Recommendations and Proposals for
Oversight Function
by Faith Gibson

The Medical Board of California

Since 1913 medical "professionalism" in California has been legally defined by the philosophies of allopathic medicine; central to that is the principle that no one but allopathic physicians can legally define the practice of medicine, even when the “practices” in question are not themselves allopathic. This system has many inherent difficulties and historically has not served the public well. Due to recent changes in the law and the philosophy of the governing board of the MBC, it is no longer serving the best interests of physicians either.

The new medical practice reform bill, authored in 1991 by Senator Presley, expanded the official responsibilities of the Board to include pro-active protection of "public", now referred to as "consumers". It seems logical that the public would also have an "oversight" duty to "consumer" protection as defined by consumers. In order to improve the medical oversight function of the MBC, the current system should be examined for ways to facilitate public oversight of the agency's activities. Many helpful changes can be brought about by the simple application of common-sense in carrying out the Board's statutory duties. Most of these administrative corrections would not require additional legislation.

Specific Recommendations

1) The quarterly general meetings should be televised on the public cable channels. Meetings of the Division of Licensing and Medical Quality need to be video taped so that copies can be ordered by concerned citizens and healthcare provider groups for viewing in our local communities.

2) Representation by the nursing profession should be included in the Medical Board's fact-finding and decision-making processes. Nurses and nurse-midwives have more direct contact with physicians than any other category of persons. It is nursing personal who are on the front lines, who know first-hand the pressures of medical practice. Nurses see the specific acts of malfeasance & unethical behavior up close and have direct experience with the community standard. To fail to include them in the oversight functions is inexplicable.

3) No disciplinary quotas -- All but the most egregious offense should illicit an orderly and common sense response, starting with the most minor action (letter of inquiry) and going step-by-step through the various levels of corrective and punitive responses, with revocation being rare.

4) An important issue is the disuse of a "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 either civil or criminal law. Any practitioner, licensed or not, who is the "subject" of official scrutiny by the Medical Board should, by common sense, be contacted by the Board for fact-finding purposes. Before any legal action is contemplated, the Board morally obligated is to obtain correct information. A letter should be sent stating the reason for the Board's concern and giving the individual an opportunity to clarify the circumstance and to provide correct factual data. Only if this provides unsatisfactory should the next level of legal action be undertaken by the Board.

5) An additional tool to expand the "middle ground" would be a local or county-level consumer oversight committees as an alternative or preamble to action by the state agency. A panel of public members, with an equal number of physicians (including non-allopaths) and non-physicians 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.

6) 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-chealation therapy, anti-homebirth, etc.) or the complaint originates with a relative of the patient who who personally disapproves of the non-standard treatments but the patient him or herself is satisfied and no compelling harm is evident. The employment of non-standard treatments by healthcare practitioners must not be a reason for disciplinary action UNLESS harm can be demonstrated in the specific case and corroborated with scientific proof. (Daubert v. Merrill Dow). Nothing in the medical practice statutes makes it illegal or "unprofessional" to employ an "off-label" use of a drug or unorthodox treatment.

In the presence of a bonafide 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 result directly from the therapeutic agent or action employed?)

b. Whether or not the patient was fully informed of the "unorthodox" nature of the treatment and any known risks associated with its use, including the possibility that "alternative" treatment might delay conventional medical care?

If neither of these apply, the case is without merit

7) "Repeated acts of negligence" (RAN) is a category of unprofessional conduct used by the Board in its disciplinary functions. However, it is a mis-leading term that often does not refer to what one would expect. When a physician is accused of RANs, it sounds like a the medical board has documented repeated or serial acts of a serious nature that portray a consistent incompetency. An appropriate example of this is recorded in the last Action Report in which a physician 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.

"Repeated acts of negligence" should be defined by regulation to refer to actual repeated acts of the same order of magnitude of severity, 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 treatment judgment by the physician that had nothing to do with the original complaint. Occasions of physician discipline 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.

8) Parity of Expert Witnesses & the elimination of a Specialty Board bias when employing testimony from specialists against generalists and other healthcare professionals

The 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 against physicians. This is to assure that physician-competency will be judged only by other physicians in the same specialty with an active patient base. However, the testimony of board-certified specialist in actions taken against
generalists and non-physician healthcare providers violates this principle. Another similar area is using testimony from hospital-based obstetricians against physicians and midwives who provide home-based birth services.

An in-depth study of disciplinary actions taken by 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. 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 run-away medical expenses. The current policy of utilizing only board-certified "experts" by the medical board is counter-productive as it exacerbates the trend away from the practice of general medicine. In essence, it requires all practice of medicine to be "specialty" medicine as the general practitioner who does not provide identical care to a board-certified physician in each field of specialization is pejoratively-defined as negligent or "substandard" and is subject to loss of license.

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.

9) Eliminate the use of undercover sting operations in the absence of a bonafide complaint. 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, it was note 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.." We concur.

In 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."

10) Policy statement by the Board re-affirming the medical rights of parents acting on behalf of their children to informed refusal without being charged with child abuse for medical endangerment.

11) Policy statement by the Board affirming that the physician's primary professional concern is to be for patient's wellbeing. The definition of that quality of wellbeing must always include the opinions of the person (or parent of a child) being treated. When experimental medical research is involved, it must be stressed that wellbeing of the patient and not the purity of the research protocols must be the primary concern of all professionals. Experimental medicine is a necessary and vital activity but in no instance should harmful procedures be promoted in order to protect the scientific validation of the research study.

12) The jurisdiction of the Medical Board should returned to the practice of medicine as originally defined in the progenitor medical legislation. Non-allopathic physicians and non-physicians practitioners should be represented on the Medical Board. Consumer safety is not advanced by the current system which in effect, discriminates against all non-allopathic forms of careprovision by regulation without representation.

13) Parity in legal actions -- Either physicians who have accusations filed against them should routinely be arrested (as are non-physicians) OR neither should be arrested unless an exceptional aspect of the case compels such drastic action.

14) The Quarterly ACTION REPORT, a magazine-format newsletter of the medical board reporting the disciplinary actions taken during the preceding 90 days, needs to list the major categories in separate columns. In particular, the actions taken by the board rubber-stamping those of other state medical boards should be distinguished from substitutive actions taken against currently practicing California careproviders. Also, separate categories should be listed for permanent revocation, for "stayed" revocation which isn’t actually a revocation but a form of probation and for those who have received a "Public Letter of Reprimand".

15) MBC budgetary information should distinguish between funds used to prosecute unlicensed and/or non-physicians from those used to discipline licensed doctors and licensed allied healthcare practitioners. While the agency legally purses all forms of non-physician healthcare providers there is no budget category that reveals the amount of resources devoted to this aspect of the agency’s activities. Currently the annual budget is in excess of $30 million which is unevenly divided between the two main functions of the medical board -- licensing and enforcement. Licensing gets approximately 11% while enforcement receives 71%. Of the $600 biannual licensing fees for each of the 100,000 physicians, approximately $55 goes for licensing while $544 goes for "other" expenditures, mainly enforcement.

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