As a licensed physician, facing a medical board investigation could mean that your career is on the line. Even though you spent years in medical school and in residency, and even though you may have spent decades honing your expertise, the fact remains that one simple mistake can be enough to bring everything crashing down.
Even if the medical board does not revoke your license permanently, facing a suspension—or even a reprimand—can have devastating consequences for your professional reputation. Hospitals will be hesitant to hire you or accept you as an affiliated provider, and your colleagues or other qualified health care professionals will be forced to think twice about whether it is in their best interests to partner with you. If patients learn of your disciplinary history, they will almost certainly seek to go elsewhere for their future care.
All of this is to say that facing a medical board investigation is a very serious matter regardless of the circumstances involved. Medical doctors who are facing investigations need to protect themselves by all means available, and this begins with hiring an experienced medical board defense attorney. With the right approach, even high-risk medical board investigations can often be resolved favorably, and doctors who are accused of serious misconduct will be able to protect their licenses in many cases.
“Doctors targeted in medical board investigations need to take a proactive approach to their defense. They must also assess whether the allegations at issue have the potential to create exposure in medical malpractice litigation or in civil or criminal enforcement proceedings.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
12 Steps for Favorably Resolving a Medical Board Investigation
Doctors who are facing medical board investigations need to take several steps to protect themselves and avoid any disciplinary actions. These steps include:
1. Respond Immediately to the Administrative Complaint
In most cases, doctors learn of a medical board investigation through the issuance of an administrative written complaint. If you receive an administrative complaint from your medical boards, it is imperative that you respond immediately. At this point, the investigation is likely well underway, and you will need to engage an experienced medical board defense lawyer to intervene in the investigation and represent you as the investigation moves forward.
Upon receiving an administrative complaint, you should review the complaint in its entirety and make note of all relevant details. These details may be relatively scant, and this fact leads us into the next two steps. Your medical board defense lawyer will need to review the complaint as well, and your lawyer should be able to use his or her experience to glean additional information that he or she can use to formulate your initial response.
2. Identify the Focus of the Investigation
When facing a medical board investigation, it is imperative to have a clear understanding of the investigation’s focus. It is important not to make any assumptions in this regard. From ethical violations to violations of the medical practice act to billing errors and allegations of medical malpractice, medical boards investigate an extremely broad range of issues. To build and execute an effective defense, you need to know what you are defending against.
3. Identify the Scope of the Investigation
In addition to identifying the focus of the medical board’s investigation, you also need to identify the investigation’s scope. For example, if you are being accused of improperly billing Medicare or another payor, which specific billings are under review? How far back are the board’s investigators looking? Are investigators seeking to substantiate allegations of intentional billing fraud? Or, do you need to be prepared to defend against accusations of negligence or failure to provide adequate supervision? The answers to these types of questions—among many others—will determine what you need to do to build an effective defense.
4. Conduct an Unbiased Assessment of the Allegations at Issue
After identifying the focus and scope of the medical board’s investigation, the next step is to assess your level of risk. This involves conducting an unbiased assessment of the allegations at issue. To secure the protections of the attorney-client privilege, this assessment should be conducted in coordination with your medical board defense lawyer. The goal of this assessment is not solely to gather evidence that you can use in your defense, but rather to gain a clear understanding of all of the relevant facts so that you and your defense counsel can make informed decisions.
5. Preserve All Relevant Documentation
Doctors who are facing medical board investigations must be careful to preserve all relevant documentation and medical records. Failure to preserve relevant medical records can lead to disciplinary action regardless of the veracity of the allegations underlying the inquiry. This requires not only that doctors avoid deleting or destroying relevant medical records (and ensure that their personnel avoid deleting or destroying relevant records), but also that doctors take affirmative action to prevent the destruction of relevant records by third-parties such as document shredding companies.
6. Identify All Viable Defenses
The next step after conducting an internal assessment and identifying all relevant documentation is to identify all viable defenses to the allegations at issue. This necessarily involves working with experienced defense counsel. Not only are there several different types of defenses, but there are also several of each type of defense.
7. Develop a Comprehensive and Cohesive Defense Strategy
While a “kitchen sink” approach will be appropriate in some cases, it is not always in a doctor’s best interests to assert all of the defenses he or she has available. Instead, the more prudent approach may be to narrow down the issues and develop a cohesive defense strategy that leads the medical board’s investigators to one specific (and desirable) conclusion.
With that said, it is imperative that a medical board defense strategy address all of the allegations at issue. Failure to successfully challenge even a single charge during a medical board investigation can lead to professional discipline.
8. Engage with Medical Board Investigators As Appropriate
Proactively engaging with medical board investigators throughout the investigative process serves several important purposes. Experienced defense counsel will seek to take control of the investigative process and steer the inquiry toward a favorable resolution without formal charges being filed. Taking a proactive approach also allows for any flaws in investigators’ assumptions or methodologies to be addressed before they lead to unfavorable (and unjust) outcomes; and, just as importantly, it signals to the board that you are prepared to defend your license by all means available.
9. Avoid Common Mistakes
Too often, doctors make mistakes during medical board investigations that put their licenses at risk unnecessarily. When facing an investigation, knowing the mistakes you need to avoid is just as important as knowing the steps you need to take to protect your reputation and your career. Some examples of common mistakes doctors make during medical board investigations include:
Waiting too long to engage defense counsel (doctors should engage defense counsel immediately upon learning of a medical board investigation)
Submitting a confrontational, defiant, or uninformed written response
Asserting “defenses” that do not provide protection (i.e., stating that you were overstressed or did not intend to commit the violation at issue)
Making misleading statements or providing only a portion of the relevant documentation
Allowing medical board investigators to dictate both the process and the outcome of the investigation
10. Decide Whether to Request a Formal or Informal Hearing
In many cases, doctors who are targeted in medical board investigations will have the option to request a formal or informal hearing. This opportunity typically comes at the end of the investigative process, when the board is prepared to move forward with the evidence it has obtained. At this stage, requesting a hearing before an administrative law judge will typically make sense; and, if given the opportunity to choose, doctors should consult with their defense counsel regarding the benefits, limitations, and risks of each option.
11. Prepare for the Hearing Thoroughly
Preparing for a medical board hearing can be a time-consuming process. But, devoting the necessary time is extremely important, as this will often be a physician’s last chance to avoid professional discipline (short of going through the appeals process). Based on the evidence uncovered during the investigation, any issues identified with respect to the investigators’ assumptions or methodologies, and any additional information available from third parties, physicians should work with their counsel to craft arguments, prepare answers, and formulate a focused hearing strategy.
12. Evaluate and Address Any Additional Legal Risks
Finally, in addition to addressing the risk of professional licensing action, doctors targeted in medical board investigations should address any other legal risks they may be facing. Depending on the allegations at issue, this could involve the risk of facing medical malpractice litigation, or the risk of facing enforcement action by the U.S. Department of Justice (DOJ), U.S. Department of Health and Human Services Office of Inspector General (DHHS OIG), or another federal agency. These legal matters can entail risks above and beyond professional discipline—up to and including criminal fines and imprisonment in some cases.
Of course, under no circumstances is the outcome of a medical board investigation guaranteed. These investigations are often unpredictable, and medical board personnel do not always make the right decisions. For doctors who are under investigation, the key is to build and execute as strong a defense as soon as possible while also ensuring that they preserve all available opportunities to appeal an unfavorable determination if necessary.