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Cooperating with the State Medical Board of Ohio May Lead to Criminal Liability

Published: Dec 15, 2020 by Brandon Smith

Physicians, physician assistants, and others licensed by the State Medical Board of Ohio can be subjected to discipline, up to and including permanent revocation of their medical license, for failing to cooperate in a Medical Board investigation or for failing to answer truthfully questions presented to them by the Medical Board during investigations. The Medical Board may, in turn, share the information it gathers with law enforcement agencies—and may do so without the licensee’s knowledge or consent.

On December 15, 2020, the Supreme Court of Ohio confirmed that law enforcement agencies and local prosecutors can use the information gathered by the Medical Board to obtain criminal convictions against physicians.

In the case before the Court, the physician had denied wrongdoing when interviewed by the local police. When a Medical Board investigator showed up at his office, however, he cooperated and truthfully answered questions—making admissions that eventually led both to the permanent revocation of his medical license and also to a jail sentence.

The Court’s decision affirms the catch-22 those of us who regularly appear before state boards and agencies already knew existed. If a physician fails to cooperate in an investigation by the Medical Board, the Medical Board may take disciplinary action against the physician’s license for that failure. If, on the other hand, the physician cooperates, the Medical Board may pass information along to the local prosecutor and the physician may face criminal charges which, in turn, could also result in a disciplinary action by the Medical Board.

The Court left a narrow window to escape this catch-22. Because a medical license is a property right afforded constitutional protections, if the Medical Board coerces cooperation in an investigation by threatening to revoke the physician’s license, then the statements made during the interview with the Medical Board may not be admissible in a later criminal case. In order to use this exception, however, the belief that failing to cooperate will result in the loss of a license must be both subjectively believed and also be an objectively reasonable belief.

In other words, not only does the physician being questioned need to believe that failing to cooperate will lead to the revocation of the physician’s license, but that belief has to be reasonable. In this case, even though the Medical Board investigator was working directly with the local police department the Court determined that there was no coercion. This was true even though the investigator had spoken to the local police prior to interviewing the physician, the investigator’s admitted goal in interviewing the physician without law enforcement present was to obtain information that could be used to convict the physician and, thus, make a disciplinary action against the physician’s license easier, and the investigator’s first stop after interviewing the physician was the local police station. The Court seems to have reached this conclusion because there was no overt threat by the investigator and because the use of Medical Board disciplinary procedures is discretionary. Because the Medical Board could have chosen not to act, or could have chosen to act in a way that did not lead to loss of the medical license, there was no coercion—never mind that the physician did, in fact, surrender his license and agree to a permanent revocation of his license.

Speaking with a Medical Board investigator, rather than with law enforcement, does not shield you from criminal liability. In fact, as this case makes abundantly clear, doing so may actually expose you to criminal liability.

You have the right to consult with legal counsel prior to speaking with an investigator and you have the right to counsel during an interview with the Medical Board. If you need help responding to a Medical Board investigation, you should consider contacting the experienced defense attorneys at Graff & McGovern, LPA for a no-cost initial consultation. Attorney Levi Tkach is available at levi@grafflaw.com and (614) 228-5800, ext. 4. Attorney Brandon Smith is available at brandon@grafflaw.com and (614) 228-5800, ext. 7.