California physicians recently arrested for crimes receive a letter from the Medical Board of California that begins “[t]he Medical Board of California has received notification from the Department of Justice of your arrest on [date] by the [name] police department ….”. This letter, captioned “PERSONAL & CONFIDENTIAL”, sternly reminds physicians of their obligation under Business and Professions Code Section 802.1 to report misdemeanor and felony convictions, and the bringing of a felony indictment or information. In the final paragraph, in bold, the letter states “[t]he Board is requesting a written explanation of the events surrounding the incident” with a deadline provided.

A physician or surgeon receiving such a letter could easily be led to believe that the quoted law requires the physician to provide a written explanation of the events surrounding their arrest as a part of their reporting duty. However, there is no such requirement. Furthermore, a physician who provides a written explanation may give up important rights. Let me explain.

Under California law, as a general principle, a licensing agency may not discipline a valid, clear license for a mere arrest. Under Business and Professions Code sections 7.5 and 490, a licensing board can discipline for a criminal conviction only once there has been a plea or verdict of guilty or a conviction following a plea of nolo contendere, and only after the time for appeal has elapsed, the conviction has been affirmed on appeal, or an order granting probation has been made.

Further, once a licensee has been arrested and is subject to potential prosecution for a crime, a licensee has a Fifth Amendment right to not make incriminating statements, such as a written explanation to the Medical Board would include. Although most criminal matters end in a conviction based on a plea bargain, not all do. Statements made to the Medical Board could end up in a prosecutor’s hands as a confession to be used against the licensee.

Lastly, some arrests never result in criminal case filings. If a criminal case is never filed, a conviction will never result which could subsequently be the basis of license discipline. However, a written explanation of criminal conduct could impel the Medical Board to investigate a licensee to seek out other grounds for discipline.

In some rare cases, it could be advisable or even advantageous to provide a written response to the Medical Board. Any letter from the Medical Board should not be completely ignored. The best course of action is to consult with an attorney to determine what the law requires and what the best response would be, then either the attorney or licensee can respond accordingly. At Ray & Bishop, PLC, our team of license defense attorneys have a deep fund of experience in handling Medical Board of California investigations. Contact us for a consultation if you have receive an email or correspondence from the Medical Board of California.