Building a Defense Against California Medical Board Discipline Triggered by Criminal Matters
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.
