California College of Midwives
/ ACDM
3889 Middlefield Road, Palo Alto, Ca 94303
650 / 328-8491 info@CollegeofMidwives.org
www.collegeofmidwives.org
May 1, 2002
Additional Material -- Written Testimony
Joint Legislative Sunset Review Committee
Sacramento, CA
Enclosure #1 ~ Expanded Overview and
list of Recommendations
Overview of areas of concern, including
additional recommendations. The full text and specific example of failure in
the disciplinary process are both available on the California College of
Midwives web site (www.collegeofmidwives.org)
in the Medical Board subdirectory.
(A) Increased Quality of Public
Participation: There is a need for broader participation by the public
and non-physician health care providers (including the nursing profession)
and representatives who can speak for the needs of women and ethnic
minorities so as to bring about a more reasonable and integrated standard of
care in which the Board become a partner with the public in achieving
mutual goals. Governing boards that actually protect the public rather
than the practitioner are composed primarily of public members with
licentiates in the numerical minority or functioning as advisors.
The current circumstance is more reminiscent of combatants in a
domestic version of a Cold War between California citizens and their
bureaucrats.
Cable Broadcasting of Public Meetings as an
important method to increase public awareness, consumer participation and
public oversight: One of the reasons that public attendance is so low
(or non-existent!) is that the location of the meeting constantly (and
randomly) rotates every quarter between Sacramento, San Francisco, San Diego
and LA, which means that concerned citizens must fly around the state
to keep abreast of agency activities. This is a time-consuming as well as a
real financial burden. For this
reason, the legislature should consider mandating the cable broadcasting of
quarterly meetings. Making video tapes of those broadcasts available at cost
to consumer groups and licentiates would be very helpful.
(B) Historically Medical Board was
Interdisciplinary: At
present, “alternative” practitioners are basically locked out of
the system. For example, it is illegal for midwives who are licensed by the
MBC to sit on the governing board which has 12 allopathic doctors and 7
“public” members but cannot have any other licentiates of the board
EXCEPT for MDs. This results in regulation without representation.
This is an unwieldy, unsatisfactory way to govern the profession of healing
arts in a state where more than half of all healthcare visits are to
non-allopathic practitioners.
The current all-MD composition of the medical board
represents a significant departure from the original legislation passed by
the California Legislature in 1876 and 1901. Historically the board of
medical examiners was an interdisciplinary board comprised of
physicians who represented the various medical disciplines of allopathic,
osteopathic, homeopathic, naturopathic and the “eclectic” school of
medicine. During that period of time the word “medical” as used in
statutes referred to its original Latin meaning, which is to “heal or
cure” (i.e. the healing arts), and not in the limited contemporary sense
in which the idea of ‘medicine’ and the word “medical” has become
synonymous with prescription drugs and surgery as provided allopathic
physicians.
Under the original medical regulation as passed by the
California Legislature, each distinct discipline or “school of medicine”
had its own “medical examiners” on the Board who were charged with
determining competency in that particular therapeutic modality. Members of
the board of medical examiners representing these various schools of
medicine (healing arts) did not “examine” and rule on cases outside
of their particular discipline. Interestingly enough, the Medical
Practices Act still contains language that prevents “discrimination”
against the various “schools (philosophy) of medicine”. An
interdisciplinary board seem to be the preferred place grapple with the
conflicting professional opinions surrounding use of “alternative”
medicine -- with “experts” who are either alternative practitioners
themselves or who are both familiar with and not prejudiced against such
traditional/complimentary systems of healing.
This crucial step should occur before either the MBC or the
accused practitioner have to take on the monumental expense of legal
action.
