Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Physicians often believe that if they are honest and forthright they do not need to worry about being interviewed or questioned by an investigator looking into potential criminal charges. Before speaking with any investigator from any investigative agency, physicians should carefully consider the pitfalls of making statements that can later be used in criminal charges. Physicians who are contacted by any investigator should know their rights and statutory protections and consult with competent legal counsel before making any statements to anyone.
Mistake 1 Failing to Get the Investigator’s Name and Proper Identification
When contacted by an investigator or a government representative, physicians should ask for a business card and picture identification that includes the person’s name, title, and employing organization or agency. Physicians should not be timid about asking to copy the picture identification. They should politely ask that each person present identify himself or herself by card and picture identification. Physicians should keep the business cards and other identifying information so that they can later contact and distinguish the investigators. At times, investigators (one a criminal investigator and the other an administrative investigator) from two or more agencies may contact a physician. A physician’s rights, protections, and duties may differ depending on the type of investigation and the agency conducting it. For example, a state’s professional licensees may not have the same constitutional rights as ordinary citizens because of administrative rules governing licensed professionals. A state licensee may not have the same rights to a Miranda warning that ordinary citizens may have. Rights and protections in administrative investigations differ significantly from those in criminal investigations. Physicians may not appreciate the subtle nuances and legal issues arising from an investigation until and unless they can identify the people and the agency making the contact.
Action Step When contacted by an investigator or a government representative, physicians may, understandably, be nervous, frightened, and not likely to think clearly. They should collect their thoughts and politely ask the investigator to return at the end of the day or wait until they can respond appropriately out of the sight of patients and staff and after they have consulted with an attorney. Physicians should ask the investigator why they are being contacted and what the government representative seeks. After considering the response (if any response is even given) as well as the issues discussed in this mistake and the other mistakes discussed in this section, a physician may then decide how best to respond to the contact.
Mistake 2 Failing to Consult With an Attorney Before Meeting With an Investigator or Before Making a Statement
Physicians have the right to have an attorney present during any and all interviews, conversations, or investigations. Investigators or government representatives may say that a physician does not need an attorney, or they may say that if the physician gets one things will only go worse for him or her. Investigators may try to persuade physicians that they will look guilty if they contact an attorney. This is absolutely untrue. Physicians may politely inform an investigator that they will respond promptly when lawfully subpoenaed, after a patient has given written consent to disclosure of requested documents, and after they have consulted with their attorney. When an investigator tries to convince a physician not to consult with an attorney or not to have one present during an interview, the physician should ask himself or herself why the investigator would be offering this encouragement. Is the investigator or government representative truly acting in the best interests of the physician or is the agent discharging his or her duty to someone else?
Action Step Physicians should remember that it is not the investigator’s duty to protect them. In fact, they should not expect an investigator to protect them, to help them out of a “problem,” to take their side, or to be their advocate because an investigator won’t. It is not the investigator’s job to do so, and it is not the reason the physician has been contacted. Once a physician has met with an investigator and given a voluntary statement, it may be too late to clarify or amend that statement. It is best to get competent legal advice before meeting with an investigator.
Mistake 3 Failing to Protect One’s Constitutional Rights
Physicians who have been contacted by an investigator or a government representative for any reason have the lawful and constitutional right not to be interviewed, not to make a statement, not to speak on the telephone, and not to answer any questions until they are lawfully subpoenaed (or have written permission from a patient) and only after they have had the opportunity to consult with an attorney. Physicians have the constitutional right to remain silent even when threatened or intimidated. That silence cannot be construed as guilt or as an obstruction of justice. Physicians have the right to be subpoenaed and to have a reasonable time (usually at least 14 days or as otherwise ordered by a court) to respond to a subpoena. They always have the right to remain silent and to speak with an attorney before being questioned, whether or not the investigator or government representative tells a physician of these rights.
Action Step Conversely, physicians have the right to defend themselves vigorously, make statements, and provide other information to the investigator if they choose. Physicians who have something to say that will address the concerns and answer the questions of an investigator should first calmly gather their thoughts, review appropriate documents, and consult with an attorney. An ethical and lawful investigator will be willing to wait for lawful cooperation so that the physician can make a full, thoughtful, informed, and honest response.
