2009 California Business and Professions Code - Section 2220-2319 :: Article 12. Enforcement

2220.  Except as otherwise provided by law, the Division of Medical
Quality may take action against all persons guilty of violating this
chapter. The division shall enforce and administer this article as to
physician and surgeon certificate holders, and the division shall
have all the powers granted in this chapter for these purposes
including, but not limited to:
   (a) Investigating complaints from the public, from other
licensees, from health care facilities, or from a division of the
board that a physician and surgeon may be guilty of unprofessional
conduct. The board shall investigate the circumstances underlying any
report received pursuant to Section 805 within 30 days to determine
if an interim suspension order or temporary restraining order should
be issued. The board shall otherwise provide timely disposition of
the reports received pursuant to Section 805.
   (b) Investigating the circumstances of practice of any physician
and surgeon where there have been any judgments, settlements, or
arbitration awards requiring the physician and surgeon or his or her
professional liability insurer to pay an amount in damages in excess
of a cumulative total of thirty thousand dollars ($30,000) with
respect to any claim that injury or damage was proximately caused by
the physician's and surgeon's error, negligence, or omission.
   (c) Investigating the nature and causes of injuries from cases
which shall be reported of a high number of judgments, settlements,
or arbitration awards against a physician and surgeon.

2220.05.  (a) In order to ensure that its resources are maximized
for the protection of the public, the Medical Board of California
shall prioritize its investigative and prosecutorial resources to
ensure that physicians and surgeons representing the greatest threat
of harm are identified and disciplined expeditiously. Cases involving
any of the following allegations shall be handled on a priority
basis, as follows, with the highest priority being given to cases in
the first paragraph:
   (1) Gross negligence, incompetence, or repeated negligent acts
that involve death or serious bodily injury to one or more patients,
such that the physician and surgeon represents a danger to the
public.
   (2) Drug or alcohol abuse by a physician and surgeon involving
death or serious bodily injury to a patient.
   (3) Repeated acts of clearly excessive prescribing, furnishing, or
administering of controlled substances, or repeated acts of
prescribing, dispensing, or furnishing of controlled substances
without a good faith prior examination of the patient and medical
reason therefor. However, in no event shall a physician and surgeon
prescribing, furnishing, or administering controlled substances for
intractable pain consistent with lawful prescribing, including, but
not limited to, Sections 725, 2241.5, and 2241.6 of this code and
Sections 11159.2 and 124961 of the Health and Safety Code, be
prosecuted for excessive prescribing and prompt review of the
applicability of these provisions shall be made in any complaint that
may implicate these provisions.
   (4) Sexual misconduct with one or more patients during a course of
treatment or an examination.
   (5) Practicing medicine while under the influence of drugs or
alcohol.
   (b) The board may by regulation prioritize cases involving an
allegation of conduct that is not described in subdivision (a). Those
cases prioritized by regulation shall not be assigned a priority
equal to or higher than the priorities established in subdivision
(a).
   (c) The Medical Board of California shall indicate in its annual
report mandated by Section 2312 the number of temporary restraining
orders, interim suspension orders, and disciplinary actions that are
taken in each priority category specified in subdivisions (a) and
(b).

2220.08.  (a) Except for reports received by the board pursuant to
Section 805 that may be treated as complaints by the board and new
complaints relating to a physician and surgeon who is the subject of
a pending accusation or investigation or who is on probation, any
complaint determined to involve quality of care, before referral to a
field office for further investigation, shall meet the following
criteria:
   (1) It shall be reviewed by one or more medical experts with the
pertinent education, training, and expertise to evaluate the specific
standard of care issues raised by the complaint to determine if
further field investigation is required.
   (2) It shall include the review of the following, which shall be
requested by the board:
   (A) Relevant patient records.
   (B) The statement or explanation of the care and treatment
provided by the physician and surgeon.
   (C) Any additional expert testimony or literature provided by the
physician and surgeon.
   (D) Any additional facts or information requested by the medical
expert reviewers that may assist them in determining whether the care
rendered constitutes a departure from the standard of care.
   (b) If the board does not receive the information requested
pursuant to paragraph (2) of subdivision (a) within 10 working days
of requesting that information, the complaint may be reviewed by the
medical experts and referred to a field office for investigation
without the information.
   (c) Nothing in this section shall impede the board's ability to
seek and obtain an interim suspension order or other emergency
relief.

2220.5.  (a) The Medical Board of California is the only licensing
board that is authorized to investigate or commence disciplinary
actions relating to physicians and surgeons who have been issued a
certificate pursuant to Section 2050.
   (b) For purposes of this section, "investigate or commence
disciplinary actions" shall mean written, oral, or telephonic
communication with a physician or surgeon concerning his or her
violation of the Medical Practice Act or any other provision of this
division.
   (c) Written complaints that are subject to Section 43.96 of the
Civil Code, relating to the professional conduct or professional
competence of physicians and surgeons, shall be processed in
accordance with that section.

2220.6.  The board shall investigate any licensee against whom an
information or indictment has been filed that alleges a violation of
Section 550 of the Penal Code or Section 1871.4 of the Insurance
Code, if the district attorney does not otherwise object to
initiating an investigation.

2220.7.  (a) A physician and surgeon shall not include or permit to
be included any of the following provisions in an agreement to settle
a civil dispute arising from his or her practice, whether the
agreement is made before or after filing the action:
   (1) A provision that prohibits another party to the dispute from
contacting or cooperating with the board.
   (2) A provision that prohibits another party to the dispute from
filing a complaint with the board.
   (3) A provision that requires another party to the dispute to
withdraw a complaint he or she has filed with the board.
   (b) A provision described in subdivision (a) is void as against
public policy.
   (c) A physician and surgeon who violates this section is subject
to disciplinary action by the board.

2221.  (a) The board may deny a physician's and surgeon's
certificate to an applicant guilty of unprofessional conduct or of
any cause that would subject a licensee to revocation or suspension
of his or her license; or, the board in its sole discretion, may
issue a probationary physician's and surgeon's certificate to an
applicant subject to terms and conditions, including, but not limited
to, any of the following conditions of probation:
   (1) Practice limited to a supervised, structured environment where
the licensee's activities shall be supervised by another physician
and surgeon.
   (2) Total or partial restrictions on drug prescribing privileges
for controlled substances.
   (3) Continuing medical or psychiatric treatment.
   (4) Ongoing participation in a specified rehabilitation program.
   (5) Enrollment and successful completion of a clinical training
program.
   (6) Abstention from the use of alcohol or drugs.
   (7) Restrictions against engaging in certain types of medical
practice.
   (8) Compliance with all provisions of this chapter.
   (9) Payment of the cost of probation monitoring.
   (b) The board may modify or terminate the terms and conditions
imposed on the probationary certificate upon receipt of a petition
from the licensee. The board may assign the petition to an
administrative law judge designated in Section 11371 of the
Government Code. After a hearing on the petition, the administrative
law judge shall provide a proposed decision to the board.
   (c) The board shall deny a physician's and surgeon's certificate
to an applicant who is required to register pursuant to Section 290
of the Penal Code. This subdivision does not apply to an applicant
who is required to register as a sex offender pursuant to Section 290
of the Penal Code solely because of a misdemeanor conviction under
Section 314 of the Penal Code.
   (d) An applicant shall not be eligible to reapply for a physician'
s and surgeon's certificate for a minimum of three years from the
effective date of the denial of his or her application, except that
the board may, in its discretion and for good cause demonstrated,
permit reapplication after not less than one year has elapsed from
the effective date of the denial.

2221.05.  (a) Notwithstanding subdivision (a) of Section 2221, the
board may issue a physician's and surgeon's certificate to an
applicant who has committed minor violations that the board deems, in
its discretion, do not merit the denial of a certificate or require
probationary status under Section 2221, and may concurrently issue a
public letter of reprimand.
   (b) A public letter of reprimand issued concurrently with a
physician's and surgeon's certificate shall be purged three years
from the date of issuance.
   (c) A public letter of reprimand issued pursuant to this section
shall be disclosed to an inquiring member of the public and shall be
posted on the board's Internet Web site.
   (d) Nothing in this section shall be construed to affect the board'
s authority to issue an unrestricted license.

2221.1.  (a) The board and the Board of Podiatric Medicine shall
investigate and may take disciplinary action, including, but not
limited to, revocation or suspension of licenses, against physicians
and surgeons and all others licensed or regulated by the board, or by
the Board of Podiatric Medicine, whichever is applicable, who,
except for good cause, knowingly fail to protect patients by failing
to follow infection control guidelines of the applicable board,
thereby risking transmission of blood-borne infectious diseases from
the physician and surgeon or other health care provider licensed or
regulated by the applicable board to patients, from patients, and
from patient to physician and surgeon or other health care provider
regulated by the applicable board. In so doing, the boards shall
consider referencing the standards, regulations, and guidelines of
the State Department of Health Services developed pursuant to Section
1250.11 of the Health and Safety Code and the standards, guidelines,
and regulations pursuant to the California Occupational Safety and
Health Act of 1973 (Part 1 (commencing with Section 6300), Division
5, Labor Code) for preventing the transmission of HIV, hepatitis B,
and other blood-borne pathogens in health care settings. As
necessary, the board and the Board of Podiatric Medicine shall
consult with the Board of Dental Examiners, the Board of Registered
Nursing, and the Board of Vocational Nursing and Psychiatric
Technicians, to encourage appropriate consistency in the
implementation of this section.
   (b) The board shall seek to ensure that licentiates and others
regulated by the board are informed of the responsibility of
licentiates to follow infection control guidelines and of the most
recent scientifically recognized safeguards for minimizing the
transmission of blood-borne infectious diseases.

2222.  The California Board of Podiatric Medicine shall enforce and
administer this article as to doctors of podiatric medicine. Any acts
of unprofessional conduct or other violations proscribed by this
chapter are applicable to licensed doctors of podiatric medicine and
wherever the Medical Quality Hearing Panel established under Section
11371 of the Government Code is vested with the authority to enforce
and carry out this chapter as to licensed physicians and surgeons,
the Medical Quality Hearing Panel also possesses that same authority
as to licensed doctors of podiatric medicine.
   The California Board of Podiatric Medicine may order the denial of
an application or issue a certificate subject to conditions as set
forth in Section 2221, or order the revocation, suspension, or other
restriction of, or the modification of that penalty, and the
reinstatement of any certificate of a doctor of podiatric medicine
within its authority as granted by this chapter and in conjunction
with the administrative hearing procedures established pursuant to
Sections 11371, 11372, 11373, and 11529 of the Government Code. For
these purposes, the California Board of Podiatric Medicine shall
exercise the powers granted and be governed by the procedures set
forth in this chapter.

2224.  (a) The board may delegate the authority under this chapter
to conduct investigations and inspections and to institute
proceedings to the executive director of the board or to other
personnel as set forth in Section 2020. The board shall not delegate
its authority to take final disciplinary action against a licensee as
provided in Section 2227 and other provisions of this chapter. The
board shall not delegate any authority of the Senior Assistant
Attorney General of the Health Quality Enforcement Section or any
powers vested in the administrative law judges of the Office of
Administrative Hearings, as designated in Section 11371 of the
Government Code.
   (b) Notwithstanding subdivision (a), the board shall delegate to
its executive director the authority to adopt a decision entered by
default and a stipulation for surrender of a license.

