What to Consider when the North Carolina Medical Board Hires their own Expert Witness
An investigation by the North Carolina Medical Board (the “Board”) represents one of the most consequential events in a physician’s professional life. Among the procedural steps that most significantly alters the trajectory of a case is the Board’s decision to retain an outside medical expert to review the physician’s care.
When the Board initiates an expert review, the matter has progressed beyond preliminary screening. At this juncture, the physician is no longer merely responding to a complaint; the Board is actively evaluating whether the standard of care was breached. This development carries regulatory, reputational, and potentially civil liability implications.
This article examines (1) what it means when the Board hires an expert, (2) how expert review functions within the disciplinary process, (3) the strategic considerations surrounding rebuttal and independent expert retention, and (4) the downstream risks—including civil malpractice exposure—that physicians should evaluate.
I. The Role of the Board’s Expert
The Board’s statutory mandate is public protection. To fulfill that mandate, it frequently engages physicians in the same or similar specialty to conduct independent chart reviews and offer opinions regarding whether care fell below the applicable standard.
Importantly, the retained expert works for (and is compensated by) the Board. The expert is typically paid to:
Review medical records and associated documentation
Prepare a written report
Participate in deposition testimony, and if needed
Testify at a formal administrative hearing
This expert opinion may become central evidence in determining whether disciplinary action is warranted, and—if the matter proceeds to hearing—whether a physician's actions fell below the standard of care.
While expert reviewers are expected to remain objective, physicians must understand the structural reality: the expert is retained by the prosecuting authority. In adversarial proceedings—whether civil or administrative—experts often differ in interpretation of the same clinical record. That divergence is not unusual; it is inherent to the evaluative nature of standard-of-care determinations.
The moment an expert is retained is therefore a critical inflection point. It signals that the Board is evaluating the case through a litigation lens.
II. Why Legal Counsel Becomes Essential at the Expert Stage
Many physicians initially attempt to respond to Board inquiries independently. However, once expert review is underway, the case has moved beyond informal clarification.
Administrative discipline can involve:
Public reprimand
License suspension
Practice restrictions, and/or
Mandated monitoring or remediation
Because the Board’s expert opinion may form the backbone of disciplinary findings, experienced counsel serves several essential functions:
Evaluating the Expert’s Credentials
Counsel can assess whether the reviewer’s training, specialty alignment, recency of practice, and procedural familiarity match the clinical circumstances at issue.
Scrutinizing Methodology
Administrative proceedings are not governed strictly by the evidentiary standards of civil court, but reliability still matters. An attorney should evaluate whether the expert:
Applied objective criteria
Relied on peer-reviewed or generally accepted literature
Accounted for patient-specific variables, and
Considered documentation context
Testing Assumptions Through Deposition
Depositions allow counsel to explore:
Alternative clinical interpretations
Acknowledged gray areas in medical judgment
Financial compensation
Frequency of testimony for regulatory bodies, and/or
Prior inconsistent positions
The objective is not theatrical discrediting. Rather, it is to responsibly narrow overstatements, expose uncertainty where appropriate, and ensure that the Board receives a balanced evidentiary presentation.
III. The “War of Experts” in Administrative Medicine
In civil malpractice litigation, it is routine for both sides to retain experts. The same principle often applies in Board proceedings.
If the Board’s expert concludes that care fell below the standard, a physician should thoughtfully consider retaining an independent expert to:
Conduct a full record review
Evaluate whether the Board’s analysis reflects current practice standards
Assess whether regional practice norms were considered
Provide a written rebuttal report
Testify at hearing, if necessary
A qualified defense expert may identify:
Reasonable clinical alternatives
Documentation gaps that do not equate to clinical negligence
Evolving or controversial standards
Retrospective bias in outcome-based analysis
Administrative adjudicators—many of whom are physicians themselves—are accustomed to weighing conflicting expert opinions. The presence of a credible, well-qualified rebuttal expert can meaningfully alter how certainty and causation are perceived.
IV. Financial Bias and Structural Incentives
Physicians often express discomfort with the compensation structure surrounding Board experts. Publicly available materials indicate that experts are compensated hourly for record review, depositions, and hearing testimony, and are reimbursed for travel and related expenses.
Compensation alone does not establish bias. However, financial incentives are traditionally explored in adversarial proceedings because they may illuminate frequency of testimonial work or patterns of repeat engagement. Responsible advocacy requires transparent inquiry into:
Hourly compensation
Percentage of professional time devoted to medical/legal review
Historical retention patterns, and
Total compensation received from regulatory bodies
The purpose of such inquiry is not personal attack. It is to provide decision-makers with context regarding the expert’s professional orientation.
V. Civil Liability Implications
An often-overlooked dimension of Board proceedings is their interaction with potential malpractice exposure.
Not every Board complaint begins with a civil lawsuit. However, a disciplinary finding—particularly one grounded in substandard care—may:
Become discoverable in subsequent litigation
Be referenced in pleadings or cross-examination
Influence settlement posture, and
Affect insurer risk assessments
While a Board’s findings do not automatically determine civil liability, adverse regulatory outcomes can complicate defense strategy in future litigation.
Conversely, a favorable Board outcome may strengthen the physician’s position in parallel or subsequent civil proceedings.
For that reason, physicians should view expert review not only as a regulatory hurdle, but as part of a broader risk-management continuum.
VI. Strategic Questions Physicians Should Ask
When informed that the Board has retained an expert, physicians should consider:
Is my specialty precisely aligned with the reviewing expert’s practice?
Has the expert actively practiced in recent years?
Does the expert regularly testify for prosecuting entities?
Is the expert applying current, peer-supported standards?
Should I retain my own expert to evaluate the record independently?
What are the downstream malpractice implications of an adverse finding?
These are legal and strategic questions—not emotional ones. Early evaluation often reduces long-term cost and reputational harm.
VII. Administrative Proceedings Are Not Civil Trials—But They Matter Just as Much
Board hearings are administrative in nature, but their consequences are uniquely professional. A reprimand or restriction can alter hospital privileges, payer relationships, employment contracts, and public reputation.
Because expert testimony frequently anchors disciplinary findings, physicians should not underestimate the impact of expert review.
At this stage, the case has evolved from inquiry to evidentiary contest.
Conclusion
When the North Carolina Medical Board retains an expert, the investigation has entered a materially more serious phase. The expert’s opinion may shape whether discipline is imposed, whether findings become public, and whether collateral civil exposure increases.
Physicians facing expert review should strongly consider:
Retaining experienced administrative counsel
Conducting a parallel independent expert evaluation
Strategically preparing for deposition and hearing testimony
Expert opinions—particularly retrospective ones—are powerful. They must be carefully evaluated, methodically tested, and, when appropriate, rebutted with credible countervailing analysis.
In regulatory medicine, as in civil litigation, outcomes are rarely determined by narrative alone. They are determined by evidence—and by how that evidence is presented, challenged, and contextualized.
If you are facing a Medical Board complaint or investigation–schedule an attorney consultation and speak with Brooks Peterson PLLC today. Your license is worth the time.
This is not legal advice. If you do need legal representation call the office at: (919) 616-3317