Mistake 4 Failing to Make Informed and Lawful Responses to Investigators
An investigator or a government representative may not lawfully or ethically threaten anyone with criminal prosecution in order to get a statement or gather information from that person. These agents use surprise, confusion, subtle or outright intimidation, and threats to get people to say things they may not truly mean, answer questions they may not fully understand, or agree to events that never happened the way the investigator or others have portrayed them. Unless a subpoena or search warrant commands immediate delivery of documents, physicians do not need to respond “on the spot.” Physicians should not feel hurried, stressed, intimidated, or confused when speaking with an investigator. They can never be interviewed or questioned on the spot without first having the opportunity to consult with an attorney, unless they waive their right to consult with an attorney and choose to answer questions voluntarily. The investigator may not be lawfully obligated to remind the physician of his or her constitutional rights against self-incrimination and the right to an attorney. An investigator may try to persuade a physician to give information immediately under the guise of “not bothering you anymore” or so that the matter “can be closed.”
Action Step Physicians should not be persuaded to waive their constitutional rights until they have had an opportunity to make informed decisions about their response (if they choose to respond). In many investigations, it’s not what a person did not say that caused problems, but rather what was said without first being fully informed and competently advised that caused a problem or misunderstanding.
Mistake 5 Believing Everything That Was Seen or Read
Investigators, government representatives, and police officers do not have to give truthful or accurate information when interviewing or questioning a person. They may not know the information gathered thus far in an investigation is incomplete, inaccurate, or false. A physician may have been contacted to clarify, corroborate, interpret, or dispute information gathered from other witnesses. An investigator may innocently or purposely tell the physician something that is potentially misleading, incomplete, or false to see the physician’s reaction, to elicit a response, or simply to gather more information in the course of the investigation.
Action Step Physicians should not believe everything they are told by any investigator. Conversely, if they decide to say anything, after they have consulted with an attorney they should always give complete, accurate, and truthful information when answering any questions or providing any documents.
Mistake 6 Meeting With an Investigator Alone
Physicians risk confusion or misunderstanding if they meet with an investigator or a government representative alone or talk to these agents on the telephone. These agents cannot be identified or their credentials verified over the telephone. Face-to-face meetings allow better interaction and dialogue and facilitate more thoughtful responses than a quick telephone call. An unscrupulous person may falsely identify himself or herself as an investigator to obtain information unlawfully. In addition, in some states (but not all), for example, any party to a conversation may secretly record that conversation (although a person cannot lawfully intercept a conversation without a court order). Therefore, it is lawful for an investigator or a government representative to record the conversation without telling the other party to that conversation. Physicians who are interviewed alone can be misunderstood or misquoted by an investigator when they were honestly trying to explain in good faith. Such comments or explanations become difficult to dispute and a challenge to correct if the conversation was not recorded or another person was not present.
Action Step Physicians should not meet alone or speak with an investigator or a government representative on the telephone.
Mistake 7 Failing to Understand That Anything Said Can and Will Be Used
When talking to an investigator or a government representative, anything a physician says can and will be used against him or her. Unless the physician has been arrested or is in custody (prevented from leaving the room), an investigator or government representative may not be required to give a Miranda warning (i.e., “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have a right to have an attorney present during questioning, . . .”). A Miranda warning is required only when a person has been arrested or is detained in a criminal investigation. The statements of physicians who have not been arrested or detained, or are being investigated administratively (e.g., by a licensing board) rather than criminally are deemed voluntary and can be used against them. Even in criminal investigations, if a physician is not being detained or has made statements voluntarily, what the physician says can be used against him or her.
Action Step In response to any contact by any investigator or government representative, whether or not they are told of their rights, physicians have the right to remain silent, the right not to incriminate themselves, and the right to speak to an attorney before answering any questions. Physicians have all their constitutional rights no matter the reason for the contact. They will not look “guilty” by asserting their constitutional rights and taking a reasonable time to respond to an investigator. An investigator cannot give or take away constitutional or statutory rights; people have them regardless of any warning (or lack thereof) that they are given. Under certain circumstances, an investigator only has to inform a person of his or her constitutional rights and protections before questioning that person and may not lawfully continue to question (or even directly contact) that person if he or she asks to speak with an attorney. Therefore, a physician’s rights do not arise because an investigator invokes them on the physician’s behalf; those rights always exist under the U.S. Constitution, state constitutions, and other statutes and rules until and unless a physician waives them and makes a voluntary statement.