2225.  (a) Notwithstanding Section 2263 and any other provision of
law making a communication between a physician and surgeon or a
doctor of podiatric medicine and his or her patients a privileged
communication, those provisions shall not apply to investigations or
proceedings conducted under this chapter. Members of the board, the
Senior Assistant Attorney General of the Health Quality Enforcement
Section, members of the California Board of Podiatric Medicine, and
deputies, employees, agents, and representatives of the board or the
California Board of Podiatric Medicine and the Senior Assistant
Attorney General of the Health Quality Enforcement Section shall keep
in confidence during the course of investigations, the names of any
patients whose records are reviewed and may not disclose or reveal
those names, except as is necessary during the course of an
investigation, unless and until proceedings are instituted. The
authority of the board or the California Board of Podiatric Medicine
and the Health Quality Enforcement Section to examine records of
patients in the office of a physician and surgeon or a doctor of
podiatric medicine is limited to records of patients who have
complained to the board or the California Board of Podiatric Medicine
about that licensee.
   (b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and investigators and
representatives of the board or the California Board of Podiatric
Medicine, may inquire into any alleged violation of the Medical
Practice Act or any other federal or state law, regulation, or rule
relevant to the practice of medicine or podiatric medicine, whichever
is applicable, and may inspect documents relevant to those
investigations in accordance with the following procedures:
   (1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where patient consent is given.
   (2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
   (c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
   (d) Where documents are lawfully requested from licensees in
accordance with this section by the Attorney General or his or her
agents or deputies, or investigators of the board or the California
Board of Podiatric Medicine, they shall be provided within 15
business days of receipt of the request, unless the licensee is
unable to provide the documents within this time period for good
cause, including, but not limited to, physical inability to access
the records in the time allowed due to illness or travel. Failure to
produce requested documents or copies thereof, after being informed
of the required deadline, shall constitute unprofessional conduct.
The board may use its authority to cite and fine a physician and
surgeon for any violation of this section. This remedy is in addition
to any other authority of the board to sanction a licensee for a
delay in producing requested records.
   (e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.

2225.3.  The board, the California Board of Podiatric Medicine, and
the Attorney General, shall return any original documents received
pursuant to Section 2225 to the licensee from whom they were obtained
within seven calendar days.

2225.5.  (a) (1) A licensee who fails or refuses to comply with a
request for the certified medical records of a patient, that is
accompanied by that patient's written authorization for release of
records to the board, within 15 days of receiving the request and
authorization, shall pay to the board a civil penalty of one thousand
dollars ($1,000) per day for each day that the documents have not
been produced after the 15th day, up to ten thousand dollars
($10,000), unless the licensee is unable to provide the documents
within this time period for good cause.
   (2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 30 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 30th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records.
   (b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board shall pay to the board a civil penalty of
one thousand dollars ($1,000) per day for each day that the documents
have not been produced after the date by which the court order
requires the documents to be produced, up to ten thousand dollars
($10,000), unless it is determined that the order is unlawful or
invalid. Any statute of limitations applicable to the filing of an
accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
   (2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
   (3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
   (4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
   (c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000) and
shall be reported to the State Department of Public Health and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
   (d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
   (e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code).
   (f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the board.
   (g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.

2226.  The Division of Medical Quality or the Senior Assistant
Attorney General of the Health Quality Enforcement Section may
inspect a licensed general or specialized hospital and require
reports from them to determine if the hospital has adopted and is
complying with the provisions of Sections 2282 and 2283. They may
inspect medical staff and patient hospital medical records subject to
the provisions of Section 2225. Notwithstanding Section 2224, the
division's authority under this section shall be delegated only to a
licensed physician and surgeon.

2227.  (a) A licensee whose matter has been heard by an
administrative law judge of the Medical Quality Hearing Panel as
designated in Section 11371 of the Government Code, or whose default
has been entered, and who is found guilty, or who has entered into a
stipulation for disciplinary action with the board, may, in
accordance with the provisions of this chapter:
   (1) Have his or her license revoked upon order of the board.
   (2) Have his or her right to practice suspended for a period not
to exceed one year upon order of the board.
   (3) Be placed on probation and be required to pay the costs of
probation monitoring upon order of the board.
   (4) Be publicly reprimanded by the board. The public reprimand may
include a requirement that the licensee complete relevant
educational courses approved by the board.
   (5) Have any other action taken in relation to discipline as part
of an order of probation, as the board or an administrative law judge
may deem proper.
   (b) Any matter heard pursuant to subdivision (a), except for
warning letters, medical review or advisory conferences, professional
competency examinations, continuing education activities, and cost
reimbursement associated therewith that are agreed to with the board
and successfully completed by the licensee, or other matters made
confidential or privileged by existing law, is deemed public, and
shall be made available to the public by the board pursuant to
Section 803.1.

2227.5.  The board shall keep a copy of a complaint it receives
concerning the unprofessional conduct of a licensee for seven years
or until the statute of limitations for filing an accusation against
a licensee has expired, whichever period is shorter, if the board
finds after an investigation that there is insufficient evidence to
proceed with disciplinary action.

2228.  The authority of the board or the California Board of
Podiatric Medicine to discipline a licensee by placing him or her on
probation includes, but is not limited to, the following:
   (a) Requiring the licensee to obtain additional professional
training and to pass an examination upon the completion of the
training. The examination may be written or oral, or both, and may be
a practical or clinical examination, or both, at the option of the
board or the administrative law judge.
   (b) Requiring the licensee to submit to a complete diagnostic
examination by one or more physicians and surgeons appointed by the
board. If an examination is ordered, the board shall receive and
consider any other report of a complete diagnostic examination given
by one or more physicians and surgeons of the licensee's choice.
   (c) Restricting or limiting the extent, scope, or type of practice
of the licensee, including requiring notice to applicable patients
that the licensee is unable to perform the indicated treatment, where
appropriate.
   (d) Providing the option of alternative community service in cases
other than violations relating to quality of care.

2229.  (a) Protection of the public shall be the highest priority
for the Division of Medical Quality, the California Board of
Podiatric Medicine, and administrative law judges of the Medical
Quality Hearing Panel in exercising their disciplinary authority.
   (b) In exercising his or her disciplinary authority an
administrative law judge of the Medical Quality Hearing Panel, the
division, or the California Board of Podiatric Medicine, shall,
wherever possible, take action that is calculated to aid in the
rehabilitation of the licensee, or where, due to a lack of continuing
education or other reasons, restriction on scope of practice is
indicated, to order restrictions as are indicated by the evidence.
   (c) It is the intent of the Legislature that the division, the
California Board of Podiatric Medicine, and the enforcement program
shall seek out those licensees who have demonstrated deficiencies in
competency and then take those actions as are indicated, with
priority given to those measures, including further education,
restrictions from practice, or other means, that will remove those
deficiencies. Where rehabilitation and protection are inconsistent,
protection shall be paramount.

2230.  (a) All proceedings against a licensee for unprofessional
conduct, or against an applicant for licensure for unprofessional
conduct or cause, shall be conducted in accordance with the
Administrative Procedure Act (Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code)
except as provided in this chapter, and shall be prosecuted by the
Senior Assistant Attorney General of the Health Quality Enforcement
Section.
   (b) For purposes of this article, "agency itself," as used in the
Administrative Procedure Act, means any panel appointed by the board
pursuant to Section 2008. The decision or order of a panel imposing
any disciplinary action pursuant to this chapter and the
Administrative Procedure Act shall be final.

2230.5.  (a) Except as provided in subdivisions (b), (c), and (e),
any accusation filed against a licensee pursuant to Section 11503 of
the Government Code shall be filed within three years after the
board, or a division thereof, discovers the act or omission alleged
as the ground for disciplinary action, or within seven years after
the act or omission alleged as the ground for disciplinary action
occurs, whichever occurs first.
   (b) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging the procurement of a license by
fraud or misrepresentation is not subject to the limitation provided
for by subdivision (a).
   (c) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging unprofessional conduct based on
incompetence, gross negligence, or repeated negligent acts of the
licensee is not subject to the limitation provided for by subdivision
(a) upon proof that the licensee intentionally concealed from
discovery his or her incompetence, gross negligence, or repeated
negligent acts.
   (d) If an alleged act or omission involves a minor, the seven-year
limitations period provided for by subdivision (a) and the 10-year
limitations period provided for by subdivision (e) shall be tolled
until the minor reaches the age of majority.
   (e) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging sexual misconduct shall be
filed within three years after the board, or a division thereof,
discovers the act or omission alleged as the ground for disciplinary
action, or within 10 years after the act or omission alleged as the
ground for disciplinary action occurs, whichever occurs first. This
subdivision shall apply to a complaint alleging sexual misconduct
received by the board on and after January 1, 2002.
   (f) The limitations period provided by subdivision (a) shall be
tolled during any period if material evidence necessary for
prosecuting or determining whether a disciplinary action would be
appropriate is unavailable to the board due to an ongoing criminal
investigation.

2231.  An administrative law judge as designated in Section 11371 of
the Government Code may utilize the procedures in Section 11515 of
the Government Code concerning any matters which may be officially or
judicially noticed.

2232.  (a) Except as provided in subdivisions (b), (c), and (d), the
board shall promptly revoke the license of any person who, at any
time after January 1, 1947, has been required to register as a sex
offender pursuant to the provisions of Section 290 of the Penal Code.
   (b) This section shall not apply to a person who is required to
register as a sex offender pursuant to Section 290 of the Penal Code
solely because of a misdemeanor conviction under Section 314 of the
Penal Code.
   (c) (1) Five years after the effective date of the revocation and
three years after successful discharge from parole, probation, or
both parole and probation if under simultaneous supervision, an
individual who after January 1, 1947, and prior to January 1, 2005,
was subject to subdivision (a), may petition the superior court, in
the county in which the individual has resided for, at minimum, five
years prior to filing the petition, to hold a hearing within one year
of the date of the petition, in order for the court to determine
whether the individual no longer poses a possible risk to patients.
The individual shall provide notice of the petition to the Attorney
General and to the board at the time of its filing. The Attorney
General and the board may present written and oral argument to the
court on the merits of the petition.
   (2) If the court finds that the individual no longer poses a
possible risk to patients, and there are no other underlying reasons
for which the board pursued disciplinary action, the court shall
order, in writing, the board to reinstate the individual's license
within 180 days of the date of the order. The board may issue a
probationary license to a person subject to this paragraph subject to
terms and conditions, including, but not limited to, any of the
conditions of probation specified in Section 2221.
   (3) If the court finds that the individual continues to pose a
possible risk to patients, the court shall deny relief. The court's
decision shall be binding on the individual and the board, and the
individual shall be prohibited from filing a subsequent petition
under this section based on the same conviction.
   (d) This section shall not apply to a person who has been relieved
under Section 290.5 of the Penal Code of his or her duty to register
as a sex offender, or whose duty to register has otherwise been
formally terminated under California law.

2233.  The board may, by stipulation or settlement with the affected
physician and surgeon, issue a public letter of reprimand after it
has conducted an investigation or inspection as provided in this
article, rather than filing or prosecuting a formal accusation. The
public letter of reprimand may, at the discretion of the board,
include a requirement for specified training or education. The
affected physician and surgeon shall indicate agreement or
nonagreement in writing within 30 days of formal notification by the
board of its intention to issue the letter. The board, at its option,
may extend the response time. Use of a public reprimand shall be
limited to minor violations and shall be issued under guidelines
established by regulations of the board. A public letter of reprimand
issued pursuant to this section may be disclosed to an inquiring
member of the public.

