What is a Notice of Defense?

You just received an Accusation by certified mail. One of the papers included in the accusation package is a "Notice of Defense". What is this Notice of Defense?

Why Doctors Must File a Notice of Defense After a Medical Board Accusation

When a doctor in California faces an accusation from the Medical Board, it marks the beginning of a complex and potentially career-altering process. Understanding the importance of filing a Notice of Defense is crucial for any physician in this situation.

Why Doctors Must File a Notice of Defense After a Medical Board Accusation

The Accusation Process

The Medical Board of California investigates complaints and, if evidence suggests a violation of the Medical Practice Act, the case is forwarded to the Attorney General’s Office. An accusation is then prepared, listing the charges and the specific laws allegedly violated. This legal document is served to the physician, who must act swiftly to protect their rights.

The Importance of Filing a Notice of Defense

Upon receiving an accusation, a physician has 15 days to file a Notice of Defense. This step is critical for several reasons:

Acknowledgment of Receipt: Filing the Notice of Defense acknowledges that the physician has received the accusation. This is a formal step in the legal process and ensures that the physician is aware of the charges against them.
Intent to Defend: The Notice of Defense signals the physician’s intent to contest the allegations. Without this notice, the Medical Board may proceed with disciplinary actions without the physician’s input, potentially leading to severe consequences such as license suspension or revocation.
Right to a Hearing: Filing the Notice of Defense secures the physician’s right to an administrative hearing. This hearing, presided over by an Administrative Law Judge, closely resembles a court trial and allows the physician to present evidence, call witnesses, and make their case.
What is "At Issue": Do you have to respond paragraph by paragraph? What are you contesting?

A Notice of Defense is a written statement submitted by a doctor who has been accused. Essentially, it serves as a general denial of the charges and a request for a hearing. In general specific denials are not needed. The simple filing the notice of defense is deemed a specific denial of all parts of the accusation that are not expressly admitted by the physician (GC Brothers Entertainment LLC v. Alcoholic Beverage Control Appeals Bd., 84 Cal.App.5th 1019 (2022) You might notice that the GC Brothers case is a alcohol case and not a medical board case. The same rules apply to a broad range of licenses. But keep in mind that this definition applies to the form or a basic notice. The best defense usually requires more. There are also dangers. A general denial can force the board to expend huge sums to prove facts that you are willing to stipulate. If you lose or negotiate a settlement you have to pay some or all of their attorney's fees. A poorly written (or standard form) Notice of Defense can raise those costs.

Consequences of Not Filing

Failing to file a Notice of Defense within the 15-day window can have dire consequences. The physician is deemed to have waived their right to a hearing, and the Medical Board may take action based on the accusation alone.. This could result in disciplinary measures being imposed without the physician having the opportunity to defend themselves.

Steps to Take

Review the Accusation: Carefully read the accusation to understand the charges and the evidence presented.
Consult an Attorney: Engage a lawyer who specializes in medical board defense. They can provide guidance on the best course of action and help prepare the Notice of Defense.
File Promptly: Ensure the Notice of Defense is filed within the 15-day period. This involves delivering or mailing the notice to both the Deputy Attorney General and the Medical Board of California.

HOW CAN A LAWYER HELP?

Instead of just filing out the government provided form, the best medical board defense lawyers provide case specific responses that raise defenses and objections that are not included and may even be waived if you file the standard form. The basic functions of filing a notice of defense are protected with or without a specialized attorney filing.

Acknowledgment of Receipt: Filing the Notice of Defense acknowledges that the physician has received the accusation. This is a formal step in the legal process and ensures that the physician is aware of the charges against them.
Intent to Defend: The Notice of Defense signals the physician’s intent to contest the allegations. Without this notice, the Medical Board may proceed with disciplinary actions without the physician’s input, potentially leading to severe consequences such as license suspension or revocation.
Right to a Hearing: Filing the Notice of Defense secures the physician’s right to an administrative hearing. This hearing, presided over by an Administrative Law Judge, closely resembles a court trial and allows the physician to present evidence, call witnesses, and make their case.

But then the attorney can work his/her magic.

The Notice of Defense Form is Defined by Statute.

The Notice of Defense is defined by statute under Government Code section 11506. According to section 11506(a), a doctor must file the Notice of Defense within 15 days after the service of the accusation. The term “service” can be debated—whether it starts from the day of mailing, receipt, or mailing plus a certain number of days. Regardless, the notice must be filed promptly, and the quickest solution is to use the form included with the accusation.