Rationally Defined “Standard
of Care”: The present definition of “standard of care” as
defined and enforced by the MBC leaves out the recipients of that care,
and in many instances, is disassociated from both common sense and actual
scientific “evidence-based” practice parameters. In other words, at
present, the only measure for “competency” is what other doctors are
doing and whether or not the accused individual followed the pack. For
example, if 99% of the obstetricians habitually spit on their hands
before performing a pelvic exam, it would be “substandard” care if any
individual doctor were to fail to follow suit. It is not legally necessary
for the community of California physicians’ definition of “standard
care” to be the best of the available choices or predicated on
scientific evidence or evident well being of the patient, ONLY that the
therapeutic regime conformed in the opinion of (generally orthodox)
doctor/expert reviewers. There is something fundamentally wrong with such
an irrational system.
(C) Improved Accountability
and oversight of MBC Investigations: Special Investigators are the most
basic unit of function for an agency that is, at present, a medical
police force. Poor or prejudiced detective work is all too frequent and
results in errors generated by overwork, misunderstanding, inattention or
personal bias against the accused practitioner and, in some instances, the
purposeful falsification of documentation. As in any
law-enforcement activity, small errors by Medical Board agents often have
major ramifications. Once law enforcement agents of the Board set a case on the "fast
track" to punishment, it is virtually impossible for a caregiver to
extricate him or herself. To my knowledge, virtually no licentiate of the
board has been successful in reversing a judgment against him/her by the
Board due to the unusual characteristics of the administrative code.
Even the judicial review process, which is far too late in the game, is
one that can be reversed (i.e., ‘non-adopted”) by the medical board,
which is a very politically-sensitive agency and terribly afraid of being
accused of being soft on misbehaving doctors.
Many law-abiding, generally
competent practitioners caught in this web of state-sanctioned intrigue
equate the process to a form of psychological terrorism. There is no DNA
test to prove the innocence of a practitioner charged with the medical
version of “high crimes and treason” – substandard, negligent or
incompetent care. This is a “soft” conclusion subjectively arrived at
by special investigators and expert reviewers employed by the MBC. In
regard to “quality of care” issues, it is generally the testimony from
a single individual, most often a board-certified specialist in private
practice paid by the agency to review the records, who has the ultimate
power to define the right and wrong of medical practice. This decision
will determine whether or not the case is prosecuted.
Documentation ~ the weakest
link: However, the expert consultant does not talk to any of the
parties involved (neither doctor, patient or whoever filed the
original complaint). Instead he or she depends entirely on documentation
provided by the agency, which depends almost entirely on the expertise
and/or good will of the investigator. Information for the expert
reviewer’s crucial decision-making process comes directly or indirectly
from records provided by the special investigators which may or may
not be complete, may include outrageous mistakes, misinformation or
prejudiced material inserted by the investigators or medical professionals
who opposed the treatment methods used (for example, another doctor who
was the complaining party!) and may
exclude exculpatory evidence and other crucial information favorable to
the case. Only the investigator will ever know what got left on the
cutting room floor. Once the special investigator’s paper trail sets an
accusation in motion, the only avenue of redress for the practitioner is a
lengthy and expensive legal action and administrative hearing that will
cost a minimum of $50,000 to both MBC and the accused licentiate. The loss
of reputation and the personal trauma cannot be reduced to a sum of money
and even when exonerated, the licentiate is never compensated for this
traumatizing experience.
Training and Procedural
Safeguards: At the moment, inadequate training and lack of personal
accountability characterize the special investigator system. A college
degree program for investigators with many of the same undergraduate
courses as taken by students of healthcare disciplines would elevate the
understanding of quality of care issues. State licensing or national
certification for the position of ‘Medical
Investigator’ maybe an idea whose time has come. Mean while, better
training and oversight would be most helpful. In other words, special
investigators must be held to as high a level of “due diligence” in
their jobs -- unbiased investigations, accuracy in all paper work and
scrupulously ethical behavior at all times -- as we expect of the
licensed physicians and other allied health care practitioners over
whom these investigators weld such unmitigated power. In addition, a new
procedural safe guard that would allow for a face-to-face meetings between
expert reviewers and the accused and/or the complaining parties would be
helpful.
