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California Struggles With Delay In Doctor Discipline; Despite Effort At Reform, Cases Are Taking Longer To Resolve

SACRAMENTO BUSINESS JOURNAL

Three years after lawmakers threatened to pull the plug on the Medical Board of California over slow enforcement of doctor discipline, the problem is worse.

Formal accusations filed in the last fiscal year took an average of 532 days to complete. That's up nearly 11 percent from 2013, when the Legislature mandated reform.

Settlements took an average of nearly three years, up 12 percent. Court hearings and appeals add further delay.

Delays matter because bad doctors can kill people - and good doctors unjustly accused can lose their livelihood. Hospitals and medical groups that oversee doctors also have a stake in quality of care and feel the effects of disciplinary action.

The latest data, contained in a March 1 report to the Legislature, shows that one important consumer protection improved: The average time for the agency to suspend a license was cut by a third. But this action, used to stop dangerous doctors quickly, still took on average nearly eight months.

"Consumer protection is the highest mandate at the board," executive director Kimberly Kirchmayer said. "But we have to balance that with physician rights. We do what we need to get doctors to comply immediately or get an interim suspension order."

The report to the Legislature had other bright spots: More accusations were filed, and the agency cracked down harder on doctors who overprescribe pain medication. But overall, the record suggests that changes made since acrimonious sunset hearings in 2013 have had little effect.

Both consumer advocates and lawyers who defend doctors are unhappy with the agency. A complex system meant to help board investigators work with the attorney general's office and the state Department of Consumer Affairs is widely panned. Communication problems and high staff turnover hamper progress.

"We've still got the same slow process the Legislature said three years ago put patients at risk," said Carmen Balber, executive director at Consumer Watchdog. It's very concerning."

A mandate for change

The medical board faces new scrutiny over its enforcement program because legislation signed in 2013 required changes in the way discipline is handled. Most importantly, medical board investigators were moved from the doctor-controlled board to a new unit in the Department of Consumer Affairs in July 2014.

Whether that's made a difference is unclear. Most people do the same work as before - and still have to coordinate with lawyers in the Office of the Attorney General who prosecute the cases.

The medical board still gets initial complaints and makes final decisions on civil discipline. Doctors charged with criminal activity may face other consequences imposed by the court.

"It just added a third party. It didn't raise the bar," said Julie D'Angelo-Fellmeth, administrative director at the University of San Diego's Center for Public Interest Law and a former medical board enforcement monitor for the Department of Consumer Affairs.

Some attorneys who represent doctors see a new "gotcha" mentality that's cranked up enforcement numbers by going after technical violations like poor record-keeping.

"It's become a very retaliatory system where the focus is on punishing physicians rather than looking at what is necessary to protect public safety," Sacramento attorney Dominique Pollara said. "It's not supposed to be a punitive system. If there's a problem, you are supposed to find a way to fix it."

Coordination problems hurt effort

Ten years ago, lawmakers ordered medical board staff members who investigate complaints to work more closely with lawyers in the Office of the Attorney General who prosecute the cases.

Since then, complaints have been jointly assigned to a medical board investigator and a deputy attorney general. The idea is to anticipate issues, speed up prosecution and save money.

Though widely praised as a philosophy, so-called "vertical enforcement" never really took off, say many people involved in the process.

Investigators and prosecutors work in different offices. Their computer systems don't communicate. And both are protective of their turf.

The initial plan to move medical board investigators to the Office of the Attorney General never happened. Budget fights among government agencies and the expense of reclassifying and relocating medical board employees apparently nixed the deal.

The medical board spent $18.6 million over the last decade to pay lawyers at the Office of the Attorney General to direct investigations. But this doesn't include money spent by the medical board or Department of Consumer Affairs to conduct the investigations.

"Vertical enforcement is not how government agencies typically do things," said Steve Simas, a former deputy attorney general who now represents doctors in private practice. The way many prosecutors see the process, he said: "You walk into the office, see a folder on your desk about Dr. Smith and are supposed to litigate it."

The switch to the Department of Consumer Affairs didn't really change that, sources say. It added another player and more communication issues.

"I think it's silly," said Stephen Boreman, another former deputy attorney general who now represents doctors. "There is a coordination issue between the attorney general's office and folks at consumer affairs. The deputy at the district office is supposed to monitor cases. Pretty hard if they don't report to you or the same bosses or same department. It's kind of inefficient."

Efforts are underway to improve communication by creating a secure cloud-based system to share documents. But the program is still under development.

Staff turnover an issue

Part of the problem is chronic short staffing at both agencies.

Medical board investigators struggle to manage up to 45 cases each. The Attorney General's office faces a similar problem, with nearly 30 percent of its positions vacant at times.

Turnover slows the work because overburdened workers have to pick up unfamiliar cases, said supervising deputy attorney general Gloria Castro at a medical board enforcement meeting in Sacramento in January.

