As a Utah-licensed physician, you have made immense sacrifices while obtaining your medical degree and license. While friends and family partied, went on vacations, and began their life, your life was on hold while you studied, worked, and saved to achieve your dreams. Your years of education and sleepless nights have earned you your license and shaped the person you are today, knowledgeable, experienced, and compassionate. However, your identity can be shaken to its core if your physician's license is challenged due to alleged misconduct or unlawful behavior. While fighting allegations may seem like an uphill battle, you deserve to share your story. If you are facing a DOPL investigation from Utah's Board of Physicians and Surgeons, contact the Lento Law Firm's Professional License Defense Team today.
Utah's Division of Occupational and Professional Licensing
Most professions and their corresponding boards are governed by Utah's Division of Occupational and Professional Licensing ("DOPL.”) DOPL is responsible for regulating and licensing various professions in the state of Utah, including architects, dentists, dieticians, mechanics, hunting guides, massage therapists, nurses, and physicians. DOPL also investigates complaints against licensed professionals and takes disciplinary action when necessary to protect the public from unscrupulous or incompetent practitioners.
Utah's Board of Physicians and Surgeons
The Utah Board of Physicians and Surgeons (The "Board") operates a subsidiary of DOPL and regulates the licensing requirements to practice medicine within Utah. The board comprises nine physicians and surgeons and two members of the public and oversees medical doctors, osteopathy doctors, and physician assistants.
It is essential for physicians and surgeons practicing in Utah to be aware of the board's role and authority. Not only does the board clarify Utah's regulations and ethical standards within the medical field, but as a branch of DOPL, it also oversees disciplinary matters of physicians and surgeons facing licensure denial, suspension, or revocation.
Utah Medical Practice Act
The Utah Medical Practice Act is codified in Title 58, Chapter 67 of the Utah State Code and contains the rules and laws that regulate the practice of medicine within the state. The act protects the general public by setting standards for professionals that ensure proper education, training, and licensing requirements. Some of the licensing requirements under the act include:
- Completion of a medical degree from an accredited school.
- Ongoing completion and documentation of continuing education units.
- Completion of 24 months of progressive training in an approved residency program.
- Passage of licensing examination.
- Criminal background check.
- Proficiency in the English language.
The act addresses additional licensing requirements that graduates of foreign medical schools must meet in addition to physician-educators. The academic and professional requirements a foreign medical graduate must meet to practice medicine in Utah are outlined in a program referred to as the "fifth pathway program." If you are a foreign medical graduate or a licensed physician-educator and are facing challenges obtaining or maintaining your license, contact our Professional License Defense Team for help.
Instances Where Licensure Requirements May Be Waived
In certain instances as enumerated in Title 58, Chapter 68, Section 305, and Title 58, Chapter 1, Part 3, section 307 of the Utah State Code, Professionals already engaging in the practice of medicine may be exempted from meeting all the state's requirements. Some of these summarized exceptions include:
- The professional is licensed in another state and has been practicing medicine for at least ten years.
- The professional's services are rendered for "public service" or "non-commercial" purposes.
- The professional does not charge for their services beyond what is needed to cover "malpractice insurance."
- A professional "administering a domestic or family remedy."
- A person engaged in good faith "in the practice of the religious tenants of any church or religious belief without prescription drugs."
- A professional who is invited by a school, society, etc., to conduct a demonstration of the practice of medicine.
In these circumstances, the professional must still adhere to the state's ethical and moral obligations while practicing and will not be able to practice if they engage in unlawful or unprofessional conduct. If your license is currently at risk due to conduct you believe it falls under the state's licensure exemptions, you can challenge DOPL's investigation and disciplinary proceedings.
What Type of Conduct Will Place My License at Risk?
Physicians are held to the utmost ethical standards and must adhere to laws and regulations that enable the public to retain trust in the medical profession. Failing to uphold these standards can jeopardize a physician's license, reputation, and personal life. The Utah Board of Physicians takes allegations of misconduct very seriously and will not hesitate to initiate disciplinary proceedings against physicians who engage in unprofessional or unlawful conduct. The following types of misconduct can trigger disciplinary proceedings.
