Physician Professional Misconduct

As a doctor, you have devoted your career to caring for others.  Yet too often, physicians face false allegations and accusations of wrongdoing that can ruin their careers — and put their license to practice in jeopardy.

According to statistics from the Medical Board of California, between 2017 and 2018, 450 California physicians faced disciplinary action. The outcomes for these doctors ranged from public reprimand (133) to probation (139) to license surrender (98) to revocation (59).  Other physicians were given a probationary license (16) or were put on probation with suspension (5).

These numbers demonstrate just how seriously the Medical Board of California takes allegations of any type of misconduct against California doctors.  If you are accused of violating the law or code of ethics, it may lead to serious consequences, including the loss of your livelihood.

One of the most common reasons for this type of disciplinary action is allegations of professional misconduct.  An experienced California physician license defense attorney can work with you to defend against this type of complaint.

The Law Office of Nicole Irmer defends doctors who have been accused of violations of the law, including professional misconduct.  If you are facing this type of complaint, we can help, by thoroughly investigating the case against you and then by putting together a strong defense to the allegations. Contact us today or call us at (619) 237-6310 to schedule a free initial consultation.

What Is Considered Professional Misconduct?

In California, doctors are regulated by the Medical Board of California (MBC).  This state agency is responsible for both licensing and disciplining medical doctors. A complaint against a doctor and certain other medical professionals can be based on one of seven specific issues, including professional misconduct.

Doctors in California are subject to the standards set forth in the Medical Practice Act (MPA), which is set forth in the Business and Professions Code.  Under this code, unprofessional conduct is broadly defined to encompass a wide range of behaviors, including:

• Excessive prescribing or furnishing of drugs or treatment;
• Committing sexual abuse or misconduct;
• Engaging in a sexual relationship or sexual behavior with a current or former patient, even if the relationship was consensual;
• Performing a medical evaluation without being certified as a medical evaluator;
• Directing or supervising the performance of acupuncture without being licensed to do so;
• Performing acupuncture without a license, at the direction or supervision of someone licensed by the board;
• Failing to refund a duplicate payment in a timely manner, with or without a request to do so;
• Obstructing a patient from obtaining a prescription drug or device.

In addition, the MPA lists the following types of unprofessional conduct that are subject to discipline:

• Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of, or conspiring to violate any provision of this chapter;
• Gross negligence;
• Repeated negligent acts. To be repeated, there must be two or more negligent acts or omissions. An initial negligent act or omission followed by a separate and distinct departure from the applicable standard of care shall constitute repeated negligent acts; An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act;
• When the standard of care requires a change in the diagnosis, act, or omission that constitutes the negligent act described in paragraph (1), including, but not limited to, a reevaluation of the diagnosis or a change in treatment, and the licensee’s conduct departs from the applicable standard of care, each departure constitutes a separate and distinct breach of the standard of care; 
• Incompetence; 
• The commission of any act involving dishonesty or corruption that is substantially related to the qualifications, functions, or duties of a physician and surgeon;
• Any action or conduct that would have warranted the denial of a certificate;
• The practice of medicine from this state into another state or country without meeting the legal requirements of that state or country for the practice of medicine;
• The repeated failure by a certificate holder, in the absence of good cause, to attend and participate in an interview by the board.

It is also considered professional misconduct to be convicted of any offense related to the qualifications, functions, or duties of a physician. The Medical Board of California interprets “substantially related” very broadly, and includes convictions of Driving Under the Influence (DUI), Disorderly Conduct, Shoplifting, Drug Offenses, Trespassing, and Disturbing the Peace. (Please note, this is not an exhaustive list).

