THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA REGULATES THOSE PHYSICIANS WHO PRACTICE THE “WHOLE-PERSON” APPROACH TO DIAGNOSIS, TREATMENT, AND DISEASE PREVENTION.
The Osteopathic Medical Board of California files less than twenty (20) accusations a year. The limited number of accusations filed per year is largely due to the osteopathic medical community having relatively fewer members than other areas of medicine.Nevertheless, osteopathic medicine is gaining in popularity and as such more accusations will be filed in the future.
COMMON CAUSES OF DISCIPLINE FOR OSTEOPATHIC PHYSICIANS
Osteopathic physicians can face board discipline based upon a wide variety of conduct. The Board has discretion to discipline individuals on a case-by-case basis. Nevertheless, certain conduct appears to show up in disciplinary proceedings more than others. Below are common causes of discipline for osteopathic physicians:
- Driving Under the Influence: Driving under the influence is a quick way to be disciplined by the Board and potentially lose your license. In fact, driving under the influence is one of the top causes of discipline.
- Working Under the Influence: Although not nearly as common as driving under the influence, unfortunately, some osteopathic physicians succumb to working under the influence of drugs or alcohol.
- Self-Administration or Illegal Possession of a Controlled Substance: You may be disciplined if personally use, or possess, a controlled substance in an illegal manner.
- Inappropriate Personal Relations: Having an inappropriate relationship with a co-worker or patient may lead to discipline. Osteopathic physicians should strive to maintain professional boundaries.
- Inappropriate Work Conduct: Being accused of creating a hostile work environment, not conducting oneself according to certain professional norms, or unlawfully discriminating against an individual, may result in discipline.
- Receiving “Kickbacks” for Referrals: If an osteopathic physician receives a payment for a referral to a service for which payment is made under a federal health care program, that physician will be disciplined. Often in these types of cases, it is not the physician’s idea to receive kickbacks but the physician is approached by an undercover investigator who encourages and entices the physician to break the law.
- Dissemination of False, Fraudulent, Misleading or Deceptive Claims: Making certain claims, that cannot be verified, or are interpreted as misleading, especially in regards to advertising, may lead to discipline.
- Exceeding Scope of Knowledge, Expertise or Training: Treating complex high-risk conditions beyond the scope of a physician’s practice without having the necessary specialized training or experience may result in discipline.
- Improperly Prescribing, Furnishing or Dispensing Drugs: The number one most common way an osteopathic physician is disciplined by the Board, is for conduct related to, or involving, prescribing or dispensing drugs. If you are an osteopathic physician, you must be extremely careful when prescribing or dispensing drugs. Below are various actions related to drugs that may cause you to be disciplined:
- Lack of Examination or Diagnostic Work: Prescribing or dispensing drugs without prior physical examination or diagnostic work (including proper laboratory tests), as well as failing to perform periodic examinations of the patient, may lead to discipline.
- Failure to Exhaust Non-Narcotic Treatment Modalities: Failing to exhaust non-narcotic treatment modalities before prescribing or dispensing such drugs may result in discipline.
- Failure to Evaluate Risk/Benefits and Alternatives: Osteopathic physicians should have a conversation with their patients concerning the risks, benefits, and alternatives to drug prescriptions.
- Failure to Document Justification: Osteopathic physicians must document their justifications for dispensing or prescribing drugs. Failing to do so will likely result in discipline.
- Failure to Document Justification for Abnormal Dosages: When the patient’s drug dosage is abnormal relative to medical standards it is important to document the justification.
- Failure to Evaluate Addiction/Dependency Issues: Before and during the course of any treatment that involves addictive drugs, the physician must evaluate the patient for addiction and dependency issues.
- Failure to Create a Plan to Taper: After a patient has been prescribed or dispensed drugs, the physician must create and follow through with a plan to taper the patient off of potentially addictive drugs.
- Ignoring Addiction Red Flags: Osteopathic physicians are required to scrutinize their patients for improper drug use and addiction issues. Failure to do so may result in discipline.
- Allowing Unlicensed Employees to Dispense Drugs: Physicians have been disciplined for allowing unlicensed employees to dispense drugs when the physician is not present, or allowing those employees access to pre-signed or prepared prescription forms.
- Prescribing to Friends/Family: Physicians must maintain professional objectivity and therefore must not prescribe drugs to their family or friends.
- Documentation Errors: Failing to properly create or author required work documentation, as well as making inconsistent, erroneous, or illegible entries, in work documentation can quickly lead to discipline. This is especially true concerning controlled substances or treatment regimens that deviate from the medical standard. Remember, documentation errors is a leading cause of discipline.
- Ability to Practice is Impaired: If an osteopathic physician has a medical condition or dependency issue that prevents the physician from adequately performing their professional functions, that physician may be disciplined.
- Failure to Submit to a Psychological or Physical Exam: Under certain circumstances, and often due to work performance, an osteopathic physician will be required to submit to a psychological or physical examination. Failure to submit to examination will cause the osteopathic physician to be disciplined by the Board.
- Conviction or Discipline in Another Agency, State, or Court: The Osteopathic Medical Board of California will almost automatically discipline a physician when that individual has been found guilty of a crime, or has been formally disciplined by another government agency, state, or court.
WHAT SHOULD YOU DO IF YOU ARE BEING INVESTIGATED BY THE OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA?
If you are being investigated by the osteopathic Medical Board of California, you will likely be contacted by the Board or one of its agents. An instinctive reaction many individuals have to being investigated is to become dismissive or unresponsive to the Board. However, problems rarely resolve on their own. Rather than be dismissive or unresponsive, imagine feeling confident and determined knowing that an attorney is by your side advocating for you during the entire process.