 

"This affects our ability to complete investigations, thereby drastically delaying public protection."

Balber, of Consumer Watchdog, is unsympathetic.

"There are many perks to state work that outweigh - and are intended to balance - typically lower salaries than the private sector," she said. "I find it very difficult to believe there are not unemployed lawyers in California qualified to prosecute these cases."

The medical board is self-supporting: All its annual revenue - almost $60 million in 2014-15 - comes from doctor license renewals and other fees. Half the budget is spent on enforcement.

The board could hike fees, Kirchmayer said, but staffing changes go through several government agencies and take about 18 months.

The annual licensing fee is $491, and hikes are unpopular with doctors.

"CMA supports having a fair and well-functioning administrative disciplinary system, and we track and closely monitor how vertical enforcement has been implemented," spokeswoman Molly Weedn said in an email. "We want to make sure those funds are expended appropriately."

A cloud over doctors

Defense attorneys care less about how the process works than outcomes and attitudes toward their clients.
"It has absolutely gotten worse because it's become very political," said attorney Pollara. "It's driving good people from practice. I see clients who have to spend thousands and thousands of dollars defending themselves in one-patient accusations."

There are business implications, too. Doctors must renew their credentials every two years. Medical groups and other employers check physician records when it's their turn.

"If the case is hanging open, that puts a cloud over you," said Sacramento defense lawyer Robert Sullivan.

Dr. Michael McNamara, chairman of the peer review committee at Hill Physicians Medical Group Inc., said the group checks for disciplinary action when a new doctor is hired or an existing member needs credential review. Questions about quality of care can nix the deal. Hill backfills gaps in its provider network by contracting out.

"Does suspension put an economic hardship on the organization? It certainly does," he said.

By law, the medical board has seven years from the time an incident occurs to file an accusation against a doctor.

"Why seven years?" posed Sacramento defense lawyer Donna Low. "Critical evidence can be lost. This is another due-process issue for the doctor - and it breeds inefficiency."

Case studies: Complaints take years to resolve

The Medical Board of California disciplined 21 of about 6,700 active doctors in the Sacramento area in fiscal year 2014-15.

Sometimes board action was fairly quick. Other times, problems played out over years. Here are three examples of lengthier cases:

 

James Clopton
The El Dorado Hills psychiatrist lost his license in October 2014 for overprescribing pain medications and other drugs as far back as 2007. One patient died from a drug overdose.

The first complaint about Clopton was filed in May 2011, more than three years earlier. An accusation filed in March 2014 alleges he did not conduct physical exams or keep accurate records. The only medical equipment in his office was a blood-pressure cuff.

Clopton represented himself before the medical board. Efforts to reach him were unsuccessful.

Lawrence Foster
The South Lake Tahoe cosmetic surgeon surrendered his license in January 2015 following allegations of gross negligence in his treatment of five patients going back to 2009. The first accusation was filed April 7, 2011, more than three years before he surrendered his license.

One reason for delay in disciplinary action was the board filed an amended complaint in June 2014 that included new patients and information, defense attorney Albert Garcia said. He got a postponement so he could prepare a defense. Ultimately, Foster decided to give up his license and retire instead.

Allen Hassan
The Sacramento family-medicine doctor received five years probation in February 2015 for over-prescribing painkillers and other medications to four patients going back to June 2010, including a heroin addict he allowed to live behind his office. The case started with a 2013 accusation.

The board suspended his license on Jan. 7, 2016, for failure to pass a neurological exam and attend training classes required under that agreement. He faces proceedings to revoke his probation and lose his license permanently.
Hassan did not return phone calls to talk about his case.

Medical board wins praise for focus on substance abuse

The Medical Board of California is earning praise for increasing discipline of doctors who overprescribe pain medication - a problem that has been blamed for deaths nationwide.

"The medical board is actively pursuing overprescribing doctors and not just sitting there, waiting for ... people to die," said Carmen Balber, executive director at Consumer Watchdog. That "is a change in culture."

Records show the medical board disciplined 47 doctors in the 2014-15 fiscal year for inappropriate prescribing, up from 24 five years earlier.

She credits a new executive director at the medical board, Kimberly Kirchmayer, with the change of direction.
Also helping is a revamped database of controlled-substance prescriptions. The program helps identify consumers who get multiple prescriptions from multiple doctors or pharmacies - and the doctors who write them.

"This is so, so important," Kirchmayer said. In one extreme case, she said, a patient obtained 636 prescriptions for controlled substances from 116 prescribers and 76 pharmacies over a four-year period.

Enforcement against doctors who misuse drugs and alcohol also is up. Numbers have risen since 2008, when the board did away with a confidential diversion program after five critical audits and a number of failed attempts to make it more effective.

In the five years that followed, the number of doctors the board disciplined for misusing drugs or alcohol themselves rose from 30 to 47.