2234.  The Division of Medical Quality shall take action against any
licensee who is charged with unprofessional conduct. In addition to
other provisions of this article, unprofessional conduct includes,
but is not limited to, the following:
   (a) Violating or attempting to violate, directly or indirectly,
assisting in or abetting the violation of, or conspiring to violate
any provision of this chapter.
   (b) Gross negligence.
   (c) Repeated negligent acts. To be repeated, there must be two or
more negligent acts or omissions. An initial negligent act or
omission followed by a separate and distinct departure from the
applicable standard of care shall constitute repeated negligent acts.
   (1) An initial negligent diagnosis followed by an act or omission
medically appropriate for that negligent diagnosis of the patient
shall constitute a single negligent act.
   (2) When the standard of care requires a change in the diagnosis,
act, or omission that constitutes the negligent act described in
paragraph (1), including, but not limited to, a reevaluation of the
diagnosis or a change in treatment, and the licensee's conduct
departs from the applicable standard of care, each departure
constitutes a separate and distinct breach of the standard of care.
   (d) Incompetence.
   (e) The commission of any act involving dishonesty or corruption
which is substantially related to the qualifications, functions, or
duties of a physician and surgeon.
   (f) Any action or conduct which would have warranted the denial of
a certificate.
   (g) The practice of medicine from this state into another state or
country without meeting the legal requirements of that state or
country for the practice of medicine. Section 2314 shall not apply to
this subdivision. This subdivision shall become operative upon the
implementation of the proposed registration program described in
Section 2052.5.

2234.1.  (a) A physician and surgeon shall not be subject to
discipline pursuant to subdivision (b), (c), or (d) of Section 2234
solely on the basis that the treatment or advice he or she rendered
to a patient is alternative or complementary medicine, including the
treatment of persistent Lyme Disease, if that treatment or advice
meets all of the following requirements:
   (1) It is provided after informed consent and a good-faith prior
examination of the patient, and medical indication exists for the
treatment or advice, or it is provided for health or well-being.
   (2) It is provided after the physician and surgeon has given the
patient information concerning conventional treatment and describing
the education, experience, and credentials of the physician and
surgeon related to the alternative or complementary medicine that he
or she practices.
   (3) In the case of alternative or complementary medicine, it does
not cause a delay in, or discourage traditional diagnosis of, a
condition of the patient.
   (4) It does not cause death or serious bodily injury to the
patient.
   (b) For purposes of this section, "alternative or complementary
medicine," means those health care methods of diagnosis, treatment,
or healing that are not generally used but that provide a reasonable
potential for therapeutic gain in a patient's medical condition that
is not outweighed by the risk of the health care method.
   (c) Since the National Institute of Medicine has reported that it
can take up to 17 years for a new best practice to reach the average
physician and surgeon, it is prudent to give attention to new
developments not only in general medical care but in the actual
treatment of specific diseases, particularly those that are not yet
broadly recognized in California.

2235.  Upon referral from the division, the Senior Assistant
Attorney General of the Health Quality Enforcement Section shall
initiate action against any licensee who obtains a certificate by
fraud or misrepresentation, including a reciprocity certificate which
is based upon a certificate or license obtained by fraud or mistake.
The division shall take action against any licensee whose
certificate was issued by mistake.

2236.  (a) The conviction of any offense substantially related to
the qualifications, functions, or duties of a physician and surgeon
constitutes unprofessional conduct within the meaning of this
chapter. The record of conviction shall be conclusive evidence only
of the fact that the conviction occurred.
   (b) The district attorney, city attorney, or other prosecuting
agency shall notify the Division of Medical Quality of the pendency
of an action against a licensee charging a felony or misdemeanor
immediately upon obtaining information that the defendant is a
licensee. The notice shall identify the licensee and describe the
crimes charged and the facts alleged. The prosecuting agency shall
also notify the clerk of the court in which the action is pending
that the defendant is a licensee, and the clerk shall record
prominently in the file that the defendant holds a license as a
physician and surgeon.
   (c) The clerk of the court in which a licensee is convicted of a
crime shall, within 48 hours after the conviction, transmit a
certified copy of the record of conviction to the board. The division
may inquire into the circumstances surrounding the commission of a
crime in order to fix the degree of discipline or to determine if the
conviction is of an offense substantially related to the
qualifications, functions, or duties of a physician and surgeon.
   (d) A plea or verdict of guilty or a conviction after a plea of
nolo contendere is deemed to be a conviction within the meaning of
this section and Section 2236.1. The record of conviction shall be
conclusive evidence of the fact that the conviction occurred.

2236.1.  (a) A physician and surgeon's certificate shall be
suspended automatically during any time that the holder of the
certificate is incarcerated after conviction of a felony, regardless
of whether the conviction has been appealed. The Division of Medical
Quality shall, immediately upon receipt of the certified copy of the
record of conviction, determine whether the certificate of the
physician and surgeon has been automatically suspended by virtue of
his or her incarceration, and if so, the duration of that suspension.
The division shall notify the physician and surgeon of the license
suspension and of his or her right to elect to have the issue of
penalty heard as provided in this section.
   (b) Upon receipt of the certified copy of the record of
conviction, if after a hearing it is determined therefrom that the
felony of which the licensee was convicted was substantially related
to the qualifications, functions, or duties of a physician and
surgeon, the Division of Medical Quality shall suspend the license
until the time for appeal has elapsed, if no appeal has been taken,
or until the judgment of conviction has been affirmed on appeal or
has otherwise become final, and until further order of the division.
The issue of substantial relationship shall be heard by an
administrative law judge from the Medical Quality Hearing Panel
sitting alone or with a panel of the division, in the discretion of
the division.
   (c) Notwithstanding subdivision (b), a conviction of any crime
referred to in Section 2237, or a conviction of Section 187, 261,
262, or 288 of the Penal Code, shall be conclusively presumed to be
substantially related to the qualifications, functions, or duties of
a physician and surgeon and no hearing shall be held on this issue.
Upon its own motion or for good cause shown, the division may decline
to impose or may set aside the suspension when it appears to be in
the interest of justice to do so, with due regard to maintaining the
integrity of and confidence in the medical profession.
   (d) (1) Discipline may be ordered in accordance with Section 2227,
or the Division of Licensing may order the denial of the license
when the time for appeal has elapsed, the judgment of conviction has
been affirmed on appeal, or an order granting probation is made
suspending the imposition of sentence, irrespective of a subsequent
order under Section 1203.4 of the Penal Code allowing the person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
setting aside the verdict of guilty, or dismissing the accusation,
complaint, information, or indictment.
   (2) The issue of penalty shall be heard by an administrative law
judge from the Medical Quality Hearing Panel sitting alone or with a
panel of the division, in the discretion of the division. The hearing
shall not be had until the judgment of conviction has become final
or, irrespective of a subsequent order under Section 1203.4 of the
Penal Code, an order granting probation has been made suspending the
imposition of sentence; except that a licensee may, at his or her
option, elect to have the issue of penalty decided before those time
periods have elapsed. Where the licensee so elects, the issue of
penalty shall be heard in the manner described in this section at the
hearing to determine whether the conviction was substantially
related to the qualifications, functions, or duties of a physician
and surgeon. If the conviction of a licensee who has made this
election is overturned on appeal, any discipline ordered pursuant to
this section shall automatically cease. Nothing in this subdivision
shall prohibit the division from pursuing disciplinary action based
on any cause other than the overturned conviction.
   (e) The record of the proceedings resulting in the conviction,
including a transcript of the testimony therein, may be received in
evidence.
   (f) The other provisions of this article setting forth a procedure
for the suspension or revocation of a physician and surgeon's
certificate shall not apply to proceedings conducted pursuant to this
section.

2237.  (a) The conviction of a charge of violating any federal
statutes or regulations or any statute or regulation of this state,
regulating dangerous drugs or controlled substances, constitutes
unprofessional conduct. The record of the conviction is conclusive
evidence of such unprofessional conduct. A plea or verdict of guilty
or a conviction following a plea of nolo contendere is deemed to be a
conviction within the meaning of this section.
   (b) Discipline may be ordered in accordance with Section 2227 or
the Division of Licensing may order the denial of the license when
the time for appeal has elapsed, or the judgment of conviction has
been affirmed on appeal, or when an order granting probation is made
suspending the imposition of sentence, irrespective of a subsequent
order under the provisions of Section 1203.4 of the Penal Code
allowing such person to withdraw his or her plea of guilty and to
enter a plea of not guilty, or setting aside the verdict of guilty,
or dismissing the accusation, complaint, information, or indictment.

2238.  A violation of any federal statute or federal regulation or
any of the statutes or regulations of this state regulating dangerous
drugs or controlled substances constitutes unprofessional conduct.

2239.  (a) The use or prescribing for or administering to himself or
herself, of any controlled substance; or the use of any of the
dangerous drugs specified in Section 4022, or of alcoholic beverages,
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 or more than one misdemeanor or any felony involving
the use, consumption, or self-administration of any of the substances
referred to in this section, or any combination thereof, constitutes
unprofessional conduct. The record of the conviction is conclusive
evidence of such unprofessional conduct.
   (b) A plea or verdict of guilty or a conviction following a plea
of nolo contendere is deemed to be a conviction within the meaning of
this section. The Division of Medical Quality may order discipline
of the licensee in accordance with Section 2227 or the Division of
Licensing may order the denial of the license when the time for
appeal has elapsed or the judgment of conviction has been affirmed on
appeal or when an order granting probation is made suspending
imposition of sentence, irrespective of a subsequent order under the
provisions of Section 1203.4 of the Penal Code allowing such person
to withdraw his or her plea of guilty and to enter a plea of not
guilty, or setting aside the verdict of guilty, or dismissing the
accusation, complaint, information, or indictment.

2240.  (a) Any physician and surgeon who performs a scheduled
medical procedure outside of a general acute care hospital, as
defined in subdivision (a) of Section 1250 of the Health and Safety
Code, that results in the death of any patient on whom that medical
treatment was performed by the physician and surgeon, or by a person
acting under the physician and surgeon's orders or supervision, shall
report, in writing on a form prescribed by the board, that
occurrence to the board within 15 days after the occurrence.
   (b) Any physician and surgeon who performs a scheduled medical
procedure outside of a general acute care hospital, as defined in
subdivision (a) of Section 1250 of the Health and Safety Code, that
results in the transfer to a hospital or emergency center for medical
treatment for a period exceeding 24 hours, of any patient on whom
that medical treatment was performed by the physician and surgeon, or
by a person acting under the physician and surgeon's orders or
supervision, shall report, in writing, on a form prescribed by the
board that occurrence, within 15 days after the occurrence. The form
shall contain all of the following information:
   (1) Name of the patient's physician in the outpatient setting.
   (2) Name of the physician with hospital privileges.
   (3) Name of the patient and patient identifying information.
   (4) Name of the hospital or emergency center where the patient was
transferred.
   (5) Type of outpatient procedures being performed.
   (6) Events triggering the transfer.
   (7) Duration of the hospital stay.
   (8) Final disposition or status, if not released from the
hospital, of the patient.
   (9) Physician's practice specialty and ABMS certification, if
applicable.
   (c) The form described in subdivision (b) shall be constructed in
a format to enable the physician and surgeon to transmit the
information in paragraphs (5) to (9), inclusive, to the board in a
manner that the physician and surgeon and the patient are anonymous
and their identifying information is not transmitted to the board.
The entire form containing information described in paragraphs (1) to
(9), inclusive, shall be placed in the patient's medical record.
   (d) The board shall aggregate the data and publish an annual
report on the information collected pursuant to subdivisions (a) and
(b).
   (e) On and after January 1, 2002, the data required in subdivision
(b) shall be sent to the Office of Statewide Health Planning and
Development (OSHPD) instead of the board. OSHPD may revise the
reporting requirements to fit state and national standards, as
applicable. The board shall work with OSHPD in developing the
reporting mechanism to satisfy the data collection requirements of
this section.
   (f) The failure to comply with this section constitutes
unprofessional conduct.