Fraudulent Activity
Title 58, Chapter 68, Section 501 of the Utah State Code outlines the grounds for disciplinary action against a physician, including instances involving fraudulent practices. Fraudulent activity can not only have severe consequences for a physician's license but for their professional reputation as well. Some examples of fraudulent activity that can trigger disciplinary proceedings include:
- False medical billing claims.
- Misrepresenting patient records.
- Engaging in deceptive practices to obtain payment, clients, or benefits.
- Buying, selling, or fraudulently obtaining a medical diploma, license, or certificate.
Negligence
Negligent conduct refers to any actions or omissions (failure to act) that fall below a competent medical professional's expected standard of care. For something to qualify as negligence, the act must have led to some patient harm or injury. Some examples of professional negligence that can trigger disciplinary proceedings include:
- Misdiagnosis
- Medication errors
- Surgical mistakes
- Failure to properly monitor patient's conditions.
Sexual Misconduct
Title 58, Chapter 1, Part 1, Section 501 indicates that sexual misconduct can lead to disciplinary actions against Utah physicians. Sexual misconduct includes any inappropriate behavior or relationships that a physician may have with a patient, such as sexual advances, inappropriate comments, or engaging in intimate relationships. Sexual misconduct matters are taken very seriously because they breach the doctor-patient relationship and violate professional boundaries.
Substance Abuse
Substance abuse is also considered unlawful and unprofessional under Title 58, Chapter 1, Section 101 of Utah's state code. Of course, this does not mean you can't enjoy legal substances while off work. Still, physicians are prohibited from being under the influence of legal or illicit substances while practicing medicine. Specifically, the statute states that physicians are not permitted to use "intoxicants, drugs, narcotics, or similar chemicals" to the extent that it impairs their ability to "safely engage" in the practice of medicine.
Improper Representation of Medical Specialization
Improper representation of medical specialization can amount to professional misconduct and trigger disciplinary proceedings. Improper representation occurs when a physician falsely claims or misrepresents a medical specialization, placing patients who may receive treatment from someone who needs more experience at risk. . Some examples of improper representation may include:
- Misleading advertising: this can occur if a physician wrongfully represents themselves as a board-certified specialist in a particular field through false claims on their website, social media, or even during consultations with patients.
Improper Supervision of Cosmetic Medical Procedures
Utah State Code Title 58, Chapter 1, Part 5, Section 506 requires physicians to supervise staff and subordinates properly during cosmetic procedures. For example, a physician is barred from delegating Botox injectables to unqualified staff members with the necessary training or certification to perform the procedure. The law defines "direct cosmetic medical procedure supervision as a supervisor who has: 1) "authorized the procedure to be done on the patient by the supervisee and 2) "is present and available for face-to-face communication with the supervisee when and where a cosmetic procedure is performed." The law also provides more guidance on the requisite level of supervision during general cosmetic procedures, hair removal procedures, tattoo removal, etc.
Other Issues That Can Jeopardize Your License
Mental Incompetency or Incapacitation
All physicians and surgeons must be mentally competent to practice medicine in Utah. Title 75, Chapter 1, Section 201 of Utah's Uniform Probate Code defines an incapacitated person as one who is functional limitations are impaired to the extent that they lack the ability, "even with appropriate technological assistance," to meet essential requirements for financial protection, physical health, safety, and self-care. Similarly, Title 26B, Chapter 5, Part 3, Section 301 of Utah's Health and Human Services Code defines mental illness as a "Psychiatric disorder that substantially impairs an individual's mental, emotional, behavioral, or related functioning..."
Therefore, if a court determines that a physician is legally "incapacitated" or otherwise suffering from a "mental illness" to the extent that they cannot engage in medicine, the Utah Medical Practice Act requires that the physician's license be automatically suspended. If the physician wishes to challenge this suspension, they can appeal it within ten days.
