The Unforeseen Consequences of a Criminal Conviction

A physician is arrested and charged with a felony, and immediately solicits the assistance of a criminal defense attorney. Upon conferring with the attorney, the physician agrees to accept a plea to a misdemeanor charge, because it will enable the physician to avoid any possibility of imprisonment. The physician then pleads guilty before the criminal court judge and allocutes to facts sufficient to meet the criteria for the misdemeanor charge. He exits the courtroom, relieved that the criminal matter seemingly is behind him.'

Months later, the physician is notified by his state's medical licensing agency that he is being brought up on charges of professional misconduct and that action against his medical license is being sought. The charge: conviction of a misdemeanor. Worse, under the state's statutory scheme, by virtue of the conviction, the issue of the physician's culpability for professional misconduct is not, and cannot be, the subject of dispute; rather, the only issue to be resolved is the severity of the sanctions to be meted out by the state licensing authority. Anxious over the existing threat to his medical license, the physician then learns of other potential hazards flowing from his guilty plea, including possible exclusion from the Medicare and Medicaid programs. The physician is baffled by this, because the alleged criminal acts did not involve patient care.'

The above scenario is not an uncommon one. Many physicians are unaware of the interplay between what transpires in the criminal court and their medical licenses, and fail to appreciate the collateral impact a conviction may have on their ability to practice medicine. Indeed, even skilled criminal defense attorneys may lack sufficient awareness of such issues; consequently, they may unwittingly permit their clients to enter guilty pleas that could impair their client's medical license. It is for that reason alone that physicians who are charged with crimes should immediately consult attorneys who are skilled in both criminal law and healthcare law and who will take into account the direct and indirect consequences of the resolution of the criminal charges.'

The Trigger: A Criminal Conviction

In most jurisdictions, a physician's conviction will result in some form of response or disciplinary action by the state agency responsible for overseeing medical licenses. The term “conviction” in most jurisdictions is limited to convictions of a crime, which include felonies and misdemeanors, but generally exclude violations (i.e., minor offenses for which a person cannot be sentenced to a term of imprisonment in excess of a fixed number of days). Convictions that may trigger collateral consequences include those under federal or state law, and also conviction of a crime in another state that would constitute a crime in the state in which disciplinary proceedings are being brought. Other types of resolutions that may give rise to disciplinary proceedings include conviction of an offense of moral turpitude, or a conviction based on acts that constitute violations of the state's statutory and regulatory provisions. Significantly, the mere fact that a conviction is expunged does not necessarily insulate a physician from disciplinary proceedings.'

Suspension of Medical License

It is only natural that revocation or suspension of a physician's medical license may result where the conviction relates to the provision of medical care. This includes convictions based upon acts taken against patients (for example, sexual crimes) and Medicaid fraud, such as billing the Medicaid system for care that was never provided. See, e.g.,. Sokol v. New York State Dep't of Health, 223 A.D.2d 809 (3d Dept. 1996); Manyam v. Sobol, 183 A.D.2d 1022 (3d Dept. 1992); In Re Guy Surpris, M.D., 1992 WL 12619976, *1-2 (N.Y. B.P.M.C.) (a physician submitted magnetic tapes that represented falsely that he had rendered psychiatric treatment to Medicaid patients). In one case, the court upheld the revocation of a physician's license where it found that the physician had engaged in a “prolonged pattern ' fraught with deceit” of submitting false Medicaid claims. Hidalgo v. Sobol, 176 A.D.2d 984 (3d Dept. 1991).'

Importantly, however, a conviction may give rise to disciplinary proceedings and license suspension or revocation even where it does not involve patient care or the practice of medicine. Griffiths v. Superior Court, 96 Cal. App. 4th 757, 771-72, 117 Cal. Rptr. 2d 445 (2002). Prime examples of this are convictions of driving while intoxicated or under the influence of drugs or alcohol. Other examples are public intoxication, solicitation of perjury, sex crimes, drug crimes, theft or tax crimes. See also In Re Harvey Taubes, M.D., 1997 WL 34503546 (N.Y.B.P.M.C. Admin. Rev. Bd.) ( revocation based upon conviction of misdemeanor of failing to file a state tax return and felonies of defrauding the Medicaid program).