2241.  (a) A physician and surgeon may prescribe, dispense, or
administer prescription drugs, including prescription controlled
substances, to an addict under his or her treatment for a purpose
other than maintenance on, or detoxification from, prescription drugs
or controlled substances.
   (b) A physician and surgeon may prescribe, dispense, or administer
prescription drugs or prescription controlled substances to an
addict for purposes of maintenance on, or detoxification from,
prescription drugs or controlled substances only as set forth in
subdivision (c) or in Sections 11215, 11217, 11217.5, 11218, 11219,
and 11220 of the Health and Safety Code. Nothing in this subdivision
shall authorize a physician and surgeon to prescribe, dispense, or
administer dangerous drugs or controlled substances to a person he or
she knows or reasonably believes is using or will use the drugs or
substances for a nonmedical purpose.
   (c) Notwithstanding subdivision (a), prescription drugs or
controlled substances may also be administered or applied by a
physician and surgeon, or by a registered nurse acting under his or
her instruction and supervision, under the following circumstances:
   (1) Emergency treatment of a patient whose addiction is
complicated by the presence of incurable disease, acute accident,
illness, or injury, or the infirmities attendant upon age.
   (2) Treatment of addicts in state-licensed institutions where the
patient is kept under restraint and control, or in city or county
jails or state prisons.
   (3) Treatment of addicts as provided for by Section 11217.5 of the
Health and Safety Code.
   (d) (1) For purposes of this section and Section 2241.5, "addict"
means a person whose actions are characterized by craving in
combination with one or more of the following:
   (A) Impaired control over drug use.
   (B) Compulsive use.
   (C) Continued use despite harm.
   (2) Notwithstanding paragraph (1), a person whose drug-seeking
behavior is primarily due to the inadequate control of pain is not an
addict within the meaning of this section or Section 2241.5.

2241.5.  (a) A physician and surgeon may prescribe for, or dispense
or administer to, a person under his or her treatment for a medical
condition dangerous drugs or prescription controlled substances for
the treatment of pain or a condition causing pain, including, but not
limited to, intractable pain.
   (b) No physician and surgeon shall be subject to disciplinary
action for prescribing, dispensing, or administering dangerous drugs
or prescription controlled substances in accordance with this
section.
   (c) This section shall not affect the power of the board to take
any action described in Section 2227 against a physician and surgeon
who does any of the following:
   (1) Violates subdivision (b), (c), or (d) of Section 2234
regarding gross negligence, repeated negligent acts, or incompetence.
   (2) Violates Section 2241 regarding treatment of an addict.
   (3) Violates Section 2242 regarding performing an appropriate
prior examination and the existence of a medical indication for
prescribing, dispensing, or furnishing dangerous drugs.
   (4) Violates Section 2242.1 regarding prescribing on the Internet.
   (5) Fails to keep complete and accurate records of purchases and
disposals of substances listed in the California Uniform Controlled
Substances Act (Division 10 (commencing with Section 11000) of the
Health and Safety Code) or controlled substances scheduled in the
federal Comprehensive Drug Abuse Prevention and Control Act of 1970
(21 U.S.C. Sec. 801 et seq.), or pursuant to the federal
Comprehensive Drug Abuse Prevention and Control Act of 1970. A
physician and surgeon shall keep records of his or her purchases and
disposals of these controlled substances or dangerous drugs,
including the date of purchase, the date and records of the sale or
disposal of the drugs by the physician and surgeon, the name and
address of the person receiving the drugs, and the reason for the
disposal or the dispensing of the drugs to the person, and shall
otherwise comply with all state recordkeeping requirements for
controlled substances.
   (6) Writes false or fictitious prescriptions for controlled
substances listed in the California Uniform Controlled Substances Act
or scheduled in the federal Comprehensive Drug Abuse Prevention and
Control Act of 1970.
   (7) Prescribes, administers, or dispenses in violation of this
chapter, or in violation of Chapter 4 (commencing with Section 11150)
or Chapter 5 (commencing with Section 11210) of Division 10 of the
Health and Safety Code.
   (d) A physician and surgeon shall exercise reasonable care in
determining whether a particular patient or condition, or the
complexity of a patient's treatment, including, but not limited to, a
current or recent pattern of drug abuse, requires consultation with,
or referral to, a more qualified specialist.
   (e) Nothing in this section shall prohibit the governing body of a
hospital from taking disciplinary actions against a physician and
surgeon pursuant to Sections 809.05, 809.4, and 809.5.

2241.6.  The Division of Medical Quality shall develop standards
before June 1, 2002, to assure the competent review in cases
concerning the management, including, but not limited to, the
undertreatment, undermedication, and overmedication of a patient's
pain. The division may consult with entities such as the American
Pain Society, the American Academy of Pain Medicine, the California
Society of Anesthesiologists, the California Chapter of the American
College of Emergency Physicians, and any other medical entity
specializing in pain control therapies to develop the standards
utilizing, to the extent they are applicable, current authoritative
clinical practice guidelines.

2242.  (a) Prescribing, dispensing, or furnishing dangerous drugs as
defined in Section 4022 without an appropriate prior examination and
a medical indication, constitutes unprofessional conduct.
   (b) No licensee shall be found to have committed unprofessional
conduct within the meaning of this section if, at the time the drugs
were prescribed, dispensed, or furnished, any of the following
applies:
   (1) The licensee was a designated physician and surgeon or
podiatrist serving in the absence of the patient's physician and
surgeon or podiatrist, as the case may be, and if the drugs were
prescribed, dispensed, or furnished only as necessary to maintain the
patient until the return of his or her practitioner, but in any case
no longer than 72 hours.
   (2) The licensee transmitted the order for the drugs to a
registered nurse or to a licensed vocational nurse in an inpatient
facility, and if both of the following conditions exist:
   (A) The practitioner had consulted with the registered nurse or
licensed vocational nurse who had reviewed the patient's records.
   (B) The practitioner was designated as the practitioner to serve
in the absence of the patient's physician and surgeon or podiatrist,
as the case may be.
   (3) The licensee was a designated practitioner serving in the
absence of the patient's physician and surgeon or podiatrist, as the
case may be, and was in possession of or had utilized the patient's
records and ordered the renewal of a medically indicated prescription
for an amount not exceeding the original prescription in strength or
amount or for more than one refill.
   (4) The licensee was acting in accordance with Section 120582 of
the Health and Safety Code.

2242.1.  (a) No person or entity may prescribe, dispense, or
furnish, or cause to be prescribed, dispensed, or furnished,
dangerous drugs or dangerous devices, as defined in Section 4022, on
the Internet for delivery to any person in this state, without an
appropriate prior examination and medical indication, except as
authorized by Section 2242.
   (b) Notwithstanding any other provision of law, a violation of
this section may subject the person or entity that has committed the
violation to either a fine of up to twenty-five thousand dollars
($25,000) per occurrence pursuant to a citation issued by the board
or a civil penalty of twenty-five thousand dollars ($25,000) per
occurrence.
   (c) The Attorney General may bring an action to enforce this
section and to collect the fines or civil penalties authorized by
subdivision (b).
   (d) For notifications made on and after January 1, 2002, the
Franchise Tax Board, upon notification by the Attorney General or the
board of a final judgment in an action brought under this section,
shall subtract the amount of the fine or awarded civil penalties from
any tax refunds or lottery winnings due to the person who is a
defendant in the action using the offset authority under Section
12419.5 of the Government Code, as delegated by the Controller, and
the processes as established by the Franchise Tax Board for this
purpose. That amount shall be forwarded to the board for deposit in
the Contingent Fund of the Medical Board of California.
   (e) If the person or entity that is the subject of an action
brought pursuant to this section is not a resident of this state, a
violation of this section shall, if applicable, be reported to the
person's or entity's appropriate professional licensing authority.
   (f) Nothing in this section shall prohibit the board from
commencing a disciplinary action against a physician and surgeon
pursuant to Section 2242.

2243.  Upon referral by the National Health Services Corps to the
Attorney General of the United States of any physician or surgeon who
fails to provide service as a general practitioner or physician and
surgeon as required pursuant to the grant agreement entered into
between the physician and surgeon and the National Health Services
Corps program (42 U.S.C. Sec. 254d), or the federal loan insurance
program (42 U.S.C. Sec. 294), the board, upon notification by the
Attorney General of the United States, shall review the facts and
circumstances of the default and take appropriate disciplinary action
where the board determines that the licensee has committed
unprofessional conduct in violation of Section 2234.

2244.  A physician and surgeon who collects biological specimens for
clinical testing or examination shall secure or ensure that his or
her employees, agents, or contractors secure those specimens in a
locked container when those specimens are placed in a public location
outside of the custodial control of the licensee, or his or her
employees, agents, or contractors, pursuant to the requirements of
Section 681.
   Commencing July 1, 2000, the board may impose a fine against a
licensee not to exceed the sum of one thousand dollars ($1,000) for a
violation of this section.
   This section shall not apply when the biological specimens have
been received by mail in compliance with all applicable laws and
regulations.

2246.  Any proposed decision or decision issued under this article
that contains any finding of fact that the licensee engaged in any
act of sexual exploitation, as described in paragraphs (3) to (5),
inclusive, of subdivision (b) of Section 729, with a patient shall
contain an order of revocation. The revocation shall not be stayed by
the administrative law judge.

2247.  (a)  A licensee shall meet the requirements set forth in
subdivision (f) of Section 1031 of the Government Code prior to
performing either of the following:
   (1) An evaluation of a peace officer applicant's emotional and
mental condition.
   (2) An evaluation of a peace officer's fitness for duty.
   (b) This section shall become operative on January 1, 2005.

2248.  This section shall be known as, and may be cited as, the
Grant H. Kenyon Prostate Cancer Detection Act.
   (a) If a physician and surgeon, during a physical examination,
examines a patient's prostate gland, the physician and surgeon shall
provide information to the patient about the availability of
appropriate diagnostic procedures, including, but not limited to, the
prostate antigen (PSA) test, if any of the following conditions are
present:
   (1) The patient is over 50 years of age.
   (2) The patient manifests clinical symptomatology.
   (3) The patient is at an increased risk of prostate cancer.
   (4) The provision of the information to the patient is medically
necessary, in the opinion of the physician and surgeon.
   (b) Violation of subdivision (a) constitutes unprofessional
conduct and is not subject to Section 2314.

2248.5.  (a) A standardized written summary in layman's language and
in a language understood by patients shall be approved by the State
Department of Health Services. The department may approve the use of
an existing publication from a recognized cancer authority as the
written summary. Commencing on January 1, 2003, and every three years
thereafter, the department shall review its approval of the use of
an existing publication from a recognized cancer authority as the
written summary to ensure that the approved written summary comprises
timely, new, and revised information regarding prostate cancer
treatment options as the department determines is necessary. The
written summary shall be printed or made available by the Medical
Board of California to physicians and surgeons, concerning the
advantages, disadvantages, risks, and descriptions, of procedures
with regard to medically viable and efficacious alternative methods
of treatment of prostate cancer. Physicians and surgeons are urged to
make the summary available to patients when appropriate.
   (b) The board shall post this summary on its Web site for public
use.
   (c) If the State Department of Health Services updates this
summary, the board shall make the updated summary available to its
licensees and update its Web site to contain the updated summary.

2249.  (a) A physician and surgeon primarily responsible for
providing a patient an annual gynecological examination shall provide
that patient during the annual examination in layperson's language
and in a language understood by the patient a standardized summary
containing a description of the symptoms and appropriate methods of
diagnoses for gynecological cancers. This section does not preclude
the use of existing publications or pamphlets developed by nationally
recognized cancer organizations or by the State Department of Health
Services pursuant to Section 138.4 of the Health and Safety Code.
   (b) A physician and surgeon who violates this section may be cited
and assessed an administrative fine. No citation shall be issued and
no fine shall be assessed upon the first complaint against a
physician and surgeon who violates this section. Upon the second and
subsequent complaints against a physician and surgeon who violates
this section, a citation may be issued and an administrative fine may
be assessed.
   (c) Notwithstanding any other provision of law, all fines
collected pursuant to this section shall be credited to the
Contingent Fund of the Medical Board of California to be used by the
Office of Women's Health within the State Department of Health
Services for outreach services that provide information to women
about gynecological cancers, but shall not be expended until they are
appropriated by the Legislature in the Budget Act or another
statute.
   (d) Section 2314 shall not apply to this section.