(D) Culture of Fear Not
Protective of Public Safety: Criminalizing “quality of care”
problems as the primary method of practitioner oversight is unfair
and is not working to achieve the stated goals of consumer safety. It
should be replaced with the idea of practitioner oversight and true
“discipline” by the MBC as a behavior-modifying activity, focused on
early intervention instead of a medical police force that uses the mundane
mistakes of healthcare providers as an opportunity to turn them into
medical criminals. Once the general premise of “medical crimes”
is accepted, it calls into play a whole plethora of criminal law
enforcement techniques -- covert operations, under cover agents wired
for sound, “daring” raids (complete with bullet-proof vests and media
coverage) and the jailing (and strip-searching) of basically law-abiding
citizens. The wisdom of this must be questioned.
It is hard for those outside the
healthcare field to understand the unique pressures that necessarily
accompany the role of a practitioner (i.e., any caregiver who is directly
responsible for the health care he or she provides).
Each contact with a patient generates 1000 different treatment
decisions, skilled actives and charting requirements that make up the
legal “standard of care”. Each of these discrete caregiver “units”
of activity represents a potential opportunity for something to go wrong
-- a lab slip overlooked, a drug reaction not accounted for, a pertinent
question not asked, a routine procedure that unexpectedly hits a nerve or
blood vessel, a common drug that results in anaphylactic shock.
Virtually no physician, nurse, or
other health care practitioner can ever provide the abstractly perfect
“standard of care” 1000 times out of a 1000. And of course this is
multiplied by a patient load of 10 to 70 people a each day, multiplied by
day after day, years after year and complicated by the fact that
healthcare provider rarely have any choice in picking which people and
under which circumstances they will accept patients. Combative alcoholics
cut up in a bar room brawl, drug addicts, the immature who don’t follow
medical directions, the crazy, the desperately ill, the malnourished, the
poorest of the poor -- all these patients present themselves for treatment
regardless of how unlikely it is that such medical treatments will be
successful. Death is a natural conclusion to illness and advanced age and
not usually the “fault” of the
caregiver. While none of these difficulties is of itself an excuse for
chronically substandard care, neither should a simple mistake (the idea of
zero tolerance) end a professional career. The issue is too complicated
for such a simplistic solution. The
Board should not take on a de-facto role of a plaintiff's attorney
in the absence of a bona fide aggrieved party. This is what it does
when ‘fishing expeditions’ subsequent to a complaint reveal possible
charting errors or other minor (and perhaps imagined) mistakes or
deviations that are then identified by the Board as proof of incompetence
or worse yet, “repeated arts of negligence”.
(E) Preventive
Medicine/Preventive Discipline ~ A Balanced Approach: What is
painfully absent from the post-Presley disciplinary system is true
“discipline” that is corrective - that is which prevents problems,
guides and molds character, modifies behavior and leads to the improvement
of abilities while reducing the number of cases requiring punitive action.
What best protects the citizens of California is a corrective
middle road strong on early intervention, a path that takes us right to
the heart of the problem and centers on effective and realistic remedies
and utilizes money and other Board resources to advance positive goals
instead of punishments. The 30 million dollar budget of the Board, 71% of
which is currently devoted to enforcement (only 11% for licensure
activities) should reflect a focus on correction by being larger for
"remedial" actions than for prosecutory one.
Currently there is the lack or
disuse of a dynamic "middle ground" by the MBC in the
processes of physician oversight and public protection and a model of
learning from mistakes, such as used by the airlines and the federal
transportation board. While more than 10,000 complaints against physicians
were received by the MBC last year, these physicians are not routinely
notified or asked to comment or explain their actions. This means that
every year thousands of small, easily remedied problems go unaddressed and
uncorrected because, to the physician involved, his actions were
unobserved, unreported and unknown by him to be sub-optimal. Unless the
case is deemed to have “merit” sufficient for prosecution the
complaining party’s efforts are dead-ended.