Criminal Conduct
Depending on the type of criminal activity and how long ago it occurred, your criminal history could be grounds for the denial, suspension, or revocation of your physician's license. According to DOPL's Criminal History Guidelines for Physicians and Surgeons, you must self-report the following types of crimes to DOPL:
- Any misdemeanor, in any jurisdiction, in the last ten years
- Any felony in any jurisdiction
- Any active or pending criminal action.
Self-reporting mandates exclude juvenile records unless you were a minor tried outside of juvenile court. If you were successful with legal expungement, you do not need to disclose any legally expunged or sealed criminal history incidents.
DOPL provides individual consideration to all self-reports of criminal conduct, placing a large amount of their decision on whether or not a criminal conviction is closely related to an individual's ability to practice in their profession. Supporting evidence regarding your character, professional history, and actions to remedy your criminal past can also be significantly helpful in proving your capacity to practice medicine safely. Despite this, there are a few criminal convictions that automatically bar an individual from medical practice including:
- Child Abuse Convictions within the last 48 months.
- Homicide/Automobile Homicide convictions within the last ten years.
- Human Trafficking convictions within any timeframe.
- Kidnapping/Child Kidnapping Convictions within any timeframe.
- Manslaughter convictions within the last ten years.
- Sexual Assault and Sexual Exploitation of Minor convictions within the last ten years.
- Any 1st Degree Felony Conviction within the last ten years.
Conduct That is Not Considered Unlawful or Unprofessional
Substance Abuse Counseling
Under Part 4, Subsection 2 of the Utah Medical Practice Act, the board "may not refuse, revoke, suspend, or in any way restrict an applicant's. . . license under this chapter solely because . . . [they] participate in mental health or substance abuse treatment."
The Right To Try Act
The Utah Right To Try Act is codified in Title 58, Chapter 85, Section 104 of the Utah Code. It allows terminally ill patients who have exhausted all other available treatment options to have access to investigational medical treatments that the FDA does not yet authorize. Because patients know the risks associated with investigative medicine, the act shields physicians from civil liability, criminal liability, or licensure sanctions.
Emergency Care and Treatment During a Public Health Crisis
Utah's Health Care Providers from Liability Act is codified in Title 58, Chapter 13, Sections 1 through 5 of the Utah Code, and addresses a handful of other instances where physicians are immune from liability and licensure sanctions. The two most notable exceptions in the act include care rendered during an emergency and care rendered during a significant public health emergency. For a physician to be shielded from liability while practicing medicine during an emergency, they must be under no legal duty to respond and render care gratuitously without expecting compensation or remuneration. They must also act within the scope of a professional license. If they could face liability if their license has lapsed or is inactive, physicians are to be shielded from liability during a significant public health emergency, and an appropriate government authority must declare a state of an important public health emergency. The physician must also act in good faith while treating public health, and the healthcare being rendered must have been necessitated by the crisis, such as injuries caused by a hurricane or earthquake. Although physicians are shielded from liability, their acts cannot be grossly negligent or malicious, and they must act within a license's scope.
The Disciplinary Process for Unprofessional or Unlawful Conduct
The entire disciplinary process for Utah professionals must ensure that they receive "due process" throughout the entirety of the investigation and adjudicatory phases. Due process is a legal term that allows someone to be notified about the allegations against them and to present their side of the story. In Utah, Due Process is manifested in the following five disciplinary phases.
Complaint
The disciplinary process is triggered when the State Board of Medicine receives a complaint against a physician, surgeon, or physician assistant. Complaints can be raised by colleagues, clients, patients, insurers, staff, and even supervisors. After the board receives the complaint, DOPL assigns an investigator who will notify you about the nature of the allegations against you and inform you of the next steps.
Investigation
Although some accusations may be true, many may be unfounded and grounded in bitterness, jealousy, or misunderstandings. Therefore, DOPL ensures that it conducts thorough investigations before initiating disciplinary proceedings. Throughout the investigation phase, you may be asked to comply with requests for written or oral statements and other documentation. While some accusations may be true, many may be unfounded and grounded in bitterness, jealousy, or misunderstandings.