Doctors are liable for unprofessional conduct as defined by other sections of the Business and Professions Code.  According to the MBC’s guide on the laws governing doctors in California, the following actions could lead to a complaint:

• Misrepresenting compliance with the continuing medical education (CME) requirement
• Violation of the no-referrals law (prohibiting accepting something of value for a referral)
• Failure to comply with the law regarding outpatient surgery
• Failure or refusal to furnish patient records to the Department of Health Care Services’ Investigators (for Medi-Cal providers)
• Repeated failure to attend and participate in an interview scheduled by the Medical Board, if the physician is under investigation unless there is good cause to do so
• Failure to maintain adequate and accurate hospital records
• Willful violation of the “Patient Access to Health Records Act”
• Failure to report known or suspected child abuse
• Failure to report physical injuries, abuse or neglect of a patient transferred from a health or community care facility

Under both the law and the Medical Board’s guidelines, California physicians may be subjected to a complaint about misconduct for a variety of reasons.  Because the MBC can potentially investigate a doctor’s license for professional misconduct for almost any reason, it is imperative to retain an experienced physician license defense attorney as soon as possible after you learn of a complaint. The Medical Board’s investigator is a law enforcement personnel. Failure to take strategic action during the investigative process could result in more substantial discipline, penalties, or sanctions. You can learn more about the investigatory process here.

The Disciplinary Process for the Medical Board

A complaint against a California physician starts when a member of the public, a mandated reporter, an employer, a hospital, an insurance company, a health care provider, or another individual or group files an allegation against a doctor.  From there, the complaint is referred to the Central Complaint Unit (CCU) to make a number of decisions, including whether it is within the Medical Board’s jurisdiction if authorization for release of medical records is required, or if more information is needed.

The Board may then asks the physician to participate in an interview. Although the analyst or investigator may imply, or flat out say that the interview is an informal process, it is not, and should not be taken lightly. Prior to the interview the law enforcement investigator, a medical consultant, and sometimes even a prosecutor for the Board will review the records and have a lengthy list of questions. The interview process is one of the most important phases of any matter with the Medical Board. You may learn more about the process here.

If the CCU determines that no violation has occurred, then the case is closed.  Cases in which minor violations have been established may be resolved by requesting that the physician come into compliance, mediating the issue, or by issuing a citation and fine.  These are all alternatives to the formal accusation and disciplinary process.

In situations where more serious violations have been alleged, the CCU refers the case to the district office for review.  After investigation, the file may be closed and retained for a period of one to five years, referred to the Office of the Attorney General (the Prosecutors for the Medical Board), or referred for other actions.  This may include a referral to the local district attorney for criminal prosecution.

If the Office of the Attorney General deems the complaint has merit, then a Deputy Attorney General will draft formal charges, known as an Accusation, and schedule a hearing with the Office of Administrative Hearing.

The MBC’s guidelines for discipline in professional misconduct cases indicate that the minimum penalty is a stayed revocation with 5 years of license probation, with a maximum penalty of revocation. This potential for a full license revocation increases with the severity of the alleged offense. As such, it may be necessary to demonstrate why a deviation from the disciplinary guidelines is warranted.

The disciplinary process is complex and requires both mitigating against the allegation while simultaneously defending against the allegations.  If you are facing allegations of professional misconduct, you will need a zealous advocate who can think strategically about a defense that will protect your license and minimize the possibility of criminal charges.  A California physician license defense attorney can thoroughly investigate your case to put together a strong factual and legal defense to the allegations made against you.

Fight Back Against Professional Misconduct Allegations

By the time that you learn of a professional misconduct complaint, the MBC investigation may have already determined that there is at least some evidence to substantiate the complaint.  With your license on the line, you will need to act quickly to defend yourself against these allegations and protect your hard-earned career and reputation.

Work with a Professional Licensure Attorney Representing Physicians Throughout California

The Law Office of Nicole Irmer is dedicated to representing physicians and other healthcare professionals who face allegations against their licenses.  Ms. Irmer understands the challenges that doctors face when they are being investigated. She will navigate you through the process, diligently working to protect your license through each step.

The Law Office of Nicole Irmer has represented doctors throughout California who are under investigation by the Medical Board.  We have the experience and know-how to develop a comprehensive plan to defend you and help you keep your license. To learn more or to schedule a consultation with a physician license defense attorney, contact us online or call us at (619) 237-6130.