November 19th, 1997

Members, Joint legislative Sunset Review Committee

RE: Public Hearing on Sunset Review of MBC - In response to questions posed during the 11/17/97 hearing , the following information is respectfully submitted:

Good Attendance at Medical Board by both public and professional
appointees but NO attendance by the public at these public meetings

As attested to by Stewart Hsieh, J.D., current president and public member of the MBC, there is excellent attendance at scheduled board meetings by both physician appointees and the public members. The problem is that there is virtually NO public attendance at these public meeting. Considering that the MBC is the single most influential agency in regard to health care for 32,000.000 California citizens, this total lack of citizen participation is a serious problem. I was present at a general meeting of the MBC (which consists of a panel of 19 appointees) which had a total of only 8 people in attendance -- 5 of those present were agency staff, 2 were CMA lobbyists and myself -- the only actual "citizen" present. 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.

Request for Medical Board to broadcast their
meetings on public-access cable television

Some time ago I asked for the Medical Board to broadcast their meeting on public-access cable as are legislative functions. After consideration of this proposal the agency concluded that it did not have the funds. At the very least I would like to see the meetings video taped (as are Senate hearing) so that tapes of these preceding could be made available to citizen and professional groups who request them in an effort to keep their membership informed. I urge the Legislature to consider funding the broadcast/or taping of quarterly Board meeting as an important method to increase public awareness, consumer participation and public oversight.

Historically Medical Board was Interdisciplinary and Appointed
from a List Presented to Governor by Professional Associations

The current composition of the medical board -- 12 MDs and 7 public members -- represents an acute departure from the historical foundation of medical regulation as reflected in the original legislation passed by the California Legislature. Historically the office of medical examiners was an interdisciplinary board comprised of physicians who represented the various medical disciplines of allopathic, osteopathic, homeopathic, naturopathic and what was referred to as the "eclectic" school of medicine. Its members were chosen by the governor from lists presented to him by the various professional groups. He could only appoint those who had been recommended by their organization.

This was abruptly changed as a result of the 1910 Flexnor Report, which contained recommendations for "reform" as defined and promoted from behind the scenes by organized medicine. The Flexnor Report not only elevated a particular version of allopathic medicine but also sought to eliminate or take control of all medical schools which taught other forms of the healing arts. Based on these unproven theories as advanced by the AMA’s medical education committee, the California Medical Practices Act of 1913 repealed the interdisciplinary board of medical examiners and replaced it with an all-MD board. Subsequently all appointments to the Board were by the governor without input from any members of the public. Since 1913 an all-MD board has regulated not only its own allopathic medical profession but also 19 other health professions including the most recent addition, the licensed midwifery program. In 1980 legislation added seven public members to the all allopathic board but this statutes prohibits the appointment of any non-physician practitioner who is a licentiate of the medical board, thus excluding allied-heath practitioners from membership on the board that regulates their profession. A few of these allied health professions have been authorized to establish quasi-independent boards but many others, including midwives, have not.

Recent Midwifery Legislation
had nothing to do with HMOs

You expressed the opinion that the recent Midwifery Practice Act was passed to enable HMOs to employ midwives. This is not actually the case. Licensed midwifery legislation came about in an effort to stop 2 decades of criminal prosecution of traditional midwives by the Medical Board. Also, the current midwifery law was not written by midwives. During the legislative process the bill was taken over by the CMA and re-written to the benefit of the medical profession and the detriment of midwives. The CMA version of the bill assigned the regulation of midwifery to the Medical Board even though midwives are statutorily prevented from being appointed to the governing board. This results in regulation without representation. The new midwifery law also has nothing to do with midwives being able to restrict midwifery practice (the law doesn’t prevent family members or other lay persons from assisting a women during normal birth) or with midwives being hired by HMOs to provide cheaper care. In fact, licensed midwives are not able to be employed within a hospital setting without further training as they are not nurses. Also the statute was purposely configured by its CMA authors so as to prevent midwives from being able to secure malpractice insurance which means that HMO won’t refer patients to community midwives or reimburse them for services rendered. The statute creates the appearance of great change while in fact, it functions as to institutionalized the status quo to the benefit of the obstetrical profession as it blocks the profession of midwifery from being integrated into the mainstream healthcare system as providers of high-quality, cost-effective maternity care.

