SENATE MEDICAL OVERSIGHT - On Jan 1, 2024 MBC will cease to exist without legislation continuing its operations.
The goal for our discussions is to determine the best case and best course forward for this board moving into our Sunset Review (SR) oversight work next year to better inform our SR discussion.”
According to Senator Richard Roth (Riverside) who is chairman of the Senate Committee on Business, Professions, and Economic Development, he has “uncovered some systemic issues in the fundamental internal processes within the board, which negatively impact the board’s ability to function effectively. MBC must quickly and effectively investigate complaints, especially patient complaints. There must be consistent standards for both discipline and relief from discipline. We need to explore what if anything serves as an obstacle to MBC considering particularly egregious offenses as grounds for permanent revocation of a physician’s license.” He commits to uncovering root causes of dysfunction and ensuring the MBC has tools to pursue physicians who put the public at risk.
Senators Roth and Dave Min, (Irvine), and Assemblyman Marc Berman, (Palo Alto) earnestly participated. Eleven members were not present and did not call in with questions. Senator Min wondered if we have overemphasized the rights of physicians, vis-à-vis the rights of victims.
Department of Consumer Affairs (DCA) and Attorney General (AG)
Kathleen Nicholls of DCA Health Quality Investigation Unit gave a presentation re: investigations. Ms. Nicholls mentioned sexual misconduct and prescribing cases, and gave timelines for best-and-worst-case scenarios. Gloria Castro from the AG’s office said sexual misconduct cases against doctors are the most critical cases they handle for the state. Neither speaker mentioned surgical assault, deaths, medical scams, corrupt experts, or falsified records.
Senator Roth asked, “When a physician is convicted of a crime; we have to show substantial relatedness in order to take action on a license, versus for those of us lawyers, conviction of a felony involving crimes of moral turpitude is specifically listed as a basis for serious disciplinary action, including license revocation or suspension. What accounts for the difference? Is there something different about physicians than lawyers and other licensed professionals?”
Senator Roth asked Ms. Castro why there appear to have been significant departures from the MBC published disciplinary guidelines in some settlement cases. Ms. Castro said that public protection is the goal of the MBC, while also considering rehabilitation as a priority. “They (MBC) would like to keep the doctor in practice.” Ms. Castro said they settle a bunch of cases by default and stipulate others, but, she claims, the AG is not the ultimate arbiter, it is the board.
The MBC would like to keep the doctor in practice. But what about keeping the public safe as the top priority?
MBC - Preponderance of Evidence vs. Clear and Convincing Evidence
President Kristina Lawson said MBC, which ranks 33rd in the nation, is at a disadvantage to 41 other boards that use preponderance of evidence, (POE), versus clear and convincing evidence. If California changes to POE, fewer cases will be closed due to insufficient evidence. Senator Roth expressed concern that cases of revocation will terminate a doctor’s ability to practice the profession they spent a significant amount of time and effort gaining access to and probably practicing. He suggested possibly applying two different standards depending on severity and matter of the complaint, but MBC staff said the standard needs to be uniform; cases are fluid.
It was discussed that current mandatory reporting is not sufficient for public protection. If any organization takes severe adverse action against a doctor, the MBC should be made aware.
Physician Requests for Leniency
Physicians may ask the MBC to get their license back or shorten probation. In 2021, MBC spent nearly a million dollars for litigation and hearing expenses re: these requests. The board approves about half of the petitions received and does not recover costs. MBC wants to extend amount of time after imposition of discipline, as they say it will increase likelihood of rehabilitation.
Complainant Participation and Complainant Advocate
The legislators expressed interest in developing a complainant liaison unit, perhaps an Ombudsman, to assist complainants. President Lawson said, “this is top of mind for MBC.” Senator Roth suggested the board, “put the meat on the bone and submit a proposal.”
Transparency and explanations
Senator Roth wants access to MBC disciplinary case results - the nature of the initial complaint, facts, discipline imposed, and rationale for specific disciple - to learn which provisions of the Medical Practice Act drive decisions. In order to evaluate obstacles, the B & P committee needs to know why specific types of cases settle, and some deviate from the disciplinary guidelines.
Ms. Lawson said the board acts in a quasi-judicial, non-linear manner. She cited confidentiality issues as a reason for non-transparency. Roth persisted, “For our purposes, the only thing that is relevant are the facts that were found, and if there is any explanation for the difference.”
Even with an aggregate report, individuals and legislators will not find out why cases are dropped. Why ‘mitigating circumstances’ was cited, when there is no mitigation to assault or negligent death. The MBC process should be fully transparent to consumers. At least they should be able to request that the B & P Committee review their case alongside them. Quasi-private.
