Medical Board Accusations

WHAT IS A MEDICAL BOARD ACCUSATION ?

The Attorney General of California controls the California Medical Board.  It supplies the lawyers and criminal investigators who research whether accusations against a doctor merit proceeding against him/her.  The complaining person can be anonymous.

As Joseph Stalin once said “Show me the man and I’ll show you the crime.”   The board receives many absurd complaints and in most cases these end up in the “round file”.  But if a complaint passes the initial screening, they often proceed to investigation.  Once a case is “investigated”, the chances are very high that an Accusation will be filed.

To Violate a Regulation You Must Know of the Regulation

“In United States v. Chicago Express (7th Cir.1956) 235 F.2d 785, cited by appellant, the court held that it requires knowledge of a regulation in order to ‘ “knowingly violate … the Regulation.” ’ (235 F.2d at p. 786; in accord see St. Johnsbury Trucking Company v. United States (1st Cir.1955) 220 F.2d 393, 395.) The logic of these cases is simple and straightforward. To knowingly violate a regulation one must have knowledge of the regulation.” (Id. 86 Cal.App.3d at pp. 554–555, 150 Cal.Rptr. 344; see also Fort v. Board of Medical Quality Assurance, supra, 136 Cal.App.3d at pp. 21–22, 185 Cal.Rptr. 836.)
People v. Gregory (1990) 217 Cal.App.3d 665, 678 [266 Cal.Rptr. 527, 534]
But this legal principle is not commonly known by, nor applied by the board.

The charging review is often done by a slightly medically trained, law enforcement officer who is likely involved in a variety of “anti-fraud” groups that predispose the officer to look for and find guilt.

A supposedly independent file and case review is often referred to someone with medical expertise.  However, this reviewing doctor will be limited to the facts supplied by the complainant and law enforcement unless, you are contacted and asked to provide “your side of the story”.   [This a dangerous choice and whether to cooperate or not cooperate is a case by case decision.]

Knowledge of the fine points of the law is the reason that the Lawyers in Lafayette are an excellent choice for a medical board defense.   Tom Kensok, one of our trial attorneys served for 30 years as a prosecutor in Contra Costa County.  He is well aware that “the making of a false statement, in and of itself, does not violate the statute; rather, a violation requires knowledge of the wrongfulness of the false statement.” People v. Gregory (1990) 217 Cal.App.3d 665, 678  Knowledge of these legal principles in the context of medical accusations and the standard body of criminal law is critical if you are to be effectively defended.

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 for the filing of 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 physician.  There are strict time limits on when to answer and procedural rules that are peculiar to administrative hearings. (“Peculiar” is a term we use because the procedural rules tend to favor the accuser and disadvantage even the most innocent of MD’s.)

As the Board points out on its website:   “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 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. The notice to the Medical Board should be directed to the Discipline Coordination Unit, 2005 Evergreen Street, Suite 1200, Sacramento, CA 95815-3831. 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.”

As you review the board website you will see the statement:  “The physician may, but need not, be represented by counsel at any or all stages of these proceedings.”   Representing yourself before the board is like having one of your patient’s ignore your advice and find a cure on the internet.  Enough said …..

There is a lot of misinformation on the board website.  The board claims that “The hearing is an adminisrative proceeding that closely resembles a court trial and is presided over by an Administrative Law Judge.”  There is a quote attributed to Groucho Marx:

“Military justice is to justice what military music is to music”

The resemblance of an administrative law hearing to a court trial is about as close as military music is to music.  The judges can and do rely upon hearsay (called “administrative hearsay”).  Accusers may be excused from appearing.  Your ability to demand “discovery” (information) from the other side is extremely limited.  In an orthopedic context, it is like trying to diagnose severe cervical pain in an 85 year old patient without an MRI and with a limited clinical exam.  In other words, the administrative hearing process is designed to force your attorney to “shoot from the hip”.   It takes a lion in the courtroom to force the other side to give you access to information that you need to properly prepare.
Our office is NOT the only firm that fights fully and completely for your rights.   We strongly support the excellent attorneys who dedicate their careers to defending doctors.  Our only caveat is that you should ensure that you are hiring a firm with genuine experience in the board and criminal defense arena.

 

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