The practice of medicine is a sensitive one because it involves people's lives. One of the state's critical functions or mandates is to protect people from dangerous practices by professionals. In California, the unauthorized practice of medicine is a crime under Business and Professions code 2052.
Before practicing medicine, you must undergo the required training from certified institutions and obtain your professional license from the body regulating medical practice. If you face accusations of illegal medical practice, disciplinary action could be taken against you.
A conviction could lead to severe consequences that affect your livelihood and career. Possible penalties for this violation are severe, including serving a jail term and paying hefty fines. At Orange County Criminal Lawyer, we have competent defense attorneys who could help if you or your loved one is charged with unauthorized practice of medicine.
Understanding the Unauthorized Practice of Medicine Per Business & Professional Code 2050
When you are accused of violating this law by practicing medicine illegally, you can only be convicted of the offense if you:
- Confess to the allegations
- Agree to a plea deal that includes accepting a conviction for the violation
- Go through a trial by a judge and are found guilty of the offense
If you decide to defend yourself against the allegations, the prosecutor must prove various crime elements before facing conviction. In this case, the prosecutor must determine all the offense elements for you to be convicted. On the other hand, your lawyer will work to create doubt in the prosecutor's case to have the charges dropped against you.
Various activities in California translate to the illegal practice of medicine, and they include:
- Trying to practice or practicing medicine, promoting your practice or claiming to practice any form of medicine or treatment of different ailments or afflictions
- Determining or identifying, carrying out a surgical procedure, treating or advising on drugs to take on an illness, blemish, deformity, disease, disfigurement, injury, or physical and psychological conditions
- Colluding with, or helping and facilitating a person involved in any of the deeds discussed above.
While defining the illegal practice of medicine without authorization, the statute uses various critical terms to understand, especially when faced with allegations. These words or phrases include:
No Injuries or Ailment is Required
Some notable elements are not included in the definition of practicing medicine without authorization in California. According to the statute, it is not a requirement for anyone to sustain injuries or harm from the unlawful practice. Further, the law does not require proving that you planned to harm or cause injuries to anyone when you practiced medicine illegally.
Based on this understanding, it can be concluded that practicing medicine with no authorization does not need there to be a victim. However, even without a victim or complainant, the offense is severely punished under the law.
For instance, John, a respected doctor in another country, decides to further his studies in America and settles in California. While attending the local church frequented by immigrants, he realizes that many lack proper medical care access. Because he is in America to further his studies and not to set up a practice, he doesn't see the need to obtain a California practicing license for doctors.
After seeing other immigrants' plight, he offers to provide primary consultations and check-ups from his house at a minimal fee. Although John’s intentions are noble and nobody files a formal complaint about his activities, he is still practicing medicine without authorization in California.
Note that good intentions are not an excuse for the violation and cannot be used in your defense. In this case, if John is arrested, he could face allegations of practicing medicine without authorization.
Diagnostics and Treatment
According to Business and Professions Code 2052, you violate the law when without a license you:
- Diagnose or evaluate a patient
- Offer treatment to a person for a psychological or physical condition of any kind
The statute further states that diagnosis could involve any method, procedure, or device used to determine a patient’s condition. This means using tools like a sphygmomanometer (used to detect blood pressure level) or other medical machines.
However, taking a person's weight or height in hospitals does not violate this law. Per this statute, illegal medical practices involve issuing prescriptions, injections, and other unconventional therapies, including acupuncture and hypnotism.
For instance, Elizabeth claims she can help people lose weight through hypnotism. Despite her claim, she has no license to practice medicine but goes ahead to advertise her services. She violates the Business and Professions Code 2052 by claiming to treat a physical ailment or mental condition without a practicing license.
Mental or Physical Ailment
You face criminal charges if you claim to treat any psychological or physical ailment without authorization. According to the law, the conditions must not be those we recognize as diseases, injuries, or illnesses.
For instance, Mary learned midwifery through observing a licensed midwife deliver babies without complications. With her experience, she offers her services for a fee to mothers with normal childbirth without complications.
According to the law, this is an unauthorized practice even when childbirth and normal pregnancy are not categorized as illnesses, although they are physical conditions. You cannot offer these services without a valid license and training.
When the law indicates that the practice is illegal in California, it means the business and professions code 2052 is a California law, not other states. But, technology and the internet has complicated the concept of practicing medicine. However, the basic rule is that you cannot offer treatment or diagnosis to a California resident without a license to practice medicine from California. When you submit your services through the internet and treat or diagnose a California patient, you can face charges for violating BPC 2052.
For instance, Grace is a doctor from Jacksonville and possesses a medical license to practice in Florida. She has an online presence and offers consultations and prescriptions online. Craig, a California patient, is unwell and goes online looking to receive diagnosis and prescription.
