Time and time again, we hear the story of a physician who is “invited” by an investigator from the Department of Consumer Affairs (“DCA”), Investigations Unit, to meet on behalf of the Medical Board of California (“Board”). Whether resulting from the investigator luring the physician or the seeming innocuous nature of such a visit, it is always a bad idea for a physician to meet with a Board investigator without consulting legal counsel in advance and without legal counsel present. This is true for a number of reasons.
1. They have already investigated the case without you. Before this meeting, the Board’s investigator has conducted a lot of investigating and knows exactly what he or she wants to ask the unsuspecting physician. But because the investigation is “confidential” under the law, the investigator cannot and will not tell the physician what the meeting is about or any details of patient complaints involved.
2. They are tape recording the meeting to use against you later (!). Again, the seeming innocuous nature of this meeting is anything but innocuous. The Board tape records the meeting to use it against the physician. It is common that the Board will try to introduce this unsuspecting physician’s discussion into evidence at the administrative hearing after the Board takes disciplinary action against the physician. In fact, the Board will try to use the physician’s statements at the interview to impeach his or her credibility on the witness stand at the hearing later in the case. This is perhaps the most egregious consequence of an ill-prepared physician attending such a meeting.
3. The non-specialized medical consultant. The Board will have a “medical consultant” at this meeting. The investigator usually will tell the physician that the medical consultant is there to assist the investigator in the investigation. But there are several problems with this. In a recent case involving an ophthalmologist, the medical consultant was a family practice doctor with absolutely no experience in ophthalmology or eye surgery. Further, while the purpose of the medical consultant is to see if he or she feels like there is a violation of the Medical Practice Act, he or she helps decide whether the case will be referred for further investigation and ultimate prosecution as a disciplinary action.
4. Asserting the Fifth Amendment. It is less than obvious that a physician meeting with the Medical Board would have to assert his or her right to take the Fifth Amendment to not answer questions to avoid incriminating the physician with potential criminal liability. But this issue happens frequently. Board investigators are peace officers under California law. They even carry badges and guns. From the perspective of a defense attorney, every Medical Board investigation has the potential for “going criminal.” If the Board can prove a criminal violation and a prosecution ensues, the Board’s licensing action is nearly automatic. In addition, as discussed above, when the physician has no idea what information the Board has prior to this meeting, it is next to impossible to discern whether or not the Board intends to “go criminal” with the case or not. An unwary physician can be a sitting duck for an easy criminal prosecution as all admissions will be used against the physician.
For example, in a recent case involving a physician impaired by substance abuse issues, the Board investigator actually tried to talk the physician into discussing issues of prescription drug use and over prescribing. After the physician asserted his Fifth Amendment right, the Board’s investigator stated “I am here to help you.” That could not be farther from the truth.
While no licensed professional should appear at a licensing agency interview without preparation and legal advice, it is particularly egregious for a physician to do so, given the tactics of the Board’s investigators. Do not think you can handle such a situation yourself because you lack experience, perspective, and insight from attending other Medical Board investigations. It is imperative to hire competent legal counsel, experienced with the Medical Board such as the health care attorneys at Simas & Associates, Ltd.