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Physician Impairment

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

Business and Professions Code § 2239 

The basic CRIMINAL law for physician impairment is Business and Professions Code § 2239 is titled “Misuse of controlled substances, dangerous drugs or alcohol; unprofessional conduct”.  The main section reads:

(a) The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct.

Note the last sentence which reads, “The record of the conviction is conclusive evidence of such unprofessional conduct.”  This means that the crime and discipline are tied together.  A medical-legal question is this.  If the MBC establishes gentle and kind diversion programs for impaired physicians does this necessarily spare the doctor from criminal prosecution under section 2239.  (Daniel Horowitz is a criminal defense specialist and the short answer is “no”.  The longer answer is, maybe but by negotiation, not force.)

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?”

Lawyers have board certifications just as you do.  Daniel Horowitz is one of the very few physician defense lawyers who is a board certified criminal defense specialist.  Daniel has been certified for 30 years.  This credential is awarded by the State Bar of California Board of Legal Specialization.  His practice defending physicians is a perfect match with his criminal expertise.  Please call Daniel Horowitz if you need help.
 

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