Contra Costa County Physician Impairment Lawyer

Physician Impairment - A Disciplinary Focus Issue

The Medical Board of California focuses a great deal of energy on physician impairment.  A large number of Accusations are filed against physicians who are impaired and then fail to attend treatment programs.  November 14, 2023 was finally the end of the comment period as the Medical Board develops its “Regulations for the MBC Physician Health and Wellness Program”.   But discipline is not the only issue for an impaired physician.

Criminal Statutes Affecting an Impaired Physician

Understanding Business and Professions Code § 2239: Physician Impairment and Unprofessional Conduct

Business and Professions Code § 2239 addresses the misuse of controlled substances, dangerous drugs, or alcohol by physicians, categorizing such actions as unprofessional conduct. The main section states:

(a) The use, prescribing, or self-administration of any controlled substance, or the use of any dangerous drugs specified in Section 4022, or alcoholic beverages, to the extent or in a manner that is dangerous or injurious to the licensee, others, or the public, or that impairs the licensee’s ability to practice medicine safely, or multiple misdemeanors or any felony involving these substances, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct.

The final sentence, “The record of the conviction is conclusive evidence of such unprofessional conduct,” ties the crime and discipline together. A pertinent medical-legal question arises: If the Medical Board of California (MBC) establishes diversion programs for impaired physicians, does this protect the doctor from criminal prosecution under Section 2239? 

According to criminal defense specialist Daniel Horowitz, the short answer is “no.” The longer answer is that it might, but only through negotiation which is an inexact process that creates significant stress for the accused doctor.

Business and Professions Code § 2280

A related section is Business & Professions Code section 2280.  This law prohibits a physician from practicing medicine while under the influence of any narcotic drug or alcohol if it 
impairs their ability to conduct the practice of medicine safely.  

Grey Areas in Physician Criminal Law & License Law

Interpreting these statutes is not always straightforward.  For example, B&P 2239 precludes using alcohol or drugs in a “dangerous or injurious” manner, or “to the extent that such use impairs the ability of the licensee to practice medicine safely”.  A smart attorney tried to argue that his client only violated one of these two criteria.   He lost.  The court in Watson v. Superior Court (App. 3 Dist. 2009) 98 Cal.Rptr.3d 715 ruled that the impairment was “either or” and not “both”.

In another Physical Therapy board case there was a four-year delay between the alcohol involved car accident and the imposition of discipline by Physical Therapy Board of California.  This seems unfair.  The therapist may well have been a completely changed person living a new and wonderful life.  The board didn’t care.   Discipline was fully imposed even though the therapist had no further documented incidents of alcohol-related misconduct during interim period.  That case is Walker v. Physical Therapy Bd. of California (App. 4 Dist. 2017) 225 Cal.Rptr.3d 70,

Why Choose Daniel Horowitz as Your “Impairment Case Lawyer?”

Just like physicians, lawyers can earn board certifications. Daniel Horowitz is one of the few physician defense lawyers who is a board-certified criminal defense specialist. Certified for 30 years by the State Bar of California Board of Legal Specialization, Daniel’s expertise in criminal defense perfectly complements his practice in defending physicians.

If you need help, please call Daniel Horowitz for expert legal support.