Back in 2012, Simas & Associates published a blog entitled Physicians Beware! Unforeseen Consequences of Meeting with Medical Board Investigators. Since that time, our legal team continues to attend numerous interviews with investigators from the Department of Consumer Affairs ("Department") on behalf of the Medical Board of California ("Board"). It is time to provide an update and remind physicians to never attend a Board interview alone without consulting legal counsel.
While our prior blog focused upon important issues that can arise at an interview, this post provides specific areas of inquiry the Board investigators pursue that can come as a great surprise to the attendees. A physician attending such an interview without representation is subjecting his or her license to incredible risk as Board investigators are relentless.
Five Uncomfortable and Probable Areas of Inquiry
The following are five of the most surprising issues that arise during the course of an interview that attending physicians are expected to answer.
1. Patient complaints — If the investigation is about any type of patient care or patient complaint, most physicians are shocked to find that the Board has already:
· Obtained the physician's charts and reviewed them;
· Interviewed a number of witnesses, including current and former patients;
· Possibly interviewed employees;
· Run CURES reports on the patients and all relevant pharmacies where the patients have filled medications; and
· Nearly completed the investigation, usually saving the respondent physician for last.
2. Complete criminal history — Our clients are quite surprised, even though we advise them ahead of time, how the Board investigator's inquiries focus on past convictions, arrests, and even minor infractions. Because the Board has the right to subpoena physicians to an interview, and often does so, the physician must typically answer these questions. An exception, of course, applies when there is an ongoing or potential criminal investigation requiring the physician to invoke the Fifth Amendment right not to incriminate himself or herself.
3. Mental and physical health issues — Our clients are shocked to be required to answer questions about their mental health, medications, psychological issues, addiction, and nearly any other health-related issue. Because the Board has a legal obligation to protect the public, and it has legal authority to compel mental and physical examinations of its licensees, Board investigators freely inquire about these issues.
4. Prescription and illegal drug and alcohol use — While this question can be anticipated in cases involving addiction-related issues, surprisingly, Board investigators often query our clients about recreational drug use, use of marijuana, drinking, self-prescribing, and other related and surprising issues.
5. Office policies and procedures — Depending on the nature of the complaint, physicians may be examined in great detail about policies and procedures within the office and staff job functions. This is particularly true in cases involving alleged overprescribing or the practice of alternative medicine.
Importance of Preparation
Because complaint investigations are confidential, it is nearly impossible to “anticipate” all topics of a Board interview. The goal is to prepare for as many as possible to allow the physician to make a prepared, credible, and cooperative presentation. The investigator is judging all aspects of the physician’s responses and demeanor. In fact, in a recent case, one of our attorneys was told at the conclusion of a settlement, that "had the physician cooperated better at the initial Board interview, there would not have been an accusation.” Thus, the interview can make or break a physician's disciplinary record and career.
For questions regarding this enormously significant issue, or to retain our law firm to assist you, please contact us at (916) 789-9800 or info@simasgovlaw.com.