Our appreciation goes out to all healthcare professionals on the front line and our sincerest thoughts are with our community both locally and afar. During these unprecedented times, The Law Office of Nicole Irmer, as an essential business, remains open and available to help. If you need assistance maintaining or applying for a professional license, of if you have been contacted by a Board or DCA investigator, please do not hesitate to contact us at (619) 237-6130.

Physician Negligent Quality of Care

Physician

Receiving a letter marked personal and confidential from the Medical Board’s Enforcement Program can be chilling for a medical professional. This type of letter is often in reference to a complaint filed against a doctor for a violation of the standards governing doctors. The Allegation of Negligence for an MD, is unsettling.

Under Business and Professions Code Section 800(c), the Medical Board may provide a summary of the alleged wrongful conduct in the letter.  In many cases, this summary is brief, heavily redacted, and difficult to determine the facts alleged against the MD. For example, a letter might state something as broad as the doctor prescribed unnecessary medication to a patient, and they suffered side effects as a result. Another example includes if a physician failed to communicate with a patient or failed to follow up with lab results.

Most physicians are shocked to receive such a letter and unsure what steps to take next. These letters are coupled with a demand for a written summary of the care and treatment offered to a patient and a certified copy of patient records. The Board includes a warning that a failure to produce records by the requested date can result in a $1,000 per day fine pursuant to Business and Professions Code Section 2225(e).

In this situation, an experienced and California healthcare license defense attorney can provide counsel on the best course of action.  The Law Office of Nicole Irmer is skilled at handling these types of complaints, advocating for doctors who face complaints of negligent care and other alleged violations of the Business and Professions Code.

What is the Standard of Care for Physicians?

In California, doctors are regulated by the Medical Board of California (MBC), a 15 member board responsible for the licensing and regulation of physicians and surgeons. It is tasked with ensuring that doctors are practicing medicine within the standard of practice in the medical community.

The MBC is responsible for reviewing and investigating complaints filed against physicians and certain other healthcare professionals. A complaint may be filed by a patient, family member, employer, coworker, or a member of the public.

The MBC reviews seven types of complaints against physicians:

  1. Substandard care
  2. Prescribing issues
  3. Sexual misconduct
  4. Impairment
  5. Unlicensed practice
  6. Unprofessional conduct
  7. Office practice issues

Negligent quality of care complaints would fall under the category of “substandard care.”  It may include a number of issues, such as misdiagnosis, negligent treatment, delay in treatment, or prescribing unnecessary medication.

According to the MBC, negligent quality of care constitutes three of the most common violations that result in filing a disciplinary action against a physician. These violations include:

  • Gross Negligence: the extreme departure from accepted standards of medical practice. It may include:
    • Not performing basic diagnostic tests
    • Not recognizing or acting on common symptoms presented by a patient
    • Not using accepted, effective treatments or diagnostic procedures
    • Not referring a patient to a specialist when appropriate
  • Repeated Negligent Acts: negligent actions that are not an extreme departure from accepted standards of practice, but are still considered a departure from care, known as simple negligence. While one act of simple negligence is not enough to take formal action against a physician’s license, repeated acts may be sufficient.
  • Incompetence: if a doctor is found to be lacking in knowledge and performing procedures that are beyond their training or expertise, or continuing to use a procedure that is unnecessary or obsolete, it may be evidence of incompetence. A doctor who is unable to recognize and act appropriately on a patient’s history and symptoms may also be considered incompetent.

After a complaint is filed, the MBC will begin the investigation process, which will often involve asking the complainant to sign an authorization for the release of medical information. The doctor will be given an opportunity to respond to the complaint, and MBC staff will then determine if there is sufficient information to refer the case to a medical consultant. The Medical Board of California outlines its enforcement process, here.

If the MBC finds no violation or insufficient evidence of a violation, then the complaint will be closed. Otherwise, the case is referred to a medical consultant where the case may be sent to the Division of Investigation, Health Quality Investigation Unit within the Department of Consumer Affairs. The complaint will be closed if disciplinary action is not warranted.

If action is warranted, an accusation will be filed by the Attorney General’s Office. The physician will have the option to negotiate a stipulated settlement pursuant to the Disciplinary Guidelines, which allows for evidence in mitigation, which may include evidence of rehabilitation. Alternatively, the matter may be contested at a hearing before an administrative law judge. The possible results of disciplinary action include suspension, revocation, the issuance of a citation for some violations of law, and requiring probation or monitoring.

Defending Your License

If you have been accused of negligent quality of care as a physician,  you will need to defend yourself against this type of complaint in order to protect your license. These complaints can have collateral consequences beyond a threat to your license.

Although the initial complaint is confidential, an initial disciplinary action (i.e. Accusation) is public as are final disciplinary resolutions — which can not only harm your reputation, but it may have other effects. Depending on the facts of the case, disciplinary action by the MBC may be listed in the National Practitioner Database, the Office of Inspector General(OIG) Exclusion List, the Centralized Credentials Quality Assurance System (CCQAS), and the Assistant Secretary of Defense for Health Affairs [ASD(HA)].  In addition, it may impact your (1) malpractice insurance coverage; (2) licensure in other states/jurisdictions (if applicable); (3) ability to participate as a “preferred provider” in certain insurance plans and federally funded programs; (4) hospital privileges and credentials; (5) DEA Certificate; (6) ability to serve as a medical expert; (7) future employment opportunities; and (8) Board Certifications.

Another potential collateral consequence includes notification to patients of your disciplinary matter with the Medical Board. The Patient’s Right to Know Act, which went into effect on July 1, 2019, mandates that physicians (and other professionals) disclose their license discipline and probationary status to their patients in 4 specific instances. One of those incidences includes: “Inappropriate prescribing resulting in harm to patients and a probation period of five years or more.” 

Defending against the negligent quality of care complaints requires careful planning. An attorney who understands the nuances of the medical profession — and how the MBC operates — is critical to helping you preserve your career.  In many cases, this may involve consulting with expert witnesses to confirm that you acted within the standards or norms of your specialty or area of practice.

Facing an Investigation? We Can Help.

In this day and age, time demands, new regulations, and technology given the EMR requirements, practicing medicine are complex, and even a small mistake can indelibly tarnish your career. At the Law Office of Nicole Irmer, we take a proactive and comprehensive approach to each doctor’s case. Ms. Irmer has dedicated her career to protecting the interests of healthcare professionals and has helped doctors throughout California keep their licenses and continue practicing.

If you are under Board investigation, please contact our office immediately at (619) 237-6130 to discuss your case with an experienced California healthcare license defense attorney. We will tailor a defense strategy to your circumstances and help you understand the process and your rights.