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California state laws and regulations that affect your medical practice

What is the professional standard of practice for physicians?

According to California case law, the applicable standard of care for physicians can be established by experts who testify in the case of a medical malpractice action. However, where the conduct is “within the common knowledge of the layman,” expert testimony is not required (e.g., where an x-ray shows a scalpel left in a patient’s body after surgery).

Elcome v. Chin, 110 Cal.App.4th 310, 317 (2003)

Additionally, the American Medical Association (“AMA”) offers guidance through its “Principles of Medical Ethics.” Specifically, the AMA dictates that a physician must:

• be dedicated to providing competent medical care with compassion and respect,
• uphold standards of professionalism (i.e., practice honesty in professional interactions, report fraud or deficiency of other physicians)
• respect the law and advocate for the best interests of the patients
• respect rights of patients, colleagues, and other professionals, as well as protect patient privacy
• continue to study, apply, and advance scientific knowledge, and share such knowledge with the community
• be free to choose whom to serve (except in emergencies), with whom to associate, and the environment in which to provide medical care
• recognize a responsibility to participate in activities that improve the community
• regard responsibility to the patient as paramount
• support access to medical care for all people

available at https://catalog.ama-assn.org/Catalog/

What are grounds for disciplinary action?

Examples of acts for which physicians may be disciplined include, but are not limited to:

• unprofessional conduct

Cal. Bus. & Prof. Code § 2234

• convictions of crime (felony, misdemeanor, crimes related to patient care, treatment, management or billing)

Cal. Bus. & Prof. Code § 2236

• prescribing to addicts

Cal. Bus. & Prof. Code § 2241

• excessive use of alcohol

Cal. Bus. & Prof. Code § 2239

• failure to maintain adequate records

Cal. Bus. & Prof. Code § 2266

While not binding, the Medical Board of California – Division of Medical Quality has published the Manual of Model Disciplinary Orders and Disciplinary Guidelines (9th Ed. 2003), which may be used for guidance in disciplinary proceedings.

What is considered “unprofessional conduct?”

The Division of Medical Quality may discipline a licensee (i.e., physician) who is charged with “unprofessional conduct.” Unprofessional conduct includes, but is not limited to, gross negligence, repeated negligent acts, incompetence, and any act involving dishonesty or corruption that relates to the qualifications or duties of a physician.

Cal. Bus. & Prof. Code § 2239

How does the board determine if a physician has committed gross negligence?

Gross negligence is traditionally defined under California law as “the want of even scant care or an extreme departure from the ordinary standard of conduct.”

Van Meter v. Bent Construction Co., 297 P.2d 644, 648 (1956)

If a physician violates a standard of practice, what penalties may the board impose?

According to the Manual of Model Disciplinary Orders and Disciplinary Guidelines, each act warranting discipline carries with it a maximum and minimum penalty. For example, in disciplining a physician for unprofessional conduct, the maximum penalty recommended is revocation, while the minimum penalty recommended is a stayed revocation with five (5) years probation.

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008

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