He proceeds to fill out a form describing his symptoms online. Unfortunately, the form is sent to Grace, who is a paid consultant for the website. Grace reviews Craig’s form and offers her opinion, then prescribes medicine to Craig.
In this case, Grace, through the internet, practices medicine in California without authorization. This means it does not matter whether she is licensed to practice medicine in Florida. But, treating a California patient could have her charged with practicing medicine in California without authorization. It is important to note that Craig does not have to raise a complaint of any kind for Grace to be charged or prosecuted for the offense.
Having a Medical Clinic when You are not a Medical Professional
Business and Professions Code 2052 does not only criminalize the unauthorized practice of medicine but also owning a medical clinic when you are not a licensed professional. This is also applicable even when the unlicensed owner does not practice medicine but has employed licensed professionals.
For instance, Charles has been working in a hospital for many years as an accountant. He feels that the practice of medicine is lucrative and that he can invest in it. Although he has no medical license or training, he invests in the infrastructure and hires a professional and licensed practitioner to attend to patients at a fee.
Although Charles does not offer medical services himself, he is guilty of violating BPC 2052 because he benefits from the clinic's proceeds. Only licensed doctors, according to the statute, can profit from medical practice.
Additionally, the doctor he hired will also face allegations for violating this law. This is because the statute forbids anyone from assisting or facilitating the unlawful practice of medicine in California. By agreeing to be hired by Charles, the doctor helped Charles violate the law and facilitate the offense.
Penalties for Violating BPC 2052
If you are faced with allegations of practicing medicine without authorization, the offense is a wobbler. The decision to charge you lies with the prosecutor after evaluating your criminal past and the violation circumstances. In this case, the offense's circumstances may involve whether patients sustained injuries or were harmed out of illegal practice.
If the prosecutor charges you with a misdemeanor offense, the likely punishments upon conviction are:
- Summary probation lasting three to five years
- County jail term for not more than a year
- A $1,000 fine or less
If the prosecutor decides to charge you with a felony offense, a conviction will result in the punishments below:
- Formal probation for three to five years
- County jail term lasting sixteen or twenty-four or thirty-six months
- A $10,000 fine alongside the jail term or in place of it
Civil Consequences for Violating BPC 2052
Although practicing medicine without authorization attracts a criminal charge, disgruntled patients could file criminal liability suits against you. If you caused injuries or harmed a patient during your unlawful practice, the patient can seek punitive damages in court.
Following the hearing, the judge can find that you negligently offered the services you were not authorized to, and as you did, you caused losses to victims. Punitive damages are often hefty and are not covered by an insurance provider, especially when you lack a license to practice.
Critical Considerations as You Prepare Your Defense
If you face allegations of violating BPC 2052, your lawyer will advise on various factors to consider before formulating your defense. Typically, your attorney will help with any legal issues that may arise like those that violate your rights, keeping the chain of custody of evidence, among others. As preparations for your defense are ongoing, key factors that you need to consider are:
Your good intentions are not an excuse for your conduct
The law does not require proving your intent to be guilty of this offense. This means, even when you helped the patient and the results were excellent, your good deeds are not a defense. Equally, even when you never planned to cause any harm and none was caused, you still violated the law.
In this case, your patients cannot testify on your behalf to be found innocent. However, if your actions resulted in harming or injuring another person, this is considered. An injury because of your actions will have you face felony charges that attract steeper penalties.
It isn't a defense to provide routine services.
Arguing that the services you provided were not medical, but routine is not a defense. Although some practices are not standard medical practices, you cannot offer them without authorization. For instance, even when you understand and are experienced in midwifery or acupuncturist, you cannot practice without a license.
Defenses for Violating BPC 2052
From the penalties above, it is clear that a conviction on this offense will result in severe legal consequences. But, not all allegations are factual or represent the offense's true nature, and left unchallenged can result in undeserving repercussions.
Any person faced with criminal allegations must understand the consequences of a conviction. This should make defending yourself against the allegations a primary objective. Faced with allegations of illegally practicing medicine, you must find a criminal defense attorney in California that understands the state's licensing laws and the best ways to challenge these allegations.
To obtain a conviction, the prosecutor must prove the various discussed elements of the offense, but your attorney will argue against the evidence, challenging its credibility. A prosecutor must make sure their case is airtight and leaves no room for doubts to have you convicted. Fortunately, your experienced attorney knows how to create doubt in the prosecutor's case and help you prevail over the allegations. Some of the defenses your attorney can present include:
You Never Practiced Medicine as Defined by the Law
Today, many gray areas exist in defining medicine as a practice. For instance, many cultures have various ways of treating ailments or conditions that are not the traditional practice of western medicine. Many patients or would-be patients today seek alternative and cheaper ways to receive treatment for their ailments. Professional personal trainers also recommend different solutions to deal with various health issues their clients have.
