Having had your fill of medical textbooks, you probably don’t feel like taking up the study of law.
But if you’ve had a run-in with the legal system, for something like a drug or sex offense, you’ll soon discover that the legal and medical worlds can intersect in an unpleasant way. A criminal arrest or conviction can impact your license to practice medicine.
If you’re caught in the snare of criminal and disciplinary actions, our California Criminal Defense Lawyers may be able to help. We represent people accused of crimes and also have experience helping physicians and other healing arts professionals with license discipline issues. We are just a phone call away.
This article is about criminal convictions and physician discipline in California. If you have questions after reading it, we invite you to contact us for a consultation.
This article covers:
1. Who regulates doctors in California?
2. What convictions trigger Board discipline?
3. Can I fight for my license?
1. Who regulates doctors in California?
The Medical Board of California regulates physicians and allied healthcare professionals (including licensed midwives and medical assistants). The Medical Board is a state governmental agency within the California Department of Consumer Affairs.
The Board enforces the Medical Practice Act and implements regulations in accordance with its mission of public protection.2
Conviction-related discipline for criminal convictions can take the form of warnings, probation, license suspension or even license revocation.3
As set forth in the Medical Board’s Disciplinary Guidelines, probation conditions can include biological fluid testing, community service, psychiatric evaluation and Drug Enforcement Agency permit surrender, among others.
In addition to your livelihood, at stake in a discipline case is your reputation. Discipline-related documents are readily available to potential patients and interested parties – they are just a click away on the Board’s website. Discipline summaries also appear in medical board newsletters.
2. What convictions trigger Board discipline?
Criminal convictions that are “substantially related” to the qualifications, functions, or duties of a physician can trigger Board discipline.4
The substantially related requirement is based in statute and in the Constitution. Your right to practice your chosen profession of medicine can only be impeded for a reason that relates to your fitness to practice.5
“substantially related”
So what is a substantially related conviction? There is no concise and easy answer to this question and in fact a wide range of convictions appear to be included.6
Here are examples of crimes that are substantially related to the practice of medicine, according to statutes, cases and Medical Board documents:
- Medical Practice Act violations7
- crimes requiring registration as a sex offender8
- Penal Code 187 PC – murder9
- Penal Code 261 PC – rape10
- Penal Code 288 PC – lewd acts with a minor11
- sexual exploitation of a patient and Penal Code 242 PC – battery12
- drug crimes13
- driving under the influence14
- Penal Code 647 f PC – public intoxication15
- solicitation of Penal Code 118 PC – perjury16
- accessory to medical fraud17
- 484 PC – petty theft with priors18
This is by no means an exhaustive list of potentially substantially related convictions.19
When in doubt, we recommend consulting a California criminal defense attorney about possible discipline consequences for your particular conviction.
Convictions
Convictions include felony and misdemeanor convictions secured through guilty pleas and California jury trial verdicts, “no contest” pleas and convictions that may later be expunged under California Penal Code Section 1203.4.
The Board can take disciplinary action even if you successfully complete a court-ordered drug diversion program such as Penal Code 1000.21
Generally speaking, the Board can act with respect to a conviction when the time for appeal has passed, the judgment has been affirmed on appeal, or an order granting probation is made.
The Board will take expedited action where a licensee has been incarcerated after conviction of a felony.22
Off-the-job misconduct
As we’ve seen, alcohol-related driving offenses can form the basis for physician discipline. You might wonder how convictions that happen away from work and appear to be unrelated to your job performance can be substantially related to the practice of medicine.
Other doctors have wondered the same thing.and have gone to court over it. But they haven’t met with much success.