In another case, a physician charged with a sexual assault pleaded guilty to a lesser crime (a misdemeanor). Despite protestations of innocence and an explanation behind the accusation of sexual assault, the physician, hoping to avoid jail time and to quickly put the matter behind him, agreed to plead guilty based on the advice of his criminal defense attorney. That was not to be. Although the alleged crime did not involve a patient or the provision of medical care, the physician later had his medical license suspended in the two states in which he practiced medicine.'

The rationale for these consequences was expressed by the court in Griffiths v. Superior Court, 96 Cal. App. 4th 757, 771-72, 117 Cal. Rptr. 2d 445 (2002), in which it rejected “the argument that a physician can seal off or compartmentalize personal conduct so it does not affect the physician's professional practice.” As the Griffith court stated, “substantial legal authority provides that conduct occurring outside the practice of medicine may form the basis for imposing discipline on a license because such conduct reflects on a licensee's fitness and qualifications to practice medicine ' A physician who commits income tax fraud, solicits the subornation of perjury, or files false, fraudulent insurance claims has not practiced medicine incompetently. Nonetheless that physician has shown dishonesty, poor character, a lack of integrity, and an inability or unwillingness to follow ' the law, and thereby has demonstrated professional unfitness meriting license discipline.” Id.

In ruling that a conviction's direct nexus to patient care was unnecessary to the imposition of licensing sanctions, the Griffith court also cited to the preventative functions of license discipline, such as the protection of the public and prevention of future harm. As the court therein added, “To prohibit license discipline until the physician-licensee harms a patient disregards these purposes; it is far more desirable to discipline before a licensee harms any patient than after harm has occurred.”'

Notifications

Notification of a conviction to the responsible governmental licensing entity may be made in various ways. Some statutes require hospitals at which a physician has privileges to report convictions (among other forms of professional misconduct). See, e.g., New York Public Health Law ' 2803-e. Some states require the physician himself to self-report convictions. See, e.g., California Business and Professions Code Section 802.1. Similarly, when a physician is renewing his or her medical license, he or she is asked to cite any convictions. The same is true when a physician applies for hospital privileges or for approval by managed care payors. Notably, it is professional misconduct for a physician to falsely answer questions regarding a criminal conviction on an application for hospital privileges. Catsoulis v. New York State Dep't of Health, 2 A.D.3d 920, 767 N.Y.S.2d 526 (3d Dep't 2003). Criminal justice agencies may also be responsible for reporting convictions to state disciplinary entities.'

Potential Widespread Fallout Stemming from Convictions

Multiple consequences may result from a physician's conviction. As we have seen, first and foremost is the possible suspension or revocation of the physician's medical license or the imposition of other sanctions affecting the medical license.'

Another profound impact may be the physician's exclusion from Medicaid or Medicaid programs. Depending upon whether or not the physician derives a significant portion of his or her income from such programs, or works for an entity that does, such exclusion can be devastating or even constitute cause for termination. Exclusions under Federal health care programs take one of two forms: mandatory or permissive. Exclusion is mandatory for five years (absent certain exceptions) when, for example, the physician is convicted of program-related crimes, the conviction relates to patient abuse, a felony conviction relates to health care fraud or a felony conviction relates to controlled substances. Permissive exclusion may be imposed where, for example, there is a conviction relating to fraud or to obstruction of an investigation or audit. 42 U.S.C. 1320a-7. It is possible for exclusion from State Medicaid programs to be even longer than five years. See New Jersey Administrative Code 10:49-11.1(g).