2250.  The willful failure to comply with the requirements of
Article 6 (commencing with Section 14191) of Chapter 7 of Part 3 of
Division 9 of the Welfare and Institutions Code and the regulations
promulgated thereunder, relating to informed consent for
sterilization procedures, constitutes unprofessional conduct.

2251.  The prescribing, dispensing, administering, or furnishing of
liquid silicone for the purpose of injecting such substance into a
human breast or mammary constitutes unprofessional conduct.

2252.  The violation of Chapter 4 (commencing with Section 109250)
of Part 4 of Division 104 of the Health and Safety Code, or any
violation of an injunction or cease and desist order issued under
those provisions, relating to the treatment of cancer, constitutes
unprofessional conduct.

2253.  (a) Failure to comply with the Reproductive Privacy Act
(Article 2.5 (commencing with Section 123460) of Chapter 2 of Part 2
of Division 106 of the Health and Safety Code) in performing,
assisting, procuring or aiding, abetting, attempting, agreeing, or
offering to procure an illegal abortion constitutes unprofessional
conduct.
   (b) (1) A person is subject to Sections 2052 and 2053 if he or she
performs or assists in performing a surgical abortion, and at the
time of so doing, does not have a valid, unrevoked, and unsuspended
license to practice as a physician and surgeon as provided in this
chapter, or if he or she assists in performing a surgical abortion
and does not have a valid, unrevoked, and unsuspended license or
certificate obtained in accordance with some other provision of law
that authorizes him or her to perform the functions necessary to
assist in performing a surgical abortion.
   (2) A person is subject to Sections 2052 and 2053 if he or she
performs or assists in performing a nonsurgical abortion, and at the
time of so doing, does not have a valid, unrevoked, and unsuspended
license to practice as a physician and surgeon as provided in this
chapter, or does not have a valid, unrevoked, and unsuspended license
or certificate obtained in accordance with some other provision of
law that authorizes him or her to perform or assist in performing the
functions necessary for a nonsurgical abortion.
   (c) For purposes of this section, "nonsurgical abortion" includes
termination of pregnancy through the use of pharmacological agents.

2254.  The violation of Section 123440 of the Health and Safety
Code, relating to research on aborted products of human conception,
constitutes unprofessional conduct.

2255.  The violation of any provision of Chapter 2.3 (commencing
with Section 1400) of Division 2 of the Health and Safety Code,
relating to the unlawful referral of patients to extended care
facilities, constitutes unprofessional conduct.

2256.  Any intentional violation of Sections 5326.2 to 5326.8,
inclusive, of the Welfare and Institutions Code, relating to the
rights of involuntarily confined inpatients, constitutes
unprofessional conduct.

2257.  The violation of Section 109275 of the Health and Safety
Code, relating to informed consent for the treatment of breast
cancer, constitutes unprofessional conduct.

2258.  The violation of Section 1708.5 of the Health and Safety
Code, relating to the use of laetrile or amygdalin with respect to
cancer therapy, constitutes unprofessional conduct.

2259.  (a) A physician and surgeon shall give each patient a copy of
the standardized written summary, as developed pursuant to
subdivision (e), describing silicone implants used in cosmetic,
plastic, reconstructive, or similar surgery, before the physician and
surgeon performs the surgery. A physician and surgeon may
substitute, in place of the standardized written summary for silicone
implants, written information authorized for use by the federal Food
and Drug Administration prepared by the manufacturer based upon the
physician package insert. The furnishing of a copy of the
standardized written summary or written information shall constitute
compliance with the requirements of this section.
   (b) Prior to performance of surgery, the physician and surgeon
shall note on the patient's chart that he or she has given the
patient the standardized written summary or written information
required by this section.
   (c) The failure of a physician and surgeon to comply with this
section constitutes unprofessional conduct. The provision of the
standardized written summary or written information shall not alter,
diminish, or modify existing duties of physicians and surgeons,
including duties relating to informed consent. However, no physician
and surgeon shall be liable as a distributor of a standardized
written summary or written information alleged to contain erroneous
or incomplete information.
   (d) The facility where the surgery is performed shall not be
responsible for enforcement of, or verification of, compliance with
the requirements of this section.
   (e) If the State Department of Health Services determines that the
federal Food and Drug Administration has not authorized written
information on silicone implants intended for the layperson, the
state department shall develop a standardized written summary to
inform the patient of the risks and possible side effects of silicone
implants as used in cosmetic, plastic, reconstructive, or similar
surgery. In developing these summaries, the state department shall do
all of the following:
   (1) Use only language that is simple and readily understood by a
layperson.
   (2) Include a disclaimer that the state in no way endorses any
procedures, nor does the state claim to provide an exhaustive
analysis of all the potential benefits or risks associated with any
procedure.
   (3) Provide only information approved by the federal Food and Drug
Administration.
   (f) The State Department of Health Services shall update the
written summary described in subdivision (e) as determined necessary
by the state department to protect the public health and safety.
   (g) The Medical Board of California shall publish the standardized
written summaries prepared pursuant to subdivision (e), and shall
distribute copies of the summaries, upon request, to physicians and
surgeons. The Medical Board of California shall make the summaries
available for a fee not exceeding, in the aggregate, the actual costs
to the State Department of Health Services and the Medical Board of
California for developing, updating, publishing, and distributing the
summaries. Physicians and surgeons performing surgical procedures
described in subdivision (a) shall purchase the summaries from the
Medical Board of California for distribution to their patients, as
required in this section. Any person or entity may purchase the
summaries if he, she, or it desires. The Medical Board of California
shall fund the State Department of Health Services for the actual
cost of developing and updating the summaries incurred by the State
Department of Health Services, through an interagency agreement
entered into between the Medical Board of California and the State
Department of Health Services for that purpose.
   The Medical Board of California and the State Department of Health
Services may distribute the written information described in
subdivision (a) if a manufacturer of silicone implants provides the
board and state department with a sufficient number of copies of this
information, as determined by the state department.
   (h) Section 2314 shall not apply to this section.
   (i) For purposes of this section, "silicone implant" means any
implant containing silicone, including implants using a silicone gel
or silicone shell. This definition includes implants using a saline
solution with a silicone shell.
   (j) A physician and surgeon shall not be responsible for complying
with this section until the written summaries are published pursuant
to subdivision (g).

2259.5.  (a) A physician and surgeon shall give each patient a copy
of the standardized written summary, as developed pursuant to
subdivision (e), describing collagen injections used in cosmetic,
plastic, reconstructive, or similar surgery, before the physician and
surgeon performs the surgery. A physician and surgeon may
substitute, in place of the standardized written summary for collagen
injections, written information authorized for use by the federal
Food and Drug Administration prepared by the manufacturer based upon
the physician package insert. The furnishing of a copy of the
standardized written summary or written information shall constitute
compliance with the requirements of this section.
   (b) Prior to the performance of surgery, the physician and surgeon
shall note on the patient's chart that he or she has given the
patient the standardized written summary or written information
required by this section.
   (c) The failure of a physician and surgeon to comply with this
section constitutes unprofessional conduct. The provision of the
standardized written summary or written information shall not alter,
diminish, or modify existing duties relating to informed consent.
However, no physician and surgeon shall be liable as a distributor of
a standardized written summary or written information alleged to
contain erroneous or incomplete information.
   (d) The facility where the surgery is performed shall not be
responsible for enforcement of, or verification of, compliance with
the requirements of this section.
   (e) If the State Department of Health Services determines that the
federal Food and Drug Administration has not authorized written
information intended for the layperson on collagen injections used in
cosmetic, plastic, reconstructive, or similar surgery, the state
department shall develop a standardized written summary to inform the
patient of the risks and possible side effects of collagen
injections as used in cosmetic, plastic, reconstructive, or similar
surgery. In developing this summary, the state department shall do
all of the following:
   (1) Use only language that is simple and readily understood by a
layperson.
   (2) Include a disclaimer that the state in no way endorses any
procedure, nor does the state claim to provide an exhaustive analysis
of all the potential benefits or risks associated with any
procedure.
   (3) Identify the type of animal used to produce the collagen and
identify the situations where the federal Food and Drug
Administration has given its approval for the procedure.
   (4) Provide only information approved by the federal Food and Drug
Administration.
   (f) The State Department of Health Services shall update the
written summary described in subdivision (e) as determined necessary
by the state department to protect the public health and safety.
   (g) The Medical Board of California shall publish the standardized
written summary prepared pursuant to subdivision (e) and shall
distribute copies of the summary, upon request, to physicians and
surgeons. The Medical Board of California shall make the summary
available for a fee not exceeding, in the aggregate, the actual costs
to the State Department of Health Services and the Medical Board of
California for developing, updating, publishing, and distributing the
summary. A physician and surgeon performing surgical procedures
described in subdivision (a) shall purchase the summary from the
Medical Board of California for distribution to his or her patients,
as required in this section. Any person or entity may purchase the
summary if he, she, or it desires. The Medical Board of California
shall fund the State Department of Health Services for the actual
cost of developing and updating the summary incurred by the State
Department of Health Services, through an interagency agreement
entered into between the Medical Board of California and the State
Department of Health Services.
   The Medical Board of California and the State Department of Health
Services may distribute the written information described in
subdivision (a) if a manufacturer of collagen provides the board and
state department with a sufficient number of copies of this
information, as determined by the state department.
   (h) Section 2314 shall not apply to this section.
   (i) For purposes of this section, "collagen" includes, but is not
limited to, any substance derived from animal protein, or combined
with animal protein, that is implanted into the body for purposes of
cosmetic, plastic, reconstructive, or similar surgery. However,
"collagen" does not include absorbable gelatin medical devices
intended for application to bleeding surfaces as a hemostatic or any
other medical device used for purposes other than beautifying,
promoting attractiveness, or altering the appearance of any part of
the human body.
   (j) A physician and surgeon shall not be responsible for complying
with this section until the written summary is published pursuant to
subdivision (g).

2259.7.  The Medical Board of California shall adopt extraction and
postoperative care standards in regard to body liposuction procedures
performed by a physician and surgeon outside of a general acute care
hospital, as defined in Section 1250 of the Health and Safety Code.
In adopting those regulations, the Medical Board of California shall
take into account the most current clinical and scientific
information available. A violation of those extraction and
postoperative care standards constitutes unprofessional conduct.

2259.8.  (a) Notwithstanding any other provision of law, an elective
cosmetic surgery procedure may not be performed on a patient unless
the patient has received, within 30 days prior to the elective
cosmetic surgery procedure, and confirmed as up-to-date on the day of
the procedure, an appropriate physical examination by, and written
clearance for the procedure from, any of the following:
   (1) The physician and surgeon who will be performing the surgery.
   (2) Another licensed physician and surgeon.
   (3) A certified nurse practitioner, in accordance with a certified
nurse practitioner's scope of practice, unless limited by protocols
or a delegation agreement.
   (4) A licensed physician assistant, in accordance with a licensed
physician assistant's scope of practice, unless limited by protocols
or a delegation agreement.
   (b) The physical examination described in subdivision (a) shall
include the taking of an appropriate medical history.
   (c) An appropriate medical history and physical examination done
on the day of the procedure shall be presumed to be in compliance
with subdivisions (a) and (b).
   (d) "Elective cosmetic surgery" means an elective surgery that is
performed to alter or reshape normal structures of the body in order
to improve the patient's appearance, including, but not limited to,
liposuction and elective facial cosmetic surgery.
   (e) Section 2314 shall not apply to this section.