Ratio of Revocation to Total Physician Licentiates

Yesterday’s hearing focused conversation on the number of medical licenses revoked or surrendered and whether or not the current level of agency discipline fulfills the legislative mandate to protect the public. I believe the numbers quoted were a total of 133 revocations out of 104,000 California-licensed physicians. On the face of it this may seen to be a ridiculously low and ineffective ratio but it really does not tell the whole story. Just from a numerical standpoint, it should be pointed out that fully one quarter of those licenses are held by physicians who are no longer California residents and do not practice in the state. Of the 79,048 licentiates still residing in the state many are engaged in administrative duties, retired or semi-retired and maintain an active license only so they can occasionally volunteer their services but rarely treat patients.

Whatever the problems of public safety are ---
disciplinary quotas are NOT the answer.

A quota of revocations based on a ratio of licentiates would not guarantee or improve patient safety and is not utilized in other professions such as airline pilots, attorneys or politicians. The current MBC focus on "numbers" merely brings about a body count mentality and results in a "dog on a bone" quality in an effort to improve the ranking of the Board as contrasted with other states. The effect is an inappropriate prosecution of a significant number of physicians stemming from the use of unconventional or unorthodox practices. This is not only unfair to the unfortunate few who are personally affected but it is also detrimental to the goal and mission of the Medical Board. It does not solve the problem of seriously impaired or incompetent physicians while it unnecessarily creates a culture of fear among ordinarily competent practitioners.

Culture of Fear Not Protective of Public Safety

Truly reprobate practitioners don’t care what the Medical board thinks and go merrily on their way unencumbered by conscience, confident in their ability to avoid detection. Unfortunately, it is the conscientious and competent doctors (the majority of practitioners) which are disproportionally influenced by the climate of fear. Patients are denied treatments (or must pay out of pocket to unlicensed caregivers or go out of state) due to fear by good physicians of being censored for using (or advising) treatments that might not be on the Medical Board’s list of "approved" therapies. The attempt by the MBC to be numerically "first" in medical board disciplinary actions is counter-productive. As a former nurse only too familiar with the wide-spread problems of substandard medical care, I would instead recommend that the state of California strive to have the LOWEST number of revoked licenses as a tribute to what a good job the MBC was doing in mentoring its physicians.

Unintended Consequence of Escalating Severity
and the Theory of Diminishing Returns

It is easy to get sucked down into the morass of numbers as a measure of agency effectiveness -- both in actions taken and in how long it takes for the agency to conclude its disciplinary efforts -- but that is a tunnel with no cheese at the end. Given then the finite nature of time and money, the constitutional guarantee of due process and the statutory necessity to prove culpability via a standard of "clear and convincing evidence", the theory of diminishing returns will soon (if it hasn’t already) result in the Board spending more and more to do less and less.

13,000 % Increase in Licensure Revocations by MBC over 6 year span

Discipline, in the truest since of the word, should be the legislative mandate for this regulatory agency instead of the current policies and protocols of a medical law enforcement agency. In the last 6 years California citizens have seen the activities of the Board go from the extreme of an "old boys network" of "see no evil" lassie-fair discipline characteristic of the agency before 1991 (revoking only 4 physician licenses in 3 years) to the current the high-profile numbers game, exacerbated by cost-recover financial considerations, in which more than 2,039 investigations and 567 cases referred for prosecutions in FY 96-97. Both extremes miss the boat when it comes to protecting consumer safety and practitioner rights.

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 abuse. At the planned hospital birth of my Goddaughter's 3 baby, I was 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 reached for scissors to cut a medically unnecessary episiotomy without any 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. I was present on another occasion when a doctor told a family that their baby was brain dead when if fact it was only suffering from a very treatable case of pneumonia. He later explained that he was merely giving the parents a "verbal spanking" for what he considered poor choices surrounding the birth of the baby. No consequences are accruing to physicians such as these while physicians of integrity face the loss of their license for using "non-standard" care. This does not protect the public despite spending lots of money on the effort!

What is painfully absent from the 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 to advance positive goals.

Only 39 Letter of Public Reprimand Issued while
133 Licenses Revoked or Surrendered

In this regard I bring your attention to another number provided during Monday’s Hearing by the executive director, Ron Joseph, which I believe to be the "missing link" to excellent, effective and compassionate oversight of physicians while vastly improving consumer protection and that is the issuance of "Public Letters of Reprimand" -- an administrative action which the MBC is authorized to employ. While generally opposing quotas in licensure revocation, it seems appropriate that "early intervention" should result in a ratio of many more "warning" (3 to 1 or more) than revocations.

Early Intervention Actions should be Frequent
with Revocations being Rare

With 567 actions taken by the Board, one would expect no less than 1500 Letter of Public Reprimands. However, only 25 physicians were subject to medical reviews and only 39 LPR were issued out of the 425 "actions" taken by the Board. It is disturbing that three times more doctors lost their licenses than received an official "warning" of any kind. While10,123 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 completely unaddressed and uncorrected. At the same time hundreds of doctors are experiencing punitive actions by the Board without receiving a warning or having any remedial or rehabilitative action by the agency precede 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 to me that "you couldn’t get some fired from the phone company like that". And indeed, they are right.

