A licensed health care provider has a fundamental vested right to her license; therefore, efforts to deprive her of that license require the licensing authority to prove its case by clear and convincing evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal. App. 3d 853, 856.)
The Ettinger court clearly explained why it was adopting this heightened standard of proof as follows: “It seems only logical to require a higher standard of proof when dealing with revocation or discipline of a professional licensee as opposed to mere termination of state employment.”But most disciplinary cases settle, and the standards for settlement are well understood and have even been published.
It’s not surprising that some licensees will continue to have compliance problems while on probation since all persons may have such problems at one time or another; and most often, people will settle their cases by accepting probation because something in their conduct wasn’t quite right. And people who were in trouble once may have a proclivity for more trouble. So, if there is another charge against a licensee already on probation, more discipline can be expected.
But what will be the standard for proving that new violation? Will it be the same requirement of “clear and convincing evidence,” which the courts have held to be necessary because “a fundamental vested right” is in danger of being lost?