California Business and Professions Code 2052 makes it a crime to engage in the unauthorized practice of medicine without a valid license. This is defined as practicing, attempting to practice, or advertising oneself as practicing, any system of treating an illness or affliction. Prosecutors can charge this section as a misdemeanor or a felony and a conviction carries up to 3 years in jail.
Specifically, California law prohibits the following activities if they are undertaken without a valid professional license:
- Practicing, attempting to practice, or advertising oneself as practicing any system of treating illness or affliction;
- Diagnosing, treating, operating on, or prescribing for any physical or mental condition; and
- Engaging in a conspiracy to—or aiding and abetting someone else to—do any of those things.1 2
California unauthorized practice of medicine charges could be filed in the following situations:
- An immigrant from Russia who was a licensed doctor in that country—but has not been licensed to practice medicine in California—offers medical advice and simple treatments to other Russian immigrants for a fee;
- A woman who has no medical credentials advertises herself as using hypnosis to treat diabetes and obesity; and
- A woman who has received some midwife training but is not a licensed California midwife sells her services supervising births in people’s homes.
Penalties for unauthorized practice of medicine are quite serious.
This offense is a wobbler. This means that it may be tried as either a misdemeanor or a felony, depending on the circumstances of the case.3
The potential misdemeanor penalties are up to one (1) year in county jail and/or a fine of up to one thousand dollars ($1,000).4
The potential felony penalties are sixteen (16) months, two (2) years or three (3) years in jail, and/or a fine of up to ten thousand dollars ($10,000).5
All that is in addition to any professional disciplinary action you may face if you are a licensed health care professional and are alleged to have violated the terms of your license.
Potential legal defenses to unauthorized practice of medicine criminal charges include:
- Your actions didn’t meet the legal definition of practicing medicine; and
- You were falsely accused.
In order to help you better understand the California crime of unauthorized practice of medicine, our criminal defense attorneys will address the following:
- 1. What is the legal definition of unauthorized practice of medicine in California?
- 2. What are the penalties under Business & Professions Code 2052 BPC?
- 3. What are the legal defenses?
- 4. Related Topics
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of unauthorized practice of medicine in California covers the following activities, undertaken without a license (or other authorization) and in the state of California:
- Practicing, attempting to practice, or advertising or holding oneself out as practicing any system or mode of treating illness or affliction;
- Diagnosing, treating, operating on, or prescribing medication for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition; OR
- Conspiring with, or aiding and abetting, someone else to do any of the above activities.6
Let’s take a closer look at some of these terms in order to get a better sense of their meaning.
No bodily harm or illness required
One of the notable things about the legal definition of unauthorized practice of medicine in California is what it does NOT include—there is no requirement that anyone actually be harmed or injured by the unauthorized practice of medicine.7
There is also no requirement that you intend to injure or harm anyone in any way.8
In other words, the unauthorized practice of medicine is a victimless crime—but one that is still punished seriously.
Example: Hong is an immigrant from Vietnam and was a highly respected doctor there. After he immigrates to the United States, he observes that many of his fellow immigrants from that country lack access to decent health care here.
So—without going through the requirements to get an American medical license—Hong advertises his services as a health care provider, in Vietnamese, in a church newsletter. He offers patients basic check-ups for only a nominal charge.
Hong’s intentions are entirely good—he wants to provide low-cost health services to people who need them. Despite this, he could still be prosecuted under Business & Professions Code 2052 for unauthorized practice of medicine.
Diagnosing or treating
The unauthorized practice of medicine consists of the unlicensed
- diagnosis, or
of any physical or mental condition.9
“Diagnosis” means using any method, device or procedure to determine whether or not someone is suffering from any physical or mental disorder.10
This includes the use of blood pressure sleeves and other similar machines—but does not include measuring a person’s height or weight.11
And “treatment” includes both practices we recognize as clearly “medical” (giving injections, prescribing drugs) AND more unconventional treatments such as hypnosis12 and acupuncture.13
Example: Izzy is not a licensed medical professional. He advertises his services as a hypnotist, claiming that he can use hypnosis to help people lose weight or get rid of unwanted habits.
Izzy may be guilty of unauthorized practice of medicine under Business & Professions Code 2052—because he is holding himself out as being able to treat physical and mental conditions without a license.14
A physical or mental condition
You can be accused of unauthorized practice of medicine for treating any physical or mental condition—not just those we readily recognize as illness, disease, or injury.15
Example: Alice is not a doctor and does not have a midwife’s license. She sells her services helping deliver babies for women with normal pregnancies, who don’t require any special interventions during childbirth.
Alice is guilty of unauthorized practice of medicine. Even though normal pregnancy and childbirth are arguably not sicknesses or afflictions, they are still “physical conditions” that you need a medical license to treat.16
In the state of California
Business & Professions Code 2052 unauthorized practice of medicine only applies to actions that take place “in this state”—that is, in California.17
Thanks to the internet, this is now not as simple a concept as it once was.
