On August 25, 2009, the California Third District Court of Appeal issued an opinion that held that a Northern California doctor’s repeated arrests for driving while intoxicated could serve as a proper basis for professional discipline, even though those arrests did not result in any criminal convictions.
In an opinion by Justice Harry Hull, the panel upheld the Medical Board of California’s decision revoking Dr. Louis H. Watson’s medical license but staying the revocation, and placing the doctor on probation for five years, with 30 days of actual suspension.
Dr. Watson was arrested on four occasions between July 2000 and August 2005 for driving under the influence of alcohol. According to the 2004 accusation filed against him by the board, two of these arrests occurred after police officers observed Dr. Watson driving erratically and two were subsequent to minor traffic collisions. On each occasion, Dr. Watson performed poorly on field sobriety tests but later breath or blood tests indicated his blood alcohol level was below the legal limit.
A misdemeanor complaint filed against Dr. Watson regarding the first incident was dismissed in November 2000 but a criminal matter was pending against Dr. Watson in connection with his last arrest in August 2005 at the time of his administrative hearing. No charges were filed based on his other two arrests.
The accusation also detailed Dr. Watson’s 2003 negotiated plea of no contest to battery, arising from an incident in which he hit another man in the back of the head in the parking lot of a home improvement store. Dr. Watson served one year on probation as a result of his conviction.
Watson further allegedly failed to disclose this conviction, as well as the medical board’s investigation and the drunken driving charges, in response to questions asking about such matters on two applications for reappointment to hospital medical staffs and two applications for professional liability insurance.
Following an administrative hearing, the medical board found each of the alleged incidents had been established and provided cause for discipline. Dr. Watson then petitioned for a writ of mandamus in the Sacramento Superior Court.
Sacramento Superior Court Judge Patrick Marlette granted the petition in part, finding that the board erred in relying on the battery incident to support discipline because that incident has no bearing on Watson’s qualifications to practice medicine.
Additionally, one of the alleged misstatements in an application for professional liability insurance could not serve as a basis for discipline because it was filed after Watson’s battery conviction had been expunged, Judge Marlette said.
Judge Marlette also struck the board’s finding that Watson suffered from a substance abuse disorder, along with two conditions of probation prohibiting the use of alcohol and requiring testing of bodily fluids. In all other respects, Marlette denied the petition.
On appeal, Dr. Watson argued that his use of alcohol could only be the basis for professional discipline if there were a proven nexus between his drinking and his ability to practice medicine safely. Justice Hull agreed that a logical connection between the two was required, as set forth in Business and Professions Code Sec. 2239which provides that a licensed physician’s use of alcohol “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” may subject him to discipline.
Noting the statute’s use of the disjunctive “or” between its clauses, Justice Hull reasoned that Sec. 2239 defines two distinct ways in which a licensee’s use of alcohol could merit disciplinary measures. Based on Griffiths v. Superior Court (2002) 96 Cal.App.4th 757—which involved a doctor with multiple misdemeanor convictions involving alcohol—and Weissbuch v. Board of Medical Examiners (1974) 41 Cal.App.3d 924—which concerned a physician’s use of narcotics—Justice Hull concluded that an express finding of an actual adverse impact on a doctor’s day-to-day practice of medicine is not required for discipline to be imposed and that a finding of unprofessional conduct could be based on a potential for future harm.
As driving under the influence of alcohol not only “reflects poorly” on a physician’s common sense and professional judgment, but also “demonstrates an inability or unwillingness to obey legal prohibitions against such conduct and constitutes a serious breach of a duty owed to society,” Justice Hull opined that Dr. Watson “posed a danger to himself and others” by repeatedly engaging in such conduct.
Justice Hull added that a criminal conviction for driving under the influence was not required for professional discipline to comport with due process since Sec. 2239 provides licensees with “fair warning” of the conduct it prohibits, even if it is not a bright-line standard. Justices Coleman Blease and Ronald B. Robie joined Hull in his decision.
The case is Watson v. Superior Court (Medical Board of California). A copy of the opinion is located at: http://www.courtinfo.ca.gov/opinions/documents/C059957.PDF
Attorney Commentary: There are a couple of things for licensed profesionals to learn from this published decision:
1. Even if you win your criminal case, the Medical Board can pursue the underlying allegations since it has a different burden of proof.
2. Be very careful in completing hospital privilege and malpractice applications. It appears that the Medical Board investigation may have resulted from the doctor's failure to complete the application accurately. Hospitals have a duty to report the alleged misrepresentations or failures to disclose to the Medical Board.
3. In our practice we have seen two driving under the influence convictions lead to probation even if there was no effect on the practice of medicine. Especially now that the diversion program has been abandoned, alcohol related arrests and/or convictions will be disciplined more aggressively by the Medical Board. The diversion program was eliminated in part due to lobbying by claims that consumers were not being protected by it.
4. The Medical Board often seeks probation in these types of cases since they want to have a means by which to monitor the doctor and have some control over his or her behavior. The problem is that probation is hard on a career -- posting on a website, loss of insurance contracts, difficulty in getting employed, etc.
Any questions or comments should be directed to: firstname.lastname@example.org or email@example.com Tracy Green is a principal at Green & Associates and Ann Schneider is a senior associate at Green & Associates. They focus their practice on the representation of professionals, including individual physicians, before licensing and regulatory agencies such as the Medical Board. Their website is: http://www.greenassoc.com/