California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

The California Medical Board mandates the disclosure of felony charges (after an information has been filed in criminal court) and all misdemeanor convictions.  Also, through the California Department of Justice or the criminal courts, the Board sometimes is notified of a pending or completed criminal case.  Physicians also must answer background change questions (such as, have you been convicted of a crime?) on their license renewal forms.  Through one of these channels, the Medical Board typically becomes aware of a pending or completed criminal case that can trigger discipline.

Make Good Decisions from the Start of the Problem

To exercise effective damage control from the early days of the criminal matter, I strongly recommend having a license law attorney on one's legal team.  A license law attorney brings a long-term perspective of potential future license consequences that can educate the criminal defense attorney and his client.  One of the biggest mistakes that physicians make is to fail to appreciate the serious fallout and lasting career damage that can result from a criminal investigation or prosecution.

Documenting and Preserving Mitigating Information

One often missed step, important for successful handling of potential license problems, is to document and preserve mitigation evidence.  Mitigation evidence is evidence that tends to explain or provide a context for the alleged wrongful act to cast it in a more sympathetic, reasonable and understandable light.  Examples of mitigation evidence are a tragic life event, something that causes extreme stress such as the death of a parent or child, a bitter divorce, a severe illness, or extreme financial hardship.  Without important contextual information, the Board might assume that the criminal matter gives telling insight into the personal flaws of the Board's licensee from which the Board can generalize and make broader assumptions.

Criminal Defense with License Consequences in Mind

Criminal defense lawyers often focus upon the final conviction charge (case outcome) in attempting to minimize adverse effects on a physician's license.  This emphasis is too narrow and usually  misplaced.  If there is any conviction of a felony or misdemeanor, the Board can look through the conviction to the underlying facts.  Therefore the contents of the investigative reports, the rulings of the judge on issues such as bail or protective orders, the length and conditions of probation, and negotiated post-conviction relief, are all aspects of the case which have an impact upon whether the Board will seek discipline against a license, and what the disciplinary case outcome might be.

Early and Proactive Rehabilitative Efforts

Another often missed opportunity is the chance to make early and proactive rehabilitative efforts.  If the Board decides to discipline a physician's license, once a conviction is proven at hearing, the burden shifts to the licensee to show rehabilitation to enable the Board or administrative law judge to decide what, if any, discipline is appropriate.  Rehabilitation evidence is critical because the Board justifies discipline based upon criminal convictions by reasoning that criminal convictions show a character flaw, a lack of judgment, or impairment that endangers the public, depending upon the facts of the case.  To the degree that a physician can show the issues in the criminal case have been addressed or resolved by rehabilitative efforts, the justification for discipline may be reduced or removed, resulting in a better discipline case outcome, or perhaps even a case dismissal.

What Types of Cases Trigger Discipline

Unremarkable misdemeanor convictions that do not point to troubling concerns about the licensee are the most likely to not result in license discipline.  These would include low blood alcohol drunk driving cases, disturbing the peace based on loud noise or a fight between adults, some types of disorderly conduct, and misdemeanor Vehicle Code cases.  Criminal cases that are likely to trigger discipline are ones that point to drug or alcohol abuse, have facts that show or hint at mental illness, any type of theft or fraud, any violent crime, and any sex crime, to name some major categories.  Sexual offenses that result in conviction and mandated sex offender registration can trigger immediate license revocation.  To make a reasonable assessment of the potential Board reaction to a particular factual scenario, it is best to hire a license defense law firm to review the matter.  We offer consultations to review criminal matters to assess them for likely licensing outcomes, to identify mitigation evidence early and to build a rehabilitation case. 

Be Honest

It is crucial that a physician never lie to the Medical Board about a criminal case.  Direct dishonesty is typically more damaging than the criminal case itself.  I strongly recommend that the physician have an attorney review all their communications with the Board before they are sent, if for no other reason than to ensure that the information provided is accurate and that the exchanges are well documented.  The early involvement of a license defense attorney can ensure an honest, positive and consistent message that reassures the Medical Board and acts to prevent or minimize license discipline.

Medical Students, Medical Residents and Physician License Applicants

These principles apply to anyone applying to medical school, attending medical school, working in a medical residency, applying for a PTAL (foreign medical school graduate's residency permit) or seeking a California physician's license.  The earlier the issue is addressed, the better.  If the background problem is so serious that it will jeopardize the physician's licensing process, the problem must be identified early so that the individual can consider options and plan for overcoming impediments to obtaining a full clear physician's license.

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For about 70 years, the California Department of Justice tracked prescriptions of narcotic medications as a means to detect prescription drug abuse.  In 2008, then-Attorney General Jerry Brown set out to modernize the system, which came to be known as CURES, or Controlled Substance Utilization Review and Evaluation System, so that instead of calling or faxing in information requests, physicians and pharmacists could log in and check prescription histories to detect diversion of narcotic drugs through filled prescriptions.

As the CURES system has been modernized, it is also become a widely used tool for the detection of "doctor shopping," excessive prescribing and other strategies whereby both patients abuse prescription drugs and physicians game the system to essentially act as drug dealers from their medical practice.  The result of the modernization of the CURES system is apparent in a growing number of high profile cases involving physicians criminally prosecuted and disciplined for excessive prescribing of narcotic medications to drug abusing individuals.  CURES has become a law enforcement tool for the Medical Board and police alike to both detect and substantiate perceived drug dealing involving medical practices and pharmacies.