But the general rule is this: if you treat a California patient without a California medical license, you can face California unauthorized practice of medicine charges—even if you yourself have never set foot in the state!18
Example: Chris is a doctor in Colorado. He has a Colorado medical license but not a California one.
John lives in California. He has a medical condition for which he would like to take prescription medication. He goes to a website that offers online prescriptions. On the website, John fills out a questionnaire about his symptoms.
The owners of the website send that questionnaire to Chris in Colorado, who gets paid for acting as the website’s “consulting physician.” After reviewing John’s answers, Chris issues him a prescription for the medication he wants. The website then fills the prescription for John and sends him the medication by mail.
Chris is guilty of unauthorized practice of medicine in California—because he provided medical treatment to a California resident without a California license.19
California law against the unauthorized practice of medicine is also violated when someone who is not a licensed health care professional owns a medical practice.20
This is true even if the non-doctor owners do not themselves perform any medical services as part of the practice.21
Example: Connie and Mary own a medical clinic that performs medical examinations for people seeking worker’s compensation benefits. Neither of them is a doctor. They hire Bill, who is a licensed physician, to actually perform the exams.
Connie and Mary are guilty of unauthorized practice of medicine for owning and receiving the profits of the clinic when they are not licensed doctors.
Not only that—but Bill is also guilty under Business & Professions Code 2052. This is because he “aided and abetted” the unlicensed practice of medicine by Connie and Mary.22
The penalties for the unauthorized practice of medicine depend on whether the prosecutor chooses to charge the crime as a misdemeanor or a felony.23
This decision in turn usually depends on
- the circumstances of the case (for example, whether anyone was sickened or hurt by the defendant’s actions), and
- the defendant’s criminal history.
Practicing medicine without a license carries the following penalties if it is charged as a misdemeanor:
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).24
Felony penalties for unauthorized practice of medicine include:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years in county jail; and/or
- A fine of up to ten thousand dollars ($10,000).25
According to Santa Clarita criminal defense lawyer Neil Shouse26:
“Unauthorized practice of medicine is what you’d call a ‘white-collar crime.’ But that doesn’t mean that prosecutors don’t take it seriously. There are all sorts of horror stories of well-meaning, generally law-abiding people who unknowingly violated California’s rules about who may do what in the medical field—and have to pay for it with criminal penalties.”
If you find yourself in this situation, the following legal defenses may be helpful:
Your actions didn’t meet the legal definition of practicing medicine
Especially in this day and age, there’s a lot of gray areas involved in defining “practicing medicine.”
For example, we are now aware of healing traditions from all over the world that do not have much do with traditional Western medicine. Personal trainers work with clients to recommend solutions to their health problems. And consumers are increasingly seeking new—and often cheaper—ways of treating their health concerns.
There is a good chance that you are being accused of unauthorized practice of medicine for something that doesn’t quite fit the traditional definition of medicine. In this situation, a skilled criminal defense attorney can help you argue that you aren’t guilty of this crime.
You were falsely accused
False accusations lead to people being wrongfully prosecuted for all sorts of crimes—and unauthorized practice of medicine is no exception.
Perhaps you are a non-medical professional with a disgruntled former client who misunderstood your services or wants to get you into trouble. Or maybe a business dispute has led a former colleague or business partner to make untrue allegations about you.
Our criminal defense lawyers have seen it all—and know how to ask the right questions and gather the right evidence to make sure the truth comes out.
California medical marijuana laws are confusing and complicated on their own. And sometimes they can interact with California law on unauthorized practice of medicine to cause problems with the criminal justice system for people who didn’t intend to do anything illegal.
For example, two owners of a medical marijuana cooperative were convicted under Business & Professions Code 2052 for operating a clinic where licensed doctors examined patients and issued medical marijuana recommendations to them.27
Even though only licensed doctors were treating patients, this was still considered the unauthorized practice of law—because non-doctors owned the business that employed the doctors!
Criminal arrests/convictions and doctor discipline are another source of concern for California medical professionals.
Any criminal conviction for an offense that is “substantially related” to the qualifications, functions, or duties of a physician can trigger professional discipline of doctors in California.28
The worst-case scenario for doctor discipline is suspension or revocation of your medical license by the Medical Board of California. If this happens to you, you need to be careful about continuing to practice medicine—and subjecting yourself to unauthorized practice of medicine charges.
