California Medical License Law

Reinstating a Surrendered or Revoked Medical License.

1.    Once a physician surrenders his license or it is revoked by the Board, can the license be reinstated?

Doctors who surrender a California license while under accusation or whose licenses are revoked after an administrative law hearing can petition the Medical Board for reinstatement. California Business and Professions Code section 2307 provides that petitions to reinstate a medical license may be filed after a period of at least three years from the date of surrender or the effective date of a revocation decision.  The Medical Board also has discretion to grant a right to petition for reinstatement after only two years provided good good cause is shown and that the reduced, two year waiting period was reflected in the revocation Decision and Order.

2.  How does a doctor apply for reinstatement?

After the designated waiting period, the petitioner must contact the Medical Board to acquire the appropriate form. The form currently in use is actually a multi-purpose document entitled "Petition for Penalty Relief" (DG-39C) issued by the Medical Board's Discipline Coordination Unit. This form is not available online.

The petition form asks for routine identifying information, attorney designation if applicable, address of record, medical certificate number, and disciplinary history. Medical background must be provided (even though previously submitted for licensure), as well as all out of state licenses held, and employment history.  A recent history questionnaire covers any criminal actions, disciplinary matters in other states, hospital disciplinary actions, civil malpractice claims, and alcohol or addiction issues.  Until August of 2009, the form also asked the petitioner for a hearing location preference of Northern California, Southern California, or First Available Location. That preference option is reportedly no longer applicable and hearing location determinations are made by the Attorney General's Office after a petition is filed.

In addition to providing the above information, the petitioner must submit a narrative statement and two verified* letters of recommendation from physicians licensed in California "with knowledge of petitioner's current activities".  (*Verification is performed by Medical Board investigators who will contact the recommending physicians to ascertain whether they wrote the recommendation and also whether they were aware of petitioner's current activities as well as prior disciplinary history). The petitioner must also submit a "live scan" of finger prints for a new criminal record check.

Once a completed petition is submitted to the  Board, it is referred to a district office for investigation. This usually means the office nearest to petitioner and the location where surrender or revocation occurred will receive the petition.  A Board investigator will perform record checks, contact the petitioner to verify his or her narrative statement, and verify recommending physicians.  A copy of the original accusation and any stipulated disciplinary order or revocation decision and order from the Board will be attached.  When the investigation is complete, the file is transferred to the Attorney General's Office for assignment to a Deputy Attorney General who will represent the Board at a hearing.  The hearing is scheduled with the Office of Administrative Hearings.  If a particular hearing date is a problem for a petitioner, some flexibility is usually shown for good cause.  Reinstatement hearings are normally half day or one day matters.

3.  What can a petitioner for reinstatement expect at an administrative law hearing?

At hearing, the petitioner must be prepared to present evidence of rehabilitation since his or her surrender or revocation in order to be reinstated. Unlike the original accusation case, for reinstatement the petitioner has the burden of proof.

Business and Professions Code section 2307 (e) says that the administrative law judge hearing the case for the Board "may consider all the activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the certificate was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability."

Obviously this criteria is quite broad.  The Board's attorney (Deputy Attorney General) will likely focus on seriousness of the offense that warranted surrender or revocation.  The petitioner, on the other hand, will want to focus on his or her positive activities and rehabilitation since surrender or revocation.

If there was a stipulated surrender, the stipulation may have contained "nolo" language provided by counsel, stating only that the physician agreed to surrender because there was a prima facie case for disciplinary action. and not making any direct admissions.  If the matter went to hearing and revocation resulted, anything the court found factually and legally for revocation is deemed true.  Stipulations for license surrender in California also normally have language stating that for any future petition for reinstatement, all prior charges and allegations in the original accusation will be deemed true.

Whether the license was surrendered or revoked can make a difference in terms of the legal burden the physician faces for reinstatement, and the kinds of information and evidence he or she must present.  In revocation cases, the petitioning physician (petitioner) must only address rehabilitation in terms of charges actually found and proven at hearing, and need not address any for which the court found no cause for discipline.  Again, in stipulated surrender decisions, all prior charges are deemed true.  However, petitioners who surrendered may be viewed as more cooperative (and perhaps more deserving of consideration) than those who proceeded to hearing and lost. Therefore, a physician facing a a serious accusation supported by strong evidence may want to consider surrender rather than face revocation, so that there will be a greater chance for reinstatement down the line.

