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.