Nurses can also face nurse discipline and license revocation (in some cases) as a result of certain California criminal convictions.29
You may not practice law in California unless you are an active member of the California State Bar.30 This applies both to people who have never been lawyers—and to lawyers whose membership in the bar has been suspended or revoked.31
Just like the unauthorized practice of medicine, the unauthorized practice of law leads to serious criminal penalties. It is a misdemeanor in most cases—but becomes a wobbler, with potential felony penalties, if it is committed by a California attorney who has been suspended or disbarred.32
If you are not a licensed medical doctor in California, it is also a crime to use the following terms in any sign, business card, letterhead, or advertisement:
- the word “doctor,”
- the word “physician,”
- the prefix “Dr.,”
- the initials “M.D.,” or
- any other terms or letters implying that you are a physician or surgeon.33
This offense is a misdemeanor. The potential penalties include a fine of up to one thousand dollars ($1,000) and/or up to six (6) months in county jail.34
For additional help…
For questions about the crime of unauthorized practice of medicine in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
Our law firm has local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on the unlawful practice of medicine in Nevada, please see our page on the “unlawful practice of medicine” in Nevada. In Colorado, see our page on CRS 12-36-129 “unauthorized practice of medicine” in Colorado.
1 Business & Professions Code 2052 – Practice, attempt, or advertising without certificate; punishment; conspiracy or aiding and abetting; punishment [unauthorized practice of medicine]. (“(a) Notwithstanding Section 146, any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision.”)
2 See same.
3 See same.
4 See same.
See also Penal Code 19 PC. (“ Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor [including misdemeanor unauthorized practice of medicine] is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)
5 Business & Professions Code 2052 – Unauthorized practice of medicine, endnote 1, above.
See also Penal Code 1170(h) PC. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense [including unauthorized practice of medicine] shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
6 Business & Professions Code 2052 – Unauthorized practice of medicine, endnote 1, above.
7 Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1417. (“Causing or intending an injury is not an element of the offense; and the injury sought to be prevented could not occur in another jurisdiction.”)
8 See same.
9 Business & Professions Code 2052 – Unauthorized practice of medicine, endnote 1, above.
10 Business & Professions Code 2038 – “Diagnose” and “diagnosis” defined [for purposes of legal definition of unauthorized practice of medicine]. (“Whenever the words “diagnose” or “diagnosis” are used in this chapter, they include any undertaking by any method, device, or procedure whatsoever, and whether gratuitous or not, to ascertain or establish whether a person is suffering from any physical or mental disorder. Such terms shall also include the taking of a person’s blood pressure and the use of mechanical devices or machines for the purpose of making a diagnosis and representing to such person any conclusion regarding his or her physical or mental condition. Machines or mechanical devices for measuring or ascertaining height or weight are excluded from this section.”)
11 See same.
12 People v. Cantor (1961) 198 Cal.App.2d Supp. 843, 850. (“It is our considered opinion that, in the light of the record in this case, the practice of hypnotism as a curative measure or mode of procedure by one not licensed to practice medicine, amounts to the unlawful practice of medicine. While it may be that one day the use of hypnotism may be recognized sufficiently to warrant the Legislature to license that practice, to date it has not done so.”)
13 Acupuncturists in California are licensed by the California Acupuncture Board.
14 Based on the facts of People v. Cantor, endnote 12, above.
15 See Bowland v. Municipal Court (1976) 18 Cal.3d 479, 488-89. (“The term “physical condition” is broad and, unlike the phrase “sick and afflicted,” does not necessarily imply the existence of an abnormality or disease. It seems readily to encompass pregnancy and childbirth.”)
16 Based on the facts of the same.
17 Business & Professions Code section 2052 – Unauthorized practice of medicine, endnote 1, above.
18 Hageseth v. Superior Court, endnote 7, above.
19 Based on the facts of the same.
21 See same.
22 Based on the facts of the same.
23 Business & Professions Code 2052 – Unauthorized practice of medicine, endnote 1, above.
24 See same.
25 See same.
See also Penal Code 1170(h) PC, endnote 5, above.
See also Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
26 Our Santa Clarita criminal defense lawyers have successfully defended numerous clients charged with California white-collar crimes, including unauthorized practice of law. We represent clients at a number of locations of the California courts, including the Rancho Cucamonga courthouse, the Fontana courthouse, the Pasadena courthouse, the Alhambra courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.
27 See People v. Superior Court (Cardilo) (2013) 218 Cal.App.4th 492.
28 See Business & Professions Code 2236 – Criminal convictions and doctor discipline.
29 See Business & Professions Code 2761 — Criminal convictions and nurse discipline.
30 Business & Professions Code 6125 — Necessity of active membership in state law. (“No person shall practice law in California unless the person is an active member of the State Bar.”)
31 Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties [compare to penalties for unauthorized practice of medicine].
32 See same.
33 Business & Professions Code 2054 – Use of term or letters falsely indicating right to practice; penalty; permitted phrases for specified practitioners [offense related to unauthorized practice of medicine]. (“(a) Any person who uses in any sign, business card, or letterhead, or, in an advertisement, the words “doctor” or “physician,” the letters or prefix “Dr.,” the initials “M.D.,” or any other terms or letters indicating or implying that he or she is a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, or that he or she is entitled to practice hereunder, or who represents or holds himself or herself out as a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, without having at the time of so doing a valid, unrevoked, and unsuspended certificate as a physician and surgeon under this chapter, is guilty of a misdemeanor.”)
34 See same.
See also Penal Code 19 PC, endnote 4, above.