One appellate court looked at the issue in the case of a doctor convicted of three alcohol-related driving offenses. “In relation to multiple convictions involving driving and alcohol consumption,” the court held, “we reject the argument that a physician can seal off or compartmentalize personal conduct so it does not affect the physician’s professional practice.”23
The court further explained, “it is far more desirable to discipline before a licensee harms any patient than after harm has occurred.”24
In another 2009 case, the appellate court decided that the Medical Board could discipline a physician for multiple alcohol-and-driving incidents that did not even result in convictions.25
Reporting obligations
As a physician, your obligation to disclose convictions did not end when you submitted your license application. Unlike other California professionals, you have an ongoing duty to report to the Board felony and misdemeanor convictions as well as felony indictments.26
In the event you consider disregarding Section 802 reporting obligations, note that the Board has ways of discovering charges and convictions and does not look favorably on the perceived dishonesty of licensees and applicants.27
3. Can I fight for my California medical license?
There are various stages during the enforcement process when you can challenge (or negotiate with) the Board as to discipline and/or penalty.
You may be able to convince the Board that your conviction is not substantially related to medical work or that less severe discipline is warranted because of mitigating factors.28
You might have a statute of limitations defense or be able to show rehabilitation.29
As we discuss in our related article Administrative Hearings, you also have the right to a hearing in front of an administrative law judge on the Medical Quality Hearing Panel.30
If your license is revoked, despite best efforts to save it, rehabilitation efforts can come into play down the road – in getting your license reinstated.
The Orange County Register recently took a hard look at such cases. Doctors were allowed to practice again after serving time for sexual assault, insurance fraud and even hiring a hit man (who turned out to be an undercover cop).31
The article also highlighted the rather valiant efforts practitioners make to get by during revocation. One former doctor worked at a hamburger stand and another at a slaughterhouse. One bagged groceries and another answered telephones. One got his license back but decided to pursue the Christian ministry.
None of this is to say you will lose your license or end up working in a slaughterhouse. It is only to illustrate possibilities.
The road of professional discipline can be rough. But it’s not necessarily a road to nowhere. If you stay the course it can lead you back to where you want to be – a place and position in which you can use your valuable expertise as a member in good standing of the healing arts.
Our California Criminal Defense Lawyers Can Help.
If you or a loved one is charged with a crime and are a doctor and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
You might also be interested in reading our related professional discipline articles on Nurse License Revocation, Dentist License Revocation, Pharmacist License Revocation, Teacher License Revocation, Social Worker License Revocation, and Real Estate Agent License Revocation. We also have an extensive array of articles on Common California Crimes A to Z.
Licensed on Colorado? See our article on Colorado medical license discipline and revocation.
Licensed in Nevada? See our article on Nevada medical license discipline and revocation.
Helpful links:
Medical Board of California
California Department of Consumer Affairs
California Office of Administrative Hearings
Center for Public Interest Law
References:
1Our California Criminal Defense Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
2See California Business and Professions Code Section 2000 et seq. See also California Code of regulations Title 16, Division 13 (Medical Board of California).
3California Business and Professions Code Section 2227 provides: “(a) A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel as designated in Section 11371 of the Government Code, or whose default has been entered, and who is found guilty, or who has entered into a stipulation for disciplinary action with the board, may, in accordance with the provisions of this chapter: (1) Have his or her license revoked upon order of the board. (2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board. (3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board. (4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board. (5) Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative law judge may deem proper. (b) Any matter heard pursuant to subdivision (a), except for warning letters, medical review or advisory conferences, professional competency examinations, continuing education activities, and cost reimbursement associated therewith that are agreed to with the board and successfully completed by the licensee, or other matters made confidential or privileged by existing law, is deemed public, and shall be made available to the public by the board pursuant to Section 803.1.”
