PAINKILLER LAW: California’s Medical Board in the Crosshairs, and the Wolf at the Door

Current political battles in California over prescription drug abuse are starting to remind me of the end of the first Gulf War in 1990. Back then, the U.S. purposely didn’t topple Saddam Hussein, out of justifiable concern that whoever succeeded him might be worse. Today in California, some key legislators want to strip the California Medical Board’s authority to investigate doctors, and hand it over to the criminal prosecutors in state Attorney General’s Office. The impetus behind this proposed change is the widely held perception that the Medical Board moves too slowly in going after suspected corrupt providers. But if the Medical Board loses its investigative authority, then the wolf is at the door, in the form of the A.G., and medical providers will be at even greater risk of overzealous, hyperaggressive, and inappropriately criminalized investigation and enforcement against prescription writing.

To be clear, I’m not always a fan of the Medical Board. I resent that investigators don’t feel they need to disclose the specific allegations behind an complaint or inquiry, even when they compel a medical provider or office staff to submit to lengthy interviews by Medical Board investigators (who are peace officers). I don’t like that the Board reflexively asks for suspension of medical practice as a condition of bail or release on one’s own recognizance, if criminal charges are filed against a doctor or PA or osteopath. And I especially disdain the Board’s use of the terms “overprescribing” and “not for legitimate medical purpose,” when California law pointedly does not define the terms to begin with.

But the Attorney General would be worse in the role of primary investigator, for several reasons. First, the A.G. is a constitutional officer, an elected official. A hot-button issue like prescription drug abuse, in the hands of a politician, becomes even more dangerous for the individuals targeted by the new initiative. Second, Deputy Attorneys General in California ordinarily don’t prosecute a lot of cases at the Superior Court (trial court) level; they handle appeals very ably, but they’re not trial lawyers in the same way district attorneys or city attorneys are. When you don’t try cases a lot, you don’t have the perspective and judgment and restraint that only volume and experience will bring. To quote Sean Connery in “The Hunt for Red October,” I don’t want some “buckaroo” coming after my client; I’ll take an experienced prosecutor who’s not cutting their teeth on a doctor’s bones, thank you. Third, with the Medical Board, the complaints start out as criminal in nature – that is true, and I’ve heard it publicly stated by no less than the Board’s director of enforcement. But the Medical Board is sometimes content to let a matter devolve into an administrative issue. Would criminal prosecutors, led by an elected official eager to show success before running for higher office, ever be willing to let a case ease down? Not if there’s any risk it will make them or their boss look soft.

If the legislative push against the Medical Board is just puffing in order to get the Board to “improve,” that’s one thing. But if the A.G. actually ends up taking over the Board’s function as primary investigator of targeted medical providers, it will be a feather in the cap for law enforcement, and a bullseye on the back of many innocent medical practitioners who don’t deserve criminal scrutiny.

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