Letters of Public Reprimand --
A Balanced Approach to Medical Board Discipline

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.

Priorities for action by the Board should 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.

Correction before Selection
for Prosecution

As a policy of the MBC, letters of official concern should precede these lengthy, expensive, and often covert 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.

Disciplinary Quotas Not Helpful

While many aspects of the MBC's policies need to be rectified, the notion that there is a quota of "bad doctors" that must be met by the Medical Board is not only false but dangerous. The negative publicity surrounding the CHP report has 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 the correct ratio of physicians to disciplinary actions. This fallacious idea only results in a body-count mentality in which numbers become the most important criteria. They are not. Unpopular physicians get fingered for minor or philosophical variations from the "standard of care as provided by the California community of physicians" while the public gets the erroneous impression that they are being protected from genuinely egregious behavior.

In the search for a magic policy to permanently prevent all medical malfeasance, we must honestly admit that unless we, the People, are willing to unconstitutionally deprive physicians of the same access to due process as normally applies to non-physicians, then those with money for legal representation will legally continue, regardless of the specifics of reform legislation, to be able to delay, postpone and at times elude appropriate sanctions on their practice. This is a fundamental fact of Anglo-American law that applies to all segments of society. Those with money for legal representation will always fair better than those without. Clearly, the MBC does not have any moral obligation to violate the constitutional rights of the physicians under its jurisdiction. Just the opposite -- physician rights should be expanded to include the common-sense protections already present under criminal law, such as a jury trial and its higher standard of proof. These simple safeguards are currently denied to physicians under administrative law.

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.