As a doctor or other licensed medical professional, the prospect of losing your license to practice medicine can be overwhelming. But, to protect your license—and your career—to the fullest extent possible, you need to act quickly, and you need to make rational decisions based on the realities of the circumstances at hand.
Regardless of whether you accept that professional discipline is warranted or believe the allegations against you are entirely unfounded, you need to take the same strategic and forward-thinking approach to your defense. While there are defenses available in all circumstances, all circumstances can be risky as well.
As health care professionals, ultimately, the best way to protect your license is to engage an experienced medical license defense lawyer to represent you. If you are facing license suspension or revocation, your lawyer can use the facts of your case to build a strong and cohesive defense. Your lawyer can also advise you regarding the options you have available, and your lawyer can help you make informed decisions about things like whether you should cooperate with the state medical boards or medical licensing board’s investigation or take a more forceful approach to defend your ability to practice.
In addition to engaging defense counsel, there are some other key steps you will want to take promptly. This article provides an overview of 10 things you should do if your medical license is at risk.
“Medical licensing board disciplinary proceedings present significant risks for doctors and other licensed medical professionals. Building and executing a comprehensive defense strategy is key, as oversights can put providers’ licenses in jeopardy unnecessarily.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
1. Make Sure You Know the Specific Allegations Against You
To defend yourself effectively, you need to know what you are defending against. If your medical license is at risk, you need to avoid making any assumptions as to why you are now dealing with your medical licensing board or the state medical boards. Even if you think you have a pretty good idea of why you are facing disciplinary action, you need to make sure before you devote time, energy, and resources to an unnecessary and inapposite defense.
With that said, in some cases, it will be fairly obvious. If a patient or other party has filed a complaint with your licensing board, for example, the allegations against you should be clear. But, if you are facing discipline as the result of a billing compliance audit or federal health care fraud investigation, then it might take more work to pinpoint the specific issue (or issues) at play in your medical license proceeding.
2. Stop or Correct Any Ongoing Issues That Could Trigger Board Discipline
When facing disciplinary action as a licensed medical professional, continuing to make the same mistakes that led to the board’s inquiry can make your situation much worse. If you are facing a one-off complaint based on a specific instance of malpractice and questionable medical treatment, this may be a non-issue. But, if multiple patients have come forward, if you are being accused of fraudulently billing Medicare, Medicaid, or a private insurance company, or if your disciplinary action involves alleged violations of the Anti-Kickback Statute or Stark Law, then you will want to make sure that you are not continuing to increase your risk exposure.
As you do this, however, you need to be careful. Board members may view overt and obvious changes to your practice as tantamount to a confession. An experienced medical license defense lawyer will be able to help healthcare providers and other healthcare professionals strategically remedy any ongoing issues or violations without raising additional red flags.
3. Try to Discern Whether Professional Licensing Action is Your Only Risk
Depending on the scope and nature of the allegations against you, professional licensing action might not be your only risk. In some cases, medical malpractice litigation will also be a concern, and in other cases, professional discipline proceedings may run parallel to a billing compliance audit or healthcare fraud investigation. Healthcare providers often won’t learn of audits and investigations until they are already well underway, but there are clues a lawyer can examine to determine whether your defense efforts should expand beyond working to protect your license.
4. Contact Your Professional Liability Insurance Company (If Necessary)
The scope and nature of the allegations against you will also determine whether you should contact your professional liability insurance company. In some cases, you may have an obligation to notify your insurer of a potential claim, and in others, it may be in your interests to do so. This, too, is a decision that requires a knowledgeable and strategic approach; and, while you generally don’t want to notify your professional liability insurer of a potential claim if there is no need to do so, you also do not want to wait too long and risk a coverage dispute.
5. Locate All Relevant Records, Communications, and Other Documentation
To assist your attorney with building your defense, you should go ahead and locate all relevant medical records, communications, and other documentation such as electronic health records. However, you will need to be careful not to copy or relocate any files that are subject to patient privacy or other governing laws or regulations so that you can also avoid any issues related to the Health Insurance Portability and Accountability Act (HIPAA). For now, it is a good idea to get an understanding of the universe of documents that exist, and then you can work with your attorney to gather evidence in a strategic and compliant manner. Working with your attorney during this process will also help ensure that as much information about the patient's medical record and other documentation remains privileged as possible.
Now is also a good time to take detailed notes. Write down any details that you believe might be relevant to your defense. If you think of questions you want to ask your defense attorney, write these down as well.
Of course, all of this can be challenging if you are not clear on exactly why you are facing professional discipline. If you find yourself not knowing where to start, that’s fine, and your defense attorney will be able to help guide you forward.
6. Review the Relevant Rules of Professional Responsibility
In addition to trying to discern the specific allegations against you, you should also try to discern the specific rule (or rules) that will govern your professional discipline case. Different states (and different licensing boards in each state) adopt different rules, so you will need to be sure to review your licensing board’s rules and not a generic set of rules such as the AMA’s Code of Medical Ethics.
Once again, it is important not to make any assumptions; and, if you are not clear on which rule (or rules) you have allegedly violated, your lawyer can assist you here as well. Once you know the relevant facts and the relevant rule (or rules), then you can shift your focus to building an effective defense.
7. Prepare for an Investigation
If you are not currently under investigation (or are not aware that you are currently under investigation), this could be coming soon. If board investigators—or state or federal law enforcement agents—begin looking into your practice, you will need to be prepared. You will need to know what to say, what not to say, and what records you are required to disclose. You will also need to decide how best to approach the investigation from a defense perspective, and you will need to be prepared to leverage any opportunities that arise during the investigative process to steer the inquiry toward a favorable outcome.
8. Engage a Medical License Defense Attorney to Represent You
As we touched on in the introduction and have referenced throughout our discussion, when your medical license is at risk, it is imperative to have an experienced defense attorney on your side. You cannot afford to take any chances, and you cannot afford to act on incomplete or inaccurate information. From examining the allegations against you to identifying the relevant rules and applying them to the facts of your case, your attorney can help with all aspects of your defense preparations, and your attorney can leverage these preparations to represent you effectively.
9. Evaluate Potential Defenses and Build a Cohesive Defense Strategy
Working with your defense counsel, you will want to evaluate all potential defenses and build a cohesive defense strategy. When building your defense strategy, it will be important to address each element of each alleged violation, and you will need to consider the possibility of facing civil litigation or government enforcement action as well. A defense that works at the board level won’t necessarily protect you in other proceedings; and, if you admit certain facts during your disciplinary case, this could prove costly. While a “kitchen sink” approach will make sense in some cases, in others it will be more prudent to select a particular defense and focus on making it as strong as possible.
10. Defend Your License and Practice On All Fronts
Once you have a defense strategy in place, it is time to execute. You will want to have your defense attorney communicate with the licensing board on your behalf in all matters. If you are dealing with litigation, an audit, or a federal healthcare fraud investigation, you should rely on your attorney’s representation here as well. Avoiding unnecessary negative ramifications often requires a multi-faceted approach, and licensed professionals must work with their counsel to protect their licenses, their reputations, and their careers by all means available.
