Medical Board Accusations

Medical Board Accusations

Medical Board Investigation - Don’t Wait, Get Legal Help!

A Medical Board Accusation is the culmination of a process.

It is crucial to contact a medical board lawyer early in the process before an accusation is filed. The investigative phase is your best opportunity to limit the scope of an accusation, make a preemptive (non-public) deal, or prepare your case in advance anticipating the filing of an accusation.

For expert legal defense, contact Daniel Horowitz at (925) 291-5388.

Why Early Legal Intervention Matters

Prevent Mistakes: Doctors, like patients, can make critical errors without proper guidance. Early legal intervention helps prevent these mistakes.
Contact Witnesses: You cannot safely contact witnesses but an experienced lawyer with top investigators can.
Expertise in Defense: The best physician defense lawyers have the experience and knowledge to navigate the complexities of medical board investigations and accusations. Technical defenses can be established prior to the filing of an accusation.
Protect Your Career: Early legal support can safeguard your medical license and professional reputation. The mere filing of an Accusation causes reputational damage. Prevention and reputation management can be critical.

What is an Accusation & What is a “Notice of Defense”

The Initial Investigation

An Accusation follows from a complaint which is filed with the Board. The complaint is reviewed and screened by the CCU Unit. For cases having some facial merit an investigation process takes place and the physician is usually notified and participates via document submission, presentation of exculpatory evidence and interview.

Learn More: What is a Medical Board Accusation?

Filing & Service of the Accusation & Notice of Defense (form)

When a Medical Board Investigation results in charges, the first papers you will receive are an Accusation. This packet, sent by certified mail, includes a crucial document titled “Notice of Defense.” This preprinted form must be returned to the board within 15 days of service. (Service may mean received, mailed, or a variation of the two!)

Learn More: What is a Notice of Defense?

Top physician defense attorneys create a custom version of the Notice of Defense, addressing issues not included in the preprinted form and tailored to your specific case.

Are You at Risk? (What are the Hot Button Issues for Medical Board Accusations?)

Medical Board's Annual Report

The Medical Board of California's annual report gives a statistical breakdown of areas of complaints and board action. The short version is that alcohol issues (which in our experience arise out of DUI (Driving Under the Influence) arrests and criminal conduct (mostly fraud complaints) are a significant area of concern to the board. Opioid prescriptions are a close competitor. However Gross Negligence in medical practice is the # 1 factor.

Learn More: What Constitutes “Gross Negligence” to the Medical Board?

Learn More: Drug Issues and the Medical Board

Learn More: Medical Board Criminal Investigations

Reportable Malpractice Awards

Reportable malpractice awards commonly cluster in surgery, obstetrics (OB), emergency room (ER), and general practice areas. With few exceptions, any medical malpractice judgment, arbitration award, or settlement exceeding $30,000 must be reported, even if multiple attorneys are included under a single settlement amount.

Learn More: What Malpractice Awards are Reported?

Your Decades of Training Only Grant You a “Privilege” to Practice Medicine

Medical board accusations serve as a stark reminder that practicing medicine is a privilege, not a right.

In less than a year, an Accusation can strip you of your ability to practice medicine.

Malpractice Settlements

A malpractice claim settled in your name can result in a listing in the National Practitioner Data Bank (NPDB), even if you were merely one of many defendants. You might have thought the medical malpractice lawyer was protecting you, but in reality, they were protecting the insurance company. And guess what? The insurance company wasn’t reported to the NPDB—you were. Any settlement is reportable to the NPDB. Various state medical boards have exemptions from reporting if the settlement is under a certain dollar limit.

Levels of Medical Board Adverse Decisions

Accusation: The document stating the charges the Board has filed against the physician. This shows on your record even as it is being adjudicated.
Decision: The document describing legal and factual findings and disposition of the charges filed in the Accusation and identifying any conditions or limitations imposed on the physician's license. This is a permanent mark on your record. It can be appealed to the Superior Court.
Suspension Orders: Issued by either a Superior Court judge or administrative law judge to suspend or limit a physician's practice immediately. When a doctor is arrested for a felony there is a petition that the Attorney General can file on behalf of the Medical Board to have the court restrict or suspend the doctor's license. There are some serious technicalities that arise from this petition which can be used to assist in the criminal case.
Public Letter of Reprimand: A form of discipline that can include a requirement for specified training or education. The key word is “Public” and patients must be informed of the Reprimand.
Citation: A sanction that usually includes a fine imposed by the Board for technical violations of the law. Note: Citations are not considered disciplinary action and are only available for three years after the citation has been resolved. This is often considered a victory and depending on the wording of the citation it may have little or no effect on the doctor.

