The Medical Board of California's "Death Certificate Project” is Far-Reaching with Severe Consequences to a Physician's Certificate

| Posted in News,Licensing Defense on June 10, 2019

The Medical Board initiated a joint project with the California Department of Public Health to review Death Certificates – which are public records – to identify individuals who died as a result of an overdoes on prescription medication, or as a result of medication “intoxication.” These records are cross-referenced with patients’ CURES Reports, the state’s drug prescription data base, to identify irregular prescribing practices by physicians. Doctors who are found to have violated the recommended guidelines face investigation and license discipline, letters of public reprovals/reprimands, license probation, or even revocation of their medical license.
To date, the Medical Board has reviewed the Death Certificates from 2012-2013. The Medical Board has elected to review Death Certificates from 2016-2017 during the second phase of the Death Certificate Project.
Below, are frequently asked questions by physicians who have been impacted by the Medical Board’s Death Certificate Project.

Frequently Asked Questions Regarding the Medical Board of California’s Death Certificate Project

How does the Board initiate an investigation? How does the Board choose which physicians to investigate?

The Medical Board’s Death Certificate Project starts with the review of all individuals who died from drug overdose or intoxication. From there, the Department of Public Health runs a CURES (California controlled Substance Utilization Review and Evaluation System) Report on the deceased to learn what medications were prescribed to the patients and what physicians prescribed those medications. If a physician prescribed controlled substances to the patient within three years of the patient’s death, their information is then forwarded to the Medical Board to initiate an investigation. Please note, the Medical Board may initiate an investigation against any of the prescribing physicians regardless if the prescriptions he/she prescribed have been listed as a cause of death.

How many Doctors have been investigated by the Medical Board during the Death Certificate Project thus far?

Although the exact number of physicians who have been investigated is unknown as the Project is still ongoing, the number of physicians investigated for overdose deaths in 2012-2013 has recently been published by the Medical Board. From 2012-2013, the Board reviewed 2,694 Death Certificates and found 2,256 practitioners who wrote prescriptions to those patients. A formal review of the 2,256 physicians/health care practitioners resulted in the initiation of investigations against 522 prescribers – including 450 allopathic physicians, and 12 osteopathic physicians.

Will I receive notification that the Medical Board is investigating my prescribing practices due to the overdose death of a former patient?

The Medical Board of California does not have an obligation to notify physicians that they are under investigation for potential violations of the medical practice act. Although a physician may not receive a letter outlining the investigation against them, a physician may be put on notice of the investigation when the Medical Board requests a copy of a patient’s medical records. Physicians have a requirement to comply with legally sufficient request for records from the Medical Board. Failure to comply could result in monetary penalties. If you receive a letter requesting a patient’s medical records, seek a legal consultation with a qualified attorney at the Law Office of Nicole Irmer.

When should I contact an attorney if I learn I am under Investigation for my prescribing practices?

In matters like these it is imperative to seek legal representation early in the process. Accusations of overprescribing are serious, and could potentially result in license discipline, the loss of your medical license or even criminal prosecution. As a condition of one’s medical license, doctors are required to submit to “interviews” with the Medical Board, and it is of the upmost importance to be prepared for these interviews – as your license, career, and livelihood may be immensely impacted.
Retaining our office after you receive the first correspondence from the Medical Board provides the most time to determine if the physician has any criminal liability, to obtain an expert evaluation (if necessary), to evaluate current prescribing practices, to help determine compliance with the 2014 prescribing guidelines, and to prepare the physician for their interview with the Medical Board.

Is the Medical Board Interview an informal process?

Although there is not a judge, and the interview does not occur in a courtroom, the interview should not be seen as an informal process. The physician interview is one of the last phases of the Board’s investigation. Before requesting the physician to sit for an interview, the Medical Board’s Investigator and Medical Consult has already reviewed the CURES report, reviewed medical records, and contacted witnesses. Additionally, the Medical Board Investigator is typically a sworn police officer, and may have also contacted the Department of Justice and/or the District Attorney’s Office.
Although the Investigator may imply that the interview is informal, do not be misled. The interview is serious, your statements will be recorded, and those statements may be used as additional causes for discipline if the Board files a formal request for discipline – an Accusation. Additionally, criminal sanctions could be pursued.

What type of defenses may be available to a physician facing allegations related to their prescribing practices?

Every case is different and our office strongly believes that there is no cookie-cutter defense for these matters. Some defenses that our office has successfully utilized in MBC investigations and Accusations for overprescribing are (1) expert review of records and opinion refuting an allegation of a deviation from the standard of care, (2) refuting the applied Prescribing Guidelines – the Medical Board is reviewing medical records starting from 2012, which utilized a different set of Prescribing Guidelines than is utilized in 2019, (3) demonstrating a change in prescribing practices that adhere to the 2014 Prescribing Guidelines and 2016 CDC Recommendations, (4) Corrective Action – including completion of MBC approved courses on proper prescribing practices, and (5) mitigation, remorse, and acceptance of responsibility, if appropriate.
Please note, the list above is not an exhaustive list, and not all defenses will apply in every case. Additionally, some defenses may be unavailable if you wait to retain counsel, as there may no longer be enough time to seek an expert review/opinion and/or the MBC approved courses may be unavailable before a short-set deadline.

Can the Board conclude its investigation during the interview process?