4California Business and Professions Code Section 2236 provides: “(a) The conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter. The record of conviction shall be conclusive evidence only of the fact that the conviction occurred. (b) The district attorney, city attorney, or other prosecuting agency shall notify the Division of Medical Quality of the pendency of an action against a licensee charging a felony or misdemeanor immediately upon obtaining information that the defendant is a licensee. The notice shall identify the licensee and describe the crimes charged and the facts alleged. The prosecuting agency shall also notify the clerk of the court in which the action is pending that the defendant is a licensee, and the clerk shall record prominently in the file that the defendant holds a license as a physician and surgeon. (c) The clerk of the court in which a licensee is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the board. The division may inquire into the circumstances surrounding the commission of a crime in order to fix the degree of discipline or to determine if the conviction is of an offense substantially related to the qualifications, functions, or duties of a physician and surgeon. (d) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section and Section 2236.1. The record of conviction shall be conclusive evidence of the fact that the conviction occurred.” SEE ALSO California Business and Professions Code Section 490, which provides: “(a) In addition to any other action that a board is permitted to take against a licensee, a board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. (b) Notwithstanding any other provision of law, a board may exercise any authority to discipline a licensee for conviction of a crime that is independent of the authority granted under subdivision (a) only if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the licensee’s license was issued. (c) A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that a board is permitted to take following the establishment of a conviction may be taken 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 the imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code. (d) The Legislature hereby finds and declares that the application of this section has been made unclear by the holding in Petropoulos v. Department of Real Estate (2006) 142 Cal.App.4th 554, and that the holding in that case has placed a significant number of statutes and regulations in question, resulting in potential harm to the consumers of California from licensees who have been convicted of crimes. Therefore, the Legislature finds and declares that this section establishes an independent basis for a board to impose discipline upon a licensee, and that the amendments to this section made by Senate Bill 797 of the 2007-08 Regular Session do not constitute a change to, but rather are declaratory of, existing law.”
5Hughes v. Board of Architectural Examiners, 17 Cal.4th 763, 788 (1998) (“It is axiomatic that the right of an individual to engage in any of the common occupations of life is among the several fundamental liberties protected by the due process and equal protection clauses of the Fourteenth Amendment. Therefore, for example, a statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession.” (Internal citations omitted)
6California Code of Regulations Title 16, Division 13, Section 1360 (“For the purposes of denial, suspension or revocation of a license, certificate or permit pursuant to Division 1.5 (commencing with Section 475) of the code, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a person holding a license, certificate or permit under the Medical Practice Act if to a substantial degree it evidences present or potential unfitness of a person holding a license, certificate or permit to perform the functions authorized by the license, certificate or permit in a manner consistent with the public health, safety or welfare. Such crimes or acts shall include but not be limited to the following: Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision of the Medical Practice Act.”)
7California Code of Regulations Title 16, Division 13, Section 1360, Id.
8California Business and Professions Code Section 2232 provides: “(a) Except 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. (b) This section shall not apply to a person who is required to register as a sex offender pursuant to Section 290 of the Penal Code solely because of a misdemeanor conviction under Section 314 of the Penal Code. (c) (1) Five years after the effective date of the revocation and three years after successful discharge from parole, probation, or both parole and probation if under simultaneous supervision, an individual who after January 1, 1947, and prior to January 1, 2005, was subject to subdivision (a), may petition the superior court, in the county in which the individual has resided for, at minimum, five years prior to filing the petition, to hold a hearing within one year of the date of the petition, in order for the court to determine whether the individual no longer poses a possible risk to patients. The individual shall provide notice of the petition to the Attorney General and to the board at the time of its filing. The Attorney General and the board may present written and oral argument to the court on the merits of the petition. (2) If the court finds that the individual no longer poses a possible risk to patients, and there are no other underlying reasons for which the board pursued disciplinary action, the court shall order, in writing, the board to reinstate the individual’s license within 180 days of the date of the order. The board may issue a probationary license to a person subject to this paragraph subject to terms and conditions, including, but not limited to, any of the conditions of probation specified in Section 2221. (3) If the court finds that the individual continues to pose a possible risk to patients, the court shall deny relief. The court’s decision shall be binding on the individual and the board, and the individual shall be prohibited from filing a subsequent petition under this section based on the same conviction. (d) This section shall not apply to a person who has been relieved under Section 290.5 of the Penal Code of his or her duty to register as a sex offender, or whose duty to register has otherwise been formally terminated under California law.”