And there are other collateral consequences that may result from a conviction. Depending upon the physician's employment contract, a conviction may result in termination. Similarly, the physician may be stripped of his or her medical staff privileges by virtue of a conviction, depending upon the by-laws of the particular institution. Also, private insurers may use the conviction as a predicate for removing the physician from the provider's network, depending upon the provider contract. Additionally, a physician's Drug Enforcement Agency registration may be revoked or suspended based upon certain types of convictions (e.g., conviction of a felony related to controlled substances). Discipline by specialty boards for board-certified doctors is another possibility.'

Conclusion

Resolution of the criminal proceedings against physicians cannot and should not be undertaken in a vacuum, divorced from the potential collateral impact of a conviction on the physician's ability to practice medicine. A physician facing criminal charges and deciding what course to pursue to resolve the matter must be properly informed of all consequences stemming from a conviction, including those beyond the parameters of the criminal proceedings. The retention of an attorney who is well versed in both criminal law and healthcare law is essential. Absent such counsel's guidance, a guilty plea, no matter how appropriate or appealing it might be in the criminal court setting, cannot be characterized as a truly informed one.”'

Also, armed with knowledge of the potential harm to a physician's license and ability to practice medicine, it is possible that, to the extent that entry of a guilty plea is the most sensible outcome, the physician's attorney may be able to secure a plea arrangement that is more favorable with regard to its impact on the physician's license. For example, a prosecutor who is otherwise unaware of the potential fallout stemming from a felony or misdemeanor conviction might be willing to enter into a plea for a lesser charge upon being informed of such consequences and agree, as an alternative, to other types of sanctions, such as an increased amount of community service.

The physician's attorney should also, to the extent practicable, attempt to prevent his or her client from stating things on the record during the plea allocution that may be detrimental to the physician during the likely ensuing disciplinary proceedings, such as admitting too many details concerning the underlying acts that led to criminal charges or making statements acknowledging the justification for severe licensure sanctions.

Andrew Zwerling is a Partner-Director at Garfunkel Wild, P.C., and a member of the firm's Litigation and Arbitration Practice Group, an arbitrator for the American Arbitration Association and American Health Lawyers Association, and a former New York City prosecutor.'

A physician is arrested and charged with a felony, and immediately solicits the assistance of a criminal defense attorney. Upon conferring with the attorney, the physician agrees to accept a plea to a misdemeanor charge, because it will enable the physician to avoid any possibility of imprisonment. The physician then pleads guilty before the criminal court judge and allocutes to facts sufficient to meet the criteria for the misdemeanor charge. He exits the courtroom, relieved that the criminal matter seemingly is behind him.'

Months later, the physician is notified by his state's medical licensing agency that he is being brought up on charges of professional misconduct and that action against his medical license is being sought. The charge: conviction of a misdemeanor. Worse, under the state's statutory scheme, by virtue of the conviction, the issue of the physician's culpability for professional misconduct is not, and cannot be, the subject of dispute; rather, the only issue to be resolved is the severity of the sanctions to be meted out by the state licensing authority. Anxious over the existing threat to his medical license, the physician then learns of other potential hazards flowing from his guilty plea, including possible exclusion from the Medicare and Medicaid programs. The physician is baffled by this, because the alleged criminal acts did not involve patient care.'

The above scenario is not an uncommon one. Many physicians are unaware of the interplay between what transpires in the criminal court and their medical licenses, and fail to appreciate the collateral impact a conviction may have on their ability to practice medicine. Indeed, even skilled criminal defense attorneys may lack sufficient awareness of such issues; consequently, they may unwittingly permit their clients to enter guilty pleas that could impair their client's medical license. It is for that reason alone that physicians who are charged with crimes should immediately consult attorneys who are skilled in both criminal law and healthcare law and who will take into account the direct and indirect consequences of the resolution of the criminal charges.'

