Health Law Ticker : California Lawyers & Attorneys for Regulatory, Transactional & Litigation Representation for Healthcare Professionals in the US

Doctors, lawyers, and other professional licensees beware, a recent court of appeal decision creates a low burden of proof for revoking the license of a professional on probation.

A licensed health care provider has a fundamental vested right to her license (Bixby v. Pierno (1971) 4 Cal. 3d 130). Therefore, efforts to deprive her of her license require the licensing authority to prove its case by clear and convincing evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal. App. 3d 853, 856.) The Ettinger court clearly explained why it was adopting this heightened standard of proof: “It seems only logical to require a higher standard of proof when dealing with revocation or discipline of a professional licensee as opposed to mere termination of state employment.”

But most disciplinary cases settle, and the standards for settlement are well understood and have even been published: so many years of probation depending on the offense; good behavior; law compliance; regular reports; payment of prosecution costs, etc. But the format of a probationary settlement is also cast in stone: the stipulation will recite that the license is revoked but that the revocation is stayed during the term of probation; and if the licensee successfully completes the probation, the charges will then be dismissed. In other words, the provider’s license – physician, dentist, nurse, whoever – is theoretically revoked, but the revocation is not in force.

It will not be surprising that some licensees will continue to have compliance problems while on probation: all persons may have such problems at one time or another; and most often, people will settle their cases by accepting probation because something in their conduct wasn’t quite right. And people who were in trouble once may have a proclivity for more trouble. So, if there is another charge against a licensee already on probation, more discipline can be expected.

But what will be the standard for proving that new violation? Will it be the same requirement of “clear and convincing evidence,” which the courts have held to be necessary because “a fundamental vested right” is in danger of being lost?

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A  prosecuting attorney who represents professional licensing boards shared with me his view that the decision to file disciplinary charges (PDF) is determined largely by the licensee's past conduct, whereas the degree of discipline is significantly influenced by the remedial measures undertaken by the licensee since the events leading to the disciplinary action.

In my experience, this is true.  The sooner a health care professional can take a serious look at and begin to effectively address the issues leading to the board's action, the better off he or she will be.  This is appropriate even if the allegations are exaggerated, and even in some cases where the allegations are untrue.

What kinds of remedial measures are appropriate in a given case?  The best answer to this is to initiate whatever measures are necessary to assure the licensing board that patient safety will be protected.  The highest priority of any health care licensing board is to protect patient safety.  So, any problem (or allegation of a problem) that threatens patient safety must be addressed.

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In the unfortunate event that a health care professional faces an accusation from a licensing board, what issues should he or she be thinking about?  The answer is - everything!

The implications of professional discipline extend as far as one's professional life.  All professional organizational affiliations are likely to be impacted.  Therefore, in planning a defense, it is imperative to take into account a broad range of issues, including at least the following: 

• Medicare/Medi-Cal provider status;
• private network provider status;
• DEA registration;
• professional liability insurance;
• specialty board certification;
• employment status;
• medical staff issues;
• tort liability; and
• immigration status. 

For a full-length discussion of these issues, see my article published in ABA The Health Lawyer entitled, Representing Healthcare Professionals in Disciplinary Actions: Containing the Collateral Damage (PDF).  This was written for attorneys representing health care professionals.

This broad range of issues can seem overwhelming.  The point to keep in mind, however, is that the touchstone in any disciplinary action is patient safety and professional rehabilitation.  To the extent that a health care professional can demonstrate that he or she is fit to practice safely with due regard for the well-being of patients, and that the professional is undergoing appropriate rehabilitation if needed, the prospects for maintaining one's professional status are quite good.

Check my blog again as I address these and other topics in more detail.  Your questions and comments are, of course, welcome.

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The most frequent question I am asked, in almost every context of my life, is "Why did you change from practicing medicine to practicing law?"  Of course, I have an answer to that question that I can recite in my sleep, and depending on my mood, who's asking and how verbose I'm feeling, it varies from simply, "I wanted to combine the two disciplines" to a much longer (and undoubtedly very boring) history of my life and feelings at the time I decided to make the switch. 

The truth is that I get great satisfaction in drawing on my medical background in my legal practice.  In peer review matters, I understand the clinical issues better than my non-clinicial attorney colleagues.  In EMTALA cases, I love putting the medical records next to the confusing regulations and advocating for the client in a way that a non-physician-attorney could only dream of.  Even in drafting ordinary hospital-physician business contracts, my understanding of what it means to be on-call and/or to provide medical director services and/or to provide professional services from the physician's perspective adds great value to the services I provide both my physician and hospital clients.

Still, my clients are sometimes leary and make half-serious jokes about my "defection" to the "dark side."  There seem to be only two vocations where, if you decide, for whatever reason, not to continue in that vocation, people just don't quite get it: one is being a physician, the other, a priest.  Those two paths are often deemed "callings" rather than "careers." 

I'd like to put a plug in for the law as being just as noble a vocation as medicine or the priesthood.  As a healthcare attorney, I strive to help my clients to provide the best patient care possible by ensuring that they are doing their best to comply with the law and are as minimally distracted by government scrutiny as possible.  If my clients think the laws are not conducive to high quality care, I help them to find a way to change the law. 

So, for now at least, I will try to keep answering politely whenever I'm asked why I made the switch. 

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