Ms. Lawson and Senator Roth discussed whether complainants should have the opportunity to address board members with a victim’s statement. Ms. Lawson said complainants provide key evidence and case testimony and MBC members are neutral decision makers. She said currently a summary is provided to board members for decisions and that lack of cross examination “could violate due process of our licensees and subject MBC decisions to judicial challenge.” Senator Roth clarified that victim statements come at sentencing. He wishes to revisit this topic.
California Medical Association
Dennis Cuevas-Romero, the legislative advocate from the CMA, objected to lowering the evidentiary standard. He focused on the length of time physicians go to school and their educational debt. He said with peace officers, clear and convincing standard is the standard.
Cuevas-Romero also suggested potentially funding the MBC with general fund dollars. CMA had blocked reasonable fee increase for doctors to pay MBC for their licenses and renewals leaving the MBC lacking necessary funds.; now he suggests taxpayers shoulder this expense.
TJ Watkins, Public Board Member
Mr. Watkins, MBC whistleblower, explained the board’s decision-making process takes over when the executive officer gets information from the AG’s office. “It is very evident that both in the procedural and decision-making process there are failures and that accounts for the statistical proof of why we have a record at the medical board that out of 10,000+ complaints we only give probationary periods 1 - 2 % of the time… there is zero oversight on us as board members in our decision-making process and that process is protected under legal veil.”
He explained that the probationary period is the most deterrent of the disciplinary guidelines. According to Mr. Watkins, board members are corralled into a place of powerlessness and left with no other opportunity but to agree with the Deputy AG (DAG) memos that are “fraught with omissions, commissions, and hiding facts.” That is why the board rubber stamps 98% of all recommendations made by the DAG. “This board is not making independent decisions.”
Mr. Watkins strongly supports offering consumers equal rights to doctors, “Right now, they have zero. We ignore them in the process we do not consider them.”
He suggests a yearly mini audit of decisions board members make. “It does not have to be public. It has to give guidance to the legislature as to how to better regulate us. If more public members are added to the board, but they enter to the same dynamic that the panels and the board are currently operating in, we will have the same results we've had for twenty-five years.”
Mr. Watkins is the only board member that has ever spoken out. He says there are many more qualified attorneys, etc. that proceeded him that know that this doesn't feel right. “The facts on the table do not justify the outcomes of our decisions.” He feels the AG presented a utopian scenario. He suggests everybody become honest about the problems. “The people that are in this process can scream and shout, but because they don't have a legal right, they don't get heard.”
Consumers testified about medical battery, death of loved ones, acute poly drug intoxication, gadolinium toxicity, unlawful removal of parental rights, refusal to diagnose or treat, death due to a doctor on crack cocaine, loss of quality of life, careers, and income. Multiple consumers said that those harmed have the right to their life and livelihood, but our civil rights have been eroded, while the board focuses on keeping doctors who cause horrific, preventable harm working.
One woman asked, “how can we get evidence when records are falsified?”
Numerous public callers requested support, communication, (including being interviewed at crucial junctures throughout the process), justice, and prevention from the board. Also, an appeal process, accurate public reporting of malpractice settlements, victim impact statements, an advocate on the board, and compassionate and informed investigators and staff.
Multiple consumers voiced support for preponderance of evidence for all cases. Complainants often explain they provide declarations of negligence and clear and convincing evidence, yet the MBC fails to act in many cases. There was solid support for transparency and aggregate reports. Too many doctors who harm are given too many chances; they fabricate their notes, lie to the board, lie in court for each other, leaving Californians at risk.
Several consumers testified they believe doctors should be required to fulfill the full probationary period, and they supported a public member majority on the board. They honestly of the CMA and MBC were questioned. Eric Andrist, activist, said guidelines should be orders, not negotiating tools. “The board acts like they do nothing wrong. If they can’t even admit they are wrong, how can they ever come up with their own solutions to fix the problems?”
Items discussed in the hearing:
What can you do? Follow my articles, read 4patientsafety.org, listen to Ralph Nader. Support friends and family injured by doctors. Join the patient safety movement.
(Sasha Lauren, author of The Paris Predicament, is a patient safety educator and Citywatch contributor. As a L.M.T. she gave over 30,000 sessions of therapeutic massage and taught massage, relaxation, and behavioral health skills. Her approach is holistic and preventative. The information presented in this article is not for personal medical or legal advice or instruction.)