What to Do When the Investigator or Prosecutor is at the DoorPresented at the spring meeting of the Association of American Physicians and Surgeons, Chicago, June 2001
by Glen Crick, Esq
The investigator is not your friend. If you don't remember anything else, remember this.
The topic of my discussion generally is what to do if you are investigated-or more importantly, what not to do.
The first rule is: Do not panic. Everybody who practices medicine long enough in this country is going to be investigated. Talk to some people who have walked this road before.
The second rule: Don't be in a hurry. I have learned this from being on every side of the fence there is: I have been an investigator, I have been in charge of prosecutors, I have been a defense attorney, and I have been accused of bad things. The passage of time will only work to the benefit of the accused.
If you took a journalism course, you learned about the five W's: who, what, where, why, when, how. I add “so what?” That's where you start when you're being investigated.
The first question to ask before you do anything else is: Who is investigating me? People come to my office and say, “Glen, they came in and they took my records.” Who? “The police.” There are 26 separate law enforcement entities operating in Cook County Illinois: Which one? Find out.
Next question: Who is being investigated? It might be the guy down the hall, and you might want to talk to the investigator. But if you're the one, think twice.
Third, what are they investigating? Is this an OSHA person? Is this a Medicaid fraud investigation? The sexual abuse task force? The Department of Children and Family Services? This is one of my favorites: Always be aware of the sensitive attempts to minimize. “Doctor, it's just a routine investigation.” It may be routine to the investigator, but it's not routine to you. And good investigators will say: “We just want to ask you a couple of questions.”
Depending on the answers you get to these questions, decide whether you are going to talk to them or not. Nine out of ten times I would tell you not to. But make a decision.
In making the decision as to whether to speak to the investigators initially, remember patient confidentiality.
A horror story out of school: The Illinois Department of Professional Regulation sent an investigator out to talk to a psychiatrist about a particular patient because the insurance company found that he did not keep progress notes. The doctor sat down with the investigator, who asked what was going on, and the doctor told him: the patient was very paranoid and was concerned that his records would fall into the hands of the KGB. The doctor is now being prosecuted by the Department for breach of patient confidentiality.
The decision as to whether or not to talk to the investigator is one of the most agonizing and important decisions I ever make. My inclination is not to, if my client is wrong. (Let me say as an aside that I prefer my clients to be wrong. When somebody is wrong, I can come up with a good defense; I can negotiate; I can maneuver; I can use all my skills. When he is right, I just have to trust in God and do the right thing.)
If my client is wrong, I am not going to talk to the investigator because he is going to tell the story later. I want that story told one time and one time only, when it counts -in front of the jury or the medical board. Remember: they will use your words against you. As Abraham Lincoln said, even a fish wouldn't get in trouble if it kept its mouth shut.
If my client is right, it's a harder decision because I can start planting seeds that may eventually make the thing go away. I suggest you talk to somebody else before you decide.
If they decide not to talk to the investigator, I used to tell people to just say no. But I heard recently about a lost tribe in the Amazon, which has no conflict. They can't say no; there is no word for it. What they can say-and they can say it about 20 different ways-is “let me get back to you.” If the investigator wants to talk to you, don't say no, say “let me get back to you-after I talk to my attorney.”
I don't know how many people have said to me, “Well I talked to him because I didn't want to make the investigator mad.” Now everybody wants to be liked. Find somebody to like you besides the investigator. Imagine this conversation: “Glen, I am going to jail for three years and paying a $25,000 fine, and I can't practice medicine for at least five years, but you know, I think the investigator really likes me.”
Another one of the minimalizing techniques that investigators are trained to use: They are good at empathizing with the people they are investigating and finding some sort of a bond with them. One of my favorites is: “It will look better if you cooperate with us.” It will look better for the investigator. It looks worse for you, and they get more information.
Consider the Federal Drug Enforcement Agency. At the outset, the DEA often says, “It would be in your best interest-it would look better for you if you surrender your DEA registration today.” And physicians routinely do that. Illinois is a dual registration state; it issues a license to practice medicine and an Illinois controlled-substance registration. Usually, the Federal Government will mirror what Illinois has done. However, if the doctor has surrendered his DEA registration, I have got nothing to argue about before the Department of Professional Regulation.
Representing doctors is difficult because before I get involved they have generally already talked to the investigator. I think it's because during your entire education you explain things. When an investigator comes in, your first instinct is to explain. Henry Ford said, “Don't complain, don't explain.”
