Statute bars medical board from restoring licenses revoked from sex offenders'

By Cheryl Clark, MED PAGE TODAY

September 27, 2022

https://www.medpagetoday.com/special-reports/exclusives/100935

A new California law prohibits the state's medical board from granting a license to clinicians whose credentials were previously surrendered or revoked on grounds of sexual misconduct with patients, with no chance of winning an appeal.

Prior to the new law -- which appears to be the only of its kind in the nation -- a clinician whose license was revoked or surrendered because of earlier sexual misconduct violations could reapply after 2 or 3 years and return to practice if approved.

What's more, the wording of the new law leaves open the possibility that it could apply to as many as 18 other health licensing agencies that are asked to grant or renew the license for a clinician who engaged in sexual misconduct, acknowledged Carlos Villatoro, spokesperson for the Medical Board of California (MBC).

While the MBC licenses some 145,000 physicians, other boards license hundreds of thousands of health professionals such as nurses, physician assistants, dentists, podiatrists, psychologists, acupuncturists, chiropractors, optometrists, and pharmacists.

Asked to clarify, Matt Woodcheke, spokesman for the Department of Consumer Affairs which oversees all licensing boards in the state, said the new law will apply only to the MBC and the Osteopathic Medical Board of California (OMB), which licenses more than 10,000 osteopathic physicians and surgeons. However, the OMB is not mentioned in the law.

The legislation was prompted by a 2021 investigation by the Los Angeles Times, which found that the MBC approved restoration applications from 10 of 17 physicians who had lost their licenses because of sexual misconduct with patients and sought to get them back.

As of January 1, 2023, when the new law takes effect, the agency will have no discretion in these cases; these physicians would never get their licenses back.

The law will "prohibit the board from reinstating a person's certificate that has been surrendered because the person committed an act of sexual abuse, misconduct, or relations with a patient or sexual exploitation, as specified, or the person's certificate has been revoked based on a finding by the board that the person committed one of those acts," the statute says.

Robert Wailes, MD, president of the California Medical Association, which sponsored the bill, applauded Gov. Gavin Newsom for his September 22 signature. In a news release, he said the law ensures that the licensing board "has the tools they need to protect patients and keep any physician who violates a patient's trust from practicing medicine."

Assemblymember Akilah Weber, MD, a San Diego-based ob/gyn and the bill's author, added that the "heinous behavior of abusing patients goes against everything physicians stand for and should not be tolerated. This legislation is essential to protect patients and the sanctity of the physician-patient relationship."

The California legislation appears to be the only such law in the nation prohibiting the granting of medical licenses to applicants who have a history of sexual misconduct or are registered sex offenders, said Joe Knickrehm, spokesperson for the Federation of State Medical Boards, who mentioned a handful of state bills or statutes.

Michigan lawmakers passed two bills (HB 4372 and 4373) that would have revoked the license of any health professional convicted of sexual misconduct under the pretext of medical treatment, but they did not pass the corresponding house.

Michigan (HB 4858 and 4857), Georgia (HB 458), and Florida introduced several pieces of legislation in an effort to discipline any physicians like Larry Nassar, DO, the former team doctor for the U.S. women's national gymnastics team who was convicted of rape and other sexual assaults on children and young women.

The two Michigan bills died after they failed to win approval in their corresponding house.

Although the Georgia legislation passed, it appears to "provide for the refusal, suspension or revocation of the license of a physician who has committed a sexual assault on a patient," but doesn't require it as California's new law will.

The Florida bill passed in June of 2021, but is more narrow in that it is focused on a physician's sexual acts involving children or those with mental illness or intellectual disability, as well as actions related to sex trafficking and deriving profits from prostitution.

Consumer groups' reactions were mixed. Eric Andrist of the Patient Safety League, a frequent critic of the MBC, said the new law only applies to physicians in the context of their relationships with their patients. It "turns a blind eye" to doctors who get in trouble for sexual misconduct with non-patients, including fellow staff members, he said.

"I mean, what difference does it make who the misconduct was with?" he said. "Yes, it's an even worse breach of the doctor patient relationship when it's a patient, but sexual misconduct is wrong across the board."

On Andrist's point, in a June letter to Weber, the MBC's executive director William Prasifka said the board supported the bill but suggested it could go farther.

"As currently drafted, the restrictions on licensure reinstatement and application denials do not apply to those who have engaged in sexual criminal or professional misconduct against a colleague, employee, family member, or others who have never been the offender's patient/client," the letter stated. "Offenses against these victims also represent a serious breach of a current, or aspiring, physician's ethical obligations and display a critical lack of judgment."

Prasifka added that the licenses of "physicians who are guilty of sexual crimes ... should be automatically revoked and, further, that this behavior should disqualify them from both applying for an initial license and from seeking reinstatement of a revoked license. Closing this gap in the bill will protect consumers from the individuals who have committed sexual offenses, regardless of their relationship to the victim."

Marian Hollingsworth, also of the Patient Safety League, said there are physicians like Narayana Ambati, MD, who received a mere reprimand for allegedly engaging in sexual misconduct against his sonographer as she performed an ultrasound on a patient, according to the agency's accusation.

"There's no world in which sexual abusers should be doctors," said Carmen Balber, executive director of Consumer Watchdog.

Balber also noted that while the law is a good first step, it doesn't go far enough. It doesn't apply to the licensee who is put on probation numerous times for sexual assault, nor to physicians who lose their license for reasons other than sexual misconduct, such as causing a patient's death, she said.

"There's a lot more that this medical board and the legislature need to do," she said.

Asked if the MBC will now revoke the restored licenses of physician sex offenders, Villatoro said it would not. The new law "does not call for retroactive enforcement," he said.

  • Cheryl Clark has been a medical & science journalist for more than three decades.