Having an attorney by your side during the investigation can help you:
- Feel More Confident: As this will probably be a new experience for you, you will likely feel overwhelmed. Having an attorney by your side will help you feel more confident as the process is explained to you.
- Understand the Investigator’s Intentions: Based upon the actions of the investigator, an attorney may be able to figure out the investigator’s intentions and what conduct you will likely be accused of.
- Prevent Self-Incrimination: Having an attorney by your side will help you from accidently self-incriminating yourself.
- Prevent Perjury Traps: Dishonesty is a form of professional misconduct for which you can be disciplined. If an investigator believes that you have been dishonest, they will add that allegation to your accusation. Having an attorney help you can prevent the investigator from accusing you of dishonesty.
- Help with Exonerating Evidence: An attorney conducting their own investigation into the facts may result in uncovering evidence that exonerates you or portrays the facts from a more favorable perspective.
- Potentially Resolve the Case: An attorney may be able to convince the investigator that you have not violated any laws and steer the investigator towards evidence or facts which allow the investigator to reach the proper conclusion.
WHAT LAW ARE OSTEOPATHIC PHYSICIANS DISCIPLINED UNDER?
When you are served with an accusation, the accusation will likely reference California Business and Professions Code §§2234 or 2266. California Business and Professions Code §2234 lists various categories with which the Board may discipline an individual. Some of the categories include “gross negligence”, “repeated acts of negligence”, “incompetence”, and “dishonesty”. California Business and Professions Code §2266 allows the Board to discipline a physician for inadequate record keeping. Physicians are almost always accused of inadequate recording keeping during the disciplinary process.
POSSIBLE OUTCOMES AFTER FACING AN ACCUSATION
When confronted with an accusation, you are faced with a variety of possible outcomes. The outcomes range from being inconvenienced by the whole process to losing your license and owing thousands of dollars. Below is a list of the outcomes you may face:
- Win: You may win at the administrative hearing and, or, have the accusation against you withdrawn.
- Revocation: You may face losing your license and losing your career.
- Voluntary Surrender: In some circumstances, you may decide that voluntarily surrendering your license is the best resolution of the matter.
- Suspension: You may face being prevented from practicing your career for a fixed amount of time.
- Probation: You may be put on probation subject to certain conditions.
- Public Reprimand: You may face being publicly reprimanded on your permanent record.
- Fines: You may be required to pay the costs of investigation and enforcement of the accusation.
Obviously, the best possible outcome is to win your case. However, depending on the facts of the case and the evidence presented, that may not be possible. Some of the other outcomes should still be seen as victories depending on the circumstances.
Hearings before the Osteopathic Medical Board of California can occur quickly relative to the Court system. If you wish to challenge or contest the Accusation, generally, you must file a Notice of Defense with the Osteopathic Medical Board of California within fifteen (15) days of being served with the Accusation. California Government Code §11506(c). Failure to file a notice of defense will generally constitute a waiver of your right to a hearing. Therefore, it is imperative that you act quickly to protect your rights. Malakauskas Law, APC can get started on filing your notice of defense today.
WHAT IF YOU MISSED THE DEADLINE TO FILE A NOTICE OF DEFENSE?
If you missed the deadline to file a notice of defense, a default decision will be taken against you. Nevertheless, the Osteopathic Medical Board of California Board may grant a hearing “in its discretion” “on a showing of good cause”. However, a written motion requesting that the decision be vacated must be served within seven (7) days after service of the decision. California Government Code §11520(c).
Nevertheless, the more prudent action is to file your notice of defense within fifteen (15) days after being served with an accusation.
WHAT IF YOUR ACCUSATION HAS ALREADY BEEN LITIGATED AND YOU ARE ON PROBATION? WHAT IF YOUR PROBATION HAS BEEN THREATENED? CAN YOU END YOUR PROBATION EARLY?
The information above has explained the investigative process and accusations. However, what if you are far past the accusation process and have already received a disciplinary order. Perhaps you are on probation. If you are on probation, you must diligently follow all of your probation requirements. The Osteopathic Medical Board of California will file yet another accusation or a petition to revoke your probation if you violate probationary terms. However, regardless of whether an accusation or a petition is filed, you will have a right to a hearing. You are also entitled to have an attorney represent you at the hearing. Imagine the comfort and confidence you will feel in having a strong advocate at your side.
However, what if you have not violated any of the terms of probation but rather desire to end probation prematurely or change its terms? California Business and Professions Code §2221 allows you to petition the Osteopathic Medical Board of California for an early termination of your probation or to modify the conditions of probation. Malakauskas Law, APC, can evaluate your case to see if you qualify for either. If you do qualify, Malakauskas Law, APC, can start the process today.
IF YOU ALREADY LOST YOUR LICENSE, CAN YOU REINSTATE YOUR LICENSE?
What if you surrendered your license or your license has already been revoked? Perhaps you deeply regret losing your license. Visualize how amazing it will feel to get it back. Do you wish you could get it back? If so, you may be able to file a petition to reinstate your license. You are allowed to petition to the Osteopathic Medical Board of California under Government Code §2307 to reinstate your license. Similar to the accusation process, your petition will likely be determined by a hearing in front of an administrative law judge. You will have to prepare the petition and provide testimony. Malakauskas Law, APC, can get started on your petition today and advocate for you during the hearing. Fighting to help you reclaim your license.
You are already reading this as you desire more information, but why browse endless web pages looking for answers? Get the answers now. Call 866-790-2242 now for your free consultation.
(c)Malakauskas Law, APC. Attorney Advertisement. This website shall not be construed as legal advice and is for informational purposes only. Each and every case is different and requires an attorney to examine the specific case in question to arrive at an adequate legal conclusion. Consult with your own personal attorney for more information on the subject matters.