Concluding the Board’s case at interview is the best available outcome, and with proper preparation and defense, not uncommon. So far the MBC has stated that they have reviewed the overprescribing deaths from 2012-2013. Of the matters reviewed, approximately 80% have been resolved during the investigation process – and without the filing of Accusations. Although every case, and every physician’s prescribing practices are different, it is important for any physician under investigation for overprescribing to put themselves in the best possible position to resolve their matter before the filing of a formal Accusation.
It is important to note that the matters currently under investigation are the result of deaths prior to the 2014 update to the MBC Prescribing Guidelines. Going forward, the Board may elect much stricter scrutiny given that the 2014 Prescribing Guidelines outlined the need for restraint in prescribing due to stark increase in opioid overdoses.

Is the Board’s investigation confidential?

The Board’s investigation and interview processes are confidential processes and are not disclosed to the public. However, if the Board chooses to proceed with formal discipline, the process is no longer confidential and an Accusation is filed. Accusations are formal and public pleading documents and are available online.

I received a letter stating that my case has been referred to the Attorney General’s Office or the California Department of Justice. What does that mean?

If you received a letter that your matter has been referred to the Attorney General’s Office or California Department of Justice, that means the Medical Board has elected to pursue formal discipline against your license. The Attorney General’s Office is a branch of the California Department of Justice that regulates most licenses issued by the Department of Consumer Affairs (including those issued by the Medical Board and Osteopathic Medical Board).
Once a physician receives a letter that their matter has been referred to the Attorney General’s Office or the California Department of Justice, a Deputy Attorney General from the Health Quality Enforcement Unit will draft and file an Accusation against the Physician outlining the causes of discipline, and requesting the revocation of the physician’s license.
When the Deputy Attorney General drafts the Accusation, they are often very verbose and include any and all causes of discipline that are tangentially related. The Attorney General’s Office utilizes a “Kitchen Sink” approach and may list many causes of discipline based off one patient. For a standard Accusation, alleging deviations regarding overprescribing, the Attorney General may allege: Gross Negligence, Repeated Acts of Negligence, Failure to Maintain Adequate and Accurate Medical Records, Violating Statutes Regulating Controlled Substances, Prescribing Dangerous Drugs without Prior Examination or Medical Indication, Clearly Excessive Prescribing, etc.
Once the Board drafts a formal Accusation, the physician will then be served with an Accusation, a Statement to Respondent, and a Request for Discovery. Please confirm that your address is up-to-date with the Medical Board, to ensure that you timely receive a copy of the Accusation. Once you receive a copy of the Accusation, you have a statutory short-set deadline to timely file your Notice of Defense. Failure to timely file your Notice of Defense could result in a Default Decision against your license, and your license could be revoked summarily.

If an Accusation has been filed, can I still defend my license?

Absolutely. The MBC’s investigation and interview is only the first phase of the process. Once a formal Accusation has been filed, you have every opportunity to continue to defend your license and present a defense. During the Accusation phase of a matter, you are also entitled to Discovery – something you are not entitled to during the investigation phase. Within the Discovery the Board will likely include (1) the investigators report, (2) the patient’s CURES report, (3) a copy of your interview with the Board, (4) witness statements, (5) medical records, and (6) a report from an expert witness who has reviewed the medical records.
After receipt of Discovery it is important to have legal counsel conduct a thorough review to ensure that all records have been accounted for, and to determine what legal defenses may be available.

What are potential outcomes of Allegations and Accusations of excessive prescribing?

The potential outcomes of allegations of overprescribing are extremely diverse. If a physician is able to demonstrate to the Medical Board that there were no deviations, that their practice has been remediated and/or that discipline is not warranted, the case against the physician could simply be closed.
Alternatively, if an Accusation is filed, and the allegations substantiated, there are several different forms of discipline that can be issued by the Medical Board, including: Public Reproval/Reprimand, Probation, Suspension, and even Revocation. In addition to the discipline outlined above, the Board may also require the physician to complete specific courses on the topics of prescribing practices/ record keeping, complete a clinical competency examination, obtain a practice monitor, refrain from solo-practice, etc. For a full list of disciplinary conditions, please refer to the Board’s Disciplinary Guidelines.

Can the Medical Board Discipline my license for prescriptions from 5+ years ago?

The Medical Board spent a large portion of 2018 investigating cases from 2012-2013, and disciplining physicians for their prescribing practices from those years. Business and Professions Code Section 2230.5, outlines the Statute of Limitations in which the Medical Board is bound. Unfortunately for most physicians, the Statute of Limitations for the Medical Board is lengthy. The Medical Board is permitted to file Accusations against licensees for deviations of the standard of care for up to seven years from the date of the deviation, or three years from when the Board was placed on notice of the deviation; whichever occurs first. Although the Medical Board is one of the few Boards that actually has a statute of limitations, the seven years

Has the Law Office of Nicole Irmer represented physicians after allegations of overprescribing?

At the Law Office of Nicole Irmer, we have represented several physicians facing allegations of overprescribing starting prior to the initiation of the Medical Board’s Death Certificate Project. We have represented physicians at all phases of the disciplinary process, including: after the initial request for records, during the investigation, during the interview with the Medical Board, and after the filing of a formal Accusation. If you have been contacted regarding the death of one of your patients, or a formal Accusation has been filed against your license, do not delay in contacting our office to discuss how we can be of assistance.