2220-2319
BUSINESS AND PROFESSIONS CODE
SECTION 2220-2319
2220. Except as otherwise provided by law, the board may take
action against all persons guilty of violating this chapter. The
board shall enforce and administer this article as to physician and
surgeon certificate holders, and the board 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 the board that a
physician and surgeon may be guilty of unprofessional conduct. The
board shall investigate the circumstances underlying a report
received pursuant to Section 805 or 805.01 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 and
Section 805.01.
(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