9California Business and Professions Code Section 2236.1 provides: “(a) A physician and surgeon’s certificate shall be suspended automatically during any time that the holder of the certificate is incarcerated after conviction of a felony, regardless of whether the conviction has been appealed. The Division of Medical Quality shall, immediately upon receipt of the certified copy of the record of conviction, determine whether the certificate of the physician and surgeon has been automatically suspended by virtue of his or her incarceration, and if so, the duration of that suspension. The division shall notify the physician and surgeon of the license suspension and of his or her right to elect to have the issue of penalty heard as provided in this section. (b) Upon receipt of the certified copy of the record of conviction, if after a hearing it is determined therefrom that the felony of which the licensee was convicted was substantially related to the qualifications, functions, or duties of a physician and surgeon, the Division of Medical Quality shall suspend the license until the time for appeal has elapsed, if no appeal has been taken, or until the judgment of conviction has been affirmed on appeal or has otherwise become final, and until further order of the division. The issue of substantial relationship shall be heard by an administrative law judge from the Medical Quality Hearing Panel sitting alone or with a panel of the division, in the discretion of the division. (c) Notwithstanding subdivision (b), a conviction of any crime referred to in Section 2237, or a conviction of Section 187, 261, 262, or 288 of the Penal Code, shall be conclusively presumed to be substantially related to the qualifications, functions, or duties of a physician and surgeon and no hearing shall be held on this issue. Upon its own motion or for good cause shown, the division may decline to impose or may set aside the suspension when it appears to be in the interest of justice to do so, with due regard to maintaining the integrity of and confidence in the medical profession. (d) (1) Discipline may be ordered in accordance with Section 2227, or the Division of Licensing may order the denial of the license when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment (2) The issue of penalty shall be heard by an administrative law judge from the Medical Quality Hearing Panel sitting alone or with a panel of the division, in the discretion of the division. The hearing shall not be had until the judgment of conviction has become final or, irrespective of a subsequent order under Section 1203.4 of the Penal Code, an order granting probation has been made suspending the imposition of sentence; except that a licensee may, at his or her option, elect to have the issue of penalty decided before those time periods have elapsed. Where the licensee so elects, the issue of penalty shall be heard in the manner described in this section at the hearing to determine whether the conviction was substantially related to the qualifications, functions, or duties of a physician and surgeon. If the conviction of a licensee who has made this election is overturned on appeal, any discipline ordered pursuant to this section shall automatically cease. Nothing in this subdivision shall prohibit the division from pursuing disciplinary action based on any cause other than the overturned conviction. (e) The record of the proceedings resulting in the conviction, including a transcript of the testimony therein, may be received in evidence. (f) The other provisions of this article setting forth a procedure for the suspension or revocation of a physician and surgeon’s certificate shall not apply to proceedings conducted pursuant to this section.”
10Id.
11Id.
12In the Matter of the Accusation Against Kamron Hakhamimi [probation granted]
13California Business and Professions Code Section 2237 provides: “(a) The conviction of a charge of violating any federal statutes or regulations or any statute or regulation of this state, regulating dangerous drugs or controlled substances, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct. 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. (b) Discipline may be ordered 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 the 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.” SEE ALSO California Business and Professions Code Section 2238 (“A violation of any federal statute or federal regulation or any of the statutes or regulations of this state regulating dangerous drugs or controlled substances constitutes unprofessional conduct.”)
14Griffiths v. Superior Court of Los Angeles, 96 Cal.App.4th 757 (2002) [three driving and alcohol-related convictions substantially related to practice of medicine]; In the Matter of the Application of Karen Elizabeth Effinger [probationary license granted after applicant disclosed conviction for California Vehicle Code Section 23152(b) violation]; In the Matter of the Application of Jonathan Li [probationary license granted after applicant disclosed conviction for reckless driving (wet) under California Vehicle Code Section 23103.5]; In the Matter of the Application of Gary Robert Hensley [probationary license granted after applicant disclosed DUI conviction] SEE ALSO California Business and Professions Code Section 2239 (“(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.”