Diversion Program for substance abusers not replicated in
similar system of Early Intervention in "Quality of Care" Issues

Benefits and special protections of the Diversion Program are denied to temperate physicians as the current definition of "diversion" carves out a special niche favoring those with substance abuse or inappropriate sexual behavior while the physician charged with a simple mistake of some sort (either in judgment or the carrying out of treatment) are afforded none of these protections and remedial opportunities. In the current system, doctors and allied health practitioners with a spotless record (30 years of practice without a single complaint or a single law suit) face the revocation of license as a result of a single complaint or incident. They had no "fair warning" or other opportunity to modify their practice or to verify their innocence in a non-prejudiced interaction with the staff of the MBC.

Real Diversion -- Correction before Selection for Prosecution

A specific improvement would be to utilize "Letters of Public Reprimand" as a first line or "early intervention" response. This is the perfect place for physicians or other medically-educated employees of the Board to review "quality of care" complaints, interview the patient or complaining party by phone when possible, communicate with the doctor and where appropriate, recommend remedial action.

This is also the preferred place grapple with the conflicting professional opinions surrounding use of "alternative" medicine -- abet 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 expenses accompanying legal action.

There is an excellent historical precedent for this in the Medical Practice Act and amendments spanning 1876 to 1913. 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 medicine and the word "medical" has become synonymous with allopathic treatment with prescription drugs and surgery. Under the original medical regulation as passed by the California Legislature, each distinct discipline or "school of medicine" had its own "medical examiners" 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. It seems wise to reinstate this sensible method now when more than 50% of all healthcare visits are to "alternative" practitioners. Interestingly enough, the Medical Practices Act still contains language which prevents "discrimination" against the various "schools (philosophy) of medicine"

LPR -- Preventive Medicine/Preventive Discipline

The most elemental and cost-effective form of "diversion" should be this system of "early intervention" as provided by increased use of Letters of Public Reprimand. This would be a superior, cost-effective system in regard to physician practitioners, would permit fair warning to "offenders" by giving them an opportunity to correct the problem and would actually serve the public as a form of "preventative discipline".

"Electronic Incident Reports" -- a method of Tracking patterns of
substandard care through as an element of Early Intervention

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. If the MBC doesn’t provide this kind of opportunity to California residents, the Washington-state consumer group, Public Citizen, will rush in to fill the vacuum with an Internet version of their popular book cataloging what they consider to be "bad doctors". I would much prefer to see this in the hands of the MBC as private information to be shared with the offending doctors rather then something published on the Internet by others. Nurses and other hospital employees also need a system that permits the equivalent of "incident" reports to be filed at the state level which record questionable aspects of medical care which they frequently observe as a part of their employment. 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 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.

This is true to the concept of "diversion" and is in the best interest of errant physicians as well as the community they serve. It would also help prevent situations such as Dr. Swongo, now thought guilty of killing more than 60 patients in various hospitals all over the east coast over the course of 11 years after a felony conviction for poisoning his co-workers. This doctor was fired from several hospitals because of suspicious behavior but there was no central record of these occurrences to prevent other institutions from hiring him. You can bet that this wouldn’t happened if his records had been in the hands of the DMV and the issue had been a driver’s license instead of a medical license!

Speaking from my experience as a nurse in acute care hospitals over a course of 20 years, I can tell you that the more draconian the "disciplinary" process becomes, the more and more people are hesitant --especially doctors, nurses and other healthcare workers -- to make a timely compliant (as in Dr. Swongo’s case). This is the unintended consequence of ever escalating severity of regulatory efforts. Practically speaking it means that no one deals with little problems and patterns -- we 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 competent, compassionate medical practice.

The liberal use of Letters of Public Reprimand is the most cost-effective, common-sense approach to deal with these identified problems -- one which both serves the public interests and could well make California an innovator and leader in the field of medical discipline.

faith gibson, licensed community midwife #041

cc:
All members -- Joint Legislative Sunset Review Committee
Julia DeAngelo-Fellmeth, JD, Center for Public Interest Law
Frank Cuny, State Coordinator, Citizens for Health
Ron Joseph, Director, MBC
Steward Hsieh, JD, President, MBC
Dr. Joas, MD, President Elect, MBC
Bruce Hasenkamp, JD, Member, MBC
Scott Fyphax, California Medical Association