Earning a Doctor of Osteopathic Medicine (DO) is a rigorous and challenging journey that requires years of intense study, clinical rotations, residency training, and a substantial financial investment. Osteopathic physicians receive extensive training and study not only in the traditional medical sciences, but also in preventative medicine, holistic wellness, and osteopathic manipulative treatment.
The last step to becoming an active practitioner is to obtain a professional license from the Osteopathic Medical Board of California (OMBC) upon completion of this path. Having a professional medical license is the basis of your career, reputation, and livelihood. Unfortunately, this valuable asset can be jeopardized by a single complaint, an administrative oversight, or an allegation of misconduct.
An investigation or formal allegation by the OMBC can be a stressful and disruptive event for an osteopathic physician. When you are being investigated or have been formally accused, it is vital to have a seasoned lawyer defend your career. The San Francisco License Attorney provides expert legal representation to healthcare practitioners, including osteopathic doctors in San Francisco, CA.
The Role of the Osteopathic Medical Board of California (OMBC)
It is important to know the regulatory agency governing your profession to defend your professional license. In California, osteopathic doctors are regulated by the Osteopathic Medical Board of California, not the Medical Board of California.
The board’s regulatory and enforcement activities often appear quite confrontational to the practitioners being regulated. The board is committed to upholding standards for the osteopathic profession, but the relationship between the board’s regulatory and enforcement activities and the regulated profession can be quite adversarial at times.
The OMBC’s first and foremost responsibility is to safeguard the public. The board achieves this goal by:
- Issuing licenses to osteopathic physicians
- Setting standards of professional conduct
- Investigating complaints against licensees
- Issuing citations
- Presenting accusations
- Leading disciplinary actions from a public reprimand to full license revocation
Common Allegations And Violations Against Osteopathic Physicians
The OMBC receives complaints from many different sources, such as:
- Patients
- Family members of patients
- Insurance companies
- Law enforcement
- Other health care providers
- Out-of-state licensing boards
Some of the most common allegations that lead to investigations and disciplinary action against osteopathic physicians include:
- Substance Abuse and Chemical Dependency
The OMBC takes issues of substance abuse seriously, such as DWI, self-prescribing of controlled substances, and/or a conviction for driving while intoxicated (DWI). The board considers substance dependency to be a direct threat to patient safety.
The board may refer any physician suspected of having a substance abuse problem to a clinical evaluation and impose harsh restrictions, suspension, or participation in a monitoring program.
- Inappropriate or Excessive Prescriptions
Prescribing of controlled substances, especially opioids, is under scrutiny by regulatory bodies. If it is alleged that a physician has not performed a good-faith examination before prescribing, overprescribing, or prescribing to a patient suspected of drug abuse or diversion, the board may conduct an investigation immediately.
In addition, if a report is not required to be run under CURES (Controlled Substance Utilization Review and Evaluation System), failure to run it can also lead to disciplinary action.
- Gross Negligence or Repeated Negligence Acts
Medical errors can occur in any practice, but when they constitute a significant deviation from the standard of care, they may be considered gross negligence. Disciplinary action may also be taken for repeated instances of simple negligence, even if none of the incidents are, in and of themselves, considered gross negligence.
The board assesses the physician’s clinical judgment, ability to make treatment decisions, and competence to determine whether they present a risk to patient safety.
- Sexual Misconduct and Boundary Violations
Given the hands-on nature of osteopathic manipulative medicine, it is crucial to build trust with patients and maintain professional boundaries. The board takes allegations of inappropriate touching, sexual comments, and/or romantic relationships with an active patient extremely seriously, and in such cases, interim suspension orders are often issued immediately while the investigation is underway.
- Inadequate Medical Recordkeeping
It is legally and professionally required to maintain accurate, detailed medical charting. Inadequate or incomplete patient records can make it difficult to defend against medical malpractice or negligence claims. In some situations, inadequate recordkeeping is considered a separate violation of the Business and Professions Code, even when the clinical treatment is appropriate.
- Criminal Convictions
California law requires disclosure of any conviction, regardless of the charge, whether misdemeanor or felony, that is substantially related to a physician’s qualifications, functions, or duties. This can encompass charges of financial fraud, domestic violence, assault, theft, or multiple DUIs. The OMBC will consider the circumstances of the conviction and decide whether to impose any disciplinary measures on the license.
Aiding and Abetting the Unlicensed Practice of Medicine
It is a serious violation if the assistant or a trainee is not licensed to perform the tasks. Osteopathic physicians should ensure that any person working under their supervision is licensed and certified, and that they are working within their scope of practice.
The Disciplinary Process From Complaint to Administrative Hearing
Administrative disciplinary procedures can be daunting for healthcare workers unfamiliar with the legal process. The process usually consists of multiple stages:
Phase 1: The Initial Investigation
It starts with a complaint filed with the board or a mandatory report, including a malpractice settlement or a criminal arrest report, that is made to the board. If the board finds that there may be a basis for the complaint, it is referred to an investigator, typically from the Department of Consumer Affairs’ Division of Investigation.
In this stage, the investigator can obtain patient records, interview witnesses, and interview the doctor. It is important to understand that any testimony given to an investigator will be used against you in future proceedings.
It is strongly recommended to obtain legal representation before speaking with an investigator or providing records.
Phase 2: Referral to the Attorney General’s Office
If misconduct is found during the investigation, the case is referred to the Office of the California Attorney General. A Deputy Attorney General reviews the file to determine whether discipline should be issued. If so, a Deputy Attorney General prepares an Accusation.
