The elements of Business and Professions Code Section 2052, Unauthorized Practice of Medicine, are as follows
- You practice medicine, attempt to practice, or advertise yourself as practicing any system or method of treating disease or affliction, or,
- If you diagnose, treat, operate on or prescribe medication for any physical or mental condition, or,
- You engage in a conspiracy or aid and abet anyone to do any of the aforementioned activities
Different scenarios where these elements are preset include:
- An immigrant who practiced medicine in another country offers his services to treat illnesses in the US for a fee without possessing an M.D. license
- An herbalist advertises that he can cure cancer or other serious diseases
- A person with only a nursing degree performs abortions for a fee
- A person with no medical license owns a medical clinic
- A licensed doctor who provides treatment in a clinic owned and profited by non-licensed persons (aiding and abetting)
- A doctor in another state without a California MD license diagnoses and treats a California resident via a website
- A medical doctor whose license has been suspended or revoked continues to practice
- Employing someone without a medical license to diagnose and treat patients
- Practicing in a specialty or area for which you are not trained or while unsupervised by a licensed physician
So long as you hold you do not hold a California medical license but represent as a licensed physician, you can be prosecuted. There is no legal requirement that you injured anyone or exacerbated an existing illness or condition. You could have even improved that person’s condition and still be criminally liable.
Diagnosing a medical condition without a medical license for a fee is also a crime. This is using any method, device or procedure to determine if a person is suffering a particular illness, condition or disorder. If you used diagnostic devices, blood pressure monitors or anything else to arrive at a diagnosis, this constitutes unauthorized practice.
Treating someone means using a method or process such as acupuncture, hypnosis, injections or the giving or prescribing of drugs. An herbalist who practices with a medical doctor or naturopathic doctor or a doctor of Oriental Medicine (O.M.D) can suggest or use particular herbs but cannot prescribe narcotics or any other medicine approved by the FDA unless a medical doctor does so, however, herbalists are subject to certain regulations.
Also, only licensed physicians can operate and profit from a medical clinic. This also pertains to medical marijuana dispensaries if licensed doctors are using their auspices to examine, diagnose and treat patients by recommending certain strands of marijuana.
Finally, unlicensed persons cannot perform any of the following peripheral activities that constitute practicing medicine:
- Determining tests for a particular patient
- Determining that a patient should be referred to another physician
- Managing the care and treatment of a patient
- Dictating how many patients physicians will see in a day
- Hiring or terminating physicians, nurses or other staff based on medical proficiency
Related: Forging Or Altering A Prescription
Medical clinics can only be owned by medical doctors or those with an M.D. degree. By profiting from the enterprise, the unlicensed individuals are engage in the unauthorized practice of medicine.
Doctors who agree to practice in such clinics are aiding and abetting the unlicensed owners to commit the offense and are just as criminally culpable.
Ignorance of the elements of BP 2052 is no defense, nor is the fact that you may only have diagnosed certain illnesses or conditions and not prescribed any medication or only suggested some so long as you charged a fee or held yourself out as a licensed doctor.
One common defense is that your activities did not rise to the level of practicing medicine such as alternative treatments such as taking certain herbs, massage treatments or others not associated with traditional western medicine.
Self-help groups where members suggest remedies or treatments are not engaged in practicing medicine, even if no licensed physician is leading the group.
The violation of Business and Professions Code Section 2052 is a “wobbler” offense, giving the prosecuting attorney the discretion to charge the offender with either a misdemeanor or a felony. The decision is based on the facts of each case and if aggravating or mitigating circumstances are present.
For example, if the licensed California doctor was unaware that the owners were unlicensed, then he might be charge with a misdemeanor. The owners, however, would more than likely face felony charges.
A misdemeanor carries up to one year in county jail and/or a fine of no more than $1000.
A felony carries county jail time of 16 months, 2, 3 or 4 years and/or a fine up to $10,000.
If a doctor is convicted of either a misdemeanor or felony, there is the matter or professional discipline by the state for any offense that is substantially related to the functions, qualities or duties of a physician can result in professional discipline. This can lead to a license suspension or revocation.
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If you are accused of practicing medicine without a license, immediately contact the Aizman Law Firm to discuss your legal options and defenses. If you are a doctor, you face possible prison time as well as disciplinary measures that can adversely affect your future. Let us advise and help you to get the charges dismissed, reduced or keep you out of prison. We can also work with you and the medical board on any disciplinary action being contemplated against you.
If no state prison time was served, we can work with you to have your conviction expunged. Contact us today at 818-351-9555 for a free consultation to see what we can do to help.