A Physician’s professional status with both public and private entities is jeopardized any time the government accuses the physician of a public offense. An arrest or allegation of illegal conduct can lead to discipline against a physician’s medical license, medical staff privileges, and the physician’s provider status with both public and private payers. This potential cascade of events should be dealt with proactively as soon as there is an arrest or formal complaint.
The California Department of Justice (DOJ) monitors a database that includes every physician licensed to practice in this state. The DOJ automatically notifies the Medical Board of California if a physician is arrested for a misdemeanor or felony. The Medical Board gives particular attention to arrests involving alcohol or other controlled substances. The reason for this is obvious. Arrests for substance abuse or driving under the influence of alcohol are significant indicators of possible underlying problems.
A physician can be disciplined either for conduct leading to an arrest, or for a criminal conviction without regard to the underlying conduct. The California Court of Appeal held that a physician may be disciplined for unprofessional conduct on the basis of two or more misdemeanor convictions involving alcohol consumption. (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757.)
An investigation or discipline by the Medical Board can also lead to action against a physician’s hospital staff privileges, termination from private insurance and preferred provider organizations, and exclusion from Medicare and Medicaid. Medical Board action may also instigate malpractice claims if investigators make inquiries with patients. Clearly, such a series of events must be prevented if at all possible.
In the case of an arrest or criminal investigation, the physician should retain legal counsel to prepare a defense that takes into account possible consequences with the criminal courts, the Medical Board, hospital staff privileges, private payors, and government healthcare programs. A strategy that includes all of these components is essential to minimize the fall-out. All too frequently, for example, a physician will resolve a matter in the criminal courts on what would appear to be favorable terms, only to find that he or she is now exposed to Medical Board discipline and/or exclusion from the Medicare and Medicaid programs.
The starting point of any defense is the presumption of innocence. Unfortunately, it is frequently necessary to prove that the physician is not guilty of unprofessional conduct, and that he or she is able to practice medicine safely. Law enforcement authorities, including the Medical Board, often make factually incorrect allegations and overreach in their push to impose discipline. A well-prepared defense can correct false assertions by law enforcement and prevent a professionally damaging cascade of events.