The Trigger: A Criminal Conviction

In most jurisdictions, a physician's conviction will result in some form of response or disciplinary action by the state agency responsible for overseeing medical licenses. The term “conviction” in most jurisdictions is limited to convictions of a crime, which include felonies and misdemeanors, but generally exclude violations (i.e., minor offenses for which a person cannot be sentenced to a term of imprisonment in excess of a fixed number of days). Convictions that may trigger collateral consequences include those under federal or state law, and also conviction of a crime in another state that would constitute a crime in the state in which disciplinary proceedings are being brought. Other types of resolutions that may give rise to disciplinary proceedings include conviction of an offense of moral turpitude, or a conviction based on acts that constitute violations of the state's statutory and regulatory provisions. Significantly, the mere fact that a conviction is expunged does not necessarily insulate a physician from disciplinary proceedings.'

Suspension of Medical License

It is only natural that revocation or suspension of a physician's medical license may result where the conviction relates to the provision of medical care. This includes convictions based upon acts taken against patients (for example, sexual crimes) and Medicaid fraud, such as billing the Medicaid system for care that was never provided. See, e.g.,. Sokol v. New York State Dep't of Health , 223 A.D.2d 809 (3d Dept. 1996); Manyam v. Sobol , 183 A.D.2d 1022 (3d Dept. 1992); In Re Guy Surpris, M.D., 1992 WL 12619976, *1-2 (N.Y. B.P.M.C.) (a physician submitted magnetic tapes that represented falsely that he had rendered psychiatric treatment to Medicaid patients). In one case, the court upheld the revocation of a physician's license where it found that the physician had engaged in a “prolonged pattern ' fraught with deceit” of submitting false Medicaid claims. Hidalgo v. Sobol , 176 A.D.2d 984 (3d Dept. 1991).'

Importantly, however, a conviction may give rise to disciplinary proceedings and license suspension or revocation even where it does not involve patient care or the practice of medicine. Griffiths v. Superior Court , 96 Cal. App. 4th 757, 771-72, 117 Cal. Rptr. 2d 445 (2002). Prime examples of this are convictions of driving while intoxicated or under the influence of drugs or alcohol. Other examples are public intoxication, solicitation of perjury, sex crimes, drug crimes, theft or tax crimes. See also In Re Harvey Taubes, M.D., 1997 WL 34503546 (N.Y.B.P.M.C. Admin. Rev. Bd.) ( revocation based upon conviction of misdemeanor of failing to file a state tax return and felonies of defrauding the Medicaid program).

In another case, a physician charged with a sexual assault pleaded guilty to a lesser crime (a misdemeanor). Despite protestations of innocence and an explanation behind the accusation of sexual assault, the physician, hoping to avoid jail time and to quickly put the matter behind him, agreed to plead guilty based on the advice of his criminal defense attorney. That was not to be. Although the alleged crime did not involve a patient or the provision of medical care, the physician later had his medical license suspended in the two states in which he practiced medicine.'

The rationale for these consequences was expressed by the court in Griffiths v. Superior Court , 96 Cal. App. 4th 757, 771-72, 117 Cal. Rptr. 2d 445 (2002), in which it rejected “the argument that a physician can seal off or compartmentalize personal conduct so it does not affect the physician's professional practice.” As the Griffith court stated, “substantial legal authority provides that conduct occurring outside the practice of medicine may form the basis for imposing discipline on a license because such conduct reflects on a licensee's fitness and qualifications to practice medicine ' A physician who commits income tax fraud, solicits the subornation of perjury, or files false, fraudulent insurance claims has not practiced medicine incompetently. Nonetheless that physician has shown dishonesty, poor character, a lack of integrity, and an inability or unwillingness to follow ' the law, and thereby has demonstrated professional unfitness meriting license discipline.” Id.

In ruling that a conviction's direct nexus to patient care was unnecessary to the imposition of licensing sanctions, the Griffith court also cited to the preventative functions of license discipline, such as the protection of the public and prevention of future harm. As the court therein added, “To prohibit license discipline until the physician-licensee harms a patient disregards these purposes; it is far more desirable to discipline before a licensee harms any patient than after harm has occurred.”'

