Posted on May 23, 2010 by Fredrick Ray

Disclosure of Criminal Actions by California Physicians

 

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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Posted on December 1, 2008 by Fredrick Ray

The End of Diversion Leaves California's Physicians to Help Themselves

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 30th, 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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