A Series by
ROSA M. MOSLEY, ESQ.
Although the term “unprofessional conduct"
is broad in scope, the California Legislature has codified
definitions in the Medical Practice Act and California courts have
interpreted those statutes to give some guidance to physicians.
Determining what constitutes unprofessional conduct is more of an
art than a science. Each case must be analyzed by reviewing the law,
applicable community standards, medical ethics and the specific
facts involved.
Courts have ruled that the purpose of the Medical
Practice Act "is to assure the high quality of medical
practice; in other words, to keep unqualified and undesirable
persons and those guilty of unprofessional conduct out of the
medical profession." Courts have held that the term
unprofessional conduct "must relate to conduct which indicates
an unfitness to practice medicine." It is conduct which
breaches the rules or the ethical
code of the medical profession or is conduct that is unbecoming to a
physician in good standing.
1.) Business and Professions Code section 2234
defines "unprofessional conduct" as:
a. Violating or attempting to violate (directly or indirectly), assisting, abetting, or
conspiring in a violation of the Medical Practice Act;
b. Committing acts of gross negligence;
c. Committing acts of repeated negligent acts;
d. Incompetence;
e. Committing acts of dishonesty or corruption, which are
substantially related to the qualifications,
functions, or duties of a physician and surgeon;
f. Engaging in any conduct that would have warranted a denial of
a certificate to practice medicine; or
g. The practice of medicine from California into another state or
country without meeting the legal requirements of that state or
country.
California Courts have interpreted "unprofessional
conduct" to mean, among other things:
1.) Clearly excessive treatment as determined by the customary
practice
and standards of the local community of licensees;
2.) Clearly excessive prescribing or administering of drugs or
treatment;
3.) Conviction of a crime substantially related to the
qualifications, functions or duties of a physician;
4.) Conviction of federal or state laws regulating dangerous
drugs and controlled substances;
5.) Misuse or abuse of drugs or alcohol;
6.) Furnishing drugs or controlled substances to an addict;
7.) Dispensing potentially lethal doses of prescribed drugs to a
patient who had attempted and succeeded in committing suicide;
8.) False or misleading advertising;
9.) Tax evasion;
10.) Improper sexual conduct with a patient;
11.) Submitting false and fraudulent claims to Medicare;
12.) Failing to exercise standard of care in the diagnosis,
monitoring and treatment of a patient following surgery.
This series will explore how the law and medicine intersect,
including
discussions of how the administrative process works and the
implications of
medical ethics in decisions that physicians face on a daily
basis.
The best advice I can give you is as Mike Magee stated in
Positive Leadership (1999) "Be balanced ---Those who are not
distracted by money, possessions, fame and fortune, see with the
greatest clarity."
__________________________
1. Thornburn v. Department of Corrections
(1998) 66 Cal.App. 4th 1284
NEXT ARTICLE IN SERIES:
"WHAT IS GROSS NEGLIGENCE?"