In either case, the petitioner should be well prepared to demonstrate positive reasons for reinstatement as well as insight into and full appreciation for the circumstances that led to surrender or revocation. He or she needs to present strong evidence of rehabilitation. This evidence can be written or testimonial. Character witnesses can be helpful, although economy in numbers of witnesses and avoidance of redundant testimony will likely be viewed favorably by the Administrative Law Judge hearing the case.

4. Since the petitioner submits a narrative statement, will he or she have to testify?

In every reinstatement hearing the petitioner is expected to testify. Again, petitioner bears the burden. It is also an opportunity to expand on an admittedly brief narrative statement that may have to cover several years since surrender or revocation.  In addition, the Deputy Attorney General will be probing for reasons to deny the petition, including lack of candor or sincerity, failure to take responsibility for past errors, and lack of current knowledge.  The latter point goes to patient safety and is always a winner for the "other side" if lack of current medical knowledge is demonstrated at hearing.

5.  How important is Continuing Medical Education (CME) credit to gaining reinstatement?

Any physician who has surrendered a license or has been revoked should keep up CME to show currency if they hope for eventual reinstatement.  In anticipation of any petition, the petitioner should amass as much relevant CME as possible (preferably over the waiting period and not all at once). If he or she still has out of state medical licenses or American Board of Medical Specialty (ABMS) certifications, these should be kept current.  Documentation of active medical licenses and certifications should be submitted to the Board with the original petition.

Another way to demonstrate current medical knowledge is to attend professional conferences and grand rounds at local teaching hospitals. Often former colleagues can arrange this on behalf of a petitioner who stays active in the medical community and keeps contacts despite surrender or revocation of his or her license.  Charitable, non-clinical activities that support community health services are also helpful.

The petitioner will have a greater chance of success if she or he offers a well defined plan for using the reinstated medical license to benefit the community. Even more persuasive is a verifiable offer of medical employment which will fill a community need.

For more information or questions regarding specific cases for reinstatement, you can email the author at steve@slotelaw.com, or visit the website www.slotelaw.com.

Petitions for Penalty Relief: Modification and Early Terminiation of Probation

When the Medical Board places a physician's license on probation, either by stipulated settlement or a Decision and Order resulting from an administrative law hearing, one of the first things the doctor usually wants to know is, "When can I get the probation conditions reduced or eliminated altogether?" 

The answer is found in California Business and Professions Code Section 2307. It provides that a Petition for Penalty Relief to modify terms of probation may be filed one year following the decision imposing discipline.  Petitions to terminate probation early may be filed one year after the date of decision where the term of probation imposed is less than three years, and after two years when the term of probation is three years or more.

A particular probationary term may be a burden to daily practice, such as having a practice monitor or a restriction against performing certain procedures. Physicians subject to such conditions may desire modification as soon as possible. Probation itself always results in at least some economic concern because many malpractice insurers, hospitals and HMO's either restrict or deny participation to physicians on probation. This can be very significant where the practice is dependent on these sources of patients and income, or subject to malpractice claims.

Petitions for penalty relief require the filing of a form provided by the Medical Board, along with a narrative statement and at least two, verified recommendations from physicians licensed in California who are familiar with the petitioner's activities since the penalty was imposed.  "Verification" consists in contact from a Medical Board investigator to confirm the authorship of the recommendations and the knowledge of the recommending physicians of the petitioner's background and recent activities.

Once a petition is filed, an investigator will contact recommending physicians as well as the petitioner to confirm details of the petition. An investigative report is completed and forwarded with the petition to the Attorney General's Office.  A hearing is then scheduled with the Office of Administrative Hearings.

At hearing, the Administrative Law Judge (ALJ) "may consider all the activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the certificate was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability." (See Bus. & Prof. Code Section 2307(e)).

The petitioner will be expected to testify and show, at a minimum, that the terms to be modified are no longer necessary to ensure patient safety. The Board (through a Deputy Attorney General) will seek to satisfy itself, through cross-examination of the petitioner, that modification is warranted. The burden of proof is on the petitioner. Mere compliance may not be sufficient to justify modification. A petitioner is wise to offer more than minimal compliance in support of a petition for penalty relief.

In the case of a petition for early termination of probation, the petitioner must demonstrate that continued probation supervision is unwarranted, based on a presentation of testimonial and documentary evidence.  Again, the petitioner bears the burden of proof and the Board's attorney will likely argue that mere compliance with probationary terms does not in itself warrant early termination.