15In the Matter of the Application of Hrayr Georges Basmajian [probationary license granted]
16Krain v. Medical Board, 71 CA4th 1416 (1999) [finding Penal Code 653(f) violation substantially related to medical work] (“Krain’s conviction for soliciting the subornation of perjury, like the tax fraud conviction at issue in Windham, involves dishonesty. We agree with the reasoning of Windham: the intentional solicitation to commit a crime which has as its hallmark an act of dishonesty cannot be divorced from the obligation of utmost honesty and integrity to the patients whom the physician counsels, as well as numerous third party entities and payors who act on behalf of patients. Krain’s plea of guilty to solicitation of subornation of perjury is substantially related to his qualifications as a physician.” Internal citations omitted, Id at 1425)
17In the Matter of the Accusation Against Donald Lew Bedney [license surrendered]
18In the Matter of the Accusation Against Aaron Lang [license surrendered]
19Board discipline documents referenced herein do not appear to be “precedential decisions” within the meaning of California Government Code Section 11425.60, and are used as examples of outcomes in conviction-related discipline proceedings. California Government Code Section 11425.60 provides: “(a) A decision may not be expressly relied on as precedent unless it is designated as a precedent decision by the agency. (b) An agency may designate as a precedent decision a decision or part of a decision that contains a significant legal or policy determination of general application that is likely to recur. Designation of a decision or part of a decision as a precedent decision is not rulemaking and need not be done under Chapter 3. (commencing with Section 11340). An agency’s designation of a decision or part of a decision, or failure to designate a decision or part of a decision, as a precedent decision is not subject to judicial review. (c) An agency shall maintain an index of significant legal and policy determinations made in precedent decisions. The index shall be updated not less frequently than annually, unless no precedent decision has been designated since the last preceding update. The index shall be made available to the public by subscription, and its availability shall be publicized annually in the California Regulatory Notice Register. (d) This section applies to decisions issued on or after July 1, 1997. Nothing in this section precludes an agency from designating and indexing as a precedent decision a decision issued before July 1, 1997.”
20See California Business and Professions Code Section 2236.1, supra; Krain v. Medical Board, 71 CA4th 1416, 1422, supra [finding discipline permissible even where felony guilty plea was later reduced to a misdemeanor and then expunged] (“These cases evidence a uniform trend to construe statutes as permitting discipline based on an expunged conviction absent some statutory language precluding the use of such convictions. Sections 2236 and 2236.1 do not expressly limit the use of expunged misdemeanor convictions. The MPA as a whole contains no such limitation either. To the contrary, the MPA’s overall focus on physician conduct is wholly consistent with our interpretation of section 2236 and section 2236.1.” Internal citations omitted)
21California Business and Professions Code Section 492 provides: “Notwithstanding any other provision of law, successful completion of any diversion program under the Penal Code, or successful completion of an alcohol and drug problem assessment program under Article 5 (commencing with Section 23249.50) of Chapter 12 of Division 11 of the Vehicle Code, shall not prohibit any agency established under Division 2 (commencing with Section 500) of this code, or any initiative act referred to in that division, from taking disciplinary action against a licensee or from denying a license for professional misconduct, notwithstanding that evidence of that misconduct may be recorded in a record pertaining to an arrest. This section shall not be construed to apply to any drug diversion program operated by any agency established under Division 2 (commencing with Section 500) of this code, or any initiative act referred to in that division.” SEE ALSO CEB Professional Licensing, Section 3.17 (“WARNING > The enactment of Bus & PC 492 was intended to address the contrary holdings in cases such as B.W. v. Board of Med. Quality Assur. (1985) 169 CA3d 219.”) In the B.W. case, the court held that a practitioner’s discipline for cocaine possession was impermissible in light of his successful completion of Penal Code 1000 diversion where the Board relied solely on the related record of arrest.
22California Business and Professions Code Section 2236.1, supra.
23Griffiths v. Superior Court of Los Angeles, 96 Cal.App.4th 757, supra.
24Id at 771. Note also that the Board’s Disciplinary Guidelines distinguish between substantially related convictions that arise from or occur during patient care and those which do not.
