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PHYSICIAN ARRESTS – DO YOU REPORT TO THE CALIFORNIA MEDICAL BOARD ?

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B & P 802.1 (Physician Reporting Requirements)

Doctors who are charged with crimes have reporting requirements under Business & Professions Code section 802.1 The failure to self report is by itself a violation. The rules are clear. Felony charges require self reporting.

The code section requires reporting upon “The bringing of an indictment or information charging a felony against the licensee.” So a doctor does not need to be convicted only charged. But there is a common understanding. This physician reporting section is not triggered by the filing of a criminal complaint. A “complaint” is a charge that does involve an arrest and it may charge a felony. It is not however, an Indictment nor is it an Information. Those charging documents require a Grand Jury finding or a Judicial finding (respectively) against the doctor. So the 802.1 requirement is not triggered by the filing of a complaint (which is prosecutor generated).

The second circumstance involves a conviction of a misdemeanor (or felony). The statute reads as follows: “The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor.” The term conviction is clear. It is a no contest , guilty plea or conviction after trial (or in absentia). A grey area is when there is a guilty plea but the judge holds the plea in abeyance with the possibility of a dismissal after a certain period of crime free life by the doctor. Technically, such a plea is not complete and should not trigger the reporting requirement. We are criminal defense specialists and this type of nuance can be confusing. It should be handled carefully so that the 802.1 reporting requirements are not triggered.

The time limits for reporting per 802.1 is within 30 days of the date of the bringing of the indictment or information. This raises issues of notice to the doctor as the Grand Jury Indictment may be held for weeks or months before it is disclosed. Likewise, if a constitutional challenge is made to these documents, there is at least an argument that they are not valid while the challenge is pending. Similar timing issues exist with respect to criminal convictions during the pendency of a motion for a new trial or other challenge. Clearly to be on the same side, a rigid adherence to the 30 day rule is the safe approach. However, at times a challenge to that time frame is either useful or necessary.

Stages of a Criminal Prosecution

The Superior Court of Santa Clara (California) has published an excellent summary of the stages of a criminal prosecution. Read Here The short version for a felony is this:

Arrest

Arraignment (plea)

Preliminary Hearing to See if the Charges Stick. If they do an Information is filed and the 802.1 reporting requirement is triggered.

(Grand Jury Indictments take place either before the arrest or in some instances after the arrest but before the preliminary hearing. When a Grand Jury Indictment is issued, the 802.1 reporting requirement is triggered.)

Notice Preceding Arrest

Penal Code Section 836 allows a police officer to make an arrest without a warrant if a misdemeanor is committed in his/her presence. Section 836 allows a felony arrest to take place if the officer has “probable cause” to believe the crime was committed. No formal notice is needed. In most physician cases there is notice prior to the arrest. Grand juries can be convened and you may be invited to either testify (with a “target letter” informing you that you are personally at risk) or to supply “exculpatory” evidence to be presented. You will likely have had your office searched pursuant to a search warrant. Often your criminal defense attorney can obtain a copy of the search warrant affidavit (not just the search warrant).

In many instances you will be approached by law enforcement prior to an arrest and offered an opportunity to cooperate. This means you have the opportunity to confess and help implicate others in a criminal scheme or enterprise.

Reporting Form

While 802.1 does not require the use of any particular self-reporting form, here is the link to the form provided by the Medical Board of California. Note that this report is commonly called an “802 report”.

Who Must Fill Out an “802 Report” ?

The 802.1 reporting applies to a “physician and surgeon, osteopathic physician and surgeon, and a doctor of podiatric medicine and a
physician assistant”. (Business & Professions Code section 802.1)

Attorney Error as an 802 Report Defense

In footnote 4 in the case titled Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 445 [204 Cal.Rptr.3d 539, 543, 1 Cal.App.5th 438, 445, the Court of Appeal noted that the Medical Board found in favor of a physician whose failure to report was based on the error of his attorney.

That footnote reads:

“The accusation also alleged a “First Cause for Fine,” based on the alleged failure to report to the Board within the time required by Business and Professions Code section 802.1 the bringing of a criminal information or his misdemeanor conviction. The ALJ rejected this cause because Dr. Pirouzian’s failure to provide the required report was based on “the mistaken advice of a licensed attorney.”

This finding was not the official position of the Board nor an appellate court decision. It was the decision of an individual administrative law judge and other judges are free to assess the facts of a particular case differently. However, an important take away is that the 802 report filing is mandatory but the penalty for a failure to make the report may require so level of culpability as opposed to pure error. The counter argument is that the requirement cannot be waived and only an affirmative act (e.g. attorney error) interfering with the reporting, can be a defense.

Other Penalties for Physician Convictions

“(a) The conviction of a provider of either (1) a felony, or (2) any offense, misdemeanor or felony, involving moral turpitude shall be grounds for suspension from participation in the California Medical Assistance Program” Cal. Code Regs., tit. 22, § 51458 The same regulation holds that “(c) Suspension of a provider of service from participation in the Medicare program shall be grounds for suspension of that provider from participation in the Medi-Cal Program.”

An important qualifier is the “moral turpitude” section which reads: “The Department may inquire into the circumstances surrounding the commission of the crime in order to determine if such conviction was of an offense involving moral turpitude and suspension is warranted.” Cal. Code Regs., tit. 22, § 51458\

There are only two (very old) published cases on this point and there are a myriad of legal and statutory issues arising from suspensions from the California Medical Assistance Program and Medi-Cal Program.

Among the arguments that can be made is that a “best interests plea” or a nolo contendre plea (alone) may not be sufficient to trigger sanctions that involve findings beyond the mere existence of a conviction.  The argument is that these pleas are not necessarily indicators of actual guilt. This is based upon both the defendant’s reservations about admitting actual guilt and the prosecutor’s agreement to allow a no contest plea vs. a guilty plea. ([T]he willingness of the district attorney to agree to and the court to approve the plea tends to indicate weakness in the available proof of guilt. [fn.]” (Cartwright v. Board of Chiropractic Examiners, supra, 16 Cal.3d at p. 773.) 

Criminal Defense Specialist – Board Certified

Daniel Horowitz is board certified as a Criminal Defense Specialist (State Bar of California, Board of Legal Specialization). If you need help with a criminal matter, call Daniel as soon as possible. (925) 291-5388

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