What is an 805 Report to the Medical Board of California?

An 805 report is a mandatory filing to the Medical Board of California, as stipulated under the California Business and Professions Code. This requirement is supported by several legal precedents, including:

Stiger v. Flippin, 201 Cal.App.4th 646 (2011)
Powell v. Bear Valley Community Hospital, 22 Cal.App.5th 263 (2018)
Shacket v. Osteopathic Medical Board, 51 Cal.App.4th 223 (1996)
Bus. & Prof. Code § 805

Who Must File an 805 Report?

The following entities are required to file an 805 report when certain disciplinary actions are taken against healthcare providers:

Peer Review Bodies
Hospital Administrators
Designated Persons

When is an 805 Report Required?

An 805 report must be filed for medical disciplinary causes or reasons when:

Privileges, Memberships, or Employment: These are revoked or restricted.
Applications: Applications for privileges, memberships, or employment are rejected or denied.

Purpose of the 805 Report

The 805 report serves to inform the Medical Board of California about disciplinary actions taken against healthcare providers, such as physicians, surgeons, or nurse practitioners. This ensures that the Board is aware of any potential issues related to the professional conduct and competence of these individuals.

Navigating Peer Review Suspensions and Medical Board Reporting in California

When a physician faces a peer review suspension, it can trigger medical board reporting. Here are the key points to understand:

Summary Suspension: Medical staff can suspend a doctor without a formal hearing. Typically, this occurs behind closed doors through the Medical Executive Committee (MEC) or another authorized entity (such as the Chief of Staff).

Reporting Obligation: California law mandates that within 15 days of a summary suspension, a medical board report (known as an “805 Report”) must be filed. This report informs the Medical Board of California about the disciplinary action taken against the licentiate.

Negotiation Window: During the 14-day summary suspension period, negotiation is possible. Physicians may explore alternatives to reportable termination or resignation. Performance Improvement Plans (PIPs) and other non-terminating options may be offered, but they come with their own considerations.

Right to Contest: Physicians always have the right to contest adverse actions through a peer review committee.

Expert Legal Advice: Most summary suspensions and 805 reports do not lead to medical board action. The contents of the 805 matter and we strongly recommend seeking expert legal counsel during this critical 14-day period.

The MEC and medical staff policy makers expect physicians to retain legal representation. Hospital administration and Organized Medical Staff rely on legal advice. We know man of the Medical Staff attorneys and they are excellent at their jobs. Don't try to “do it yourself”. The individual physician should also have the best medical license representation just as the MEC has the best medical staff lawyers to protect their interests.

Unfair Discipline and Reporting: The Long-Term Impact on Physicians

Decades of dedication can unravel swiftly, leaving physicians vulnerable to unfair discipline and reporting. Even if you maintain your medical license, the repercussions can haunt your career indefinitely. Here are the key points to consider:

Ancillary Penalties: Beyond the immediate consequences, physicians may face ancillary penalties. These include reporting to the National Practitioner Data Bank, public databases, and the medical board website. Such reporting can have lasting effects on your professional reputation.

Self-Reporting Obligations: Keep in mind that self-reporting requirements kick in when you apply for privileges, change jobs, or seek business loans or malpractice insurance.

Navigating these challenges requires vigilance and strategic decision-making. Seeking legal advice can help protect your rights and mitigate the impact of unfair discipline and reporting

The Medical Board of California Telegraphs Its Hot Button Disciplinary Issues

Medical license lawyers know that the most common California Medical Board Accusations can be reviewed on their Accusation Filed Web page. We subscribe to this list and review each Accusation. This means that an attorney for doctors is part lawyer and part political pundit. Sometimes the politics are easy to anticipate. When lawyers and Attorney Generals started targeting opioid pharma companies, we knew that individual doctors would be next. We proactively reached out to our doctor clients and warned them of the upcoming tidal wave of discipline.

