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, or1,
- You engage in a conspiracy or aid and abet anyone to do any of the aforementioned activities2.
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 clinic3
- 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 prosecuted4. There is no legal requirement that you injured anyone or exacerbated an existing illness or condition5. 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 crime6 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, hypnosis7, 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 strains of marijuana8.
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 culpable9
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 felony10. 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 $100011.
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 discipline12. This can lead to a license suspension or revocation.
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.
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- California Penal Code 2052(a) -Notwithstanding Section 146 , any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. [↩]
- California Penal Code 2052(b) – Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision [↩]
- Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [↩]
- California Business & Professions Code 2052(a), See Footnote 1 [↩]
- Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1417 [↩]
- California Business & Professions Code 2038 – Whenever the words “diagnose” or “diagnosis” are used in this chapter, they include any undertaking by any method, device, or procedure whatsoever, and whether gratuitous or not, to ascertain or establish whether a person is suffering from any physical or mental disorder. Such terms shall also include the taking of a person’s blood pressure and the use of mechanical devices or machines for the purpose of making a diagnosis and representing to such person any conclusion regarding his or her physical or mental condition. Machines or mechanical devices for measuring or ascertaining height or weight are excluded from this section. [↩]
- California Business & Professions Code Section 2908 [Regarding Hypnosis]- Nothing in this chapter shall be construed to prevent qualified members of other recognized professional groups licensed to practice in the State of California, such as, but not limited to, physicians, clinical social workers, educational psychologists, marriage and family therapists, optometrists, psychiatric technicians, or registered nurses, or attorneys admitted to the California State Bar, or persons utilizing hypnotic techniques by referral from persons licensed to practice medicine, dentistry or psychology, or persons utilizing hypnotic techniques which offer avocational or vocational self-improvement and do not offer therapy for emotional or mental disorders, or duly ordained members of the recognized clergy, or duly ordained religious practitioners from doing work of a psychological nature consistent with the laws governing their respective professions, provided they do not hold themselves out to the public by any title or description of services incorporating the words “psychological,” “psychologist,” “psychology,””psychometrist,” “psychometrics,” or “psychometry,” or that they do not state or imply that they are licensed to practice psychology;except that persons licensed under Article 5 (commencing with Section 4986) of Chapter 13 of Division 2 may hold themselves out to the public as licensed educational psychologists. [↩]
- People v. Superior Court (Cardilo) (2013) 218 Cal.App.4th 492 [↩]
- California Business & Professions Code 2052(b). See Footnote 2. [↩]
- California Business & Professions Code 2052, Footnote 1 [↩]
- See Same [↩]
- Business & Professions Code 2236 – Division of Medical Quality shall be notified [↩]