At the same time many other
doctors are experiencing punitive actions by the Board without receiving
“fair warning” or having any remedial or rehabilitative action by the
agency that precedes an attempt by the Board to impose that most sever
“discipline” of all -- termination of a professional career. After
hearing how the current system operates, someone once commented: “You
couldn’t get some fired from the phone company like that”. And
indeed, without information regarding the problem and an opportunity to
correct it, they would be right. In other occupations those responsible for oversight would
first be required to make a genuine inquiry into the situation, define the
problem and make a good faith attempt to correct it through interactions
with the parties involved, including appropriate requests for correction.
Except in the most extreme and egregious of circumstances, the Board needs
to emulate this standard from the business world and exercise physician
oversight a priora to formal accusations of unprofessional
conduct, via investigative inquiries, letters of concern, agreements in
lieu of discipline, and/or Letters of Public Reprimand issued.
(F) Real “Diversion” --
Correction before Selection for Prosecution: Developing an “equal
opportunity” diversion program as a corrective process is one of the
most effective ways to head off egregious behavior and provide real
consumer protection. The present “diversion program” carves out a
special niche favoring the alcoholic and those with substance abuse
or who are guilty of inappropriate sexual behavior. No similar offer of
“diversion” or other remedial opportunities are afforded to the
physician charged with a simple mistake of some sort (either in judgment
or the carrying out of treatment). Doctors and allied health practitioners
with a spotless record (for example, 30 years of practice without a single
complaint or a single law suit) face the revocation of license / 5 years
probation as a result of a single complaint or “bad outcome”.
Early interventions frequent
with revocations being rare: Priorities for action by the Board should
be the least punitive (and most remedial) 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 Public Letters of Reprimand should
have been dispensed. Right now the ratio is 12:1 in the other direction.
The Board would need to employ an adequate number of seasoned physicians
and registered nurses with hospital supervisory experience to determine
the relative merit of complaints and the proposed course of remedial
action as this type of judgment does not normally fall in the scope of
practice for special investigators.
Higher Scrutiny for
Licentiates with a Spotless Record: Revoking/suspending the license of
a physician who has never had any other actions taken against him
or her (i.e. no Letters of Public 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 authorized. When an accused physician has a spotless record it should
strongly count in his or her favor.
(G) Electronic Incident
Reports --Tracking patterns of sub-optimal care: Patients need a
system that lets them register their bad experiences without having to
institute malpractice litigation or file a formal “complaint” implying
an expectation of punitive action by the Board. This would create a
simple method of electronic tracking of practitioners who routinely and
seriously disappoint those they are supposed to be serving. Nurses and
other hospital employees also need this kind of system, permitting the
equivalent of “incident reports” to be filed with the
Board which record questionable aspects of medical care which they
observed as a part of their employment.
Speaking from my experience as a
nurse in acute care hospitals over a course of 2 decades, I can tell you
that the more draconian the “disciplinary” process of the regulatory
agency becomes, the more and more people are hesitant --especially
doctors, nurses and other healthcare workers -- to make a timely
compliant. It seems disloyal or unfair and is the unintended
consequence of ever escalating severity of regulatory efforts.
Practically speaking, it means that no one deals with little problems and
patterns of minor malfeasance -- we all just wait for someone to die or be
badly injured and then the system finally kicks in -- too late to prevent
dozens of painful, damaging, expensive or even lethal breeches of medical
practice.
The nursing profession has the
most constant and substantive interaction with medical doctors, is the
most knowledgeable about physician behavior and has the most opportunity
to observes problems up close on a daily, hourly basis, and yet it has
never been included in the process of identifying physicians who are
abusive of their powers, exploitive, negligent or only marginally
competent. Again, the purpose is to create an electronic “paper trail”
maintained by the regulatory agency that can over time help us to identify
patterns of substandard or sub-optimal care, negligent, dishonest, rude,
cruel, sadistic or devious behavior and other early warning symptoms of
practitioners who need someone to intervene before a real tragedy occurs.