Medical license lawyers know that the most common California Medical Board Accusations can be reviewed on their Accusation Filed Web page. We subscribe to this list and review each Accusation. This means that an attorney for doctors is part lawyer and part political pundit. Sometimes the politics are easy to anticipate. When the lawyers and Attorney Generals started targeting the opioid pharma companies, we knew that individual doctors were next. We reached out to doctors who were already clients and warned them of the upcoming tidal wave of discipline.

There are trends that you can note with consulting a medical lawyer. As we said, Opioid prescriptions were a hot topic. Sexual misconduct is another major area of inquiry. Failures of patient care are not uncommon and the Horowitz Medical team includes a lawyer/doctor (Dr Mark Ravis) and paralegal chiropractor (Michael Yates) to review quality of care issues - in house. We can then consult with top medical experts to assemble the proper defense team.

Medical Board Consultants Will Judge You

The Medical Board employs consultants who are heavily influenced by board directives and political considerations regarding what constitutes standard practice for physicians. This approach can be biased. While some consultants are true experts who exercise independent judgment, many do not.

Learn More: What is a Medical Board Consultant?

Sources of Complaints to the Medical Board

Complaints to the Medical Board often originate from various sources, including other physicians, disgruntled employees, and patients. Ongoing investigations of other physicians may involve your office, possibly as a referral source, or some of your patients. Opioid complaints frequently come from insurance companies and pharmacies. If you receive a warning letter from either, contact an attorney immediately.

Common Sources of Complaints

Other Physicians: Colleagues may report concerns about your practice.
Disgruntled Employees: Former or current employees might file complaints.
Patients: Dissatisfied patients can lodge complaints about their care.
Insurance Companies and Pharmacies: These entities often report opioid-related issues.

Immediate Action Required

If you receive a warning letter from an insurance company or pharmacy, contact an attorney immediately to protect your rights and respond appropriately.

Other Triggers for Board Investigations

Suspensions and Denials of Privileges: These actions can prompt board investigations.
Criminal Convictions: Any criminal conviction or the filing of a felony indictment can trigger an investigation.
National Issues: Topics like opioid prescriptions, Durable Medical Equipment (DME), genetic testing, and remote chart reviews often lead to investigations due to their national publicity.

State Variations

There is little consistency between states regarding medical board complaints, except on widely publicized issues like opioid prescriptions and DME fraud.

For expert legal advice and defense, contact Daniel Horowitz at (925) 291-5388.

Arrests & Convictions

Criminal charges can lead to an immediate petition by the medical board (to the court) for suspension of your license. The criminal process is slow and convoluted. As physician lawyers certified as criminal defense specialists we look past the criminal case and act to protect your license as we conduct a criminal defense.

How the Criminal Process Works

Criminal convictions always result in board examination. DUI's, domestic incidents and drug cases are frequent triggers for discipline but any criminal conviction will be examined.

DUI Conviction and the Medical Board

As an example, some states are very harsh on substance abuse by MD’s. Others look for a treatment option as the first choice. But beware agencies that administer these programs. Once you enter their world of supervision, they own your soul.

Drug Issues and the Medical Board

Negligent Acts

Recent Medical Board Accusations have focused on repeated negligent acts or gross negligence. The Accusations are public record even though there has been absolutely no judicial review of any of the allegations. A medical malpractice judgment or settlement (above $ 30,000) is reportable to the board and all judgments are listed in the NPDB. An Accusation can be filed without any malpractice action ever being filed. It gets filed when the board has suspicion of negligence (repeated or gross).

See Repeated Negligent Acts Accusation against Dr. Alan Krystal

See Gross Negligence Accusation against Dr. Douglas Abeles

See Gross Negligence Accusation against Dr. Stan Poulos

Current Medical Board Issues

False Medical Board Accusations

When is a Medical Malpractice Settlement Reported to the Board?

When Does a Doctor have to Self Report an Arrest?

