A board representative may claim to have your best interests in mind and may tell you that “you don’t need an attorney.” Unfortunately, their job is not to protect your rights. They prefer to catch you off-guard before you have had time to prepare or think about the issues. For this reason, they do not usually make appointments. They just “show up” at your office. In addition, they do not usually tape your interviews but have a second person there and they take down “notes” and create a report that is difficult to challenge later.
It is much easier to be proactive and handle the cases properly from the beginning than to defend an Accusation or other proposed charges. Good beginnings make good ends.
Let's begin with general points to understand about the process. This is Part 1. Look for upcoming articles on this topic.
7 GENERAL POINTS TO UNDERSTAND
ABOUT REQUEST FOR RECORDS OR INTERVIEWS
1. The probability of getting a board complaint or being investigated by a state licensing board is increasing for several reasons. First, the longer you practice, the greater chance that you will receive a complaint. Second, there is greater political pressure on the boards and bureaus in California to be aggressive and harsher on the discipline. Third, common sources of complaints are patients/clients, competitors, insurance companies and disgruntled ex-employees. People are more inclined to complain in today's world especially since it is easy for them to find out how to do it on the Internet and the forms are downloadable.
2. It is important to know what is being investigated and the nature of the complaint(s) before there are interviews or responses to records are submitted. An experienced attorney knows how to find out this information in a professional manner that will make you look competent and responsible.
For example, I have had numerous cases where a new complaint reactivated an old complaint that my client did not even know existed because it was closed out at the intake level. This is why it is important to know what is being investigated before there are interviews or responses to records. This is also necessary so an overall defense strategy can be implemented.
In one case, an OB-GYN was visited by a Medical Board investigator and asked to interview him about a patient who alleged a sexual touching. Investigator told him he didn't need an attorney. Sexual allegations are the MOST difficult to get rejects on if they get filed. OB-GYN called me and I spoke to the Board investigator, explained that I am his health care law attorney and I want to be present at the interview. Investigator told me "if it were me, I'd want an attorney present." Before the interview, I made reasonable demands to find out which patients were going to be at issue in the interview so we could ensure that proper releases had been signed and we could review the files beforehand. Turns out that in prior years there were two prior sexual touching complaints that had been closed out at the intake level but my client did not even know about them. All three complaints were completely false: one was complaining about a clitoral examination when the patient had elephantitis of the vagina and was at risk for tumors which was explained to her; another was complaining about having a woman with fibrous breasts sit up and lay down during the breast exam; and the other was equally absurd. Before the interview, all files were reviewed, a summary of each patient's treatment was provided, statements were obtained by staff from those that were present during the examinations, and the doctor was prepared to answer the questions without being offended, upset or too emotional. The investigator was also presented with the OB-GYN's policies and procedures for examining all women with a chaperone present. The case was closed after the interview and presentation of records.
3. If you receive is a request for records or interview, it means that it has passed the intake process and a case has been opened. That case will be either closed or it will be forwarded to the Attorney General's Office with a recommendation for filing disciplinary action. The GOAL is to get the case closed or to minimize the allegations that are forwarded to the Attorney General. There is a range of cases ranging from meritless ones to questionable ones to difficult ones. Even with difficult cases, the goal is to have damage control and to determine how to achieve the best result possible even when the facts are not in my client's favor. The investigators have discretion and it may be that I need to help my client build good facts showing in various ways how my client is an outstanding professional
4. The board or government representatives are NOT your friends. They are often very friendly and one of the biggest mistake my clients make is talking to them since they seemed "so nice" or because they were afraid of "making them mad." This is a very unsophisticated approach. Investigators are trained how to minimize in order to obtain more information. Just imagine that there is an Accusation filed and we are going to hearing, but you tell me "well, Tracy, I think the investigator liked me at the interview." There is a very easy way not to antagonize the investigator and have your attorney assert your rights. A good attorney knows how to make you look good while asking to be present at the interview.
5. Be professional and respectful even while exercising all your rights. Now this does NOT mean that we fail to be aggressive in your defense but it means that we do not antagonize the investigator or Deputy Attorney General. As much as you want me to write a nasty letter threatening to sue the State, in the beginning I'll recommend instead a letter that focuses on the facts and why this investigation does not have merit.
It means that we are very cordial -- respecting the power that they can wield over your license -- but we are strong and professional at the same time. The fact is that they know the details of the complaint and we know nothing. This means that we need to learn as much as the investigator to the extent possible before any interview. In addition, the investigator only knows one side of the investigation and we want to educate them as much as possible. I have gotten involved in cases after my client has threatened to sue the Board, the invetigator and that did not help their case. I am aggressive about defending my clients but smart about how to approach the Board and the investigators.
It means that we are very cordial -- respecting the power that they can wield over your license -- but we are strong and professional at the same time. The fact is that they know the details of the complaint and we know nothing. This means that we need to learn as much as the investigator to the extent possible before any interview. In addition, the investigator only knows one side of the investigation and we want to educate them as much as possible. I have gotten involved in cases after my client has threatened to sue the Board, the invetigator and that did not help their case. I am aggressive about defending my clients but smart about how to approach the Board and the investigators.
6. Do NOT take investigations or requests for records lightly even if you are confidant that you did not do anything wrong. For example, assume there is a complaint by a former patient/client that you committed malpractice. The records are clear that there is no malpractice and, in fact, it was a good result. However, a review of the records shows that the recordkeeping is poor -- a surgical report is missing, the notes are skimpy, the handwriting is illegible and/or some other required information is not recorded.
7. The time to seek advice is before the records are produced or before there is any type of interview. It may be decided that a letter summarizing the treatment or client history is a good idea. It may also be decided with the help of the attorney that the missing record should be recreated but with a clear indication that the record was unexplainably missing and was recreated in order to give a complete record. Declarations or statements may be obtained from employees or other witnesses.
Some of my clients made serious missteps by backdating records or sending less than ideal records to the investigator without transcribing or summarizing them. Or they think that if the records are disorganized it will help them. To the contrary, if there are good facts, you want to make the job easier for the investigator and give him or her good reasons to close the case. Often the investigator may be sending the files to an expert witness and you want the expert to be able to read and understand the records, especially if there are good facts. A good summary from your attorney can help that process significantly. The advantage of the letter coming from the attorney is that it is not evidence from you.
Your professional future, the value of a clean license and your rights are of critical importance to our firm. We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, get placed on probation, lose your license, or lose your livelihood. Now that all discipline is on the website, sanctions can adversely affect insurance plans, client/patient confidence and your reputation.
Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
Any questions or comments should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau investigations attorney at tgreen@greenassoc.com.
The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/
