Medical board is too slow to discipline physicians, some critics say

Rancho Cordova doctor Wu-Hsiung Su misdiagnosed a lump in a patient's breast in 2003 and failed to follow up on her condition. She died from cancer in 2007.

Her family filed a complaint with the Medical Board of California in 2008. Two years later, the agency filed a public accusation against the doctor.

Su's license was not suspended until November 2010, after the agency had found two more complaints of missed diagnoses by Su, including another one for a patient who died. Investigators also discovered a two-decade history of negligent care that included discipline for missed diagnoses in Rhode Island and discipline in California for failure to report that history when he applied for a license here.

One of 13 Sacramento-area doctors disciplined by the medical board in the last fiscal year, Su is an extreme case in the Sacramento region, where 6,363 doctors practice medicine.

But his case also shows how slowly the medical board works – and raises questions about its ability to keep up with complaints when millions more Californians have insurance and seek care next year under the Affordable Care Act.

California's pending Medical Board bills – Five recently revoked local medical licenses

While the health care industry is performing contortions in an effort to be accountable under health reform, the Medical Board of California is falling down on the job, critics say. The discussion is intensifying because the Legislature has to renew the board every 10 years; if lawmakers decline to do so, it will shut down in December.

Consumer groups mobbed a March 11 hearing at the Capitol to criticize the board over failure to protect patients from doctors who overprescribe dangerous pain killer drugs. Others have raised questions about what the board does to crack down on bad doctors, while Consumer Watchdog president Jamie Court blasts the physician-controlled board as "a political-protection racket for the state's worst physicians."

Sen. Curren Price, chairman of the Senate Business, Professions and Economic Development Committee, says he's ready to pull the plug on the board if it does not respond to issues raised by critics.

"As health care reform is implemented under the federal Affordable Care Act in California, it is imperative that the Medical Board of California take a more proactive approach to its consumer protection mission," Price said in a statement. "The consumers deserve a proactive medical board that places patient protection and interests first, ahead of physicians' interests."

Medical board supporters, including the California Medical Association, note the state hampered enforcement efforts by borrowing $15 million from the medical board budget, prompting understaffing while state-mandated furloughs further crippled the program.

The agency's executive director, Linda Whitney, says the agency is "trying the best we can with the resources we have – and are always looking for ways to be more efficient."

Lawsuits less of an option

Complaints about the medical board aren't new, but some say the stakes are higher today.

The current program was the product of a special session of the state Legislature in 1975 that produced the Medical Injury and Compensation Reform Act, better known as MICRA.

The law included tort reform that capped non-economic damages at $250,000. The same figure holds today, prompting fewer lawyers to take expensive, time-intensive medical malpractice cases with a limited payoff.

"The reality is, sadly, that civil cases often are not waged," said Eric Bailey, a spokesman for Consumer Attorneys of California.

This puts pressure on the medical board to be a strong regulator. The pending deluge of new patients into a health care system with a doctor shortage heightens the stakes as federal health reform unfolds.

Data on the board's enforcement record is mixed.

The board opened 40 percent fewer investigations in the last fiscal year than it did a decade ago, even though it has 13 percent more doctors to police.

Yet disciplinary action was taken against 393 doctors, up 50.6 percent from 261 in fiscal 2001-02, according to board annual reports. But it took 43 percent longer to process a complaint and 33 percent longer to complete an investigation last year than a decade ago.

Nationwide, California is about the middle of the pack in the number of serious disciplinary actions per thousand doctors. It ranked No. 28 out of 51 in the 2012 report by Public Citizen, a nonprofit consumer advocacy organization in Washington, D.C. Serious actions include revocations, surrenders, suspensions,
probations and other restrictions on a doctor's license.

Discipline is a balancing act between protecting the public and the rights of physicians.

"There are problem doctors, to be sure, but they should not drive policy," said lawyer Tim Aspinwall, a partner in the Sacramento office of Nossaman LLP who represents doctors and others before the medical board.

"Professional discipline of any type can jeopardize a health care professional's career," Aspinwall added. "Collateral consequences for physicians are the part you never hear about."

Dr. James Hay, past president of the California Medical Association, also worries that the state could drive away doctors if it goes overboard.

"We don't want to create an environment that is so difficult that physicians want to quit practice or not practice here," he said. "We have to find a balance."