Phase 3 – The Accusation and the Notice of Defense
The Accusation is a public document filed with the OMBC charging a physician. The document describes in detail each charge against the physician, the relevant CMC sections the physician is charged with violating, and the proposed disciplinary action.
The Accusation will be served with a Notice of Defense that must be completed and filed with the Office within 15 days from the date of service of the Accusation. Failure to file a completed Notice of Defense within the 15 days will result in a default decision against the physician, which typically results in immediate revocation of the physician’s license to practice osteopathic medicine in California.
Phase 4: Disco and Settlement Negotiations
Once the Notice of Defense is filed, the defense lawyer will seek discovery from the Attorney General’s office. This includes all investigative reports, witness statements, or expert reviews that the board will rely on.
The attorney can analyze this evidence, identify the weaknesses in the state’s case, and develop a defense strategy accordingly. This period may be when settlement negotiations can occur. The purpose of these negotiations is to reach a negotiated agreement (settlement) that will allow the physician to continue practicing under a probationary term, with agreed conditions, rather than a full administrative hearing.
Phase 5: The Administrative Hearing
If a mutually agreeable settlement cannot be reached, the case goes to an official administrative hearing. This hearing will be conducted before an Administrative Law Judge (ALJ) of the Office of Administrative Hearings.
While similar to a civil court trial, administrative hearings have different rules of evidence and procedure. The Attorney General’s office will present evidence and witnesses to substantiate the allegations, and the defense attorney will present cross-examinations, defense witnesses, expert testimony, and mitigating evidence.
Phase 6: Proposed Decision and Final Board Action
After the heading, the ALJ will prepare a Proposed Decision that contains findings of fact, legal conclusions, and a recommendation for disciplinary action. This Proposed Decision is presented to the OMBC.
The OMBC has the final say on the Proposed Decision. If the board agrees on a disciplinary action, it will issue a Final Decision and Order that will include the date the discipline will take effect.
Possible Consequences of Board Discipline
There are several consequences in the administrative disciplinary system, depending on the nature and extent of the alleged violations and the defense presented:
- Case Dismissal — If the investigation does demonstrate a violation or if the defense can establish that there was no violation, the case may be closed without any formal action.
- Public Reprimand / Letter of Public Reproval — A formal warning that is a part of the public record but does not limit the physician’s right to practice medicine. It is usually reserved for minor and first offenses.
- License Probation — The doctor can continue to practice and must meet certain requirements for a set period of time, usually 3-5 years. Conditions of probation can consist of periodic drug testing, practice monitoring, more continuing education classes, psychological evaluations, or restrictions on prescribing certain medications.
- Suspension — The physician’s license is temporarily suspended, which means that the physician is not allowed to practice for a specified time. This is typically followed by probationary periods when the practice is resumed.
- Revocation — The most extreme measure, in which the physician’s license is revoked, and the physician may not practice osteopathic medicine in California.
- Surrender — In other instances, the physician may wish to surrender their license without a formal hearing, usually because they are considering retiring or moving out of clinical practice.
Importance of Early Legal Representation
A common mistake made by many healthcare professionals is to think that they can conduct a broad investigation on their own, believing that if they explain their side of the story, then the investigation will be over. Administrative investigators, however, are trained to collect evidence to establish a case, and seemingly benign words can be misinterpreted or used as evidence in an accusation.
Having a licensed defense attorney present at the beginning of your case, preferably when you first get a letter of inquiry or notice of investigation, can make a big difference in how your case unfolds.
An attorney can:
- Communicate with the board and investigators on your behalf and prevent you from inadvertently incriminating yourself
- Request and review the basis for complaints and evidence to determine the scope of the inquiry
- Advise you on how to respond to requests for records or interviews
- Present mitigating evidence and a clear narrative to the investigator before the Accusation is drafted. This could lead the investigator to close the investigation without formal disciplinary charges.
- Ensure you resolve any underlying issues, such as joining a voluntary treatment program or participating in relevant education that demonstrates rehabilitation and adherence to professional standards.
Reinstatement of an Osteopathic Medical License
Losing your osteopathic medical license or having it revoked does not always mean your career is completely lost. California law allows a petition to the OMBC for reinstatement of a revoked or surrendered license after a waiting period of 3 years, which may be shorter or longer depending on the board’s order.
The process of petitioning for reinstatement is lengthy. The burden of proof is on the petitioner to prove that he is rehabilitated and fit to practice medicine by clear and convincing evidence.
When writing a petition for reinstatement, it is important to include the following:
- A statement acknowledging the past wrongdoing or problems that resulted in the discipline
- Progressive, concrete evidence of rehabilitation, for example, sustained sobriety, therapy, clean criminal records, and community involvement.
- Continuing education courses, seminars, and self-study to maintain medical knowledge during the revocation period
- Letters of recommendation from professional colleagues, mentors, or treatment providers
Find License Defense Help From a San Francisco License Attorney Near Me
An investigation or disciplinary proceeding by the Osteopathic Medical Board of California is a serious matter and should be addressed promptly and strategically. You and your reputation are too important to gamble with. When your professional conduct is subject to question, it can be stressful. At San Francisco License Attorney, we offer a cost-free and confidential consultation to discuss your issues, address your questions, and explain how we can help you navigate the administrative process. Do not hesitate to call us at 415-707-6383 if you are facing the loss of your license or career.