Mistake 8 Failing to Tell the Truth, the Whole Truth, and Nothing But the Truth
When communicating with an investigator, physicians must always provide full, accurate, and absolutely truthful information in response to any questions they choose to answer and as advised by their attorney. Physicians must always lawfully cooperate with an investigation. It is unlawful for any person to advise physicians not to cooperate with an official investigation. Likewise, preservation of their constitutional rights does not always mean that physicians can withhold certain information when lawfully subpoenaed or given a proper request by a patient. Physicians must never obstruct any investigation; unlawfully withhold any lawfully requested or subpoenaed information or testimony; destroy, alter, or hide documents or other information; give or encourage false, inaccurate, or misleading information; encourage or suggest that others should not cooperate lawfully and fully with any investigation or proceeding; or threaten others not to cooperate lawfully with an official investigation. The crime of witness tampering is a felony in most states. Such a charge can be an effective tool used by prosecutors to sanction unlawful contact with potential witnesses. There are notable incidents in which people have not engaged in any criminal or other unlawful conduct until after they were contacted by an investigator, at which point they attempted to cover up perceived wrongdoing or encouraged others not to cooperate with an official investigation. Recent events involving Martha Stewart well illustrate the caution with which one must approach an investigation and the careful response that must be made to questions from any investigator. Notably, Stewart was not charged with the crime for which she was originally investigated, insider trading. Rather, she was charged with and convicted for conspiracy, obstructing justice, and lying to federal investigators, all of which allegedly occurred after she sold her shares of stock in ImClone.
Action Step Physicians should not tell a colleague, patient, employee, or friend what to do when they are contacted by an investigator, other than to encourage them to contact an attorney.
Mistake 9 Disclosing Confidential Information Without a Proper Written Release or Subpoena
Medical records, patient charts, and billing information maintained in physician offices are confidential and should be discussed only after proper written releases are obtained or lawful subpoenas served. Other communications might be privileged and therefore lawfully protected from disclosure. For example, privileged communications that include correspondence and discussions with attorneys, communications with spouses, and oral or written communications concerning peer review and health care quality improvement are usually protected under state law and federal regulations. By discussing such communications with others, physicians may unwittingly waive the protections afforded to them under the law and may incur liability to a patient or others for disclosing confidential and/or privileged information. Before responding to a request to discuss any information or provide any documents to any investigator, it is wise to discuss or inform the patient whose records are requested and to discuss the request with other colleagues, a HIPAA and/or compliance officer, and legal counsel before allowing inspection or copying of such records. Because of strict guidelines and regulations under HIPAA (the Health Insurance Portability and Accountability Act), physicians must be careful to respond lawfully to any request for personal health information. Some investigators will claim, perhaps correctly, that the requested documents are exempt from HIPAA or that other laws or regulations permit immediate inspection of documents. There is an exemption under HIPAA for law enforcement to obtain certain information. However, the confidential information must still be lawfully subpoenaed or produced in compliance with HIPAA.
Action Step Physicians may determine for themselves whether the investigator has lawfully and correctly informed them of their rights and duties under the law after careful review and legal consultation. They may then determine what documents may be lawfully inspected or copied. If documents have been lawfully requested, physicians should provide only photocopies of the documents and never the originals.
Mistake 10 Failing to Lawfully Maintain and Protect Patient Charts
All original patient charts and other records, including billing statements and underlying documentation, must remain within physician offices and within physician control at all times. Original documents should never be released to any investigator or government representative in exchange for an evidence receipt. Physicians should make copies of the records and provide the copies in response to the request. Physicians may recover the reasonable cost of copying the requested documents. If they release original patient charts and other documents, physicians have no way to know whether any particular document is altered, lost, or destroyed. They will be unable to review their own records to respond to an investigation. The only way to ensure the integrity of their own patient charts and billing records is to always keep the original documents within their possession, custody, and control. Further, physicians have a lawful obligation to protect certain information under HIPAA and other laws.
Action Step To protect themselves and to comply with all applicable laws, physicians should respond only to lawfully issued subpoenas or after a patient has given written permission for inspection and copying of the documents.
Physicians dealing with criminal investigators should avoid the mistakes discussed in this section.
Harold L. Reiser, Esq.
Peer reviewed by:
John Bradley, Esq.