Doctors on probation: State lawmaker and medical board president spar over patient disclosures
Complaints against physicians for misconduct have dogged the Medical Board of California for years. Some say the system is broken, with patients unable to easily figure out if their doctor has been disciplined.
With complaints rising – more than 8,000 lodged annually over the past three years – the issue was revived this week as lawmakers, patients and a consumer group demanded answers on why the number of medical complaints keeps growing and how the medical board is informing patients.
Carmen Balber, executive director of the group Consumer Watchdog, said little has changed since the board was last up for review four years ago, when it was reprimanded for not doing enough to inform patients of doctors’ disciplinary history.
“The medical board continues to fail in its primary mission, which is patient protection, not doctor protection,” Balber said. “This is about patients who didn’t know about dangerous doctors and face the results.”
She spoke this week, as the Medical Board of California is up for review again, during a joint hearing of the state Senate Business, Professions and Economic Development Committee and the Assembly Committee on Business and Professions.
Of the thousands of complaints filed annually against California physicians, only a small number result in disciplinary action, ranging from a letter of reprimand to having a licensed yanked. While the number is minuscule, compared with the millions of Californians who visit doctors’ offices every year, many of the allegations are serious: sexually abusing patients, illegally selling or prescribing opiates, working while under the influence of drugs or alcohol.
At Monday’s hearing, state Sen. Jerry Hill, D-San Mateo, emphasized that the patient notification efforts are not directed at the thousands of California doctors who do “excellent” work, but at the relatively few who wind up on probation for misconduct. Currently, about 635 doctors – or 0.4 percent – of the state’s 141,900 licensed physicians are on probation, for offenses ranging from overprescribing addictive drugs to sexual misconduct.
Doctors accused of misconduct can agree to a settlement that allows them to continue seeing patients while on probation, which can last three to 10 years. Those probation periods often have additional requirements, such as taking courses in ethics, prescribing practices or medical record keeping. In cases involving substance abuse, the doctor could be required to undergo psychiatric counseling and biological fluid testing. Those accused of sexual misconduct are often barred from treating female patients without a third-party chaperone present.
Sixteen doctors in Sacramento County and four in Placer County are on probation, according to a list in the Senate hearing’s agenda packet.
Currently, patients can look up their doctor’s disciplinary record by going to the medical board’s website or by calling its 800 number to have someone look up the information. But unless a patient checked their doctor’s status before every visit, there would be no way of knowing if something was medically amiss.
In a somewhat testy exchange Monday at the Senate committee hearing, board President Dr. Dev GnanaDev said the board was working to improve patient notification. But he was concerned that having doctors personally disclose their probationary status would “destroy the doctor-patient relationship.”
Hill shot back: “By not disclosing and telling that patient that you are on probation or that there are conditions … related to your practice of medicine, that’s not dishonest?”
Hill also questioned how the board enforces its probation requirements, noting that a recent study found that about 30 percent of physicians on probation “recidivate” and get caught again for the same offense.
In 2015, Hill proposed a bill that would require doctors on probation to inform their patients, including on the phone when making an appointment and during an office visit. That bill died on the Senate floor.
In response, the medical board ramped up its outreach to consumers in 2015, setting up informational tables in Arden Fair and other shopping malls to show consumers how to check their doctor’s status online or by phone. (Go to “License Search” at mbc.ca.gov or by calling 800-633-2322.)
That same year, the California Medical Association, which represents about 43,000 of the state’s licensed physicians, opposed mandatory patient notification, calling it a “duplicative burden that will interfere with patient care.” It said details about doctors who were disciplined with probation were readily available online and having to inform patients would “take time away” from doctors’ limited appointment schedules.
This year, the association is taking a different approach, working with state Assemblywoman Anna Caballero, D-Salinas, on a new bill, AB 505, which would bar the medical board from placing on probation any physician who has committed serious infractions – a felony conviction; drug or alcohol abuse; or sexual acts/exploitation – that directly “harm patient safety or health.”
The bill is intended to address concerns “that patients felt complaints weren’t taken seriously” by the medical board, said association spokeswoman Joanne Adams. She said the bill deals with “the root cause of those concerns by taking settlement for probation off the table for serious offenses.”
Under the bill, doctors would not be eligible for probation until they’ve received a full hearing before an administrative law judge, Adams said. As of this week, the bill’s language does not address whether those doctors would be allowed to continue practicing.
The board has also been criticized for not informing patients when or why a case is closed. A handful of patients told the committee hearing that their family members had died or been harmed but were never told why there was no action taken against the physician.
“The system is broken,” said San Diego resident Marian Hollingsworth, who said her elderly father was improperly given anti-psychotic drugs and died. Her complaint to the medical board took three years to complete, she said, and the doctor received a letter of reprimand.
“We’re not trying to throw all doctors under the bus. We’re talking about the bad kids who’ve repeatedly harmed patients.”
In earlier comments, Denise Pines, the board’s vice president, said the board understands those frustrations, but a large majority of complaints received “do not meet the high burden of proof” required to file a disciplinary action against a doctor. The board, she said, “understands and empathizes with the family and patient who file a complaint, only to have it closed by the board.” She said complaints are reviewed by well-qualified experts. “Although there may be poor outcomes or patient harm, the board must have enough evidence of clear and convincing proof to file a disciplinary action.”
Another part of the hearing looked at racial bias by the board’s enforcement staff against African American and Latino physicians, as documented in a January report by the California Research Bureau. Based on disciplinary records from July 2003 through June 2013, the study found that “Latino and black physicians were both more likely to receive complaints and more likely to see those complaints escalate to investigations,” according to the Senate committee’s staff report. Latino physicians were also more likely to have investigations result in disciplinary outcomes.
The study noted, however, that its findings were not entirely conclusive, since “many variables affecting the perception of physician performance (for instance, ‘bedside manner’) could not be taken into account.” The study was requested by the Golden State Medical Association, a group of African American doctors, and a Southern California anesthesiologist who raised concerns that African American doctors were being unfairly disciplined.
Pines said the medical board takes the findings “very seriously” and will be providing “implicit bias” training for its enforcement staff, including attorneys, investigators and judges, to eliminate any unintentional or unconscious bias. She said a task force is also looking into other factors that may have contributed to the disparities.
John Valencia, an attorney representing Latino Physicians of California, said the board’s action was “heartening” but the group wants a “deeper dive” into the disproportionate rate of enforcement, especially given that Latino doctors represent an estimated 3 percent to 5 percent of California physicians.
In coming weeks, joint committee staffers will sift through public comments and responses from the medical board, then draw up legislation stipulating changes the board must make for it to receive legislative approval for another four years.