Putting your license at risk

The life you lead outside your practice can cost you your right to practice.

By Berkeley Rice
Senior Editor

Have you ever driven home from a restaurant just a little tipsy? It's well known that you could lose your drivers' license if convicted of driving while impaired. What you may not realize is that you could also lose your medical license.

The sins you commit in your private life can lead to disciplinary action by medical licensing boards just as easily as a lapse in your professional judgment. If that seems unreasonable, consider the case of Cadvan Griffiths Jr., a Los Angeles plastic surgeon.

In 1987 and again in 1989, Griffiths was arrested and convicted for "reckless driving involving alcohol." For each offense he was fined and placed on probation.

In November of 1991, Griffiths was arrested a third time and later pleaded no contest to a charge of driving under the influence of alcohol. This time the judge fined him $500, revoked his drivers' license for a year, sentenced him to several months of community service, and put him on five years probation, which included random alcohol and drug testing.

How "private" sins can alert a state board

As is customary in California whenever there's a criminal case involving a physician, the court clerk sent a report of Griffiths' conviction to the Medical Board of California. Based on that report, the board filed a complaint against him. According to state law, any physician convicted more than once for offenses involving alcohol is guilty of "unprofessional conduct," and subject to disciplinary action.

At a hearing before an administrative law judge, Griffiths testified that he had never treated patients while under the influence of alcohol or drugs, and no evidence was presented that he'd ever done so. The judge found "no inherent nexus . . . between driving under the influence and the practice of medicine," and concluded that Griffiths' convictions did not warrant disciplinary action.

The Medical Board rejected the judge's recommendation. It concluded that the law did not require evidence that Griffiths had actually practiced medicine while impaired, and that his three convictions by themselves constituted unprofessional conduct.

The board revoked Griffiths' medical license, but stayed that action pending a three-year probation requiring him to perform 60 hours of community service and to undergo psychiatric and medical evaluation to determine whether he should be referred to the state's diversion program for impaired physicians.

Griffiths petitioned a state court to overturn the board's action, claiming it violated due process by failing to establish a relationship between his convictions and his duties as a physician. The trial court denied his petition, and the case went to the state appellate court.

Last February, a three-judge appellate panel upheld the medical board's disciplinary action, finding that repeated convictions involving alcohol "do have a logical connection to a physician's fitness to practice medicine," since they "reflect a lack of sound professional and personal judgment." Noting that Griffiths' second and third convictions violated the terms of his prior probation, the court held that "such repeated conduct by a physician, and particularly its propensity to endanger members of the public, tends to undermine public confidence in and respect for the medical profession."

According to the appellate decision, the medical board's disciplinary actions "are not intended to punish the licensee, but rather to protect the public." The court rejected Griffiths' defense that his behavior had not endangered his patients. "If accepted," the judges ruled, "this argument . . . would prohibit the imposition of discipline on a licensee until harm to patients had already occurred. We reject this argument because it overlooks the preventative functions of license discipline, whose main purpose is protection of the public. . . . It is not necessary to wait until a member of the public is harmed to take steps to prevent such harm from occurring."

"Moral turpitude"can cost you your license

Griffiths has completed his probation, and is still practicing. But he and his attorney, Peter Osinoff, are still angry about the medical board's action. "Constitutional due process requires evidence that a physician's behavior outside the practice presents a potential danger to his patients before the Board takes disciplinary action against him," says Osinoff. "Although the Board found no such evidence in Dr. Griffiths' case, the court concluded that the Board was entitled to rely on a statute that presumes such a relationship. This irrebutable presumption gives the Board free rein to find that virtually any conduct might affect the practice of medicine."

Griffiths is hardly the first doctor whose behavior outside the office has gotten him in trouble with the medical boards. According to the Federation of State Medical Boards, nonpractice related offenses were cited 335 times as grounds for disciplinary actions in 2001. Of that total, DUI convictions and "crimes of moral turpitude" were the most common categories, followed by tax evasion and fraud.

How do state boards learn about doctors' criminal convictions? On license renewal applications, the boards generally ask such questions as, "Have you been arrested or convicted of a crime within the past two years?" or "Have you been convicted of a crime that brings into question your ability to practice medicine?"

Even if the doctor doesn't confess such incidents himself, courts in some states—as in California—routinely report physicians' convictions to the medical board. Or a board member might see an account of doctor's arrest or conviction in the local paper.

Any conviction for tax evasion, domestic abuse, fraud, "moral turpitude," or "lewd or lascivious behavior" could trigger a board investigation, according to James Hilliard, a health care attorney in Walpole, MA, who frequently represents physicians in such cases. "The board will first investigate to see if the behavior could affect your practice, or if it represents a potential risk to your patients," he says.

Hilliard cited one case in which he represented a doctor who'd been convicted of tax evasion. While that might seem unrelated to one's medical practice, it turned out that the crime exposed his patients to an invasion of their medical privacy. "To prove its case," Hilliard explains, "the government subpoenaed his records. He refused on the grounds that they were privileged. But while the government couldn't force him to produce all his records, the court ruled that he did have to turn over those for specific patients."

If there have been multiple convictions involving alcohol, the board is more likely to act. Hilliard recently represented a physician who'd been arrested and pled guilty to a charge of driving under the influence. The doctor reported his conviction to the state medical board on his license reapplication, as required. "Because it was his first offense," says Hilliard, "the board simply cautioned him. But if he's convicted again for a similar offense, he'll probably be sanctioned."

In most states, drunk driving convictions will at the very least trigger a state board investigation to see if there's evidence of impairment or addiction. That may involve interviews with colleagues and hospital staff, plus a medical or psychological evaluation. If the investigation shows no risk to patients, the physician will usually be referred to a 'diversion' program as an alternative to disciplinary action.

"Most state boards won't suspend or revoke a doctor's license unless the evaluation shows that there's a chronic alcohol problem with evidence of impairment during practice," says Steven I. Kern, a health care attorney in Bridgewater, NJ. "If there are multiple convictions, however, that's pretty strong evidence of chronic abuse."

Kern has also handled cases involving so-called moral turpitude. For example, he currently represents a physician who was arrested for running down the street nude, which triggered an investigation. "The state board can order a medical or psychological evaluation based on any incident that suggests a physical or psychological problem that could adversely affect your ability to practice medicine—even if there's no direct evidence that it has.

"When you're a licensed professional," Kern cautions doctors, "your life's an open book. Anything you do outside the office can get you in trouble as easily as anything you do in your practice."

 

Berkeley Rice. Putting your license at risk. Medical Economics 2002;21:85.