Expediting the Medical Board of California Investigative Crawl

It can happen to the best of California medical professionals when they least expect it—the patient who files an unjust claim. Patients could be seeking a quick buck through a lawsuit, or misplacing their search for “justice” after an unpreventable complication. Physicians can be easy targets for people looking to right a perceived wrong, exact compensation, or tarnish a reputation.

Once a complaint is filed, medical professionals are typically caught in a web of delay. The Medical Board of California (MBC) is aggressive, unforgiving, but slow. Really, really slow. The best thing you can do if a complaint is filed against you or your practice, is to be persistent but patient. That means understanding the process as well as the possible consequences, and knowing when to seek legal counsel.

The Glacial Pace of Medical Boards

The director of global engagement at the Institute for Health Metrics and Evaluation has contrasted the slow pace of medical investigations with the production of Hollywood blockbusters. In the time it took the Medical Board of California to discipline one doctor, William Heisel writes, three Hunger Games films were created and released.

Although this doctor did ultimately deserve to have his license removed, Heisel makes the point that every responsible physician fears:

If [Dr. Scott] Bickman was faultless and posed no threat to anyone, then the specter of a medical board action looming over him for two years doesn’t seem fair, either.

This slow process can have grave effects for medical professional and their patients:

  • It can result in unannounced visits to the medical professional’s office in the middle of a business day.
  • It can result in multiple interviews which take the medical professional away from his or her patients, and subject him/her to interrogation-like questioning.

And, if you’re considering avoiding it by moving your practice to another state, don’t count on any faster due process elsewhere, as it’s a persistent problem nationwide. A report from the state of Tennessee found that lengthy lags are common there as well, as physicians wait in limbo.

Why Delays Happen

The MBC can investigate any California medical provider based on a wide variety of complaints, many of them seemingly quite arbitrary, from, “substandard care,” which can include misdiagnosis or delay in treatment, to “office practice issues,” including failure to provide medical records to patient or patient “abandonment.”

According to the MBC it, “may take several months to resolve a complaint,” depending on its complexity. A thorough investigation involves:

  • Obtaining medical records or other information/evidence.
  • Locating and interviewing the complainant, any witnesses, and the physicians.
  • Obtaining expert review of the case.
  • Drafting and serving investigational subpoenas.
  • Inspecting the location where the allegations occurred.
  • Executing search warrants.
  • Conducting undercover operations.

The reviews are naturally quite thorough and, thus, incredibly time-consuming as physicians endure the wait. As the board states:

The standard of proof for administrative cases is, ‘clear and convincing evidence to a reasonable certainty,’ which is a much higher standard than civil litigation cases.

While that can eventually bode well for upstanding physicians, it can wreak havoc on your practice and life in the meantime.

Complicating the process are three factors:

  • Due process and patient privacy—States have to adhere to legal requirements and rights that are owed to each person. “There are laws, there is due process, and there is confidentiality, and all those things make it difficult for state medical boards to do what they do," says Jon Thomas, a surgeon and past president of the Minnesota Board of Medical Practice.
  • Costs—Before bringing a case, the Board must prepare for it, which includes conducting costly investigations, as detailed above. Those investigations can be challenging with tight budgets and short staff.
  • Red tape—The MBC has a byzantine system for handling complaints that involves multiple hand-offs, which result in delays at every turn.

Further lengthening the process, new disciplinary guidelines double the time, from 15 to 30 days, that the MBC has in which to issue an accusation and/or petition to revoke probation after a temporary suspension order is put in place.

Delays Create Potential Damages for Physicians

The stakes couldn’t possibly be more profound. It’s impossible to overstate the harmful consequences, both personally and professionally, that can be incurred as a physician or surgeon awaits the complaint settlement. Collateral damage can come in many forms:

  • Rumors—The rumor mill can damage a physician’s reputation and ability to practice, even when a groundless complaint is clearly unwarranted.
  • Reporting to stakeholders—News of the complaint may spread to influential groups, from the healthcare and insurance plans in which the physician participates, to the National Practitioners Data Bank (NPDB), and the organizations with which the physician is board-certified. There have even been instances where a physician’s hospital peer review privileges have been revoked while a complaint is investigated.
  • Permanent online paper trail—Consumers can access any complaints and supporting documentation online. The MBC, for example, has created its own searchable database of these public documents.
  • Increased liability fees—Your insurance can skyrocket, if it is not cancelled altogether, thanks to any disciplinary proceedings.

“Even good doctors can get sued once or twice,” says Orly Avitzur, M.D., medical adviser to Consumer Reports, in its report on How to Find a Good Doctor. He adds that it can often be difficult to ascertain exactly why a doctor was sanctioned, which is why any complaint carries the specter of professional damage—and why every complaint, no matter how mundane or baseless it appears, must be regarded with the severity it deserves.

Why Experienced Counsel is Necessary for Medical Professionals

The good news is that physicians can continue to practice during the investigation but be clear: this is in no way “business as usual.”

The best course of action if a complaint has been filed is to protect your rights by seeking legal representation immediately. There are three reasons that experienced legal counsel is imperative:

  • An attorney can keep the process moving through unnecessary delays. You can focus on practicing medicine, while your counsel handles the deliberate delays and gamesmanship that typically accompany an investigation.
  • A lawyer is equipped to handle investigators without turning over potentially damaging information. The MBC has savvy, experienced investigators, trained in seeking admissions and evidence that physicians often offer unwittingly, so retaining counsel can give you peace of mind.
  • Experienced counsel can provide confidence that your case is being handled proficiently and as expediently as possible due to extensive and wide-ranging experience with the MBC and other, similar professional licensing boards.

Experienced California Medical Attorneys

Simas & Associates, Ltd., has years of experience representing physicians and surgeons. We know the maneuvers the MBC will take, including its delaying tactics, and are equipped to be your ally as you undergo this frequently arduous procedure.

Should you find yourself in this unfortunate situation, contact us for a free and confidential initial consultation to explore your need for counsel to protect your rights and your license.