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If you are a physician in California facing a pending criminal case, you need to be aware of how that criminal action can affect your medical license. The fact is, the Medical Board of California can, and most likely will, seek an interim suspension of your medical license while that criminal case is pending. There are several ways that they can go about this that are outlined below:

Office of Administrative Hearings Interim Suspension Order

The first avenue is an Interim Suspension Order (“ISO”) pursuant to Government Code § 11529(a). The pertinent language of this section provides that:

The administrative law judge of the Medical Quality Hearing Panel … may issue an interim order suspending a license, imposing drug testing, continuing education, supervision of procedures, limitations on the authority to prescribe, furnish, administer, or dispense controlled substances, or other license restrictions.  Interim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act … and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare…

This means that the Medical Board, through the Attorney General’s Office, can file a motion with the Office of Administrative Hearings seeking an order from an Administrative Law Judge finding that you “already or will engage in acts that violate the Medical Practice Act.”

The Board is required to give 15 days’ notice of a hearing prior to doing so unless the affidavit shows that serious injury could occur before the hearing could take place, in which case no hearing or notice is necessary. (Gov. Code §§ 11529(b), (c), and (d).) If the Board were to obtain an immediate suspension, a hearing would need to take place within the next 20 days. (Gov. Code § 11529(c).) If the hearing does not result in an accusation being filed against you in the 15 days following the hearing, the matter would be considered dissolved. (Gov. Code § 11529(f).)

This ISO process is usually used in cases involving prescription fraud or health-related issues. It is important to note that there must be a written motion and advanced notice.

Judicial Order

A second way that the Medical Board could seek to suspend your license is via a temporary restraining order through the Superior Court. (Bus. & Prof. Code § 125.7.) The section provides in pertinent part:

…the superior court for the county in which any licensee licensed under Division 2 (commencing with Section 500), or any initiative act referred to in that division, has engaged or is about to engage in any act that constitutes a violation of a chapter of this code administered or enforced by a board referred to in Division 2 (commencing with Section 500), may, upon a petition filed by the board and accompanied by an affidavit or affidavits in support thereof and a memorandum of points and authorities, issue a temporary restraining order or other appropriate order restraining the licensee from engaging in the business or profession for which the person is licensed or from any part thereof, in accordance with this section.

This functions similarly to Gov. Code § 11529, in that it must be based on affidavits, and notice is required unless evidence of serious injury to the public can be provided. (Bus. & Prof. Code §§ 125.7(a), (b).) The matter is dissolved if no accusation is filed within 30 days of the hearing. (Bus. & Prof. Code § 125.7(d).) Again, this would be filed with advanced notice and likely by the Attorney General’s Office as counsel to the Board.

Board Pursues Injunction

A third way is through an injunction from the Superior Court authorized by the Medical Practice Act. This can be obtained if the Division of Medical Quality has reasonable cause to believe that a licensee’s continued practice of medicine would endanger public health, safety, or welfare. (Bus. & Prof. Code section 2311 and 2312.) The rules governing these injunctions are found in the Code of Civil Procedure section 525, et seq.

There have even been situations where the Medical Board has appeared unannounced at a criminal proceeding, motion in hand, to request that a licensee’s medical license be suspended on the spot. Penal Code section 23 says that any state agency that issues professional licenses can appear in any criminal proceeding if the crime charged is substantially related to the qualifications, functions, or duties of a licensee. The agency can also make recommendations regarding specific conditions of probation, including suspension of a license. (Cal Penal Code § 23.)

Of course, if you are convicted of a felony, not only does the prosecutor have a duty to report the conviction to the Division of Medical Quality, it also constitutes grounds for an automatic suspension. (Bus & Prof. Code §§ 2236 and 2236.1.) However, the mere filing of a felony complaint absent an evidentiary showing that a failure to take action would cause injury to the public is not enough.

The courts have found that these surprise motions violate procedural due process, and that prior notice, an evidentiary showing, and an opportunity to be heard are necessary before an interim suspension can be obtained. However, that does not mean that the Medical Board will not try anyway. There are also conflicting opinions regarding whether the Medical Board can make a ruling regarding a licensee that is subject to a pending criminal proceeding, which can mean that either the interim suspension is granted, despite potential due process violations, or the issue is put on hold indefinitely in deference to the criminal case.

Because of the above issues, it is important to be aware of the possibility that the Board may attempt to suspend your license at any time during your criminal case so that you can prepare accordingly. Losing your license, even temporarily, can have huge consequences on your practice and could potentially cause you to lose hospital privileges.

The attorneys at Simas & Associates have vast experience defending professional licenses, particularly those in the medical field. We have already helped hundreds of physicians, nurses, physical therapists, dentists, and veterinarians when their licenses were in jeopardy. If you have any questions regarding your professional license, please feel free to give the experienced attorneys at Simas & Associates a call at (888) 999-0008.

[1] See Gray v. Superior Court (2005) 125 Cal.App.4th 629, 643 [23 Cal.Rptr.3d 50].
[1] Id, at 642.
[1] Id, at 640.