The problem is when bad doctors aren't stopped, the number of victims grows.

Dr. Efrain Gonzalez was under investigation for more than 18 months for gross negligence related to care provided for a patient at his Rocklin cosmetic surgery clinic in 2010 when he was arrested last month. Meanwhile, the accusation mushroomed from negligent care of one patient to 15.

The high-profile local case raises questions about the toll of delayed action, says a longtime critic.

"This is appalling," said Julie D'Angelo Fellmeth, supervising attorney at the Center for Public Interest Law at University of San Diego and a former state monitor of the medical board, questioning why the board didn't suspend his license to stop him from practicing while the case was investigated. The board did so March 25.

On Monday Gonzalez pleaded not guilty to 37 felony charges including grand theft and mayhem.

Chronic staff shortage

Nobody expects California will shut down the medical board – not even Court at Consumer Watchdog.

In his version of reform, "The body would still exist – what goes is the board," he said. "This is more of a political statement that gets the board reformulated."

Others call for more money and more staff.

"To start, give back the $15 million the state borrowed from the board," said Hay. "They are doing as well as they can with the resources they have, but need to expand and move faster."

Faced with multibillion-dollar deficits, the state lifted $6 million from medical board coffers in fiscal 2008-09 and another $9 million in 2011-12, Whitney said. The agency was hit by state-mandated layoffs and furloughs, too. Currently, there is a 7 percent vacancy rate in investigators and 10 percent vacancy rate in supervisors.

Beside funding and staffing, needs identified by Sen. Price and others include:

· More aggressive enforcement. Critics say the board settles cases with disciplined doctors for penalties and conditions below its own disciplinary guidelines.
· Better cooperation with the Attorney General's office, which works up the legal cases against wayward doctors. Vertical enforcement, an approach mandated by state law since 2005, has never been fully implemented and the two agencies still have different computer systems that don't talk to each other.
· Uniform substance-abuse standards. When the board pulled the plug on its physician diversion program in 2007, state law required a committee to be established to develop uniform standards for state boards that oversee health care providers. The medical board hasn't done this.
· Greater oversight of surgical clinics. Critics say it's not clear that the board has complied with a 2011 state law that requires it to adopt rules about physician oversight in this setting.
· Use of interim suspensions to stop doctors from practicing while under investigation if it appears public safety is at risk. Critics say the board is slow to get these orders; medical board figures show an average of 23 has been issued annually over the last three years, down from 40 a decade ago.

"We call on the Medical Board of California to take a more proactive approach to its consumer protection mission in the areas above," Price wrote in an April 1 letter to the board.

One issue is the composition of the board, which at full strength has 15 members, eight of them doctors and seven representatives of the public. The current board has four vacancies, tipping the scales at seven doctors to four public members.

Hay disputes charges that the California Medical Association has undue influence over the medical board, though.

"There is dialogue – and there should be," he said. "The idea the CMA has undue influence – to us – is not supported."

The CMA supports efforts to identify doctors who violate the Medical Practice Act, he said. "We don't support witch hunts based on media reports that case a wide net over legally practicing doctors."

Why do medical board investigations take so long? After a patient or family member files a complaint with the medical board, a board analyst will decide if an investigation is necessary. If so, the case will be referred to the relevant district office.

It can take several months to resolve the complaint – not including the time for a formal investigation and accusation to be filed. Here's why:

· If the complaint relates to quality of care, the board will need copies of medical records. This requires a signed release from the patient, a request for the medical records and written summary from each of the treating providers.
· Only then will the case be forwarded to a consulting physician for review. After that, the case will be closed or referred for further investigation.
· If investigators believe a violation occurred, the case will be submitted to the Office of the Attorney General for a formal accusation.
· Once that's filed, the doctor has rights to a hearing – and time to prepare for it.

By the numbers 

365 = Number of serious disciplinary actions per 1,000 physicians in California (2011).
2.86 = Number of serious disciplinary actions per 1,000 physicians in California (average from 2009 to 2011).
28 = California's rank among 50 states and the District of Columbia in disciplinary actions per 1,000 physicians (2009-2011). Wyoming was No. 1 at 6.79 per 1,000; South Carolina was No. 51 at 1.33 per 1,000.