PHYSICIANS CHARGED WITH CRIMES

The California Medical Board is in charge of disciple for any physicians in California. Business and Professions Code § 2229 mandates protection of the public to be the highest priority for the medical Board and the Administrative Law Judges of the Medical Quality Hearing Panel. Section 2229 further explains that disciplinary actions should be geared towards rehabilitation of the Licensee. Our Orange County sex crimes lawyers know that to this effect, the CMB has adopted the Manual of Model Disciplinary Orders and Disciplinary Guidelines, 11th Edition, which can be found here: https://www.mbc.ca.gov/enforcement/disciplinary_guide.pdf

The CMB indicates that it weighs factors such as: early acceptance of responsibility, demonstrated willingness to undertake Board-ordered rehabilitation, the age of the case, and evidentiary problems

According to the Board, the following are examples of maximum and minimum penalties for various violations:

• 1. Excessive prescribing B& minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  2. Prescribing without an appropriate prior examination minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  3. Excessive treatments minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  4. Sexual misconduct minimum penalty is a stayed revocation and seven years of probation. The maximum penalty is revocation.
  5. Registration as a sex offender minimum penalty is revocation; and pursuant to as provided in subdivisions (b), (c), and (d), the board shall promptly revoke the license of any person who, at any time after January 1, 1947, has been required to register as a sex offender pursuant to the provisions of section 290 of the Penal Code.
  6. Dishonesty Substantially related to the qualifications, functions or duties of a physician and surgeon but not arising from or occurring during patient care, treatment, management or billing B& 2234(e) minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  7. Conviction of a Crime- Substantially related to the qualifications, functions or duties of a physician and surgeon and arising from or occurring during patient care, treatment, management of billing. B&P § 2236 minimum penalty is a stayed revocation, one year suspension, at least seven years of probation. The maximum penalty is revocation.
  8. Conviction of a Crim a felony conviction substantially related to any of the qualifications, functions or duties of a physician and surgeon but not arising from or occurring during patient care, treatment, management of billing. minimum penalty is a stayed revocation and seven years of probation. The maximum penalty is revocation.
  9. Conviction of Crime- Misdemeanor conviction substantially related to the qualifications, functions or duties of a physician and surgeon but not arising from or occurring during patient care, treatment, management of billing. minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  10. Conviction of Drug Violations B& or Violation of Drug Statutes B&P 2238, or Excessive Use of Controlled Substances or Practice under the Influence of Narcotic minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  11. Illegal Sales of Controlled Substances the only recommended penalty is revocation.
  12. Excessive Use of Alcohol or Practicing Under the Influence of Alcohol, minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  13. Prescribing to Addicts minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.
  14. Making False Statements or Alteration of Medical Records, minimum penalty is a stayed revocation and five years of probation. The maximum penalty is revocation.

Each matter is reviewed on a case by case basis. Pursuant to Business and Professions the conviction of any offense substantially related to the qualifications, functions, or duties of a physician constitutes unprofessional conduct which can be cause for disciplinary action. The Board reviews the records related to every conviction. The Board considers the record of the conviction and also the underlying issues which led to the arrest and conviction. Section 2236 does not differentiate between a felony and a misdemeanor conviction and consideration about whether disciplinary action is supportable is not based on this distinction either.

A conviction that does not, at least at first glance, appear to be substantially related to the qualifications, functions or duties of a physician, may, under closer scrutiny, be revealed to be otherwise (e.g; reckless driving, alcohol-related reckless driving, DUIs, and sex crimes). All information related to the criminal case is considered, such as when the arrest occurred; the circumstances surrounding the arrest; any previous history of arrests or convictions; and the physician’s compliance with the court’s terms and conditions.

Any and/or all of the following will automatically require disclosure:

• 1. The bringing of an indictment or information charging a felony against the licensee;
  2. The conviction of the licensee, including any verdict of guilty or plea of no contest of any felony or misdemeanor.
  3. The failure to make a report shall be a public offense punishable by a fine not to exceed $5,000.

Criminal Conviction Reporting Forms: https://www.mbc.ca.gov/Download/Forms/enf-802.pdf

Bus. Prof. Code, 802.1(a)(1): A physician and surgeon, osteopathic physician and surgeon, a doctor of podiatric medicine, and a physician assistant shall report either of the following to the entity that issued his or her license:

(A) The bringing of an indictment or information charging a felony against the licensee.
(B) The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor.

(2) The report required by this subdivision shall be made in writing within 30 days of the date of the bringing of the indictment or information or of the conviction.
(b) Failure to make a report required by this section shall be a public offense punishable by a fine not to exceed five thousand dollars ($5,000).

Failure to report to the Board carries a separate and distinct action independent of another action the Board may take and could lead to the issuance of a Citation which if sustained, will not only be published on the Boards Disciplinary Web Site, but also result in the issuance of a fine. The public notice of the citation links to a page that details the nature of your conviction even though the Citation is deemed to be a sanction.

Remember, the Board receives information from the Department of Justice for any arrest of a licensed physician in California. [Remember the fingerprints you were required to previously provide]

Business Professions Code empowers the Division of Medical Quality of the Medical Board of California to discipline physicians who are convicted of crimes that constitute unprofessional conduct.

Bus. Prof. C. 2239, which defines alcohol and drug-related offenses as conduct reads:

(a) The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct.

(b) A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this section. The Division of Medical Quality may order discipline of the licensee in accordance with Section 2227 or the Division of Licensing may order the denial of the license when the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment.

Bus. Prof. Code § 2227 indicates that: a form of unprofessional conduct, Bus. Prof. Code, 239(a) identifies the use of alcoholic beverages the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely….
Title 16, Cal. C. of Regs., 1361, reads:

In reaching a decision on a disciplinary action under the Administrative Procedure Act (Government Code section 11400 et seq.), the Division of Medical Quality of the Medical Board of California shall consider the disciplinary guidelines entitled Manual of Disciplinary Guidelines and Model Disciplinary Orders (8th Edition/1999) which are hereby incorporated by reference. Deviation from these guidelines and orders, including the standard terms of probation, is appropriate where the Division of Medical Quality of the Medical Board of California in its sole discretion determines by adoption of a proposed decision or stipulation that the facts of the particular case warrant such a deviation for example: the presence of mitigating factors; the age of the case; evidentiary problems.

Physicians face problems with the Medical Board, potential physicians undergo ever harsher scrutiny. A guilty, or no contest plea, for any misdemeanor or felony must be disclosed on any application for internships or residencies. Sometimes, even just the arrest triggers disclosure.

We make every endeavor to avoid a criminal conviction that could lead to a disciplinary action; but if that is not possible, we will guide you in the best way possible to mitigate any damage to your licensing and your livelihood.