Physician Disciplinary Hearing: How to Protect Your Medical License

A medical board investigation most frequently begins when the board receives a complaint from a patient, a patient's family member, a hospital, a healthcare insurer, a law enforcement agency, or another physician, and the board may also open an investigation based on mandatory reporting requirements, court records, or news reports about the physician's conduct. The board typically conducts a preliminary investigation to determine whether the complaint has sufficient merit to warrant the filing of a formal complaint, during which the physician may receive a written inquiry requesting her response to the allegations, a request for medical records, or a notice requiring her to appear for an interview.

Healthcare and life sciences and administrative cases counsel can advise on the specific medical board investigation triggering event and board investigation process and develop the early-stage investigation response and license defense strategy.

The filing of a formal complaint triggers a mandatory report to the National Practitioner Data Bank under the Health Care Quality Improvement Act, and this report is accessible to hospitals, medical schools, and other healthcare entities that are required to query the NPDB before granting clinical privileges, which means that a formal disciplinary complaint can restrict the physician's ability to practice at other institutions even before the proceeding has concluded. A summary suspension is an emergency action taken by a medical board without prior notice or hearing when the board determines that the physician poses an immediate threat to public health or safety, and a physician who is subject to a summary suspension must act immediately to challenge the suspension and secure her right to an expedited hearing.

Healthcare fraud and regulatory risk management counsel can advise on the specific formal complaint, NPDB reporting, and summary suspension legal obligations and develop the formal complaint response and summary suspension challenge strategy.

Most state Medical Practice Acts require the board to prove the allegations in a disciplinary complaint by clear and convincing evidence, which is a more demanding standard than the preponderance of the evidence standard applicable in civil malpractice litigation but less demanding than the beyond a reasonable doubt standard applicable in criminal proceedings. The standard of care in a physician disciplinary proceeding is defined by reference to what a reasonably prudent physician in the same or similar specialty would have done under the same or similar circumstances, and the physician must typically present expert testimony from a qualified physician in the same specialty to establish that her conduct was within the standard of care.

Medical malpractice and medical malpractice insurance defense counsel can advise on the specific burden of proof, standard of care, and evidence requirements and develop the standard of care defense and evidentiary challenge strategy.

State Administrative Procedure Acts require medical boards to provide physicians who are the subject of a disciplinary complaint with notice of the specific charges against them, an opportunity to review the evidence the board intends to present, a fair hearing before a neutral decisionmaker, the right to be represented by an attorney, the right to present evidence and testimony in her defense, and the right to cross-examine the witnesses and experts who testify on behalf of the board. A physician who is subject to a board investigation has the right to decline to answer questions in any investigatory interview that she reasonably believes may result in disciplinary action, and she should retain counsel immediately upon learning of the investigation.

Federal regulatory changes and regulatory compliance counsel can advise on the specific Administrative Procedure Act protections and hearing rights and develop the APA due process and hearing rights compliance strategy.

The most effective defense to a standard of care allegation in a physician disciplinary proceeding is expert testimony from a qualified physician in the same or similar specialty who can explain the medical decision-making process, identify the specific factors that the physician considered in making her treatment decisions, and opine that the physician's conduct was within the standard of care applicable to the case, and the physician's attorney should retain this expert as early as possible in the proceeding to ensure that the expert has adequate time to review the medical records. The physician's attorney should also conduct a thorough review of the medical records and other evidence the board intends to present to identify any errors, omissions, or mischaracterizations that can be used to undermine the board's case.

Medical malpractice complaint and personal injury attorney counsel can advise on the specific evidence challenge and standard of care allegation defense requirements and develop the expert witness strategy and standard of care evidence challenge defense.

Healthcare practice management and licensing counsel can advise on the specific physician disciplinary hearing defense framework and develop the comprehensive disciplinary defense, outcome management, and license protection strategy.

Legal counsel who represents a physician in a medical board investigation should immediately conduct a thorough review of all available evidence to assess the strength of the board's case, advise the physician on the extent of her obligation to respond to the board's investigatory inquiries without unnecessarily expanding the scope of the investigation, and seek to resolve the matter at the pre-complaint stage if doing so is in the physician's best interest because a resolution at the pre-complaint stage is typically not subject to mandatory NPDB reporting. If a summary suspension is issued, the physician's attorney should immediately file a request for an expedited hearing and assess whether the summary suspension is procedurally or substantively deficient.

Criminal defense and federal criminal defense counsel can advise on the specific pre-hearing investigation defense and license protection requirements and develop the pre-hearing defense strategy and license suspension prevention plan.

A physician who receives an adverse decision in a medical board disciplinary proceeding has the right to seek administrative reconsideration of the decision before the full board, and if the board upholds the adverse decision, the physician may seek judicial review of the board's decision in state court under the applicable Administrative Procedure Act, arguing that the board's decision was not supported by substantial evidence, was arbitrary and capricious, or was made in violation of the physician's constitutional or statutory due process rights. A physician who believes that an adverse board decision is the result of procedural or substantive legal errors should seek the assistance of counsel experienced in administrative appellate proceedings and NPDB dispute resolution.

Federal litigation and white collar crime counsel can advise on the specific post-hearing remedies, appeal rights, and NPDB dispute resolution requirements and develop the post-hearing appeal and NPDB dispute resolution strategy.