(H) Only 39 Letters of Public
Reprimand Issued while 133 Licenses Revoked or Surrendered: Another
“missing link” to effective and compassionate oversight of physicians
while vastly improving consumer protection is proportional issuance
of “Letters of Public Reprimand” -- an administrative action the MBC
is already authorized to employ. With 500+ actions taken by the Board, one
would expect no less than 1500 Letter of Public Reprimands. It is
disturbing that many times more doctors lost their licenses than received
an official “warning” of any kind.
While more LPR are being issued now than in past years it is
still an inverse ratio, with many more care providers facing loss of
license or lengthy probation than those publicly reprimanded. In a recent
annual report there were 188 of the most serious sanctions compared to
only 39 LPR or a ratio of approximately 5 licensure revocation to
one LPR.
The reverse of
this should be the case. The use of LPR, in combination with the
many other opportunities for “disciplining” listed above (in the best
sense of the word), should constitute a robust and effective “early
intervention” model, to the benefit of all.
(I) The "negligent"
use of the disciplinary category known as "Repeated Acts of
Negligence".
Repeated Acts of Negligence as used by the Board is a misleading term
that often does not refer to what one would expect. When a physician is
accused of RAN, it sounds like the medical board has documented repeated
or serial acts of a serious nature occurring over time and portraying a consistent
incompetency. An appropriate example of this (reported in the Action
Reporter) was a physician who recommended cataract surgery for 6
different patients, all of who were told in a second opinion that no surgery
was necessary. Clearly, in this instance, the acts of the physicians were
sequential and consequential.
However, much mischief can lie
behind this phrase as currently used by the Board. "Repeated acts of
negligence" needs to be defined by regulation to refer to actual
repeated acts of the same order of magnitude of severity and directly
related to the incident under investigation, not as currently
used to mean that a patient's chart was scrutinized by an "expert
witness" who "took exception" to the use or absence of a
particular test or procedure or a medical judgment that had nothing to do
with the original complaint but was added to the laundry list of supposed
negligent acts or omissions. .
Complaints against physicians
should not be fishing
expeditions by agents of the Board, as if it is their official purpose
to "grade" the medical records of physicians who come under
its scrutiny. Statutory authority of California medical practice legislation
does not authorized such an activity.
The Board should not take on a
de-facto role of a plaintiff's attorney in the absence of a
bona fide aggrieved party.
(J) Higher standards of proof
for "victimless complaints" (i.e.. non-patient or anonymous complaints in circumstances where no
direct patient harm is evidenced). For example, when the complaining party
is another physician with a philosophical bias (e.g. anti-alternative
therapy, anti-chealation, anti-homebirth, etc.) or the complaint originates
with a relative who personally disapproves of the non-standard treatment but
the patient him or herself is satisfied and no compelling harm is
evident. In the presence of a bona fide complaint of non-standard care
(including treatments and the philosophies that lay behind them), the
responsibility of the MBC should be to ascertain:
a) Whether or not the treatment itself was directly harmful (did
disease, disability or death actually occur and was it the direct result of
the therapeutic agent or action employed?)
b) Whether or not the patient was fully informed of the
unproven or "unorthodox" nature of the treatment and any known
risks associated with its use, including the possibility that
"alternative" treatment might delay conventional medical care?
Only if neither of these
conditions exists, no punitive action should be taken by the Board.
(K) Parity of Expert Witnesses
& the Elimination of a Specialty Board bias:
Specialty bias occurs when
the Board employs testimony from specialists against
generalists. An identified "expert" is not really ' expert' in a
case unless that individual practices in a manner reflective of the
defendant's practice -- that is the same level of specialty, sub-specialty
or in the case of a generalist/midwife, the testimony of another FP, GP or
midwife. Another example is using testimony from hospital-based
obstetricians against physicians and midwives who provide home-based
maternity services.
Negligence and incompetence are
legal terms with a legal definition. Expert opinions in regard to
issues of competency or incompetency must come from practitioners of
the field about which they are opining. Any lesser standard is
insulting to licentiates and a poor legal practice for state agencies to
perpetuate.