2260.  (a) A physician and surgeon who removes sperm or ova from a
patient shall, before the sperm or ova are used for a purpose other
than reimplantation in the same patient or implantation in the spouse
of the patient, obtain the written consent of the patient as
provided in subdivision (b).
   (b) The consent required by subdivision (a) shall conform to all
of the following requirements:
   (1) The consent shall be in writing and shall contain the
following statement: I (name of donor) do hereby donate (type and
number, if applicable, of sperm or ova), to (name of clinic or other
donee) for (specify purpose).
   (2) The consent shall contain a statement by the donor that
specifies the disposition of any unused donated material.
   (3) The consent shall be signed by the patient and by the
physician and surgeon who removes the sperm or ova.
   (4) The physician and surgeon shall retain the original consent in
the medical record of the patient and give a copy of the consent to
the patient.
   (5) The consent shall contain a notification to the patient that
the written consent is an important document that should be retained
with other vital records.
   (6) If the procedure to remove the sperm or ova is performed in a
hospital, the physician and surgeon shall provide a copy of the
consent to the hospital.
   (c) Nothing in this section shall affect the obligation of a
physician and surgeon under current law to obtain the informed
consent of a patient before performing a medical procedure on the
patient that may significantly affect the patient's reproductive
health or ability to conceive, or both.
   (d) A violation of this section constitutes unprofessional
conduct. Section 2314 shall not apply to this section.
   (e) A physician and surgeon who fails, for the second time, to
obtain any consent required in subdivision (a) or (b) before
transferring sperm or ova from a provider of sperm or ova to a
recipient, shall be assessed a civil penalty in an amount not less
than one thousand dollars ($1,000) and not more than five thousand
dollars ($5,000) plus court costs, as determined by the court, which
penalty and costs shall be paid to the individual whose required
consent was not obtained. A separate penalty shall be assessed for
each individual from whom the consent was not obtained. The penalties
in this section shall be available in addition to any other remedies
that may be available under other provisions of law.

2260.5.  A violation of Section 24185 of the Health and Safety Code,
relating to human cloning, constitutes unprofessional conduct.

2261.  Knowingly making or signing any certificate or other document
directly or indirectly related to the practice of medicine or
podiatry which falsely represents the existence or nonexistence of a
state of facts, constitutes unprofessional conduct.

2262.  Altering or modifying the medical record of any person, with
fraudulent intent, or creating any false medical record, with
fraudulent intent, constitutes unprofessional conduct.
   In addition to any other disciplinary action, the Division of
Medical Quality or the California Board of Podiatric Medicine may
impose a civil penalty of five hundred dollars ($500) for a violation
of this section.

2263.  The willful, unauthorized violation of professional
confidence constitutes unprofessional conduct.

2264.  The employing, directly or indirectly, the aiding, or the
abetting of any unlicensed person or any suspended, revoked, or
unlicensed practitioner to engage in the practice of medicine or any
other mode of treating the sick or afflicted which requires a license
to practice constitutes unprofessional conduct.

2266.  The failure of a physician and surgeon to maintain adequate
and accurate records relating to the provision of services to their
patients constitutes unprofessional conduct.

2271.  Any advertising in violation of Section 17500, relating to
false or misleading advertising, constitutes unprofessional conduct.

2272.  Any advertising of the practice of medicine in which the
licensee fails to use his or her own name or approved fictitious name
constitutes unprofessional conduct.

2273.  (a) Except as otherwise allowed by law, the employment of
runners, cappers, steerers, or other persons to procure patients
constitutes unprofessional conduct.
   (b) A licensee shall have his or her license revoked for a period
of 10 years upon a second conviction for violating any of the
following provisions or upon being convicted of more than one count
of violating any of the following provisions in a single case:
Section 650 of this code, Section 750 or 1871.4 of the Insurance
Code, or Section 549 or 550 of the Penal Code. After the expiration
of this 10-year period, an application for license reinstatement may
be made pursuant to Section 2307.

2274.  (a) The use by any licensee of any certificate, of any
letter, letters, word, words, term, or terms either as a prefix,
affix, or suffix indicating that he or she is entitled to engage in a
medical practice for which he or she is not licensed constitutes
unprofessional conduct.
   (b) Nothing in this section shall be construed to prohibit a
physician and surgeon from using the designations specified in this
section if he or she has been issued a retired license under Section
2439.

2275.  Any person who held a physician's and surgeon's certificate
under the jurisdiction of the Osteopathic Medical Board of California
and a degree of doctor of medicine issued by a medical school
located in the state at any time prior to September 30, 1962, and
approved by either the Osteopathic Medical Board of California or the
Medical Board of California at the time such degree was issued, who
applied in writing to the Medical Board of California for permission
to utilize his or her degree of doctor of medicine, shall be
authorized to use the term or suffix "M.D." and the use shall not
constitute unprofessional conduct, so long as the person advised both
boards, in writing, that he or she has elected to use the term or
suffix "M.D." and further has elected not to use the term or suffix
"D.O." In the event of such election, the use of the term or suffix
"D.O." constitutes unprofessional conduct within the meaning of this
chapter.

2276.  Unless the holder of any certificate provided for in this
chapter has been granted the degree of doctor of osteopathy after the
completion of a full course of study as prescribed by an approved
osteopathic medical school in accordance with the provisions of this
chapter, the use of the term or suffix "D.O." constitutes
unprofessional conduct.

2277.  Unless the holder of any certificate provided for in this
chapter has been granted the degree of doctor of podiatric medicine
after the completion of a full course of study as prescribed by a
school or college of podiatric medicine in accordance with the
provisions of this chapter, the use of the term or suffix "D.P.M."
constitutes unprofessional conduct.

2278.  Unless a person authorized under this chapter to use the
title "doctor" or the letters or prefix "Dr." holds a physician's and
surgeon's certificate, the use of such title, letters, or prefix
without further indicating the type of certificate held, constitutes
unprofessional conduct.

2280.  No licensee shall practice medicine while under the influence
of any narcotic drug or alcohol to such an extent as to impair his
or her ability to conduct the practice of medicine with safety to the
public and his or her patients. Violation of this section
constitutes unprofessional conduct and is a misdemeanor.

2281.  A physician and surgeon or a student undertaking a course of
professional instruction or a clinical training program, may not
perform a pelvic examination on an anesthetized or unconscious female
patient unless the patient gave informed consent to the pelvic
examination, or the performance of a pelvic examination is within the
scope of care for the surgical procedure or diagnostic examination
to be performed on the patient or, in the case of an unconscious
patient, the pelvic examination is required for diagnostic purposes.

2282.  The regular practice of medicine in a licensed general or
specialized hospital having five or more physicians and surgeons on
the medical staff, which does not have rules established by the board
of directors thereof to govern the operation of the hospital, which
rules include, among other provisions, all the following, constitutes
unprofessional conduct:
   (a) Provision for the organization of physicians and surgeons
licensed to practice in this state who are permitted to practice in
the hospital into a formal medical staff with appropriate officers
and bylaws and with staff appointments on an annual or biennial
basis.
   (b) Provision that membership on the medical staff shall be
restricted to physicians and surgeons and other licensed
practitioners competent in their respective fields and worthy in
professional ethics. In this respect the division of profits from
professional fees in any manner shall be prohibited and any such
division shall be cause for exclusion from the staff.
   (c) Provision that the medical staff shall be self-governing with
respect to the professional work performed in the hospital; that the
medical staff shall meet periodically and review and analyze at
regular intervals their clinical experience; and the medical records
of patients shall be the basis for such review and analysis.
   (d) Provision that adequate and accurate medical records be
prepared and maintained for all patients.

2282.5.  (a) The medical staff's right of self-governance shall
include, but not be limited to, all of the following:
   (1) Establishing, in medical staff bylaws, rules, or regulations,
criteria and standards, consistent with Article 11 (commencing with
Section 800) of Chapter 1 of Division 2, for medical staff membership
and privileges, and enforcing those criteria and standards.
   (2) Establishing, in medical staff bylaws, rules, or regulations,
clinical criteria and standards to oversee and manage quality
assurance, utilization review, and other medical staff activities
including, but not limited to, periodic meetings of the medical staff
and its committees and departments and review and analysis of
patient medical records.
   (3) Selecting and removing medical staff officers.
   (4) Assessing medical staff dues and utilizing the medical staff
dues as appropriate for the purposes of the medical staff.
   (5) The ability to retain and be represented by independent legal
counsel at the expense of the medical staff.
   (6) Initiating, developing, and adopting medical staff bylaws,
rules, and regulations, and amendments thereto, subject to the
approval of the hospital governing board, which approval shall not be
unreasonably withheld.
   (b) The medical staff bylaws shall not interfere with the
independent rights of the medical staff to do any of the following,
but shall set forth the procedures for:
   (1) Selecting and removing medical staff officers.
   (2) Assessing medical staff dues and utilizing the medical staff
dues as appropriate for the purposes of the medical staff.
   (3) The ability to retain and be represented by independent legal
counsel at the expense of the medical staff.
   (c) With respect to any dispute arising under this section, the
medical staff and the hospital governing board shall meet and confer
in good faith to resolve the dispute. Whenever any person or entity
has engaged in or is about to engage in any acts or practices that
hinder, restrict, or otherwise obstruct the ability of the medical
staff to exercise its rights, obligations, or responsibilities under
this section, the superior court of any county, on application of the
medical staff, and after determining that reasonable efforts,
including reasonable administrative remedies provided in the medical
staff bylaws, rules, or regulations, have failed to resolve the
dispute, may issue an injunction, writ of mandate, or other
appropriate order. Proceedings under this section shall be governed
by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure.

2282.5.  (a) The medical staff's right of self-governance shall
include, but not be limited to, all of the following:
   (1) Establishing, in medical staff bylaws, rules, or regulations,
criteria and standards, consistent with Article 11 (commencing with
Section 800) of Chapter 1 of Division 2, for medical staff membership
and privileges, and enforcing those criteria and standards.
   (2) Establishing, in medical staff bylaws, rules, or regulations,
clinical criteria and standards to oversee and manage quality
assurance, utilization review, and other medical staff activities
including, but not limited to, periodic meetings of the medical staff
and its committees and departments and review and analysis of
patient medical records.
   (3) Selecting and removing medical staff officers.
   (4) Assessing medical staff dues and utilizing the medical staff
dues as appropriate for the purposes of the medical staff.
   (5) The ability to retain and be represented by independent legal
counsel at the expense of the medical staff, provided that medical
staff at the University of California have the right to retain and be
represented by independent legal counsel at the expense of the
medical staff upon approval by the Regents of the University of
California or their designee in accordance with the bylaws of the
Regents, which approval shall not be unreasonably denied.
   (6) Initiating, developing, and adopting medical staff bylaws,
rules, and regulations, and amendments thereto, subject to the
approval of the hospital governing board, which approval shall not be
unreasonably withheld.
   (b) The medical staff bylaws shall not interfere with the
independent rights of the medical staff to do any of the following,
but shall set forth the procedures for:
   (1) Selecting and removing medical staff officers.
   (2) Assessing medical staff dues and utilizing the medical staff
dues as appropriate for the purposes of the medical staff.
   (3) The ability to retain and be represented by independent legal
counsel at the expense of the medical staff.
   (c) With respect to any dispute arising under this section, the
medical staff and the hospital governing board shall meet and confer
in good faith to resolve the dispute. Whenever any person or entity
has engaged in or is about to engage in any acts or practices that
hinder, restrict, or otherwise obstruct the ability of the medical
staff to exercise its rights, obligations, or responsibilities under
this section, the superior court of any county, on application of the
medical staff, and after determining that reasonable efforts,
including reasonable administrative remedies provided in the medical
staff bylaws, rules, or regulations, have failed to resolve the
dispute, may issue an injunction, writ of mandate, or other
appropriate order. Proceedings under this section shall be governed
by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure.

