In the state of California, certain professions require individuals to have a proper license before they can be practiced. Included on this list of professions are contracting jobs, medical professionals, and law practitioners. The California legislature has imposed statutes that ensure unlicensed people cannot engage in these professions. Medicine is one of the professions with the strongest protection under California law. Engaging in unauthorized medicinal practice is a crime according to California Business and Professions Code Section 2052 BPC.
Prosecutors who charge defendants with the unauthorized practice of medicine must prove these circumstances beyond a doubt:
- The defendant attempted to practice or did practice or advertised or otherwise represented themselves as being able to practice any way of treating the afflicted or sick in the state of California
- Alternatively, the defendant treated, prescribed for, operated for, or diagnosed any blemish, ailment, disease, deformity, disorder, disfigurement, injury, or any other mental or physical condition of any individual, without having a valid medical license at the time
- The defendant did not have alternative authorization to perform this act via a certification gained through another provision of the state law
Additionally, if a person operates a medical practice without being a licensed practitioner, they might be prosecuted according to California Business and Professions Code Section 2052 BPC. They could be subject to this charge regardless of whether or not they treat patients themselves. Even if they supervise properly licensed physicians without treating patients, they are still breaking the law.
A man owns a small commercial property which he leases to a variety of medical practices. One of the tenants struggles financially and fears he will be forced to close the practice. The property owner does not have a medical license but understands how to operate a business. He purchases the doctor’s practice and takes the doctor into his employ. The man pays a salary to the doctor and keeps the profits of the clinic. The man is not involved in the daily operation of the medical practice and never interacts with patients. Even so, he could still be charged with the unauthorized practice of medicine. This situation occurred in a recent case. Two owners of a marijuana dispensary did not have licenses for legal medical practice. They employed a physician who saw patients and wrote prescriptions, and therefore were convicted of the unauthorized practice of medicine.
A man is a licensed massage therapist who works independently from home. He tells his clients that the massages are a cure for stress and can fix mobility issues and pain. He never claims that he is a doctor, chiropractor, or other medical practitioner. In this case, the man is not liable for unauthorized practice in medicine because massages do not fit the definition of medical practice.
Defenses for Unlicensed Medical Practice
In some situations, it may be unclear whether the defendant was engaging in medical practice. Many alternative treatments fall into a gray area here; depending on the particular treatment, they might or might not be considered medical practice. The specific definition varies from case to case.
Penalties for Unlicensed Medical Practice
Under California state law, practicing medicine without a license is considered a “wobbler” offense. This means that it can either be classed as a misdemeanor or felony depending on the circumstances regarding the case. There aren’t any hard lines regarding which cases are considered felonies versus misdemeanors. In most situations, the severity of the charge will be suggested by the prosecutor and confirmed by the judge.
If the defendant is convicted of a felony, they may serve up to three years in a federal prison. If the defendant is convicted of a misdemeanor, they could be sentenced to up to one year in jail.
Several different factors will affect the severity of the charge. The judge will make a decision based on the underlying case facts as well as the defendant’s prior criminal history.
There are multiple similar offenses that a defendant may be charged with in addition to the Section 2052 violation charge. These include, but are not limited to:
- Prescribing a Controlled Substance Without a Legitimate Purpose
- Prescribing a Controlled Substance Without Treatment
- Counterfeit Prescription Blank
- Selling Marijuana
The presence of one or more of these related crimes may affect whether the statute violation is charged as a misdemeanor or felony. If the individual shows a repeated pattern of intent to impersonate a medical professional, including the prescription of substances without a license, they are far more likely to face a felony charge. Conversely, individuals who engage in alternative medicine practices without realizing they need a medical license are more likely to be charged with a misdemeanor.