If you are accused of violating BPC 2052, it could be for something not fitting the traditional Western medicine. Here, your lawyer can argue that your scope of practice or service does not constitute medicine's illegal practice.
Criminal allegations have many false allegations, and when not challenged, can result in wrongful convictions. In medicine, false accusations are also common and can result in criminal proceedings against you.
For instance, you have a disgruntled client that you once gave advice when they were suffering from something. While offering the advice, it was not under the pretense of medical knowhow, but as a general observation. Because the client is angry at you, he decides to allege that you offered them medical advice when you are not a licensed practitioner. With the help of your lawyer, you can argue against these allegations and prevail over them.
Although this may seem far-fetched, it is a possible defense when faced with these allegations. You may be accused of owning a medical practice when you are not a medical professional or do not hold a license. Following the allegations, you discover that your identity had been stolen and used to register the business. In this case, your lawyer will work to prove you never knew there was such a practice registered in your name.
You Belong to a Self-Help Group
Many people join groups that provide each other with suggestions or advice on various things. Others offer home remedies they have tried, and they worked for them. However, this is not provided as the authority of practicing medicine. For instance, you are in a group where you are supporting each other to lose weight. One of the members claims to be constipating and needs advice on what to do. You decide to share advice on what you have done in the past when faced with the same problem.
Unfortunately, your advice does not work well for them, and they sue you for offering medical advice when not a doctor. In this case, your lawyer can argue that you never provided advice as a doctor but as a self-help group member. This argument with evidence can have the charges dropped.
You Never Gained Financially from the Practice or Services you Offered
As stated earlier, profiting from an unauthorized medical practice or services is an offense under BPC 2052. For instance, you cannot register and benefit from a medical clinic's proceeds or practice when you are not a doctor. However, you cannot be guilty under BPC 2052 if you offered free services even without a valid medical license.
For example, you used to practice medicine and decided to retire or change your career. As a result, you stopped renewing your practicing license because you did not need it. Unfortunately, at your workplace, a person is injured and needs help before the paramedics arrive.
With your medical background, you provide the required assistance, but you do not ask for payment. If this is what happened and you are charged with practicing medicine without authorization, your lawyer can present this fact and have the charges dropped.
Additionally, if you were a midwife before but retired does not mean you cannot help a person in need. For instance, a woman goes into labor in the subway and needs urgent help to deliver. Before help arrives, you assist with the delivery while you do not have a license. If you charge for the service, you will be found guilty of violating BPC 2052. However, if you never charged but offered the services as a good samaritan, you are not guilty of breaking the law.
Examples of Medical Practices that could Result in Criminal Proceedings for Violating BPC 2052
Under this statute, you can find yourself facing criminal charges for various practices. Some of the things you could do and constitute to unauthorized practice of medicine include:
- When you use your medical license from your state of origin or country to practice medicine in California
- If you deal in herbal alternatives and you claim to cure diabetes or cancer, among other ailments
- When performing abortions at a fee with a nursing degree
- When you invest and run a medical clinic without training in medicine
- If you hold a license to practice medicine, you do so in an illegal clinic or facility. For instance, if you are employed in a clinic owned by nonmedical professionals to offer your services, there
- If you faced disciplinary action where your license is under suspension or was revoked, and you practice medicine still
- If you hold a license as a doctor and in your clinic, you employ a medical practitioner without a permit to treat and diagnose patients
- If you have a license to practice in a particular area of medicine, but you offer your services in a different area, you have no expertise in without a doctor specializing in it supervising you
Besides the above, you can face charges for violating BPC 2052 if you perform peripheral services:
- Deciding or advising on the tests a patient should take
- Determining the doctor a patient should visit
- Controlling and taking care of a patient's treatment program
- Recruiting and firing of nurses, medical staff, or doctors when you have no medical proficiency
Any activity that insinuates the practice of medicine without a license is a criminal offense in California. If you use a title or letters reserved for doctors in your business cards or letterheads, you will face a misdemeanor charge. If found guilty, the penalties include a six-month term of county jail or a fine not exceeding a thousand dollars. These titles include:
- Using the word doctor to refer to yourself
- Using the work physician
- Putting the prefix 'Dr.' before your name
- Using the initials M.D with your name
Find a Criminal Defense Lawyer Near Me
You can be charged with Violating BPC 2052 in various ways. If you are faced with these allegations, call our Orange County Criminal Lawyer offices at 714-262-4833 for assistance with building strong defenses. Our attorneys are highly skilled and experienced in criminal law and have helped many clients achieve favorable outcomes.
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