Enclosure for Letter to
Joint Committe for Sunset Review, California Legislature
General Background information
My personal experience with the MBC
I am a Mennonite midwife who was practicing lawfully under the religious exemptions clause in 1991 when I was targeted by agents of the local (San Mateo County) MBC office. I became the object of a 5-month covert operation complete with all the paraphernalia and tactics of a James Bond movie. Eventually I figured out what was happening and called to speak with the director of the SM office to inquire as to why undercover agents were making appointments with me and to offer my cooperation. I was told that no investigation was pending. However, I was arrested in my home two days later, handcuffed in the presence of my youngest daughter, jailed, held in solitary confinement on $50,000 bond and my misdemeanor arrest put out on the AP wire service and announced on the radio. I was criminally prosecuted over a course of 21 months.
These events occurred when the agency was under the direction of Kenneth Wagstaff. As you probably are already aware, Mr. Wagstaff was forced to resign as a result of the CBS "Sixty-Minute" expose on the Medical Board and subsequent1990-1992 California Highway Patrol investigation. After 16 separate court appearances, we were able to establish that my practice as a midwife was a lawful one. I was never reimbursed for the $30,000 in legal fees required to defend myself. The favorable outcome in the criminal case against me was instrumental in overriding the opposition of the CMA to midwifery licensing. I am happy to report that 44 direct-entry (traditional or non-nurse) midwives are now licensed in California, including myself.
Background Information for requested Legislative Change
Disciplinary Quotes NOT the answer
My first concern is the overzealitry occurring as a backlash to the bad publicity from the CBS "Sixty Minute" expose and subsequent CHP investigation. A great desire for "numbers" (a body count mentality) of has resulted in a "dog on a bone" quality of inappropriate persecution of health care providers and dropping the bomb on Luxembourg on a few very unfortunate souls. The negative publicity surrounding the CHP report brought about a popular but false concept that "consumer protection" can only be guaranteed by a publicly-approved quota of "culprits", as if some Supreme Being has communicated to us mortals the correct ratio of physicians to disciplinary actions
Whatever the problems of public safety are --- quotas are NOT the answer. This tactic is reminiscent of the joke about the man who lost his keys in a dark alley but looked for them under the lamp post because the light was better. Certainly "unorthodox" caregivers stand out in the crowd and it is much easier to get other physicians who disapprove of their methods or resent the competition to act as "expert witnesses" against the accused physician but none the less, this is not where the real problem lies. While going after the "wrong" people, the real culprits get off scott free. The idea of being numerically "first" in medical board disciplinary actions leads to counter-productive activities. I would rather see the state of California have the LOWEST number of revoked licenses as a tribute to what a good job the MBC was doing in mentoring its physicians. In my personal opinion, that should be the legislative mandate for this regulatory agency, instead of the current idea of a medical law enforcement agency.
Correction before Selection for Prosecution
A specific improvement would be to utilize "Letters of Public Reprimand" (LPR) as a first line of response. In the current system, many doctors and allied health practitioners with a spotless record face the revocation of license as a result of a single complaint against them. They had no "fair warning" or other opportunity to modify their practice or to establish, in a non-prejudiced interaction with the staff of the MBC, that their methods were "appropriate" in the context of "alternative" (or non-allopathic) treatment modalities.
When explaining the administrative code and disciplinary methods of the Medical Board, I once had a listener comment that "You couldnt even get some fired from the phone company that way." And its true -- nowhere else in society does someone give up their civil right to due process as does a licentiate of the MBC. I dont think that is what the People of California really wanted or expected when they authorized the Medical Board as guardians of public safety.
In virtually every other avenue of commerce, employment and governance, the "first response" to a perceived employee problem would be a letter to the individual asking if the information being against him or was factually correct. If it is the next step would be some form of a non-public letter of warming, establishing what that person must do or not do in order to be stay within the good graces of the organization. This process establishes specific and acceptable limits, much like posting speed limits on a highway is necessary before one can revoke the license of driver for "speeding". If after appropiate warning of the occurs, then legal action would be the next step. In some cases where the problem was not "life-threatening" that should be a public letter of recomand and should any additional episodes of poor or dangerous performance occur, then and only then should serious disciplianey action be taken.
In this logical progression LPR would far outnumber any other category of disciplinary action. While more LPR are being issued now than in past years, it is still an inverse ratio, with many more careproviders facing loss of license or lengthy probation than those publicly reprimanded. In the most recent annual report there were 188 of the most serious sanctions compared to only 39 LPR or a ratio of approximately 5 to one. The reverse of this should be the case. (See the enclosure "LPR - A Balance Approach to Medical Board Discipline")
County-level Consumer Oversight Committees
An additional tool to expand the "middle ground" of the disciplinary activities of the MBC would be a county-level consumer oversight committees as an alternative or preamble to any punitive action by the Medical Board. If the accused practitioner is willing to enter arbitration a panel of public members, with an equal number of physicians (and including non-allopathic physicians) and non-physician practitioners who would be provided with a synoptic report prepared by each side.