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Best Lawyer for Medical Board Defense: Top Physician Defense Team

When facing a medical board accusation, having the best lawyer for medical board defense is crucial. Our top-tier physician defense team includes:

Dr. Mark Ravis: A physician lawyer with extensive medical and legal expertise. Mark's office is in Calabasas, California.
Daniel Horowitz: A renowned trial lawyer with a stellar track record. Daniel's office is in Lafayette, California (Contra Costa County). His experience includes the United States Supreme Court and courtrooms nationally and internationally.
Oksana Tyskova: An experienced trial lawyer with two physician parents.
Karina Johnson: Over a decade of experience in highly technical medical-legal matters. Formally working for Physicians Advocates in Walnut Creek, California.
Brookes Hammock: Licensed in Ohio and Pennsylvania. Attorney with experience working for the Ohio medical board with Supreme Court experience.
Michael Yates: Law school graduate and Chiropractor.
Molly Northrup: MBA and Law Student

For expert legal defense, contact the best lawyers for medical board defense, Lawyers in Lafayette, Daniel Horowitz, at (925) 291-5388.

HEALTHCARE FRAUD

Medical Board Inquiries

The Medical Board of California works with state and federal law enforcement to investigate and prosecute healthcare fraud complaints. In Contra Costa County there have been few such prosecutions but Riverside, Los Angeles and San Diego have seen many such investigations, arrests and Medical Board filed Accusations.

Health Care Fraud covers a very wide range of conduct but in general consists of conduct done with the intent to deceive a state, federal or private health care payor so that the payor provides money or benefits that are not justified. The FBI is the primary federal agency for investigating health care fraud and the scope of their authority includes federally funded programs and private insurance programs as well. Certain states such as California, have very active state run health care fraud investigatory agencies such as the department of insurance.

Medical Board Investigations may have a criminal aspect. Read our blog on the intersection of the administrative and criminal functions of the medical board.

To view California Medical Board Disciplinary Actions use this link to the Medical Board recent License Actions page.

ACCUSATIONS

The term “Accusation” is archaic and it includes actions against doctors with medical problems that interfere with practice. It is generally “accusatory” and the mere filing of a medical board accusation damages your reputation permanently.

Checking on whether a physician has been simply accused is easy. Finding the records of discipline is likewise easy. Here is a story by CBS News that has a drop down menu that allows anyone to search state databases to review physician discipline. Attorneys representing doctors often comment on the incredible harm and peril that physicians face by board actions and MEC Committee / peer review. The result matters but the harm is caused simply by the accusation.

If you are under attack you are in great peril for long term harm. We try to work miracles (and as a physician you have the same orientation) but the cold hard reality is that even the most experienced and talented physician’s lawyer is fighting against tremendous odds. More than many, physician clients have more to lose than the normal professional under similar circumstances.

On the other side of these medical board, peer review and other hostile action cases, the governmental entities, medical groups, peer review groups and hospitals generally feel impervious to any counter attack.

We hear many attorneys and doctors denigrate the hospital attorneys. We respectfully disagree. The attorneys for “the other side” are generally not hacks. Most are highly skilled, very well trained and well paid. You cannot underestimate them and if you are your attorney underestimate these corporate lawyers, you do so at your personal peril.

With this honest caveats, I can and will provide you with an exceptionally high level of expertise and genuine caring for you and your future. My teams focus on ending the stress and pressure and reviving your dreams and vision for your future.

Stay In The Know

Visit Our Blog

AMA Code of Medical Ethics Opinion 9.4.1 Describing Purpose of Peer Review

“Physicians have mutual obligations to hold one another to the ethical standards of their profession. Peer review, by the ethics committees of medical societies, hospital credentials and utilization committees, or other bodies, has long been established by organized medicine to scrutinize professional conduct. Peer review is recognized and accepted as a means of promoting professionalism and maintaining trust. The peer review process is intended to balance physicians’ right to exercise medical judgment freely with the obligation to do so wisely and temperately.”

However, the “fair hearing” concept does not mean that reporting to medical boards or medical commissions are always delayed. Summary suspensions, unfair peer review findings, denials of privileges, resignation while under investigation can all trigger medical board reporting and investigation.

Hard Dollar Cost & Damage to Your “Brand”

A medical board investigation if public or if known generally in the community will cause your personal goodwill to nosedive. This is a major economic loss.

Your personal goodwill is literally your own reputation and skills. In most states that reputation belongs to you. You can sell your reputation just as clearly as a corporation can sell a brand name. Even an unfounded peer review will devalue your “brand”. We will at least fight to have wrongful accusations withdrawn. We will make “deals” when necessary but we have no hesitation to litigate if the damage to your reputation is so severe that a settlement is no better than a surrender of your license.

