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At Simas & Associates, we are obsessed with preparing our clients for investigative interviews impacting their licenses. Although we have written two blog articles about this subject entitled Physicians Beware! Unforeseen Consequences of Meeting with Medical Board Investigators and Physicians Beware! Part 2: Unforeseen Consequences of Meeting with Medical Board Investigators, we simply cannot stop trying to educate our clients about what happens behind closed doors when a California licensed physician is summoned to appear before the Department of Consumer Affairs, Divisions of Investigations, PeaceOfficer Investigator.

Our prior two blogs discussed the atmosphere at the interview, the types of questions regarding drug use and mental health that are asked, and other logistical issues. This blog focuses on the single issue ­medical records.

The Board Has Reviewed Your Charts
When the Board receives a complaint involving patient care, whether the complaining party is the patient, an insurance company, a family, or even a competing healthcare provider, the Board nearly always sends an authorization to the patient to sign releasing his or her records to the Board. And this almost always happens without the subject physician’s knowledge. So, the first lesson of this blog is that in investigative interviews involving patient care, the physician should assume that the Board has the records, has reviewed them, and maybe even had an expert consultant review them. Similarly, it is not farfetched to assume that the Board has subpoenaed prior and subsequent treating providers that obtain those records, as well.

The Medical Records Inquisition
Given the confidential nature of the investigation, physicians are shocked to enter the investigative interview and face rigorous cross-examination about very specific aspects of the patient care they provided.

In a very recent Board interview, one of Simas & Associates’ attorneys was representing a pain management physician during an interview. The Board’s investigator turned the questioning over to the “medical consultant” who was an outside physician who contracts with the Board to attend such interviews. The consultants often do not practice in the same areas as the subject licensee, but still conduct the questioning.

In this case, a hospitalist interrogated our client about all aspects of pain management, one of the most troubling issues during an interview. Without hesitation, the medical consultant asked a dozen questions about the “pain management contract” and where it was referenced in the charts. She further queried about our client charting aspects of pain medicine seeking behavior, addiction, lost medication and refills. And, do not forget the CURES report! The investigator wanted to know when the CURES report was run, what were its results, was it discussed with the patient, and where was it in the chart.

While this blog focuses on this particular pain management practitioner, the Board’s inquisition and any all medical record review is treacherous. This is where good medical records make the difference between a physician facing certain disciplinary action (like this case) or possibly a closed investigation without incident.

Consequences of Inadequate Record-keeping
The Board still believes in 2020 that “if it’s not in the record it did not occur.” Simas & Associates’ attorneys have seen numerous experts actually testify to this standard during healthcare provider licensing board hearings.

As our client repeatedly indicated to the investigator, he is certain that he spoke to the patient about her history of medications. But when they are not popping off the page in the medical charts, the investigator does not believe the physician, does not believe the care was provided or the discussion occurred, and almost certainly will recommend disciplinary action for poor record-keeping and unprofessional conduct.

But there is a much larger problem than poor record-keeping itself. Should a complainant allege gross negligence in care or a care provider’s failure to diagnose, the physician simply cannot defend these allegations without proper charting. The Board is growing less tolerant of improper charting as well, in the days of electronic medical record-keeping.

At times, it seems like Simas & Associates’ clients are those caught during the transition from handwritten to electronic medical record-keeping. And the one thing that is missing from the chart will be the subject of the interview.

While this could easily turn into a six­ part series blog on medical record-keeping, the point here is the medical board investigator will take a subject physician line by line through his or her charts, interrogating them about the diagnosis, the treatment plan, and even the history and physical down to whether a proper temperature was taken. If the charts are not defensible, the interview will not go well and invites an Accusation.

The other bombshell issue resulting from medical charts at a Board interview involves incomplete charts. In this same recent interview, our client provided the electronic medical records but apparently had a whole set of photocopied prescriptions and other handwritten notes. Both the Board’s investigator and expert medical consultant demonstrated disdain when they learned they did not have the prescriptions or the handwritten notes. Like the discussion above,
missing or incomplete charts means that whatever is missing did not occur.

Avoid the Inquisition Alone
Physicians are advised to hire legal counsel immediately upon receiving notice of an investigation and allow their legal counsel to organize, document, Bates stamp, and produce the charts in a complete and evidentiary fashion. On a number of occasions, even in the middle of a hearing during the cross-examination of a witness, the subject of a missing chart page or entry arises which impacts the entirety of the case.

Medical board interviews are stressful enough without making them worse with poor record-keeping. Please contact our expert legal team at Simas & Associates should you be facing a medical board interview and do not go at it alone. Please call us at 888­-999­-0008 or email us at
info@simisgovlaw.com.