Physicians must therefore be mindful of patients who return for multiple refills of narcotic medications.  In these cases, a check of the CURES database through the Department of Justice can detect doctor shopping behavior by a patient.  Also, physicians should be aware that excessive prescribing of dangerous drugs outside of practice norms can raise a red flag resulting in a Medical Board investigation and more dire consequences.

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California physicians must self-report criminal actions to the Medical Board of California.  This mandatory reporting occurs independent of license renewal, although similar disclosure is also required on the license renewal form.  Since license renewals ask for adverse information disclosure, basic compliance is relatively easy.  [However, written explanations that usually must accompany a renewal or an application are best submitted only after review by a license law attorney.]  Complying with mandatory reporting laws benefits the licensee by acting in a required but also responsible fashion, and also avoids a possible sanction, such as a citation and fine, for failure to report an adverse action.

All California physicians must disclose all criminal convictions and the bringing of felony charges against them, by criminal complaint or indictment, within 30 days of the occurrence.  The mechanism for reporting criminal actions is the 802 report, available online from the Medical Board of California’s website.  The form primarily asks for information that enables Board enforcement personnel to conduct an independent investigation of the criminal action.  Failure to report can be grounds for discipline against a physician, although, typically, formal discipline is only sought for failure to disclose in conjunction with other grounds for discipline.  Failure to report in and of itself will typically only be cited for a fine of $1,000.00 or less.  Although I have never seen it done, failure to submit a mandatory criminal action report can constitute a crime punishable by a fine up to $5,000.

I strongly urge my physician clients to submit their 802 report, accurately completed and in a timely manner.  If the form is late, I recommend sending it anyway.  There are several benefits to submitting the 802 report. First, under a related reporting law, the criminal court clerk must also report physician criminal actions to the Medical Board.  Therefore, it is better to be proactive and candid with the Medical Board if the Board will independently discover the criminal action anyway.  Second, the positive impression made by proactive disclosure can mitigate or even prevent discipline (in a close case) against the licensee.  Third, providing information to the Medical Board ensures that the information will be accurate.   

Physicians are typically fearful of making a report of a criminal action to the Board.  I completely understand and sympathize with this fear.  This fear, paired with the hope that the Board will never discover the criminal action, is the typical reason a physician would choose to not report a criminal action.  However, it is much more likely that the Board will eventually discover the criminal action.  The non-reporting may very well be viewed by Board enforcement as concealment or dishonesty.  This violates the trust between the licensee and agency.  If there is a close question as to whether the criminal action should trigger an accusation, Board enforcement staff, unhappy with the non-disclosure, may lean towards formal discipline. 

Finally, I would like to say a word about Board disclosure advice from criminal defense attorneys.  A licensee charged with or convicted of a crime may be advised by their criminal defense attorney to make no statements to anyone including their licensing agency.  However, a professional license is not a right, it is a privilege, and licensees do not enjoy the same rights vis-à-vis their licenses as citizens do concerning their liberty and property.  A felony charge, even if frivolous, must be disclosed.  Any misdemeanor conviction, even if it is to be expunged, must be disclosed.  If one deviates from compliance with these rules upon the advice of an attorney, I would get that advice in writing at a minimum, to cite it in the future as a defense, if necessary.    

An appropriate demeanor, including honesty and taking appropriate responsibility, can be crucial to achieving a favorable result with the Medical Board.  Prompt compliance with the Board’s disclosure rules is an important first step.

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The California Medical Board’s Diversion Program ended June 30, 2008, bringing to a close an important option for getting physicians treatment for substance abuse without creating a record of public discipline that leaves most careers in ruins. 

For those physicians who remained in the Diversion Program as of June 30^th, they were placed into two groups: those who would be discharged early from Diversion thanks to their success, and those who would remain “in diversion” supervised by the enforcement arm of the Medical Board of California. For new cases, the Diversion option no longer exists.

The California Medical Board’s Diversion Program could never adequately satisfy the concerns of its critics. A certain portion of the community felt that the program helped shield addicted physicians from public discipline thereby putting the public at risk. On the other hand, the Diversion Program’s resources were so limited that some participants received inadequate treatment and supervision for their addiction, which would lead to positive drug tests and other violations. Such violations created a predicament for the program, because the program was, by its very nature, designed to treat addicted physicians and not to throw them to the wolves by sending them off for formal Board discipline. Nevertheless, the program had to draw the line and punish some physicians with formal discipline. In summary, the program was too lax for some, inadequate for others, and for some others fundamentally punitive in nature, contradicting its stated mission.

California physicians now must proactively seek confidential help for their addictions. Once the Board is involved, the Board, by its mandate, must “protect” the general public by seeking public discipline if warranted. Such disciplinary actions can be career-ending. A physician’s career, as seen through the eyes of this licensing attorney, is a house of cards, those cards being a myriad of licenses, certifications and privileges from boards, hospitals, associations and insurers. One black mark can place each and every license, certification and privilege in jeopardy.

It is, therefore, absolutely critical that physicians who struggle with drug or alcohol addiction, or other mental illness, swiftly and privately seek help. There are several nationally prominent addiction treatment programs, including Hazelden Springbrook in Newberg, Oregon, and the Farley Center at Williamsburg Place in Virginia, which specialize in the treatment of physicians. Locally in southern California, Cornerstone of Southern California is a well-established and prominent program which treats professionals for drug and alcohol addictions. In this post-diversion era, a physician who wants to salvage their career by privately seeking treatment must seek effective treatment through one of these programs without delay.       

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