Don't explain. In explaining, you make a number of assumptions. (1) The person is listening. Webster's Dictionary defines an investigation as a critical search for the truth. I have never heard an investigator, other than myself, use that definition. Ask an investigator what he does. He'll say: “I gather evidence to prosecute this type of crime.” (2) The person can understand. Medical doctors generally do not investigate medical doctors. It's generally a state legislator's brother-in-law. (3) They'll believe you. If they've gone into this investigation with a preconceived notion of your guilt, they are probably not going to believe you. (4) They care whether you are right or wrong. (5) The explanation makes a difference. The investigator usually doesn't have any control. So I would hold the explanations for someone who is listening, who understands, and who is in a position to do something about it.
If you are going to talk to the investigator, do not lie. One of my physician clients went to federal prison for lying to the DEA during a drug audit. It's a federal crime.
Regarding subpoenas: If they show up with guns and a search warrant, there is nothing you can do. Stand back, ask them for a receipt, and try to keep an eye on what they are taking. But if they serve you with a subpoena for your records, take your time responding. Talk to an attorney before you release anything. Make a copy of everything you give, Bates stamp it, index it, and keep a careful inventory.
If you are told you have the right to remain silent, for God's sake remain silent. That is called the Miranda Warning. The Miranda Warning is only given to someone who is the subject of a criminal investigation. Good investigators will minimize that. If I were going to give somebody the Miranda Warning-and I used to do that-I would say: “Doctor, you watch television don't you? You know what the Miranda Warning is? The Supreme Court says we have to give this to everybody we talk to now, so just bear with me for a second.” And then I would read it out and then I would ask whether there were any questions. Nothing to it, right? If you see it on television, there is nothing to it, so don't worry about it.
If you've disregarded everything else I have told you, and you have decided to talk to the investigator though he has told you you've got the right to remain silent, there is something still worse that you can do: give a written statement. Do not give a written statement. I will guarantee you this: a written statement will never ever ever ever ever be used in your favor. It will only be used against you.
Remember this: 95% of all of the cases-criminal, administrative, or civil-are settled. If you are going to have a negotiated settlement, the less information the other side has, the better. Knowledge is power. And where do they get most of the information? Who has the most information? You do.
When that audit shifts to the investigative stage, make a decision as to whether or not to be involved in it. And if you are going to give out information, do it through a third party. If I say you are a wonderful physician, that is advocacy. If you say it, it's ego. Have somebody else advocate for you, and have somebody else transmit information.
If you are invited to an informal or disciplinary conference before a licensing agency, make a decision as to whether or not to go. By no means go in without counsel. I agonize with my clients over this question. Most of the time, if my client is wrong, I don't go. I want them to file a formal complaint so I can see specifically what they are alleging. If my client is right, it becomes more problematic. If we have a very good position, we might be able to make the thing go away. Even if you do decide to talk to the investigator or go to a conference, remember this: you can stop at any time.
Let me remind you: don't get in a hurry. Things change. Witnesses die; witnesses move. A case at first may seem very important to the prosecutor. If I can stall for a year, the prosecutor is looking at a way to get rid of it. There's a story in the Arabian Nights: The Shah of Persia decided to have two people executed. One sent a message saying that “if you don't execute me, I will teach your horse to fly.” The Shah was not stupid, but he had nothing to lose. The other condemned man wondered why bother: it was just postponing the inevitable.
“But think about this,” the man replied. “In a year the horse could die of natural causes; I don't know what happens then. In a year, I could die of natural causes, so it is no great loss. In a year the Shah could die. In a year the horse could fly.” I'll tell you something: I have seen horses fly.
Another problem: employees. As somebody once told me, Jesus had twelve. One doubted Him, one denied Him, one betrayed Him. That's a 25 percent failure rate for the person that some people think is the Son of God.
As an investigator, I was always looking for the weak link. In the language of the trade, I was looking for somebody to flip. The best case is to have the office manager testifying about how the doctor instructed her to miscode. The other term of the trade is a hammer. I am looking for something that can encourage the office manager to flip, such as something that she has done wrong.
My advice is very basic: Be careful who you let get close to you. The people closest to you are the ones that will betray you. Be nice to them. Give them clear instructions, preferably written instructions. If you know you are being investigated, call your staff in and tell them. If you really think you may have a problem, you might suggest to them that they get an attorney to represent them at your cost. But if you do that, be willing to pay for the attorney and stay out of it.
The last thing I've got to say is, remember, if you become the target of an investigation, you will get through it. You are going to practice medicine again. Life will go on.
[The complete transcript is posted under “Legal Matters.”]