The oversight committee would be authorized to enter into a dialogue with the parties and to mediate a solution if both agree to binding arbitration. Really "bad" doctors would happily settle with the MBC to avoid having their egregious actions exposed local scrutiny. Those whose only supposed "crime" was merely being "unorthodox" or using 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. The averaged contested case costs the Board approximately $75,000 and up to $200,000 for the physician. This process would drastically reduce the expense to doctors whose licensure fees pay for an annual budget of $23 million. (Note only 11% of these fees are required for the licensing activities of the agency while 71% goes to enforcement)
Inappropriate Targeting of "Alternative" Medicine Providers
I have a friend that is an MD who provides home-based maternity services. She was the object of a complaint by another physician subsequent to a homebirth transfer of a newborn. The circumstances that resulted in the problem were rare (unexpected premature baby born at home) and were responded to appropriately by the MD (hospital transfer). After 3 weeks of hospital treatment the baby was fine. The parents did not initiate any complaint and were completely supportive of the physician. However, an inaccurate report filed by the admitting physician, whose biased against both the parents and the MD-midwife is a matter of public record, triggered a cascade of events leading to punitive disciplinary action by the medical board. The concerns raised by this circumstance were many.
All the testimony against the physician was collected by MBC investigators and hospital-based physicians who were philosophically opposed to home-based birth services and had no personal or professional experience with domiciliary midwifery. They appeared to look for little discrepancies that they could site as "proof" that the physician had "deviated" from the "community standards for California physicians". Expert witnesses did not actually talk to the parents of the baby or the physician herself or the physician that made the complaint -- these "expert reviewers" based all their conclusions on written records provided by medical board investigators. Had they talked to the "cpmplaining physician theywould have found out that this peditrician called up the mother at home some hours after the baby had been admitted to the hospital and told her the baby was brain dead and she should come back to
These records reiterated the underlying prejudice and contained a large measure of inaccurate and inflammatory information. It was the "chart" and not the patient, the outcome, or the actual facts that resulted in a judgment of negligence by these "expert" witnesses. My physician-friend, a 54 year old women doctor who had never had been the object of a single consumer complaint or malpractice suit in almost 30 years of practice (or even a speeding ticket!), was forced to accept a stipulated decision revoking her license for 5 years (stayed with terms and conditions) because none of the other doctors in our area would testify on her behalf for fear of reprisals against them by the Board.
I also know of a very well-respected community physician and member of the board for a local church who was "turned in" by an insurance company for "over-prescribing" vitamin pills!. Investigators from the MBC came to his office in bullet-proof vests which ultimately intimidated him also into a "stipulated decision". The shame of these preceding is so great and physicians are so sensitive to it (and afraid of further reprisals) that many are not even willing to go on record about the abuses to which they have been subjected. In fact, the use of force by DCA investigators assigned to the medical and nursing boards is not uncommon.
In once instance, a single mother with three children was held hostage in her living room with her three young (and now hysterical) children for 3 hours while 8 MBC/CDA "peace offices" wearing bullet-proof vests ransacked her house and removed 38 boxes of books, baby pictures and other supposed "evidence" of midwifery practice. In Southern California, the 13 years old daughter of a midwife (who was home alone) was held her at gun-point and forced to lay face down on the floor while MBC peace offices served a search warrant. Newspaper accounts of documenting these and other cases are enclosed.
Outrageous Behavior goes Unnoticed and Uncorrected
The other, untold half of the story is that I have personally, in the last year or two, experienced truly unethical and harmful behavior by licensed physicians acting within the confines of the approved "orthodox" system in a manner that amounted to physical battery and emotional abusive. This year I attend the planned hospital birth of my Goddaughter's 3 baby, only to be shocked when the obstetrician came into the room as the baby was crowning (the nurse was holding back the head to give him time to glove up) and he reached for scissors and cut a medically unnecessary episiotomy without the consent or even the knowledge of the mother. He charted on the delivery notes that the mother had a serious tear (a falsification of documents) while the nurse's notes recorded that he performed an episiotomy & repair. No consequences are accruing to physicians such as these while physicians of great integrity are facing the lose of their license for use of "non-standard" care. This does not actually protect the public despite spending lots of money on the effort!
Accountability of MBC employees
Investigators and "peace officers" employed by the Board are themselves not trained in any medical, nursing or other allied health field. That I know of, these powerful positions do not require any formalized training or certification --there is no licensing program for "Medical Investigator". While the majority of the investigators are perfectly nice people, there are a goodly number who utilize their uniquely positions to push for punitive actions based on personal prejudices and/or a desire for career advancement. While this is true in all forms of law enforcement, what is unique to the activities of the medical board is that proceeding against licentiates are under the administrative code which unfortunately eclipses any opportunity for a jury trial or even a public hearing which would restore balance and accountability via exposure of the case to public view. The traditional "checks and balances " of democratic government are totally absent from the current system of medical regulation. The system authorizes the agency in such a way as to give it legislative (through regulation), police, prosecutory powers and final judicial review.
