California College of Midwives  / ACDM
3889 Middlefield Road, Palo Alto, Ca 94303
650 / 328-8491

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 ( 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.

 Methods to Facilitate Public Attendance at MBC Meeting: There is good attendance by the staff and board members but virtually NO attendance by the public at these critically important public meetings. California has approximately 34 million citizens, every one impacted in some way by medical care, if only in the soaring cost of insurance premiums. And yet I have been to many quarterly board meetings with all19 appointed members sitting up front at the long table while there were only eight people in the audience -- five CMA lobbyists, 2 MBC staff and me as the only “public” person at the meeting. Considering that the MBC is the single most influential agency in regard to health care for 34,000,000 California citizens, this lack of citizen participation is a serious problem.

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".