As a doctor, allegations of medical malpractice or other unlawful or unethical conduct can have wide-ranging implications. In addition to facing civil liability and the prospect of a significant increase in your medical malpractice insurance premiums, your license, your career, and your reputation could all be in jeopardy. As a result, you need to take a comprehensive approach to defending yourself; and, in many cases, this will mean fighting to protect your practice at an administrative law judge (ALJ) hearing.
In many states, ALJs are responsible for making medical licensing determinations in disciplinary proceedings. If you are accused of malpractice or other improper conduct, the process of fighting to protect your license may involve asserting a defense at an ALJ hearing. An ALJ hearing is considered a “quasi-judicial” proceeding. It is similar to a trial in that you will present evidence to an impartial judge (in this case, an ALJ) who will render a binding decision, but the process is shortened and streamlined compared to civil litigation in state or federal court.
Am I Really at Risk for Losing My Medical License?
For many doctors, the prospect of losing their license is unthinkable. As a result, when faced with allegations of malpractice or other improper conduct, it can be difficult to accept that your license could really be in jeopardy. But, in many cases, this is a very real possibility. State medical boards take allegations of malpractice, practicing while impaired, billing fraud, unlicensed practice, sexual misconduct, and other unlawful and unethical conduct very seriously – as they should – and there is often a very small margin for error. While specific laws and ethical rules vary by state, there are various acts and omissions (including those just listed) that will lead to professional discipline, including possible license suspension or revocation, in any jurisdiction.
What are the Potential Outcomes of an ALJ Hearing?
Given the important of the ALJ hearing when facing allegations of medical malpractice or other unlawful or unethical conduct, it is important to understand all of the potential outcomes as well. While losing your license could be a possibility (depending on the specific allegations at issue), ALJ hearings can have other outcomes as well. Once again recognizing that the specifics will vary from state to state, generally speaking, the potential outcomes of medical licensing board ALJ hearings include:
- Warning or Reprimand – Certain, less-severe, forms of misconduct can lead to a formal warning or reprimand. These sanctions may or may not have any immediate practical effect (depending on your state’s specific rules), but will generally result in increased sanctions in the event of a subsequent disciplinary proceeding.
- License Suspension – Medical license suspensions can range widely in terms of duration. Suspensions are generally imposed for severe forms of malpractice and other misconduct that fall below the threshold for license revocation.
- License Revocation – Doctors who are alleged to have committed medical mistakes falling well below the acceptable standard of care, who have been convicted of certain crimes, and who are facing certain other severe allegations can face license revocation at their ALJ hearings. Following revocation, it will be necessary to file a successful appeal or petition for reinstatement in order to regain your ability to practice medicine.
- Settlement – In many jurisdictions, it is possible to settle allegations in medical licensing board proceedings rather than going to decision at an ALJ hearing. If the circumstances are such that it is not possible to avoid professional discipline entirely, then seeking to negotiate a settlement that protects your ability to practice may be a good option.
- No Action – Of course, it is possible to resolve an ALJ hearing without facing disciplinary action as well. Depending on the allegations and evidence at hand, in many cases it will be possible to convince the ALJ that either (i) no legal or ethical violation has been committed, or (ii) the evidence is insufficient to support disciplinary action.
What Do I Need to Do In Order to Obtain an ALJ Hearing?
The requirements for obtaining an ALJ hearing vary by state. Generally speaking, however, doctors who are facing allegations of malpractice and other improper conduct must be prepared to be proactive in order to protect their medical licenses. You may need to request an ALJ hearing in order to avoid waiving your right to be heard, and you may need to do so within a specific timeframe and in accordance with specific procedural requirements. For example, in California:
“The request for a hearing must be received within fifteen (15) days after the accusation is served . . . [and] may be made by delivering or mailing a "Notice of Defense" to both the Deputy Attorney General and the Medical Board of California. . . . 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.”
Different states have different deadlines and procedural requirements. In terms of scheduling, an ALJ hearing can take place anywhere from weeks to months after being formally requested. In some states (such as Ohio), scheduling is determined based on the nature of the allegations at issue.
What Happens While My ALJ Hearing Date is Pending?
Except in extraordinary circumstances, you can continue to practice while your ALJ hearing date is pending. Unless and until your state’s medical licensing board suspends or revokes your license, it remains intact. However, this does not necessarily mean that you should continue business as usual. If there is an issue that needs to be addressed, then addressing it proactively could not only serve to prevent additional disciplinary action, but it could potentially be helpful when seeking to mitigate or avoid sanctions at your pending ALJ hearing as well.
With this in mind, while your ALJ hearing date is pending, it is a good time to conduct a thorough compliance review. What led to the allegations against you? Was it a one-time issue, or is there a systemic concern that may require additional training or remedial action? For example, if you are facing discipline due to allegations of Medicare or Medicaid billing fraud, now may be the time to conduct a thorough review of your practice’s billing policies and procedures to ensure that your billing staff are up-to-date on the current rules and regulations.
Of course, you should also use the intervening time period to prepare for the hearing itself. In order to do so, you will want to work with experienced medical license defense counsel to gather all pertinent evidence and assemble a comprehensive and cohesive defense strategy. Your defense strategy should be tailored to the specific allegations at hand, and you should seek to rely on evidence that clearly counters (or at the very least calls into question) the allegations against you.
What Can (and Should) I Do to Protect My Medical License During My ALJ Hearing?
In terms of substantive defenses during medical licensing board ALJ hearings, the arguments that are available are entirely dependent upon the allegations at issue. Defending against allegations of medical malpractice is very different from defending against allegations of billing fraud, for example. Likewise, even the defense strategies for different forms of malpractice can be hugely variable. While defending against allegations of negligent misdiagnosis may focus on the nature of the patient’s symptoms and the timing of their presentation, defending against allegations of a surgical error may hinge on the standard of care based on the technology available in the relevant geographic location.
“When faced with the prospect of losing your medical license – temporarily or permanently – at an ALJ hearing, it is imperative to tailor your defense strategy to the specific allegations at hand. While it will be possible to assert a successful defense in many cases, doing so requires an in-depth understanding of all of the relevant medical and legal issues involved.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
The veracity of the allegations at issue is an important consideration when developing a defense strategy for a medical licensing board ALJ hearing as well. If the allegations are clearly misguided, then your defense strategy can – and generally should – focus on disputing their merits. On the other hand, if you made a mistake that is not defensible, then the focus of your defense strategy may need to shift toward negotiating a settlement or seeking to prevent severe sanctions at the culmination of your ALJ hearing.
Is it Possible to Challenge the Outcome of My ALJ Hearing?
Finally, when facing an ALJ hearing, it is worth keeping in mind that the outcomes of these hearings are subject to appeal. This is not to say that you should bank on filing a successful appeal, but rather that you should keep the grounds for filing an appeal in mind during the process. While this is largely a legal matter that your defense counsel should manage, if your medical license is on the line, you will want to be an active participant in making sure that you have every possible opportunity to protect your ability to practice.