If, however, the petitioner can demonstrate full compliance as well as insight into the original cause(s) for discipline, acceptance of responsibility, and a strong effort to remedy any deficiencies beyond simple conformity with the probationary terms, the chances the petition will be granted increase significantly. Having testimonial evidence from recommending physicians as well as third parties can be helpful, as can completion of additional training and education, and community service as a doctor.

For additional information on this topic or questions regarding a particular case, you may contact the author at steve@slotelaw.com or visit the website www.slotelaw.com.

Facing a Medical Board Accusation.

The Medical Board can revoke, suspend or place a license on probation.  State attorneys file accusations for these Board actions.  HMO exclusion, denial of hospital privileges, and malpractice insurance cancellation may result.

According to the Board's 2008-2009 Annual Report, 99.900 physicians and surgeons are licensed in California today, with 27,556 in Los Angeles alone.  6,437 complaints were reported and 450 cases were referred to the Attorney General for Accusation filing.  Another 27 cases were referred for criminal prosecution. 

Accusations are filed after the Board investigates complaints. These may be anonymous or named, from other physicians, nurses, hospitals or patients. Hospitals, in fact, are required to report Peer Review actions or revocation of privileges to the Board by law (Bus. & Prof. Code section 801). 

Board investigations remain confidential until an accusation is filed. Usually initial contact begins with a Board investigator who may be accompanied by a  Board-paid Medical Consultant.  An interview may be scheduled which may be recorded.  Record requests are common.  The process can be intimidating, somewhat akin to an IRS audit.   Many doctors under investigation seek counsel at this point.

If the physician's initial responses are accepted, the issues may dissolve.  However, suspicion, doubt or deceit may lead to the filing of an Accusation by the Attorney General's Office.  An administrative hearing is then scheduled.  In the interim, the physician is entitled to discovery of the evidence supporting the accusation, expert reports, the names of witnesses, and any documentary evidence.

Administrative hearings are governed by the California Administrative Procedure Act.  The relevant law begins with Government Code Section 11500. The process is similar to civil litigation, but with certain exceptions, e.g., hearsay may be allowed if it supports or explains other evidence or testimony.  An Administrative Law Judge (ALJ) hears the case and prepares a proposed decision. The decision may be adopted, modified or rejected by the Medical Board.

When a physician receives an Accusation, he or she will usually wonder "What impact will this have on my practice?", "What are my rights?" and "What happens next?".  Many feel the need to consult an administrative law attorney with Medical Board experience.

Whether representing themselves or with counsel, doctors facing an Accusation should know that these matters are frequently resolved by Stipulated Settlement.  This is a negotiated, formal agreement that may involve as little as a public reprimand, revocation-stayed with formal probation, or actual suspension in conjunction with probation.  Conditions such as additional training and education, practice monitoring, or practice restrictions are common.  The Medical Board, however, must still agree to adopt the stipulation.  Otherwise, the matter goes to hearing.

The difficulty for the physician under formal discipline is that HMO's, hospitals and insurers may restrict or deny practice during probation.  The time period can run from a year or two into multiple years.  Once a physician is placed on probation, however, he or she may petition for early termination after one year on a term of less than three years, or after two years on a longer term.

If a stipulated settlement is not agreed to, or if the physician wants to proceed to hearing, all of the above may still occur as a result of the hearing.  However, outright revocation is also a risk.  This is a judgment  best made in light of all the details of the particular case and after careful consideration.

If a decision resulting from an administrative hearing goes against the doctor, he or she may appeal by seeking a Writ of Mandate to overturn the decision in the California Superior Court.  This must occur within one year following notice of intention to file a writ, usually thirty days after the effective date of the decision.   The doctor must show that the Board engaged in "An Abuse of Discretion" in reaching its decision-- a relatively steep burden.  Also, the court will base its decision solely on the record of the administrative hearing unless new evidence not previously available comes to light.

An adverse result on a writ in Superior Court may be appealed to a higher court, all the way up to the California and U.S. Supreme Court.  However, the Medical Board can also appeal.  Therefore, the risks and advantages of appeal must be carefully weighed.

For additional information or inquiries, the author may be contacted by email at: steve@slotelaw.com steve@slotelaw.com or  you may visit www.slotelaw.com.