The officially espoused policy of
the medical board is to seek out physicians in all areas of medical practice
as sources for expert testimony in regard to complaints. This is to assure
that competency will be judged only by other professionals in the same
specialty (or sub-specialty) with an active patient base. However, the
testimony of board-certified specialist in actions taken against
generalists and non-physician healthcare providers is preferred by the
Board, which feels the testimony of a board specialist to be more decisive
should the case go to a hearing with an OAL judge.
An in-depth study of disciplinary
actions taken by a consultant firm (Schubert and Associates -- copy
available) for the MBC notes that significantly more non-board
certified physicians
are subjects of disciplinary actions than board-certified
doctors. The medical board's interpretation is that board-certified
physicians provide superior medical care and that is why there are less
complaints. An alternative interpretation is that board-certified
specialists improperly impose the standards and elitist opinions of specialty
medicine on the practice of general practitioners, family practice
physicians and midwives. This is an important factor in perpetuating
unnecessary medical expense within the healthcare field.
In addition to the injustice to the practitioner, the current policy of
utilizing primarily board-certified "experts" is
counter-productive and harmful to the public good, as it exacerbates the
trend away from the practice of general medicine. In essence, it requires
all practice of medicine and midwifery to be "specialty" medicine
as the general practitioner or midwife who does not provide
identical care to a specialty
board-certified physician is
pejoratively-defined as negligent or "substandard". This
can and does lead to punitive disciplinary measures including loss of
license. Specialty medicine is not necessarily a higher standard care --
what distinguishes it is a higher level of diagnostic and specialized
invasive procedures. One of the primary reasons people do
not seek out a ‘specialist’ is
they do not thinks such painful and expensive procedures are necessary and
thus do not want to be subjected to them, hence the choice of a generalist.
(L) County-level consumer
oversight committees as
an alternative or preamble to punitive action by the Medical Board.
If the accused practitioner is willing to enter arbitration, an oversight
committee composed of an equal number of public members and practitioners
(and including non-allopathic physicians and non-physician practitioners)
would be authorized to enter into a dialogue with the parties (physician and
complainant) and to mediate a solution if both agree to binding
arbitration. So-called "bad" doctors would happily settle with
the MBC to avoid having their egregious actions exposed to local scrutiny.
Those whose only offense was the use of ‘unorthodox’ or ‘unproven’
therapies (with appropriate informed consent) would have an occasion to
correct what otherwise might lead to a very expensive miscarriage of justice
for both the Board and the practitioner.
(M) Eliminate undercover sting
operations in the absence of bona fide complaints: These
are bureaucratically-funded fishing expeditions that do great harm to
physicians and non-physicians alike, as well as inappropriately waste
prosecutory resources. For instance, a letter by the executive director of
the Sacramento-El Dorado Medical Society to the MBC, it was noted that in
"reviewing cases of sting operations, the only evidence we have seen of
'inappropriate prescribing' was that evidence documented as a result of the
actions of skilled undercover agents. There were no other cases
presented, no pharmacy records, etc". This physician’s recommendation
was to "avoid the undercover sting operations against physicians
unless there is clear and convincing evidence.."
In April 1992 U.S. Supreme Court
opinion reversing a conviction based on unlawful entrapment (Jacobson v.
U.S.), a majority opinion by Justice Byron R. White stated: "In
their zeal to enforce the law ...government agents may not originate a
criminal design, implant in an innocent person's mind the disposition to
commit a criminal act, and then induce commission of the crime so that the
government may prosecute."
(O Change
in ACTON REPORT quarterly newsletter:
The ACTION REPORT needs to list the major categories of
disciplinary action in separate columns. Distinct categories should be
listed for permanent revocation, for "stayed"
revocation which isn’t actually a revocation but a form of probation.
A separate category should reveal disciplinary actions that merely
reiterated the actions of another state's medical board based on
circumstances which did not originate in California. The
rubber-stamping of disciplinary actions by other state medical boards
should be distinguished from substitutive actions taken by the MBC against
currently practicing California physicians. There should also
be a category for doctors who a "Public Letter of Reprimand".