Notifications

Notification of a conviction to the responsible governmental licensing entity may be made in various ways. Some statutes require hospitals at which a physician has privileges to report convictions (among other forms of professional misconduct). See, e.g., New York Public Health Law ' 2803-e. Some states require the physician himself to self-report convictions. See, e.g., California Business and Professions Code Section 802.1. Similarly, when a physician is renewing his or her medical license, he or she is asked to cite any convictions. The same is true when a physician applies for hospital privileges or for approval by managed care payors. Notably, it is professional misconduct for a physician to falsely answer questions regarding a criminal conviction on an application for hospital privileges. Catsoulis v. New York State Dep't of Health , 2 A.D.3d 920, 767 N.Y.S.2d 526 (3d Dep't 2003). Criminal justice agencies may also be responsible for reporting convictions to state disciplinary entities.'

Potential Widespread Fallout Stemming from Convictions

Multiple consequences may result from a physician's conviction. As we have seen, first and foremost is the possible suspension or revocation of the physician's medical license or the imposition of other sanctions affecting the medical license.'

Another profound impact may be the physician's exclusion from Medicaid or Medicaid programs. Depending upon whether or not the physician derives a significant portion of his or her income from such programs, or works for an entity that does, such exclusion can be devastating or even constitute cause for termination. Exclusions under Federal health care programs take one of two forms: mandatory or permissive. Exclusion is mandatory for five years (absent certain exceptions) when, for example, the physician is convicted of program-related crimes, the conviction relates to patient abuse, a felony conviction relates to health care fraud or a felony conviction relates to controlled substances. Permissive exclusion may be imposed where, for example, there is a conviction relating to fraud or to obstruction of an investigation or audit. 42 U.S.C. 1320a-7. It is possible for exclusion from State Medicaid programs to be even longer than five years. See New Jersey Administrative Code 10:49-11.1(g).

And there are other collateral consequences that may result from a conviction. Depending upon the physician's employment contract, a conviction may result in termination. Similarly, the physician may be stripped of his or her medical staff privileges by virtue of a conviction, depending upon the by-laws of the particular institution. Also, private insurers may use the conviction as a predicate for removing the physician from the provider's network, depending upon the provider contract. Additionally, a physician's Drug Enforcement Agency registration may be revoked or suspended based upon certain types of convictions (e.g., conviction of a felony related to controlled substances). Discipline by specialty boards for board-certified doctors is another possibility.'

Conclusion

Resolution of the criminal proceedings against physicians cannot and should not be undertaken in a vacuum, divorced from the potential collateral impact of a conviction on the physician's ability to practice medicine. A physician facing criminal charges and deciding what course to pursue to resolve the matter must be properly informed of all consequences stemming from a conviction, including those beyond the parameters of the criminal proceedings. The retention of an attorney who is well versed in both criminal law and healthcare law is essential. Absent such counsel's guidance, a guilty plea, no matter how appropriate or appealing it might be in the criminal court setting, cannot be characterized as a truly informed one.”'

Also, armed with knowledge of the potential harm to a physician's license and ability to practice medicine, it is possible that, to the extent that entry of a guilty plea is the most sensible outcome, the physician's attorney may be able to secure a plea arrangement that is more favorable with regard to its impact on the physician's license. For example, a prosecutor who is otherwise unaware of the potential fallout stemming from a felony or misdemeanor conviction might be willing to enter into a plea for a lesser charge upon being informed of such consequences and agree, as an alternative, to other types of sanctions, such as an increased amount of community service.

The physician's attorney should also, to the extent practicable, attempt to prevent his or her client from stating things on the record during the plea allocution that may be detrimental to the physician during the likely ensuing disciplinary proceedings, such as admitting too many details concerning the underlying acts that led to criminal charges or making statements acknowledging the justification for severe licensure sanctions.

Andrew Zwerling is a Partner-Director at Garfunkel Wild, P.C., and a member of the firm's Litigation and Arbitration Practice Group, an arbitrator for the American Arbitration Association and American Health Lawyers Association, and a former New York City prosecutor.'