Regulation of Medicine
What to Do When Law Enforcement Is in the Waiting Room
Unfortunately, physicians sometimes become the subject of a criminal investigation, whether by local police investigating a patient complaint or the FBI looking into a healthcare organization’s compliance with fraud and abuse laws. This article provides guidance on what to do when law enforcement conducting a criminal investigation visits or contacts a healthcare organization or one of its employees.
- A physician should hire an attorney experienced in criminal law matters if the doctor is the subject of a criminal investigation.
- A physician should assert the right to remain silent and not provide statements or comments to law enforcement without an attorney present.
- A physician should only release documents or provide access to files if the law enforcement officer has a warrant and when the physician has been able to confirm the legitimacy of the law enforcement officer.
What to Say and Do at First Contact
The police are in the waiting room and the officers ask the receptionist if they can speak with a physician. The receptionist summons the doctor to the front, and the police ask if they can ask a few questions.
What should the physician do or say?
Without an attorney present, the conversation should be short. Before answering anything, the physician should ask to see identification, such as a badge or a business card, from the law enforcement officer. If the physician or organization has questions about the legitimacy of the officer, they should ask for a name and badge number and then call the law enforcement agency and verify the officer’s identity. The same process can be used to confirm the identity of an officer who reaches out to a physician over the phone or other electronic communication.
Next, the physician may ask the law enforcement officer why they are being contacted. The doctor can also ask the officer about the nature of the complaint and whether they are implicated in it.
If the physician or another employee of the healthcare organization is implicated in the complaint or the officer refuses to provide an answer, the only questions the physician should answer are those about identity, such as name or address. Beyond this, a doctor should calmly tell the law enforcement officer, “I want to remain silent until my attorney is present.” An officer cannot ask any more questions after a physician has invoked the right to remain silent.
When to Hire an Attorney
Physicians who are the subject of a credible criminal investigation should hire an attorney. An attorney will know how best to answer questions for law enforcement.
Consenting to a Search by Law Enforcement
A healthcare organization should not consent to a search by law enforcement unless an officer presents a valid warrant to search. Even when law enforcement presents a warrant, the organization should only provide information within the scope of the warrant.
Talking with Law Enforcement
Once a physician engages an attorney, law enforcement officers will either meet the doctor at the healthcare organization or law enforcement agency. Officers will either take written statements or will record statements from the physician. Physicians giving statements should answer questions succinctly and honestly. Honesty is important because lies can result in a charge of perjury. Doctors also should be sure not to give more information than is needed to answer a question.
The physician will be asked to sign the statement to say that the report is an accurate account of what the physician thinks happened. If something is not right, the physician should tell the officer so that they can amend it.
Cooperating with Law Enforcement
A physician should always show the utmost respect to law enforcement officers. Acting disrespectfully can be used as justification for an arrest or can be used against the doctor in court. Cooperation doesn’t mean foregoing the right to remain silent, right to an attorney or right to privacy.
I’m Not Guilty, So Why Not Talk?
When physicians aren’t guilty, they might want to speak with law enforcement either to help the investigation or prove they have nothing to hide. However, a physician shouldn’t speak with law enforcement without first consulting an attorney, who can ensure that the doctor answers questions appropriately and concisely.
Inconsistent and unclear statements to law enforcement could be misunderstood and used as evidence against the physician in a criminal and possibly a civil investigation. A misunderstanding will only further an investigation and delay a resolution. Moreover, so long as the doctor properly asserts the right to remain silent, silence cannot be used against the physician in court to prove guilt or liability.
Findings of Police Investigations in Civil Matters
Following the recommendations above is the best way for physicians to shield themselves from civil liability. In most cases, statements made by an employee of a healthcare organization to law enforcement cannot be used against the organization to prove it’s at fault. However, attorneys for plaintiff patients may still use reports taken by law enforcement to determine whether a patient’s case has merit and as a baseline for questions they will ask in interrogatories or depositions.
In some states, for instance in Georgia, certain items contained in reports from law enforcement can be admitted into evidence in a civil case. The items that can be admitted are limited to observations made by the law enforcement officer and reliable, factual findings. Again, a physician should consult with an attorney so that inconsistent and unclear statements cannot be used by a plaintiff’s attorney to impose civil liability.
Answers are provided below
True or false?
Question 1: A police officer presents at a healthcare organization and asks a nurse at the front if Dr. John Doe works at the practice. The nurse should confirm that Dr. Doe works at the practice.
Question 2: An FBI agent calls Dr. Jane Doe. Dr. Doe asks “Why do you need to speak to me today?” The FBI agent replies saying, “I just have a few questions I would like to ask you about — it shouldn’t take long at all, and then I will be out of your hair.” Dr. Doe should exercise the right to remain silent and right to have an attorney present.
Question 3: Which of the following can be admitted into court to be used against a physician at trial? Choose all that apply.
A. The police officer takes the witness stand and says, “The physician told me ‘I want to remain silent until my attorney is present.’ I think he has something to hide.”
B.The police officer takes the witness stand and says, “The physician seemed nervous as I questioned him about the operation.”
C.The police officer takes the stand and says, “The physician told me ‘I have conducted the operation that way my entire career.’”
Question 1: True. The nurse should confirm that Dr. John Doe works at the practice because this isn’t sensitive information that could impact a legal proceeding and is an effort to cooperate with the police.
Question 2: True. Dr. Doe should exercise the rights to remain silent and have an attorney present because the FBI agent would not confirm whether Dr. Doe was implicated in the complaint. Doctors who are implicated should wait to talk with the agent until an attorney is present.
Question 3: Answer B can be admitted into court to be used against a physician at trial. Observations made by a law enforcement officer can be admitted. Answer A cannot be admitted because so long as the right to remain silent is properly asserted, silence cannot be used against the healthcare organization in court. Answer C also cannot be admitted because statements made to law enforcement cannot be used against the healthcare organization.
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The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.