Health Law Matters

SHOULD PHYSICIANS RETAIN LEGAL COUNSEL TO REPRESENT THEM IN MEDICAL BOARD PROCEEDINGS?

By  Edward E. Hollowell and Kenneth A. De Ville,   Mitchell Warner, P.A.

Should physicians retain legal counsel to represent them in Medical Board [Board] proceedings? By all means! If so, at what level should physicians retain legal counsel to represent them in Board proceedings? At all levels! Physicians should retain legal counsel to represent them in Board proceedings as soon as they learn that they are under inquiry by the Board.

Physicians who face inquiries or charges by the Board have a right to retain legal counsel to represent them before the Board. If, however, physicians do not appreciate the seriousness of being investigated or sanctioned by the Board and do not retain legal counsel to represent them as soon as they learn that they are under inquiry, they may well loose some advantage that they would otherwise gain. Some physicians make the mistake of fearing that the Board will consider them culpable merely because they retained legal counsel. Fortunately, this is not the case.

Let's explore why Board inquiries, proceedings and investigations are "serious business" for physicians. First, the Board has the statutory authority to issue medical licenses, to monitor physicians' behavior, investigate complaints and discipline physicians who violate applicable legal, professional and ethical standards. These sanctions, include but are not limited to, the suspension or revocation of the offending physician's medical license. Physicians also face the risk of being reported to the National Practitioner Data Bank and the Health Care Integrity Protection Data Bank. Physicians should, therefore, guard against any encroachment on their medical licenses or professional status to the extent that they can.

Retaining legal counsel to represent them in Board proceedings does not guarantee physicians that they will not experience an encroachment on their medical licenses or professional status, but they should have a better chance of avoiding this situation. Physicians should realize that Board proceedings are "quasi-judicial" in nature, and an adverse outcome has serious consequences for them. Physicians have a right to appeal sanctions leveled against them by the Board, but physicians face a difficult obstacle in obtaining relief in court because, in most cases, trial court judges will follow the Doctrine of "Judicial Deference " and sustain the Board's decision. Physicians can appeal from the superior court to the court of appeals but they still face unfavorable statistical odds in the Court of Appeals.

How do physicians learn that they are under inquiry by the Board? Often, Board investigators will "show up" at physicians' offices, without an appointment or notice, seeking an interview or requesting copies of patient records. Board investigators often will be armed with subpoenas to obtain copies of patient records. Not surprisingly, such confrontations are confusing and unsettling for physicians who are asked to commit to an interview without sufficient time to consider all of the ramifications involved or to prepare for the interview. In such instances physicians are not on a "level playing field." Physicians should politely request a delay of interview to give them time to consider retaining legal counsel to represent them. By delaying the initial interview, physicians can collect their thoughts, discuss the matter with legal counsel, decide whether or not to retain legal counsel to represent them and thereby increase their opportunity to achieve a more favorable interview.

In some instances, the Board may notify physicians that a complaint has been filed against them and request a response to the complaint. Responses to complaints by physicians are critical because the answers filed by physicians may well determine whether or not the Board goes forward with its inquiry.

Lastly, physicians learn of Board proceedings by receiving a copy of orders or notice of charges and allegations. Physicians should immediately retain counsel to represent them in such instances. Physicians are rightfully concerned about the realities of practicing under the threat of medical malpractice litigation. However, when realistically considered, medical malpractice litigation does not represent the potential risk to physicians as Board proceedings do. Physicians would never consider representing themselves in malpractice litigation. Without question, failure to retain legal counsel places physicians at a decided disadvantage in Board proceedings. In determining whether or not physicians should retain counsel to represent them in Board proceedings, physicians should consider the fact that the Board has counsel representing it. Unfortunately, when a bell has rung, it cannot be un-rung. In the Board's 2000 Report, the Board noted that it took 222 actions related to 116 physicians during the year. The resulting encroachment on the 116 physicians' medical licenses or professional status will follow them the remainder of their professional careers. When the question is asked, "Should physicians retain counsel to represent them in Board proceedings?" The answer is obvious!

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Copyright © 2006 -  Mitchell Warner, P.A.        The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell, JD, FCLM or Kenneth A. De Ville, JD, PhD, Co-Editors at (800) 662-7403.