American College of Domiciliary Midwives

Doug Laue, Deputy Director
Medical Board of California
1426 Howe Ave
Sacramento, Ca 95825
916/263-2389
July 31, 1995

RE: To Encourage Increased use of Letters of Public Reprimand

Dear Mr. Laue,

I would like to follow-up on the comments I made at the general board meeting last Saturday regarding the reticence of your agency to use public letters of reprimand as a major tool of physician discipline.

I believe that within my life time I have seen the practice of medicine at its very best. I am intimately familiar with medical "miracles" and have personally & professionally experienced the practice of medicine as a noble humanitarian pursuit. After working in acute-care hospitals as a staff nurse for 20 years and as an out-of-hospital midwife for 13 additional years, I have a deep and abiding loyalty to the mission that medical care represents. I have family members who work in "the system" and close friends who are physicians. We all know that at any time we could find our own life (or that of a loved one) to depend, at a moment's notice, on the techniques and technologies of modern healthcare. It is not my intention to denigrate something with such a beneficent quality.

In general, non-physicians believe that physicians have almost unlimited professional power. The public certainly does not think of individual doctors as members of an oppressed group. But the unlimited power we mistakenly ascribe to the doctor actually does not belong to him or her personally but rather to the "system" and according to the rules of that system, the individual doctor is low man (or woman) on the totem pole. And odd as it seems, physicians often are oppressed and exploited by this situation. This is a an injustice that should be rectified.

My direct and indirect experiences is as a patient, a student nurse, hospital staff nurse, childbearing parent of three, patient-advocate, non-medical midwife and most recently, a grandparent, has exposed me to both the highs and the lows of medical care over the course of 34 years and through several historic stages of medical management. In these various capacities I have noticed a theme in regard to the regulation and discipline of healthcare providers, especially physicians. That theme is the over-zealous persecution of unorthodox providers (both physicians and non-physicians) and too-little, too late (or never) in regard to the many glaring acts of repeated malfeasance by “orthodox” physicians. This is not to say that physician discipline has never been appropriate. Obviously it has and the MBC and the employees of the agency are to be commended in these many instances. But the spectrum of "appropriate" seems to be very narrow while the extremes remain very large. When vigorous actions are taken by medical boards it is frequently for the wrong reasons. When inaction or foot dragging occurs it is rarely for the right reasons.

For instance, I worked for 12 years as a staff nurse in the Labor & Delivery room. During my most recent employment in the maternity unit of a smallish hospital, one of our 6 obstetricians routinely performed procto-episiotomies by purposefully cutting through the rectal sphincter of his patients if they should be so uncooperative as to declined anesthesia (i.e.. their request for a "natural” birth). He also performed medically-unnecessary cesarean sections to keep the father from being present in the delivery room. I wish I could say our other obstetricians were without reproach but two of the five also put mothers and babies in jeopardy for trivial reasons, although not so routinely or so outrageously.

And unforgivable as these acts of malfeasance were it paled in comparison to the fact that all of this was common knowledge among the nursing staff, the medical director and the hospital administrator. We nurses frequently discussed the latest outrage with detachment and resignation as if it were a soap opera over which we had no control and no moral responsibility. Unfortunately, a 28 years-old mother by the name of June Ingersol died as a result of one of these outrageous situations. In addition to the healthy baby boy she had just given birth to, her death orphaned her two-year old son and left her husband a widower. June Ingersol’s brother was a state senator at the time, demonstrating that this tragedy cannot be blamed lack of political power, poverty, or substandard care providers. Like other routine incidents of malfeasance, this one too was covered up. The administrator knew what was happening prior to this as I reported these unprofessional (and I felt criminal) behaviors to him in person. He said that the physician involved brought a large number of GYN surgeries to the hospital and that it was not my job as a nurse or his as an administrator to pass judge the appropriateness of medical procedures performed by a licensed physician.

As for the discharge of my own moral and professional responsibilities, I said nothing to the families, nothing to any "higher authority", nothing to the news media because I had been formally trained as a nurse not to tell the secrets of the medical profession. In fact, my education heavily stressed that to go outside the chain of command was unprofessional conduct, disloyal, would make me unemployable (bad references, etc.) and could possibly result in the loss of my nursing license. So I was a "good girl"/"good nurse" and did nothing. The physician responsible for June Ingersol’s death and other repeated acts of malfeasance continued to practice unhampered by any medical board oversight for many more years and I have had to live with my conscience about that for many many more years.

Since it seemed that no individual employ of this “system” was able to have an impact on these situations, I subsequently retired from nursing and became a practitioner of non-medical midwifery under the religious exemptions clause. I now find myself called to exercise citizenship duties within the context of the Medical Board of California as one of many lay persons who function in a physician oversight capacity.