Contents of the Notice of Defense

The statute specifies what can be included in the notice. The respondent (accused doctor) can:

Request a hearing.
Object to the accusation on the grounds that it does not state acts or omissions upon which the agency may proceed.
Object to the form of the accusation if it is so indefinite or uncertain that the respondent cannot identify the transaction or prepare a defense.
Admit the accusation in whole or in part.
Present new matter by way of defense.
Object to the accusation on the grounds that compliance with the requirements of a regulation would result in a material violation of another regulation enacted by another department affecting substantive rights.

Notably, the typical preprinted notice does not include the right to assert affirmative defenses, object to the board’s demand for costs and attorney’s fees, or contest jurisdiction

Contesting jurisdiction is a tough issue to win because even if the notice served to the physician has technical defects, as long as the Medical Board has obtained personal jurisdiction over the physician through proper service of the formal accusation and notice of defense, such defects do not deprive the Board of jurisdiction or render its decisions void (Vo v. Board of Medical Quality Assurance, 235 Cal.App.3d 820 (1991) However, tough or not the issue should be raised when appropriate.

Due Process

The procedures laid out in the California Government Code sections regarding the notice of defense and rights to a hearing align with due process requirements (Marlo v. State Board of Medical Examiners of Department of Professional Standards, 112 Cal.App.2d 276 (1952) However on a case by case basis there can be objections made on constitutional grounds and the Marlo case should be challenged as a matter of course.

What Are Jurisdictional Objections?

Jurisdictional objections argue that the Medical Board does not have the legal authority to hear the case or impose disciplinary actions. These objections can be based on several grounds:

Lack of Subject Matter Jurisdiction: This occurs when the Medical Board does not have the authority to adjudicate the specific issues raised in the accusation. For example, if the alleged misconduct does not fall under the violations outlined in the Medical Practice Act, the Board may lack subject matter jurisdiction.
Lack of Personal Jurisdiction: This objection is raised when the Medical Board does not have authority over the individual physician. This could happen if the physician is not licensed in California or if the alleged misconduct occurred outside the state.
Procedural Deficiencies: If the Medical Board did not follow proper procedures in issuing the accusation, such as failing to provide adequate notice or not adhering to statutory timelines, a jurisdictional objection can be raised.

Why Raise Jurisdictional Objections?

Raising jurisdictional objections can be a powerful defense strategy for several reasons:

Early Dismissal: If successful, jurisdictional objections can lead to the early dismissal of the case, saving the physician time, stress, and legal expenses.
Focus on Legal Technicalities: These objections focus on legal technicalities rather than the merits of the case, which can be advantageous if the facts are not in the physician’s favor.
Highlighting Procedural Errors: Pointing out procedural errors can force the Medical Board to correct its processes, potentially weakening its case against the physician.

Fifth Amendment

What if criminal charges are possible? Can you use the "right to remain silent" and still protect your medical license?

The right to remain silent, protected under the Fifth Amendment of the U.S. Constitution, allows individuals to avoid self-incrimination during legal proceedings. This right is commonly invoked in criminal cases, but it can also apply in administrative hearings, such as those conducted by medical boards.

Application in Medical Board Cases

Administrative Hearings: In the context of a medical board hearing, a physician can invoke the right to remain silent to avoid providing testimony that could be self-incriminating. However, unlike in criminal cases, invoking this right in an administrative hearing can lead to adverse inferences being drawn against the physician.
Adverse Inferences: Courts have ruled that while a physician can refuse to testify, the medical board may interpret this silence negatively. For example, in Arthurs v. Stern, a Texas court allowed the medical board to draw an adverse inference from a physician’s refusal to testify when he was also the subject of a pending criminal indictment. California has strong statutory protections prohibiting this but whether that "Evidence Code" protection applies to administrative hearings or board actions is not as clear. The issue should be raised by an attorney with expertise in this area.

Call Daniel Horowitz for Expert Defense

At the Horowitz Law Office, our physician defense team excels in protecting doctors. If you have a non-compete agreement but want to move on, we can review your situation and advise you based on facts, evidence, and your best interests. Call Daniel Horowitz today to ensure your rights are protected and to receive the best possible defense. (925) 283-1863