DUI's and Medical Board Enforcement: What Every Physician Should Know

Drug and alcohol abuse are among the most common triggers for Medical Board action.  Statistics from the Medical Board of California indicate that, in 2009-2010, drug and alcohol abuse was the third most common reason for Medical Board disciplinary action against physicians, trailing only negligence and unprofessional conduct.

The most common form of drug or alcohol-related charge relates to driving under the influence (DUI).  For physicians who have the misfortune of being charged with a DUI, it is critical to make sure that it is handled properly, not only in the criminal proceeding, but also before the Medical Board.  By being proactive, a physician can mitigate the collateral damage caused by a misdemeanor or felony DUI conviction.

Prior to 2007, it was relatively rare for the Medical Board to discipline a physician for violations related to drug and alcohol abuse.  At the time, the Medical Board’s diversion program allowed physicians to undergo drug and alcohol treatment.  The physician could avoid any discipline to his or her license by accepting supervision from a Diversion Evaluation Committee and participating in facilitated groups and drug testing.  In 2007, however, California failed to renew the diversion program after a legislative “sunset,” and essentially closed that door. In its place, the Medical Board launched a more aggressive approach to prosecuting physicians for alcohol or drug abuse.

Many physicians believe that a DUI will not affect their medical license because it relates to conduct outside of their professional practice.  The truth is that the Board cares about -- and is permitted to regulate -- physicians’ “off-duty” conduct to a certain extent.  In fact, the Board has investigated cases in which doctors fell asleep, intoxicated, in their vehicles, and were then cited by police officers.  California courts have held that the Medical Board has the power to discipline physicians for criminal convictions for offenses not directly related to the quality of health care on the theory that they relate to the professional qualifications to hold a medical license.[1]  In essence, courts have justified this approach on the theory that behavior outside the practice of medicine reflects on a physician’s fitness to practice medicine. With regard to DUI's specifically, a physician may be disciplined by the Board for a DUI that occurs while the physician is not working and which does not directly impact patient care.[2]  Further, California Business & Professions Code Section 2239 states that two DUI’s constitute unprofessional conduct, even if they are completely unrelated to the doctor’s practice of medicine.

What to do if you are charged with or convicted of a DUI

Because the Medical Board is permitted to discipline physicians’ off-duty behavior related to the practice of medicine, it is important to take appropriate steps early in the process. California law requires that any physician licensed by the California Medical Board, who is convicted or pleads guilty or no contest to any felony or misdemeanor, must notify the Medical Board of the incident within 30 days. The notification must occur via a written report to the Medical Board’s Enforcement Division. The initial notification is a physician’s first contact with the Enforcement Division and is a great opportunity to paint the incident and physician’s background in the best possible light.  

Upon receipt of this written report, the Medical Board is required to open an investigation into the incident. The investigation will typically include an in-person interview with a trained investigator for the Medical Board’s Enforcement Division. It is important to be prepared for this interview and any and all inquiries the investigator will make throughout this process. 

The Medical Board typically does not initiate any formal accusations based on a single DUI offense. However, as noted above, two incidents are deemed by statute to be unprofessional conduct and therefore a basis for discipline under the Medical Practice Act. Moreover, “extenuating” circumstances (such as property damage or an injury) stemming from a single DUI may cause the Board to consider the violation “related to the practice of medicine,” and therefore attempt to impose some type of formal discipline.  Like any person, if a physician is going to drink, he or she should avoid driving.  Holding a medical license exposes a physician to an increased risk of negative collateral consequences in comparison to other drivers on the road.  However if a physician is charged with a DUI, it is critical to  take steps expeditiously to minimize any potential disciplinary action from the Medical Board. Taking the correct steps early will pay dividends during the Board’s investigative process and will help minimize negative consequences to a physician’s license.

 

Benjamin J. Fenton and Nicholas D. Jurkowitz are attorneys at Fenton Nelson, LLP. For questions regarding Medical Board investigations, feel free to contact them at bfenton@fentonnelson.com or njurkowitz@fentonnelson.com.