If the investigator feels the evidence corroborates a possible violation of your license, the agency will proceed with the disciplinary process. If the investigator feels the complaint was exaggerated or unfounded, they can drop the charges and close the initial investigation.
Pre-Adjudicatory Consent Agreements
If the investigation results in a corroboration of the evidence, you may be offered a consent agreement instead of conducting a formal hearing. Consent agreements are legally binding documents. Nearly every consent agreement will require you to admit liability and perform specific duties in exchange for maintaining your professional license. While consent agreements are voluntary, some consider them a wise choice if a hearing officer's orders are less favorable.
Under the agreement, you may be required to complete programs or training addressing the source of your misconduct. For example, if you are accused of sexual misconduct, they may require you to complete a sexual harassment course. Additional retributory options such as substance abuse counseling, anger management, or a leave of absence may also be placed as a pre-condition to returning to work.
Adjudication
An adjudication is a legal process to resolve disputes between individuals and government agencies. An adjudication is simply a "mini-trial" consisting of testimony, evidence presentation, and arguments of law. Adjudications are also referred to as "hearings." At the hearing involving your professional license, the licensing board and you can present evidence and your side of the story to convince the hearing officer why the claims should be dropped or your license suspended or revoked. After considering all the evidence, the licensing board will make a "determination of guilt" and decide what disciplinary consequences you should face. Some potential effects include:
Appeals
You can file an appeal if you disagree with the adjudicator's decision. The timelines and requirements for this appeal must be strictly adhered to. Contact our Professional License Defense Team today if you need help filing a request.
The Consequences of Losing Your License
Losing your ability to practice medicine can drastically affect your professional and personal life. Aside from the apparent financial losses, your professional reputation may need to be fixed for you to find other employment. If you think you can easily move to a different state and start over, this likely isn't the case. The National Practitioner Data Bank keeps records of unlawful and unprofessional conduct by medical professionals, making it difficult for them to gain future employment. Similarly, without an active license in a qualifying state, your multi-state license can be revoked as well.
Losing your physician's license can also lead to stages of depression, loss, and anxiety, placing strain on meaningful relationships with your spouse, family, and friends. While you may believe you can easily transition into a new career, you may find that no other vacation satisfies your desire to help patients.
Why You Need A Professional License Defense Team
Experience and focus matter. The federal and state laws governing your physician's license are complex and cast. Working with professionals who have the necessary experience to navigate Utah's complex legal system is crucial. Fortunately, the Lento Law Firm Professional License Defense Team routinely represents Utah medical professionals before DOPL and knows what it takes to ensure you are treated fairly and equitably under the law.
If you are considering representing yourself because you are liable for the alleged misconduct, our team can still help mitigate the extent of your disciplinary consequences. Why has your license been suspended for longer than necessary, or pay excessive fines when other retribution programs may be available? We can also work with you to identify any contributing factors that may have led to your unprofessional conduct. Sharing your issues, health issues, etc., with the licensing board can help shed light on your circumstances.
Working with our Professional License Defense Team will also bring you peace of mind. If your physician's license is on the line, you are likely anxious and concerned for your future. Let us navigate your licensing threats while you focus on your personal life.
Areas the Lento Law Firm Serves
The Lento Law Firm Professional License Defense Team can provide professional license defense in every community in Utah. Whether you work at Holy Cross Hospital-Salt Lake, St. Mark's Hospital in West Valley City, or Intermountain Medical Center near West Jordan, we can help.
Physician License Defense In Utah
Our Professional License Defense Team are skilled advocates with extensive experience representing licensed professionals in Utah and the United States.
Allegations threatening your medical skills and ethics can quickly become life-altering threats to your professional reputation, career, personal life, and financial stability. If you are a physician or surgeon in Utah, you've worked too hard up to this point in your life. If you feel your medical career is over, don't accept defeat!
We can defend your character, plead your case, and carve a path forward. We are standing by to answer any questions you may have about your physician's license. Contact us today by calling (888) 535-3686 today or using our online contact form to schedule a review of your case.
