USMLE Hearing? Organization, Timing, and Evidence are Crucial-Part 1

Wednesday, March 12, 2014
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

If you are a physician, medical student, or medical resident accused of "irregular behavior" by the United States Medical Licensee Examination (USMLE) Secretariat/National Board of Medical Examiners (NBME), you must challenge this accusation and defend yourself.  You should request a hearing, plan on a personal appearance at the hearing before the Committee for Individualized Review (CIR), and obtain and submit evidence on your own behalf.  Effective and convincing evidence is required if you are to properly defend yourself and avoid having your USMLE test score transcript branded with the label of "irregular behavior."

Just as you would not attempt to perform major surgery on yourself, we do not recommend that you attempt to represent yourself in such a proceeding.  Such administrative hearings are the realms of attorneys and we only recommend that you obtain legal representation by an attorney familiar with USMLE hearings and health law issues.

This is part one of a two-part blog.


Know the Exact Allegations Against You.

The first hurdle is to determine the issues of your case. If you are not aware of what issues and facts are considered significant by the USMLE/NBME, you will be unable to obtain and produce evidence to address these. You are entitled to a copy of your complete USMLE file. You should request this file immediately and carefully review all of the evidence against you. This will help you adequately prepare for the hearing and plan your defense.


Effectively Address the Issues.  

The second major hurdle will be to obtain persuasive evidence on the issues you are confronting.  

Such evidence may be documentary (transcripts, degrees, awards, evaluations, etc.), testimony (your own testimony, character reference testimony, etc.), demonstrative evidence (charts, graphs, photographs, diagrams, chronologies, etc.), and expert witness opinions.  However, in such hearings, the USMLE does not allow any witnesses to testify other than the respondent (the person accused of the "irregular behavior").  Therefore, if there are other witnesses, their testimony must be in writing and produced in a convincing fashion for the CIR's consideration.  For character reference witnesses, this may be in the form of a character reference letter that adequately demonstrates the writer's familiarity with the respondent and familiarity with the accusations made against the respondent.  It is recommended that the testimony of key witnesses as to facts and anything else where such testimony may be crucial should be reduced to the form of an affidavit which would then be sworn to and signed in front of a notary public.

Expert witness testimony and opinion may be necessary in the case where there are issues involving a statistical analysis of data, medical issues, the truthfulness of the respondent as to certain facts and events (e.g., through a polygraph expert), or experts on testing and test procedures.


Prepare For and Attend the CIR Hearing.

The third major hurdle is to properly organize and prepare for the hearing.  If you are not familiar with such proceedings, this may present an almost insurmountable obstacle to a successful defense.  Usually hearings before the CIR (the committee that holds the hearings on charges of irregular behavior) are informal and not public. Normally, the Secretariat of the USMLE will be allowed fifteen (15) minutes to present the charges and the case against you.  You are then allowed fifteen (15) minutes to respond to such charges.  If you have an attorney, this is the time that the attorney will summarize the evidence in your favor and will make arguments to defend you.  The CIR members will then get to ask questions of you which, provided you are present in person, you will have to answer under oath.  There is some flexibility allowed, especially in complex cases.

There will be a court reporter at the hearing and the court reporter will transcribe the entire hearing.  There will be an attorney representing the USMLE present at the committee hearing.  This is another reason you should have your own attorney representing you there.

Check our blog regularly for the second part of this blog.


Contact Experienced Health Law Attorneys.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.


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"The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.
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3/12/2014

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