What is a “Disruptive Physician” ?

Attorneys representing physicians often argue that the phrase “disruptive physician” is overused and may sometimes be a justification for discrimination against the medical practitioner. Employers often counter that a bad attitude at work has a negative impact on the work environment and hence impacts the quality of care provided at a facility. Many hospitals have software that encourages staff to lodge anonymous complaints which are then used against a doctor. Whisper campaigns get organizational support through repetition and recording.

Often “Performance Improvement Plan(s)” are offered as a way to “calm” a situation. This is usually a trap. Once on the plan, the physician cannot resign without reporting to the National Practitioner Data Bank. (We do not like the term “data bank”. It is a database. Banks keep your money and your financial transactions somewhat private. The National Practitioner “database” is as leaky and public as most databases and in our experience does not deserve to be associated with the word “bank”.

So many peer review, resignation, malpractice and other disagreements result in the NPDB kiss of death. Earlier legal intervention is important prior to actual data bank reporting as the purging process is tedious and difficult.

Peer Review Meets the Medical Board

Peer Review often triggers medical board reporting. Your initial employment contract can trigger both peer review and an accusation based upon procedures and rules governing dispute resolution and termination. Our contract experts can review your employment contract to spot traps that can escalate business disputes. This business dispute escalation can lead a physician down the path to peer review. Larger medical groups and corporations are aware of this trap provisions – we can help you avoid them. If you are in a business dispute, contact us before the peer review provisions are triggered. If you are facing peer review, every single day counts as a 15 day reporting clock is ticking.

MEDICAL BOARD ACCUSATION

Slightly ahead of Peer Review in the list of painful stumbling blocks to a medical career, is the Medical Board Accusation. The accusations often follow negative peer review findings but perhaps more damaging are the inquiries triggered by pharmacy or insurance carrier triggered opiate prescription audits, complaints from staff and criminal matters (often unrelated to your practice). We are trial lawyers and we aggressively defend medical board cases. We are capable of negotiating when that is the proper resolution for you but we are known for our litigation and trial / hearing skills. We approach negotiation as seeking a mutually acceptable middle ground and we never negotiate without reserving the option of presenting a vigorous and intelligent defense at hearing.

Medical Board Investigation Forwarded to the State Attorney General

If the investigation finds evidence that the physician has violated the Medical Practice Act and the violation warrants disciplinary action, the case is forwarded to the Attorney General’s Office to prepare an accusation. An accusation is a legal document that lists the charges and/or the section(s) of law alleged to have been violated and is served on the licensee.

You will usually have significant contacts with the board investigators prior to this state so you should not be surprised when they choose to proceed.

In California only 15 Days to Dispute the Charges

The physician is entitled to dispute the charges at an administrative hearing. The request for a hearing must be received within fifteen (15) days after the accusation is served pursuant to Government Code Section 11506.

The simple filing can be supplemented by a variety of objections, demands for specific items of “discovery” and other matters that generally are better handled by an attorney.

Key Document – “Notice of Defense”

The actual document to be filed is a form which will be provided with the Accusation. Our office has developed a series of challenges to specific types of accusations and fact patterns. These challenges raise constitutional issues which may be overlooked by law firms that are no focused on constitutional law and due process principles. When the issue is medical, treatment based or science based, we have a physician lawyer on our team as well as experienced former prosecutors and trial lawyers who know how to take apart a faulty scientific attack on a doctor.

The request for a hearing may be made by delivering or mailing a “Notice of Defense” to both the Deputy Attorney General and the Medical Board of California. The Deputy Attorney General’s name, address, and telephone number appears on the front page of the accusation. … If a request for a hearing (or Notice of Defense) is not received, the physician will be deemed to have waived the right to a hearing and the Board may proceed to act on the accusation without a hearing and may take action as provided by law.

The physician may, but need not, be represented by counsel at any or all stages of these proceedings. The hearing is an administrative proceeding that closely resembles a court trial and is presided over by an Administrative Law Judge. After the hearing, the Administrative Law Judge writes a proposed decision. The proposed decision is then sent to a panel of the Board for consideration. The members make the final decision on disciplinary matters and can either adopt, modify, or reject the proposed decision.

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