which may eventually lead to discipline — up to and including revocation. If you have been contacted by the Board for an interview regarding a complaint made against you, or if certified medical records and/or a summary of patient care are requested from your practice, it is a serious matter that could jeopardize your ability to practice medicine. Your first step should be to contact an experienced California healthcare license defense attorney.
The MBC enforcement process is complex, with multiple steps at each level — and opportunities for your lawyer to advocate for you. If you have received a request for certified medical records or an interview from the MBC, read on to learn what to expect and what you should do in response.
As an initial matter, it is important to understand that the Medical Board rarely contacts a physician unless there is a problem, such as a complaint filed against them. These complaints can come from any number of sources, such as a patient or their family member, a colleague, a pharmacy, a competitor, or even an employer. In addition, California law mandates that settlements under professional liability insurance policies for $30,000 or more be reported to the Medical Board.
Once the CCU begins its investigation process in earnest, a physician will receive a letter notifying them of the complaint. This letter may include a medical authorization form that has been signed by the patient and demanding that the relevant medical records be produced.
Under the California Business and Professions Code, these records must be produced within 15 days of the request. A failure to do so may result in a civil penalty of $1,000 per day for each day that the records have not been produced after the 15th day, up to $10,000.
This letter may also request that the physician provide a narrative summary of the care and treatment provided to the patient. In most cases, this narrative must be provided within 14 to 21 days. It is vital that you consult with a lawyer skilled in handling Medical Board matters, when drafting your summary of care.
Your attorney can work collaboratively with you, your supervisors, and/or an expert evaluator to develop an appropriate response. In addition to a statement, the Board may also allow for the submission of on-point literature, on-topic continuing education courses, and evidence of mitigation.
Once the Board receives this response, an expert consultant for the MBC (typically, a fellow physician) will review it along with the patient complaint and medical records. The expert will then recommend that the case be closed or that it should be evaluated further.
At any point in this process, a Board investigator may contact a physician to request an in-person interview. This request may happen over the phone, through a letter, or even face-to-face. The most critical thing that a doctor should do at this point is to consult with an attorney.
If you have been asked to speak with a Board Investigator informally or to submit to an interview with the Board, you should contact a lawyer immediately. Speaking with a representative of the Board without preparation or representation is a significant error that may impact the final resolution of your case.
Importantly, if you have been asked to attend a Board interview pursuant to an investigation, you are required to do so. Failure to appear at the interview may lead to a separate charge of unprofessional conduct unless good cause can be demonstrated.
You have a right to be represented by counsel in interviews with the Board. If you are approached by a Board Investigator, you can inform them that you will speak to them, but only with counsel present. Ask for their contact information and immediately contact a lawyer.
Board interviews are usually attended by the Board Investigator assigned to your case as well as an expert consultant. In some cases, a Deputy Attorney General from the Office of the Attorney General will also attend the interview.
At the start of the interview, you will be required to provide photo identification (such as a driver’s license) to verify your identity. This interview will be recorded. You can bring your own recording device and/or request a copy of the Investigator’s recording at the time of your interview.
Before your interview, you should carefully prepare by reviewing the patient records (if appropriate) and information about the care that you provided. If you don’t have access to these records, you and/or your attorney are entitled to review them at the Board’s office. Your lawyer can help you with this preparation, including by explaining the types of questions that you may be asked (such as on the standard of care).
You may be asked questions on a range of topics, such as:
These questions may feel invasive and may seem irrelevant to the complaint. Throughout the interview, remain calm, and respond respectfully. Do not become defensive or lose your temper. During the interview, you can take breaks to talk to your lawyer, or simply because you need to do so.
If a question is confusing or misleading, ask for clarification before answering. If you don’t know the answer to a question, do not speculate or guess. Simply tell the questioner that you don’t know. Before the interview, develop a strategy with your attorney for how to handle difficult questions. Keep in mind that the Board’s mission is to protect public health and safety.
Working with your lawyer, you may choose to develop a statement that addresses any issues that may have arisen during the patient’s care, how you have taken steps to prevent them from happening again, or how you could have improved the patient’s care.
After the interview is over, the recording and the complaint records will be sent to an expert consultant in your specialty for review. This expert will either recommend that the case be referred to the Office of the Attorney General or that the matter be closed. In most cases, you will receive a letter informing you of the decision to close the investigation or make a referral. If the matter has been referred, then an Accusation will likely be filed against you, beginning the formal disciplinary process.
If you receive a request for an interview from a Medical Board Investigator, you should contact a California healthcare license defense attorney immediately. Regardless of whether the request is made formally or informally, an interview request is a serious matter that may impact your ability to practice medicine. You should only speak to an investigator or the Board with your lawyer present, and work with your attorney to prepare for an interview.
A request for an interview from a Medical Board investigator has a strong potential to affect your ability to practice medicine. It may also impact your freedom if the matter is referred to a prosecutor’s office for criminal charges. Anything that you say to the investigator can be used against you, both in disciplinary proceedings and for potential criminal prosecution.
Remember: the Medical Board will rarely reach out to a physician or surgeon unless there is some type of problem. In most cases, you are being contacted because the Board has received a complaint from a member of the public, a colleague, a pharmacist, an insurance company, or even a referral from the district attorney’s office. The Board may then be mandated to or decide to open an investigation, which leads to a request for an interview.
Doctors do have rights when it comes to Board investigations and disciplinary matters. This includes the right to be represented by counsel in interviews with the Board. You should be wary of any Board investigator who tries to downplay the significance of the interview or persuade you to talk to them without legal representation. Even an “informal chat” can lead to serious consequences when it comes to your ability to practice in the field of medicine.
An experienced California medical license defense lawyer will thoroughly prepare you for your interview, including helping you understand the type of questions that will be asked, how to answer them, and which questions you may refuse to answer based on your constitutional rights. They can also train you on how to answer ambiguous questions or to respond if the investigator is attempting to put words in your mouth.
Your lawyer will also review records with you with an analytical eye, preparing you to address the standard of care and other issues based on these records that are related to the complaint against you..
Receiving a request for a Medical Board interview – or having a Board investigator show up at your home – can be incredibly stressful. The investigator may seem nice, and you may be inclined or feel pressured to go along with what they want in the hopes that you can avoid disciplinary action. While this may be a natural inclination, it is best to seek the assistance of counsel before speaking with any investigator. Whatever you say to the investigator could be the basis of disciplinary action and even criminal charges.
At the Law Office of Nicole Irmer, we offer legal representation for healthcare professionals who have been accused of misconduct, negligence, unprofessional conduct, impairment, and who have sustained a conviction. We offer skilled, compassionate legal advocacy, focused on obtaining the best possible outcome for your case. To schedule a confidential consultation about a Board investigation or interview, contact us at (619) 237-6310 or email us at any time.