2283.  The regular practice of medicine in a licensed general or
specialized hospital having less than five physicians and surgeons on
the medical staff, which does not have rules established by the
board of directors thereof to govern the operation of the hospital,
which rules include, among other provisions, all of the following,
constitutes unprofessional conduct:
   (a) Provision that membership on the medical staff shall be
restricted to physicians and surgeons and other licensed
practitioners competent in their respective fields and worthy in
professional ethics. In this respect the division of profits for
professional fees in any manner shall be prohibited and any such
division shall be cause for exclusion from the staff.
   (b) Provision that adequate and accurate medical records be
prepared and maintained for all patients.

2284.  (a) A licensed physician and surgeon or a licensed
podiatrist, or a group of physicians and surgeons or podiatrists, or
a medical or podiatry corporation shall not share in any fee charged
by an acupuncturist or receive any consideration from or on behalf of
such acupuncturist for any referral or diagnosis.
   (b) A licensed physician and surgeon or podiatrist shall not
employ more than one acupuncturist.
   (c) A group of physicians and surgeons or podiatrists, or a
medical or podiatry corporation, shall not employ more than one
acupuncturist for every 20 practitioners in such group or
corporation.

2285.  The use of any fictitious, false, or assumed name, or any
name other than his or her own by a licensee either alone, in
conjunction with a partnership or group, or as the name of a
professional corporation, in any public communication, advertisement,
sign, or announcement of his or her practice without a
fictitious-name permit obtained pursuant to Section 2415 constitutes
unprofessional conduct. This section shall not apply to the
following:
   (a) Licensees who are employed by a partnership, a group, or a
professional corporation that holds a fictitious name permit.
   (b) Licensees who contract with, are employed by, or are on the
staff of, any clinic licensed by the State Department of Health
Services under Chapter 1 (commencing with Section 1200) of Division 2
of the Health and Safety Code.
   (c) An outpatient surgery setting granted a certificate of
accreditation from an accreditation agency approved by the medical
board.
   (d) Any medical school approved by the division or a faculty
practice plan connected with the medical school.

2286.  It shall constitute unprofessional conduct for any licensee
to violate, to attempt to violate, directly or indirectly, to assist
in or abet the violation of, or to conspire to violate any provision
or term of Article 18 (commencing with Section 2400), of the
Moscone-Knox Professional Corporation Act (Part 4 (commencing with
Section 13400) of Division 3 of Title 1 of the Corporations Code), or
of any rules and regulations duly adopted under those laws.

2287.  The purchase, sale, or barter, or offering to purchase, sell,
or barter any medical or podiatric degree, or any degree, diploma,
certificate, affidavit, transcript, or other evidence made or
purporting to be made, pursuant to any laws regulating the licensure
of persons under this chapter, or any preceding medical practice act
or for use in connection with the granting of any certificates or
diplomas or the purchase, procurement, or altering in any material
regard, with fraudulent intent, a diploma, certificate, affidavit,
transcript, or other evidence required for issuing any certificate or
diploma that has been purchased, fraudulently issued, counterfeited,
or materially altered constitutes unprofessional conduct. The
attempt to or conspiring to violate this section also constitutes
unprofessional conduct.

2288.  The impersonation of any applicant or acting as proxy for any
applicant in any examination required under this chapter for a
certificate constitutes unprofessional conduct.

2289.  The impersonation of another licensed practitioner or
permitting or allowing another person to use his or her certificate
to engage in the practice of medicine or podiatric medicine
constitutes unprofessional conduct.

2290.  The provisions of Article 4 (commencing with Section 580) of
Chapter 1, relating to frauds of medical records, degrees, diplomas,
certificates, and transcripts are not affected by the provisions of
this article and, so far as any act is a crime within their scope,
such provisions control over the provisions of this article.

2290.5.  (a) (1) For the purposes of this section, "telemedicine"
means the practice of health care delivery, diagnosis, consultation,
treatment, transfer of medical data, and education using interactive
audio, video, or data communications. Neither a telephone
conversation nor an electronic mail message between a health care
practitioner and patient constitutes "telemedicine" for purposes of
this section.
   (2) For purposes of this section, "interactive" means an audio,
video, or data communication involving a real time (synchronous) or
near real time (asynchronous) two-way transfer of medical data and
information.
   (b) For the purposes of this section, "health care practitioner"
has the same meaning as "licentiate" as defined in paragraph (2) of
subdivision (a) of Section 805 and also includes a person licensed as
an optometrist pursuant to Chapter 7 (commencing with Section 3000).
   (c) Prior to the delivery of health care via telemedicine, the
health care practitioner who has ultimate authority over the care or
primary diagnosis of the patient shall obtain verbal and written
informed consent from the patient or the patient's legal
representative. The informed consent procedure shall ensure that at
least all of the following information is given to the patient or the
patient's legal representative verbally and in writing:
   (1) The patient or the patient's legal representative retains the
option to withhold or withdraw consent at any time without affecting
the right to future care or treatment nor risking the loss or
withdrawal of any program benefits to which the patient or the
patient's legal representative would otherwise be entitled.
   (2) A description of the potential risks, consequences, and
benefits of telemedicine.
   (3) All existing confidentiality protections apply.
   (4) All existing laws regarding patient access to medical
information and copies of medical records apply.
   (5) Dissemination of any patient identifiable images or
information from the telemedicine interaction to researchers or other
entities shall not occur without the consent of the patient.
   (d) A patient or the patient's legal representative shall sign a
written statement prior to the delivery of health care via
telemedicine, indicating that the patient or the patient's legal
representative understands the written information provided pursuant
to subdivision (a), and that this information has been discussed with
the health care practitioner, or his or her designee.
   (e) The written consent statement signed by the patient or the
patient's legal representative shall become part of the patient's
medical record.
   (f) The failure of a health care practitioner to comply with this
section shall constitute unprofessional conduct. Section 2314 shall
not apply to this section.
   (g) All existing laws regarding surrogate decisionmaking shall
apply. For purposes of this section, "surrogate decisionmaking" means
any decision made in the practice of medicine by a parent or legal
representative for a minor or an incapacitated or incompetent
individual.
   (h) Except as provided in paragraph (3) of subdivision (c), this
section shall not apply when the patient is not directly involved in
the telemedicine interaction, for example when one health care
practitioner consults with another health care practitioner.
   (i) This section shall not apply in an emergency situation in
which a patient is unable to give informed consent and the
representative of that patient is not available in a timely manner.
   (j) This section shall not apply to a patient under the
jurisdiction of the Department of Corrections or any other
correctional facility.
   (k) This section shall not be construed to alter the scope of
practice of any health care provider or authorize the delivery of
health care services in a setting, or in a manner, not otherwise
authorized by law.

2291.  It is unprofessional conduct for any licensee not a member or
authorized official of the board, or of the California Board of
Podiatric Medicine in the case of a doctor of podiatric medicine, to
sign or issue or cause to be signed or issued any certificate
authorized by this chapter.

2292.  (a) A licensee may be ordered to undergo a professional
competency examination if, after investigation and review by a
medical expert designated by the division or the Board of Podiatric
Medicine, as applicable, there is reasonable cause to believe that
the licensee is unable to practice medicine with reasonable skill and
safety to patients. Reasonable cause shall be demonstrated by one or
more of the following: (1) a single incident of gross negligence;
(2) a pattern of inappropriate prescribing; (3) an act of
incompetence or negligence causing death or serious bodily injury; or
(4) a pattern of substandard care.
   (b) The results of a competency examination shall be admissible as
direct evidence and may be considered relevant in any subsequent
disciplinary or interim proceeding against the licensee taking it,
and, assuming it is determined to be relevant, shall be considered
together with other relevant evidence in making a final
determination.
   (c) Upon referral from the division, the matter shall be drafted
and presented by the Senior Assistant Attorney General of the Health
Quality Enforcement Section or his or her designee by way of a
written petition detailing the reasonable cause. The petition shall
contain all conclusions and facts upon which the presumption of
reasonable cause is based. A copy of the petition shall be served on
the physician who shall have the opportunity to file written
opposition to the petition within 30 days after service. Service of
the petition and any orders shall be in accordance with the methods
of service authorized by subdivision (c) of Section 11505 of the
Government Code.
   (d) A panel of the division shall review the petition and any
opposition paper from the physician, or the panel of the division, or
an administrative law judge to whom the petition is assigned by the
division, may hold a hearing in accordance with the provisions of the
Administrative Procedure Act to determine if reasonable cause
exists, as specified in subdivision (a). The physician shall have the
right to be represented at that hearing by the person of his or her
choice. If the panel of the division or administrative law judge is
satisfied that reasonable cause exists as to the circumstances
specified in subdivision (a), the division or panel shall issue an
order compelling the physician to undergo an examination of
professional competency as measured by community standards. For
purposes of this section, "community standards" means the statewide
standards of the community of licensees. Failure to comply with the
order duly served on the physician shall constitute unprofessional
conduct for purposes of disciplinary proceedings.

2293.  (a) The professional competency examination shall be in the
form of an oral clinical examination to be administered by three
physician examiners selected by the division or its designee, who
shall test for medical knowledge specific to the physician's
specialty or specific suspected deficiency. The examination shall be
audio recorded.
   (b) A failing grade from two of the examiners shall constitute a
failure of an examination. In the event of a failure, the board shall
supply a true and correct copy of the audio recording of the
examination to the unsuccessful examinee.
   (c) Within 45 days following receipt of the audio recording of the
examination, a physician who fails the examination may request a
hearing before the administrative law judge as designated in Section
11371 of the Government Code to determine whether he or she is
entitled to take a second examination.
   (d) If the physician timely requests a hearing concerning the
right to reexamination under subdivision (c), the hearing shall be
held in accordance with the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340), Chapter 4 (commencing with Section
11370), Chapter 4.5 (commencing with Section 11400), and Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code). Upon a finding that the examination or
procedure is unfair or that one or more of the examiners manifest
bias toward the examinee, a reexamination shall be ordered.
   (e) If the examinee fails the examination and is not afforded the
right to reexamination, the division may take action pursuant to
Section 2230 by directing that an accusation be filed charging the
examinee with incompetency under subdivision (d) of Section 2234. The
modes of discipline are set forth in Sections 2227 and 2228.
   (f) Findings and conclusions reported by the examiners may be
received in the administrative hearing on the accusation. The passing
of the examination shall constitute prima facie evidence of present
competence in the area of coverage of the examination.
   (g) Competency examinations shall be conducted under a uniform
examination system, and for that purpose the division may make
arrangements with organizations furnishing examination material as
deemed desirable.

2294.  (a) If the division proceeds pursuant to the provisions of
Sections 2292 and 2293 and the physician passes the professional
competency examination administered, the division shall be precluded
from filing an accusation of incompetency based solely on the
circumstances giving rise to the reasonable cause for the
examination.
   (b) If the division determines there is insufficient cause to file
an accusation based on the examination results, then all agency
records of the proceedings, including the petition and order for the
examination, investigative reports, if any, reports of staff or
outside medical consultants, and the reports of the examiners, shall
be kept confidential and shall not be subject to discovery or
subpoena.
   (c) If no further proceedings are conducted to determine the
physician's fitness to practice during a period of five years from
the date of the petition under Section 2292, then the agency shall
purge and destroy all records pertaining to the proceedings.

2305.  The revocation, suspension, or other discipline, restriction,
or limitation imposed by another state upon a license or certificate
to practice medicine issued by that state, or the revocation,
suspension, or restriction of the authority to practice medicine by
any agency of the federal government, that would have been grounds
for discipline in California of a licensee under this chapter, shall
constitute grounds for disciplinary action for unprofessional conduct
against the licensee in this state.