25Watson v. Superior Court, 176 Cal.App.4th 1407, 1424 (“Furthermore, there can be no doubt petitioner’s driving after consuming alcoholic beverages on the four occasions at issue here posed a danger to himself and others. On two occasions petitioner was involved in a crash and in each instance he drove recklessly. The trial court so found, and petitioner does not challenge those factual findings. We therefore conclude petitioner was not denied due process by virtue of the application of section 2239, subdivision (a) under the circumstances of this case.”) SEE ALSO footnote 13, above, which gives examples of probationary licenses granted in cases of applicants with just one DUI conviction.
26California Business and Professions Code Section 802.1 provides: “(a) (1) A physician and surgeon, osteopathic physician and surgeon, and a doctor of podiatric medicine 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).”
27California Business and Professions Code Section 803.5 provides: “(a) The district attorney, city attorney, or other prosecuting agency shall notify the Medical Board of California, the Osteopathic Medical Board of California, the California Board of Podiatric Medicine, the State Board of Chiropractic Examiners, or other appropriate allied health board, and the clerk of the court in which the charges have been filed, of any filings against a licensee of that board charging a felony immediately upon obtaining information that the defendant is a licensee of the board. The notice shall identify the licensee and describe the crimes charged and the facts alleged. The prosecuting agency shall also notify the clerk of the court in which the action is pending that the defendant is a licensee, and the clerk shall record prominently in the file that the defendant holds a license from one of the boards described above. (b) The clerk of the court in which a licensee of one of the boards is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the applicable board.” SEE ALSO California Business and Professions Code Section 803.6 (“(a) The clerk of the court shall transmit any felony preliminary hearing transcript concerning a defendant licensee to the Medical Board of California, the Osteopathic Medical Board of California, the California Board of Podiatric Medicine, or other appropriate allied health board, as applicable, where the total length of the transcript is under 800 pages and shall notify the appropriate board of any proceeding where the transcript exceeds that length. (b) In any case where a probation report on a licensee is prepared for a court pursuant to Section 1203 of the Penal Code, a copy of that report shall be transmitted by the probation officer to the board.”)
28See CEB Professional Licensing 3.20 (“Although the record of evidence is conclusive evidence that a conviction has occurred, the statutes usually permit the agency to inquire into the facts and circumstances surrounding the crime to.Fix the degree of discipline; or Determine whether the conviction is substantially related to the qualifications, functions, and duties of the license in questions.Courts also may consider the acts and circumstances surrounding the crime to determine whether there is any mitigation or rehabilitation evidence. NOTE > The licensee may not use the underlying facts and circumstances to impeach the conviction during the license discipline case.” California Business and Professions Code Section 493 provides: “Notwithstanding any other provision of law, in a proceeding conducted by a board within the department pursuant to law to deny an application for a license or to suspend or revoke a license or otherwise take disciplinary action against a person who holds a license, upon the ground that the applicant or the licensee has been convicted of a crime substantially related to the qualifications, functions, and duties of the licensee in question, the record of conviction of the crime shall be conclusive evidence of the fact that the conviction occurred, but only of that fact, and the board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, and duties of the licensee in question. As used in this section, “license” includes “certificate,” “permit,” “authority,” and “registration.”)