Obviously, the circumstances described above happen some years ago and it would be easy to dismiss it as the "bad old days", inferring that these things don't happen any more. But that is not the truth. Just weeks ago a physician from the CDC (Dr. Jarvis), stated in a television interview that more Americans die every year in hospitals as a result of iatragentic & nosocomial causes and employee mistakes than all the deaths in auto accidents, plane crashes and house fires combined (in excess of 80,000). The same longing we have for our loved ones to be saved by the timely application of life-saving technologies makes us worry that the 02 tanks in the basement will run dry and someone we love will die before the error is discovered.

Obviously, doctors are not the only ones acting in a "life/death" capacity as employees of the healthcare system. I concede that the vast majority of these 80,000 deaths are the price one pays for the "blessing" of technological sophistication and potent pharmaceuticals. I have always felt that hospital should be the equivalent of a "no fault" zone, as they do not have the luxury of turning away the dying, the critically-ill, the un-cooperative and the self-destructive. None-the-less, common sense would lead us to conclude that at least some of these 80,000 deaths were preventable. Fewer people would be put at risk if the system of healthcare oversight were implemented more effectively and in a manner that articulated it with other aspects of our bureaucratic, democratic processes and the highest of ethical principles.
 

Liberal use of corrective measures, including Public Letter Reprimand

With this in mind, I ask, as a consumer and resident of the California, that this propensity of the medical board to bounce back and forth between the extremes of physician oversight be replaced by a well-balanced system that makes liberal use of corrective measures, including Public Letter Reprimand and rarely needs to go to the extreme measure of licensure revocation. Speaking for those of us engaged in citizen oversight, we seek to rectify the imbalances and implement changes that would make the activities of the medical board both physician-friendly AND consumer-friendly. That is the goal I ask you to share with me.

An important issue is the lack of, or disuse of, a dynamic "middle ground" by the MBC in the processes of physician oversight and public protection. In many instances no attempt is made to resolve a situation without recourse to civil and criminal law. Common-sense administrative responses remain in the minority while use of maximum force is frequent. In regard to physicians, the Medical Board rarely uses the simplest category of official sanction which is a "Public Letters of Reprimand". For instance, in FY 92/93, only 13 physicians received letters of reprimand while serious disciplinary actions were taken against 149 physicians. In FY 93/94 the numbers were 18 out of 224. In 1994/94 only 24 PLR were issued by the MBC. This is backwards.

Correction before Selection for Prosecution

As a policy of the MBC, letters of official concern should precede these lengthy, expensive investigations. The perceived problem should be stated and the agency should request a specified correction. Remedial education should be offered when and where appropriate. Only if there is no response to these common-sense "corrective measures" should punitive ones be employed.

The budget of the Board, which is 11% for licensure activities and 71% enforcement should reflect this focus by being bigger for "remedial" actions than for prosecutory one. At the last Board meeting, many of the doctors on the Board mentioned the many employment problems of physicians. It seems appropriate for your agency hire some of these highly-trained physicians to assist citizens and careproviders of California to have a reasonable and germane standard in which our government agencies become partners in achieving a mutual goal -- not combatants in a domestic version of the Cold War between the citizenship and their bureaucrats.

Logic and the economics constraints on the MBC, argue for different priorities, in which action by the Board would be the most remedial (and least punitive) most of the time, with fewer and fewer serious sanctions applied as one ascends in severity of discipline until you get to "revocation" which should be rare. For every 1 license revoked at least three PLR should have been dispensed. Right now the ratio is 12:1 in the other direction. Revoking/suspending the license of a physician who has never had any other actions taken against him or her (i.e. no Public Letters of Reprimand, other reports of malfeasance and no official statements of concern by the MBC or requests of remedial action) should be highly suspect and require a higher standard of proof for before licensure revocation can be adjudicated. When an accused physician has a spotless record, it should strongly count in his or her favor.

Most of all, the Board has an obligation to make itself truly "user-friendly" by sharing power and reconciling itself to the 21st century. It is my opinion that opening itself up to meaningful public scrutiny and meaningful public participation would be the best method to achieve these goals. Accompanying this correspondence is a list of 14 specific recommendations that would assist the employees and members of the Medical Board in achieving our mutual goals.

I look forward to timely response. Enclosed is an overview statement and the afore-mentioned list of 14 points that I believe would assist you to achieve the goals of the Medical Board of California while improving the quality of physician discipline and offering the highest level of protection to the public at a cost that will not break the bank. Think about the possibility of being able to reduce physician licensure fees while being able to boast of increased consumer satisfaction.

Warm Regards,

faith gibson, LM,CPM
 

CC:
Honorable Zoe Lofgren, D-San Jose
Senator Lucy Killea
Assemblywoman Kuehl
Board Members, MBC
Aniti Scury, JD
Vonnie Gurgin, CMA
Julia D'Angelo, CPIL
Board Members, CAM,
Tonya Brooks, PMC