The only other area that this happens in is "national security" (CIA) and investigations by the Child Protective Services, in which the accused person is functionally guilty until he/she can prove innocence -- the exact reverse of normal democratic principles. 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 no licentiate of the board has ever 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 at the whim of the medical board, which is a very politically-sensitive agency. One must keep in mind that many of the 12 MD members of the gubernatorial-appointed board are also members of the California Medical Association and other professional association which actively lobby the Board in efforts to influence its policy-making process.
Without belaboring the point farther, I just want to note that the current interpretation of the legislative mandate to the medical board is based in large part on case law and not on statute. The aggregate of case law and the influence of the medical lobby on enforcement policies is a process which criminalizes all non-physician, non-allopathic health care and to that end more spends than 20 million dollars annually, much of it devoted to going after unorthodox physicians and non-physician caregivers. 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 harmless citizens whose only "crime" was to offer themselves in a "healing relationship" at a time and place that respects neither of these traditional and cost-effective principles.
Scientific Principles and Evidence-based Healthcare Standards to Replace the Current Non-scientific Authority Model
Most people are surprised to learn that the legally defined "quality of care" enforced by the MBC as the "standard" of care is not predicated on scientific principles. The Board still utilizes a 19th century "authority" model in which the testimony of one or two "expert witnesses", which are generally board-certified MDs who have been specially trained by the Board and are being paid as consultants to review medical records, give a basic "thumbs up or thumbs down" decision upon which all else rides.
This outmoded model defines the practice of medicine to be a single ubiquitous "product" universally agreed upon by all medical doctors. Physicians and other caregivers are seen as exchangeable "units which dispense this standardized medical care (either diagnosis or treatments) like a proprietary formula, such as malted milk from a McDonalds Hamberger fountain. In this picture the only approved role of the caregiver is to push the right button and out pops the standard, all-purpose remedy -- the same one to be used by every doctor and for every patient.
However, medicine is both and art and a science and within the concept of science, it has differing "schools of thought" and thus differing approaches -- all of which are internally consistent but which are distinct from each other. We have no trouble understanding that the preferred treatment for ulcer pain will be different if we were to see an internist than a surgeon. Many health problems can be dealt with by a varity of methods without these eclectic management styles reflecting any incompetence or negligence by the caregiver. As we easily recognize the value of diversity in politics and religion we must acknowledge that we cant eliminate this distinctions in health care without wrecking havoc on the citizens of California. It would be similar to asking an orthodox Rabbi to grade the confessions of a Roman Catholic priest.
What is missing is two-fold. First, there is already a large body of "evidence-based practice parameters" reflecting all currently published research, meta-analysis and statistical information. This is complied on CD ROM and currently used by insurance carriers in defining what treatments will be reimbursed by them. These should be available on the Internet site for the MBC to define a generally accepted and scientifically-based standards of care. Should a physician or patient find it necessary to decline these parameters, they would then enter into an informed consent/informed declination process documenting that "unproven" therapies or management were undertaking with full knowledge of the parties involved. Unproven treatments do not automatically translate into an illegal or incompetent practice of medicine -- in fact, they represent the core of "experimental" medicine. However, as a patient one should always know when and what treatments are "experimental and which are standard. Informed consent is the key.
Secondly, there is a great need for a new academic field of study for the process of medical discipline and the parameters upon which it is predicated, both in regulatory agencies and in hospital administration. No data that I am aware of compares the various practices of physicians for correlation with complaints received by regulatory agencies nor are there studies that rate various disciplinary measure for effectiveness.
For instance, in the course of an investigation it is common for a specific patients chart to be come the central document of inquiry which will be reviewed by an "expert witness". The care rendered and/or the quality of charting may then be characterized as deficient because information was missing, incomplete or reflected something other than the theoretical "standard" of care.
An academic researcher would ask the logical question -- if you pulled the charts of a 100 patients treated in the same institution for the same condition and who experienced the whole spectrum of outcomes (from complete recover to death or disability), what would be reflected in treatment and management style and how many of them would have missing or incomplete records and other deviations from standard, what if 70% of the charts revealed a significant "deviation" from the findings of the expert witness? The question is "Can you define a doctor as negligent when his or her actions are compatible with the "real time" actions of the majority of caregivers? It is possible with current technology to provide a scientific basis for the policies of regulatory agencies but so far, no one has pursued this worthwhile strategy. Due to our proximity to Silicon Valley innovations, this is a natural opportunity unique to California.
Citizen Oversight and Advocacy
And last but certainly not least is the request for a Citizen Advocacy Committee mandated by the legislature as a method to re-introduce citizen oversight and as a forum to rectify the twin evils of inadequate responses and overzealous ones. Speaking for myself as a citizen of California and a member of Citizen for Health, I urge you to think in terms of keeping California on the leading edge of changes in healthcare for the coming century, a leader in how to incorporate the benefits and better protect us from the excesses. As it stands now, we are on the trailing edge, with talented healthcare provides leaving the state rather than deal with what is at times the Draconian methods of the Medical Board and with consumers also going to other states in order to receive non-allopathic or "unorthodox" treatments. Our valuable resources should not be squandered this way. We need to keep California business in California.
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