29As to STATUTE OF LIMITATIONS, California Business and Professions Code Section 2230.5 provides: “(a) Except as provided in subdivisions (b), (c), and (e), any accusation filed against a licensee pursuant to Section 11503 of the Government Code shall be filed within three years after the board, or a division thereof, discovers the act or omission alleged as the ground for disciplinary action, or within seven years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first. (b) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging the procurement of a license by fraud or misrepresentation is not subject to the limitation provided for by subdivision (a). (c) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging unprofessional conduct based on incompetence, gross negligence, or repeated negligent acts of the licensee is not subject to the limitation provided for by subdivision (a) upon proof that the licensee intentionally concealed from discovery his or her incompetence, gross negligence, or repeated negligent acts. (d) If an alleged act or omission involves a minor, the seven-year limitations period provided for by subdivision (a) and the 10-year limitations period provided for by subdivision (e) shall be tolled until the minor reaches the age of majority. (e) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging sexual misconduct shall be filed within three years after the board, or a division thereof, discovers the act or omission alleged as the ground for disciplinary action, or within 10 years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first. This subdivision shall apply to a complaint alleging sexual misconduct received by the board on and after January 1, 2002. (f) The limitations period provided by subdivision (a) shall be tolled during any period if material evidence necessary for prosecuting or determining whether a disciplinary action would be appropriate is unavailable to the board due to an ongoing criminal investigation.” As to REHABILITATION, California Business and Professions Code Section 2229 provides: “(a) Protection of the public shall be the highest priority for the Division of Medical Quality, the California Board of Podiatric Medicine, and administrative law judges of the Medical Quality Hearing Panel in exercising their disciplinary authority. (b) In exercising his or her disciplinary authority an administrative law judge of the Medical Quality Hearing Panel, the division, or the California Board of Podiatric Medicine, shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence. (c) It is the intent of the Legislature that the division, the California Board of Podiatric Medicine, and the enforcement program shall seek out those licensees who have demonstrated deficiencies in competency and then take those actions as are indicated, with priority given to those measures, including further education, restrictions from practice, or other means, that will remove those deficiencies. Where rehabilitation and protection are inconsistent, protection shall be paramount.”
30California Government Code Section 11371 provides: “(a) There is within the Office of Administrative Hearings a Medical Quality Hearing Panel, consisting of no fewer than five full-time administrative law judges. The administrative law judges shall have medical training as recommended by the Division of Medical Quality of the Medical Board of California and approved by the Director of the Office of Administrative Hearings. (b) The director shall determine the qualifications of panel members, supervise their training, and coordinate the publication of a reporter of decisions pursuant to this section. The panel shall include only those persons specifically qualified and shall at no time constitute more than 25 percent of the total number of administrative law judges within the Office of Administrative Hearings. If the members of the panel do not have a full workload, they may be assigned work by the Director of the Office of Administrative Hearings. When the medically related case workload exceeds the capacity of the members of the panel, additional judges shall be requested to be added to the panels as appropriate. When this workload overflow occurs on a temporary basis, the Director of the Office of Administrative Hearings shall supply judges from the Office of Administrative Hearings to adjudicate the cases. (c) The administrative law judges of the panel shall have panels of experts available. The panels of experts shall be appointed by the Director of the Office of Administrative Hearings, with the advice of the Medical Board of California. These panels of experts may be called as witnesses by the administrative law judges of the panel to testify on the record about any matter relevant to a proceeding and subject to cross-examination by all parties, and Section 11430.30 does not apply in a proceeding under this section. The administrative law judge may award reasonable expert witness fees to any person or persons serving on a panel of experts, which shall be paid from the Contingent Fund of the Medical Board of California upon appropriation by the Legislature. SEE ALSO California Government Code 11372, which provides: “(a) Except as provided in subdivision (b), all adjudicative hearings and proceedings relating to the discipline or reinstatement of licensees of the Medical Board of California, including licensees of affiliated health agencies within the jurisdiction of the Medical Board of California, that are heard pursuant to the Administrative Procedure Act, shall be conducted by an administrative law judge as designated in Section 11371, sitting alone if the case is so assigned by the agency filing the charging pleading. (b) Proceedings relating to interim orders shall be heard in accordance with Section 11529.”
31California fared pretty badly in watchdog group Public Citizen’s recently released rankings of state doctor discipline. The report concluded that discipline was down across the country, with Alaska coming out the best and Minnesota the worst. As to California: “Although California barely escaped from being one of the worst 10 states in 2007-2009 (it was the 11th worst), its rate of discipline has also fallen considerably since the 2001-2003 period, when it was ranked 22nd.” Doctors are not the only healing arts professionals in California to catch the attention of the media. Pro Public and the LA Times recently published a series of articles exposing lax enforcement by the Board of Registered Nursing.