Session 197

In this episode, Ryan talks with his lawyer uncle, Larry, (who is also the first in-studio guest and first lawyer on the show). Larry has a track record of helping doctors over the last ten years.

They talk about how to best answer challenging questions related to violations and arrests in your medical school applications and later on for residency applications, board certifications, licensing, and all of those future applications as a physician. Listen in to learn about this and more information related to some legal implications to certain medical practices.

Common cases Larry handles with health care providers and professionals:

• Getting a license
• Dealing with complaints and practice issues
• Risk management
• Responding to subpoenas and requests for information
• Privacy issues under HIPAA or state privacy laws

Why institutions/agencies ask questions related to past crimes:

• For licensing agencies: They generally want to know if there’s something about your personality or character that can put the public at risk.
• For institutions providing educational certification: The issue for them is if they want to be graduating people who are going to qualify within the field.

If you’ve had something “expunged” from your record, what does that mean?

• In general, the content of the record is removed from identification to the person by any common search. The record usually still exists; it’s just not searchable when you look that person up.
• In some places, the record is destroyed and removed from the file.

If it’s expunged, why do you still have to talk about it?

• It’s not about the legal aspect, but they’re interested in you as an individual and what your prior conduct says about your character.
• It’s always a screening issue; they want to explore if it’s something that needs to be dealt with and looked into more closely.

If you have a criminal record, whether it’s a violation, misdemeanor, or felony, you’ll be given a chance to explain:

1. how it happened
2. what the consequences were
3. what you’ve done in your life to move past that point

Larry’s experience is that the institutions asking for information (school, credentialing agency, licensing agency) are very reasonable in the way they approach these things. The applicant is usually far more worried about it than the agency is. They just want to know what’s there and whether or not it’s a continuing problem.

In most cases, it is possible to overcome a past criminal record if the applicant is able to show that they’ve owned up to the behavior, made it right, and changed. There are only specific cases that cannot really be moved past, such as an applicant convicted of murder.

[Related episode: What Are Med School Red Flags and How Do You Talk About Them?]

Why you shouldn’t hide or lie about a criminal record:

• Generally, these questions are screening issues to explore further character or personality issues.
• Answering the questions honestly may undermine your ability to get into an institution, but failure to respond in an accurate and honest way is always much worse and sometimes career-ending in and of itself.
• The underlying problem is likely to go away, but dishonesty about it never does. It follows a person everywhere and remains an impediment.
• You could be charged for perjury for not answering truthfully.
• Avoiding the reality of what occurred by giving a dishonest answer is a road to a disaster waiting to occur.

When you’re asked about your criminal record on an application:

• Look at the question very specifically: What exactly is being asked? Answer that question. Read it very literally.
• Don’t give more information than what is really being called for.
• Answer the question honestly, accurately, and completely, without volunteering anything extra.
• If the question asks “Have you been convicted?” you don’t need to say, “Well, I haven’t been convicted, but I have been arrested…”

Kinds of questions that get people into trouble:

• “Were you arrested?”
• “Have you ever interacted with law enforcement?”
• “Have you ever been convicted of a felony, misdemeanor, or violation?”

Answering a broad question such as, “Have you ever committed any criminal offense?“

• If you don’t understand what it means, contact the institution and find out what the institution is really asking.
• Consult with a lawyer who practices in the jurisdiction you’re in.

Larry’s recommendations for submitting applications with a criminal record:

• Provide a written explanation along with it even when not called for, so the institution has an explanation of what’s going on.
• Seek out the opportunity to communicate with someone directly, either face-to-face or through the phone, to talk about the issue and remove the stigma.
• Similar to if you have low grades on your transcript and your application is getting filtered out—contact the schools and advocate for yourself!

[Related episode: Should I Write About Red Flags in My Personal Statement?]

What happens when a doctor gets sued for a malpractice suit?

• Depends on the insurance agency.
• If and when a report is made to the national database, there is sharing of information among all interested parties. However, you do have the right to file a response.
• When a lawyer files a malpractice lawsuit, a lawyer is looking to find a fund of resources to get compensation from the client.
• Most health/professional liability insurance policies have “Consent Clauses” where the case cannot be resolved without the consent of the health care provider.
• Sometimes a lawyer sues both a doctor and the institution to have two different ways to collect funds.

How does a prescription for medical marijuana affect medical licensing and admittance to medical school?

25 states now allow the use of marijuana in medical circumstances, and 4-5 states allow its recreational use like Colorado. However, the federal government has never changed these laws. Technically speaking, selling, using, or possessing medical marijuana means you’re violating the federal law, but you may well be complying with the state law.

Questions about scope of practice:

• Operate within the license for the activity you’re engaging in. (If you’re engaging within the scope of a school’s medical student license, then don’t apply the extra authority you have by being a paramedic without making it clear that’s what you’re doing.)
• Mixing the two can result in removal.
• Go to the supervisor and get direction as to whether you should proceed or not.

Advice for premed students with criminal records:

The appropriate way to proceed in your application is to give an honest, accurate, and complete answer to the question without volunteering anything extra.

The consequences for applying to medical school, for a license, fellowships, internships, etc, are so great that when in doubt, you’re better off getting advice from someone. The costs are small compared to the potential implications for the rest of your life and career.

If you’re not certain about what to do, don’t simply do it. Go and get some direction, and make sure you’re operating the way you need to.

Caveat: Not every lawyer is experienced in doing these things. Seek out lawyers who are experienced in dealing with these specific areas.

Links and Other Resources:

• If you wish to speak with Larry to find out more, contact him through email at ljc@ljcohen.com.
• Related episode: What Are Med School Red Flags and How Do You Talk About Them?
• Related episode: Should I Write About Red Flags in My Personal Statement?
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