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Due to the increase in opioid abuse, California physicians are now under strict scrutiny, personally and professionally. The Medical Board of California has recently altered the way they deal with physicians who are suspected of issues with controlled substances and/or alcohol. At the Law Office of Pilchman & Kay, A Professional Law Corporation, our Irvine medical board defense attorneys are dedicated to helping you in every way we can. We list down some frequently asked questions by our past clients to help you navigate through the whole legal process.
If you wish to discuss your case in person, schedule a free consultation with our firm at (949) 558-0042.
Does the Medical Board of California Offer Diversion for Physicians?
No. Due to budget cuts and lack of funding, the California Medical Board does not have a diversion program. The most severe consequence of not having a diversion program is that physicians who suffer from substance abuse can no longer work toward sobriety anonymously in a diversion program. Instead, an Accusation is filed against the physician making the issue public and one of discipline. Due to the public nature of the Accusation in conjunction with no diversion, most physicians suffering from substance abuse will not seek the help they need.
What Happens if the California Medical Board Suspects a Physician is Addicted to Alcohol or Drugs?
The medical board has many ways in which to deal with substance abuse. First, the board can request and Interim Suspension Order “ISO.” If the board files an ISO, the physician is automatically and immediately entitled to a hearing. This hearing is conducted before an administrative law judge “ALJ” and both the board and the physician have the ability to present evidence to the ALJ in support of their position. Obviously, the board will present evidence that the physician is a danger to the public should he or she continue to practice medicine. The physician, on the other hand, will present evidence that either they do not have a substance abuse issue or that they are currently undergoing treatment for substance abuse and have employed mechanisms to ensure compliance with the treatment.
Such compliance could include:
- Random drug testing
- Practice monitor
- Abstention from drugs and alcohol
The second way the medical board handles substance abuse is to seek a Penal Code Section 23 order. Penal Code Section 23 gives a judicial officer the power to sanction the license of a physician who has pending criminal charges. The offense can be either a misdemeanor or a felony and the crime does not have to be substance abuse related. For example, if a physician is arrested for domestic violence, and if the board learns that the incident resulted due to the excessive use of drugs or alcohol, the board can ask the criminal judge to restrict the physician from practicing medicine while the case is pending.
The final way in which the board can handle the suspected addiction of a physician is to file an accusation. An accusation is a formal charging document alleging conduct in violation of the Medical Practice Act. Once an accusation is filed, it becomes public record and is reported to the National Practitioner Data Bank. If an accusation is filed, the physician has the right to have a hearing before an administrative law judge where they could present evidence that there is insufficient evidence to support the allegations or that the physician has taken measures toward rehabilitation.
What is the Typical Punishment for Physicians Who Suffer from Addiction?
As mentioned previously, the Medical Board of California has established new disciplinary guidelines to deal with physicians who suffer addiction. These guidelines are supposed to establish a clear, unified plan for substance-abusing physicians. One of the new guidelines is a term that requires physicians to undergo a diagnostic evaluation. This evaluation is to assess what, if any, substance abuse issues are present and what course of treatment to offer. The evaluator is not tasked with conducting the evaluation until after the physician has been placed on probation. In addition, the physician is not allowed to practice until the evaluation is complete and a recommendation by the evaluator that the physician is safe to practice, which could take up to several weeks.
An additional term of probation under the new guidelines is a requirement that the physician undergoes daily drug/alcohol testing. A physician is immediately suspended from the practice of medicine and cannot return to the practice of medicine until the physician has completed 30 consecutive days of clean testing. This may even be the case despite the fact that most cases before the medical board do not resolve within 12 months of the filing of an Accusation.
The biggest problem with the new disciplinary guidelines is that not all substance abusers are equal and trying to fit one standard that applies to everybody, is just plain nonsense. The reality is, most physicians have sought and are being treated for substance abuse during the pendency of their Accusation. Further, it is likely their Irvine attorney has advised them of the steps necessary to be in compliance with the board's guidelines before accepting to stipulate to being on probation. That being said, a physician who is a year into “verified sobriety” should not be punished with a 30-day suspension and diagnostic evaluation.
Will the Medical Board of California Dismiss My Accusation if I Am Sober?
Unfortunately, probably not. While it is commendable that a physician has taken steps toward sobriety, once an Accusation is filed, the board will want to impose their terms and conditions for a period of time, typically five to seven years.
Can I Petition to Terminate Probation Early?
Yes. Depending on the length of probation, a physician can seek penalty relief. Penalty relief is either asking an administrative law judge to terminate probation entirely or terminate a term of probation. If the physician is placed on probation for three or more years, penalty relief can be sought after two years of successful completion of probation. If probation was for less than three years, penalty relief can be sought after a year of successful completion of probation.
What Can I Do If I am a Physician Who Suffers From Addiction?
Call our office today. We are California medical license defense attorneys in Irvine and we can put together a sobriety plan that will assist you, whether there has been an Accusation filed or not.
For more information on how the Law Office of Pilchman & Kay, A Professional Law Corporation, can help you, contact (949) 558-0042 to schedule a free, confidential consultation.