2306.  If a licensee's right to practice medicine is suspended, he
or she shall not engage in the practice of medicine during the term
of such suspension. Upon the expiration of the term of suspension,
the certificate shall be reinstated by the Division of Medical
Quality, unless the licensee during the term of suspension is found
to have engaged in the practice of medicine in this state. In that
event, the division shall revoke the licensee's certificate to engage
in the practice of medicine.

2307.  (a) A person whose certificate has been surrendered while
under investigation or while charges are pending or whose certificate
has been revoked or suspended or placed on probation, may petition
the board for reinstatement or modification of penalty, including
modification or termination of probation.
   (b) The person may file the petition after a period of not less
than the following minimum periods have elapsed from the effective
date of the surrender of the certificate or the decision ordering
that disciplinary action:
   (1) At least three years for reinstatement of a license
surrendered or revoked for unprofessional conduct, except that the
board may, for good cause shown, specify in a revocation order that a
petition for reinstatement may be filed after two years.
   (2) At least two years for early termination of probation of three
years or more.
   (3) At least one year for modification of a condition, or
reinstatement of a license surrendered or revoked for mental or
physical illness, or termination of probation of less than three
years.
   (c) The petition shall state any facts as may be required by the
board. The petition shall be accompanied by at least two verified
recommendations from physicians and surgeons licensed in any state
who have personal knowledge of the activities of the petitioner since
the disciplinary penalty was imposed.
   (d) The petition may be heard by a panel of the board. The board
may assign the petition to an administrative law judge designated in
Section 11371 of the Government Code. After a hearing on the
petition, the administrative law judge shall provide a proposed
decision to the board or the California Board of Podiatric Medicine,
as applicable, which shall be acted upon in accordance with Section
2335.
   (e) The panel of the board or the administrative law judge hearing
the petition may consider all activities of the petitioner since the
disciplinary action was taken, the offense for which the petitioner
was disciplined, the petitioner's activities during the time the
certificate was in good standing, and the petitioner's rehabilitative
efforts, general reputation for truth, and professional ability. The
hearing may be continued from time to time as the administrative law
judge designated in Section 11371 of the Government Code finds
necessary.
   (f) The administrative law judge designated in Section 11371 of
the Government Code reinstating a certificate or modifying a penalty
may recommend the imposition of any terms and conditions deemed
necessary.
   (g) No petition shall be considered while the petitioner is under
sentence for any criminal offense, including any period during which
the petitioner is on court-imposed probation or parole. No petition
shall be considered while there is an accusation or petition to
revoke probation pending against the person. The board may deny
without a hearing or argument any petition filed pursuant to this
section within a period of two years from the effective date of the
prior decision following a hearing under this section.
   (h) This section is applicable to and may be carried out with
regard to licensees of the California Board of Podiatric Medicine. In
lieu of two verified recommendations from physicians and surgeons,
the petition shall be accompanied by at least two verified
recommendations from doctors of podiatric medicine licensed in any
state who have personal knowledge of the activities of the petitioner
since the date the disciplinary penalty was imposed.
   (i) Nothing in this section shall be deemed to alter Sections 822
and 823.

2310.  (a) If a physician and surgeon possesses a license or is
otherwise authorized to practice medicine (1) in any state other than
California or (2) by any agency of the federal government and that
license or authority is suspended or revoked outright and is reported
to the National Practitioners Data Bank, the physician and surgeon's
certificate shall be suspended automatically for the duration of the
suspension or revocation, unless terminated or rescinded as provided
in subdivision (c). The division shall notify the physician and
surgeon of the license suspension and of his or her right to have the
issue of penalty heard as provided in this section.
   (b) Upon its own motion or for good cause shown, the division may
decline to impose or may set aside the suspension when it appears to
be in the interest of justice to do so, with due regard to
maintaining the integrity of and confidence in the medical
profession.
   (c) The issue of penalty shall be heard by an administrative law
judge from the Medical Quality Panel sitting alone or with a panel of
the division, in the discretion of the division. A physician and
surgeon may request a hearing on the penalty and that hearing shall
be held within 90 days from the date of the request. If the order
suspending or revoking the physician and surgeon's license or
authority to practice medicine is overturned on appeal, any
discipline ordered pursuant to this section shall automatically
cease. Upon the showing to the administrative law judge or panel by
the physician and surgeon that the out-of-state action is not a basis
for discipline in California, the suspension shall be rescinded.
   If an accusation for permanent discipline is not filed within 90
days of the suspension imposed pursuant to this section, the
suspension shall automatically terminate.
   (d) The record of the proceedings that resulted in the suspension
or revocation of the physician and surgeon's license or authority to
practice medicine, including a transcript of the testimony therein,
may be received in evidence.
   (e) This section shall not apply to a physician and surgeon who
maintains his or her primary practice in California, as evidenced by
having maintained a practice in this state for not less than one year
immediately preceding the date of suspension or revocation. Nothing
in this section shall preclude a physician's and surgeon's license
from being suspended pursuant to any other provision of law.
   (f) This section shall not apply to a physician and surgeon whose
license has been surrendered whose only discipline is a medical staff
disciplinary action at a federal hospital not for medical
disciplinary cause or reason as that term is defined in Section 805,
or whose revocation or suspension has been stayed, even if the
physician and surgeon remains subject to terms of probation or other
discipline.
   (g) This section shall not apply to a suspension or revocation
imposed by a state that is based solely on the prior discipline of
the physician and surgeon by another state.
   (h) The other provisions of this article setting forth a procedure
for the suspension or revocation of a physician and surgeon's
certificate shall not apply to summary suspensions issued pursuant to
this section. If a summary suspension has been issued pursuant to
this section, the physician or surgeon may request that the hearing
on the penalty conducted pursuant to subdivision (c) be held at the
same time as a hearing on the accusation.

2311.  Whenever any person has engaged in or is about to engage in
any acts or practices that constitute or will constitute an offense
against this chapter, the superior court of any county, on
application of the board or of 10 or more persons licensed as
physicians and surgeons or as podiatrists in this state, may issue an
injunction or other appropriate order restraining the conduct.
Proceedings under this section shall be governed by Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of
Civil Procedure.

2312.  The Division of Medical Quality shall seek to obtain an
injunction against any physician and surgeon within its jurisdiction
if the division has reasonable cause to believe that allowing such
person to continue to engage in the practice of medicine would
endanger the public health, safety, or welfare.

2313.  The Division of Medical Quality shall report annually to the
Legislature, no later than October 1 of each year, the following
information:
   (a) The total number of temporary restraining orders or interim
suspension orders sought by the board or the division to enjoin
licensees pursuant to Sections 125.7, 125.8 and 2311, the
circumstances in each case that prompted the board or division to
seek that injunctive relief, and whether a restraining order or
interim suspension order was actually issued.
   (b) The total number and types of actions for unprofessional
conduct taken by the board or a division against licensees, the
number and types of actions taken against licensees for
unprofessional conduct related to prescribing drugs, narcotics, or
other controlled substances, including those related to the
undertreatment or undermedication of pain.
   (c) Information relative to the performance of the division,
including the following: number of consumer calls received; number of
consumer calls or letters designated as discipline-related
complaints; number of complaint forms received; number of Section 805
reports by type; number of Section 801.01 and Section 803 reports;
coroner reports received; number of convictions reported to the
division; number of criminal filings reported to the division; number
of complaints and referrals closed, referred out, or resolved
without discipline, respectively, prior to accusation; number of
accusations filed and final disposition of accusations through the
division and court review, respectively; final physician discipline
by category; number of citations issued with fines and without fines,
and number of public reprimands issued; number of cases in process
more than six months from receipt by the division of information
concerning the relevant acts to the filing of an accusation; average
and median time in processing complaints from original receipt of
complaint by the division for all cases at each stage of discipline
and court review, respectively; number of persons in diversion, and
number successfully completing diversion programs and failing to do
so, respectively; probation violation reports and probation
revocation filings and dispositions; number of petitions for
reinstatement and their dispositions; and caseloads of investigators
for original cases and for probation cases, respectively.
   "Action," for purposes of this section, includes proceedings
brought by, or on behalf of, the division against licensees for
unprofessional conduct that have not been finally adjudicated, as
well as disciplinary actions taken against licensees.
   (d) The total number of reports received pursuant to Section 805
by the type of peer review body reporting and, where applicable, the
type of health care facility involved and the total number and type
of administrative or disciplinary actions taken by the Medical Board
of California with respect to the reports.
   (e) The number of malpractice settlements in excess of thirty
thousand dollars ($30,000) reported pursuant to Section 801.01. This
information shall be grouped by specialty practice and shall include
the total number of physicians and surgeons practicing in each
specialty. For the purpose of this subdivision, "specialty" includes
all specialties and subspecialties considered in determining the risk
categories described in Section 803.1.

2314.  (a) Unless it is otherwise expressly provided, any person,
whether licensed under this chapter or not, who violates any
provision of this article is guilty of a misdemeanor.
   (b) A person, whether licensed under this chapter or not, who
violates Section 2273 is punishable pursuant to subdivision (b) of
Section 2315.

2315.  (a) Except as otherwise provided by law, any person found
guilty of a misdemeanor for a violation of this chapter shall be
punished by a fine of not less than two hundred dollars ($200) nor
more than one thousand two hundred dollars ($1,200) or by
imprisonment for a term of not less than 60 days nor more than 180
days, or by both such fine and imprisonment.
   (b) A violation of Section 2273 is a public offense and is
punishable upon a first conviction by imprisonment in the county jail
for not more than one year. A second or subsequent conviction is
punishable by imprisonment in the county jail for not more than one
year or by imprisonment in the state prison for 16 months or 2 or 3
years, or by a fine not exceeding ten thousand dollars ($10,000) or
by both the fine and imprisonment.

2317.  If a person, not a regular employee of the board, is hired,
under contract, or retained under any other arrangement, paid or
unpaid, to provide expertise or nonexpert testimony to the Medical
Board of California or to the California Board of Podiatric Medicine,
including, but not limited to, the evaluation of the conduct of an
applicant or a licensee, and that person is named as a defendant in
an action for defamation, malicious prosecution, or any other civil
cause of action directly resulting from opinions rendered, statements
made, or testimony given to, or on behalf of, the committee or its
representatives, the board shall provide for representation required
to defend the defendant in that civil action. The board shall be
liable for any judgment rendered against that person, except that the
board shall not be liable for any punitive damages award. If the
plaintiff prevails in a claim for punitive damages, the defendant
shall be liable to the board for the full costs incurred in providing
representation to the defendant. The Attorney General shall be
utilized in those actions as provided in Section 2020.

2318.  In addition to any immunity afforded by Sections 43.8 and 47
of the Civil Code, if applicable, any person, including, but not
limited to, a physician and surgeon, hospital, health facility as
defined in Section 1250 of the Health and Safety Code, nursing home,
convalescent home, peer review body as defined in Section 805,
medical society, professional association, patient, nurse, or other
healing arts licensee who provides information to the board, to the
California Board of Podiatric Medicine, or to the Department of
Justice indicating that a board licensee may be guilty of
unprofessional conduct or may be impaired because of drug or alcohol
abuse or mental illness, shall not be liable for any damages in any
civil action on account of the communication of that information to
the board. The immunities afforded by this section shall not affect
the availability of any absolute privilege which may be afforded by
Section 47 of the Civil Code.

2319.  (a) The board shall set as a goal the improvement of its
disciplinary system by January 1, 1992, so that an average of no more
than six months will elapse from the receipt of complaint to the
completion of an investigation.
   (b) Notwithstanding subdivision (a), the goal for cases which, in
the opinion of the board, involve complex medical or fraud issues or
complex business or financial arrangements should be no more than one
year to investigate.