By Cheryl Clark, MEDPAGE TODAY
June 4, 2021
The agency that licenses 152,000 California physicians is facing a crisis of public confidence, with the voices of several lawmakers joining those of angry patients who say it shields bad doctors far too often.
The long-simmering tension has increased to such an extent that all but a few of the Medical Board of California's 15 members -- including many of its physician members -- say most of the board's seats, now filled by doctors, should instead be filled by members of the public.
If the board composition is changed to a public member majority, California will become the first such state medical board in the nation to do so, experts said.
"It is about trust and it is about the integrity and the credibility of this board," Kristina Lawson, an attorney and board president, said during a hastily called board webcast on the afternoon of Tuesday, June 1. The meeting was originally set to discuss proposed legislation that would add two seats so that a majority of members are consumers rather than doctors. Lawson favors a public member majority, which some say could result in more aggressive board actions.
Howard Krauss, MD, who has served on the board 8 years, said: "If we had one more public member and one less doctor as opposed to one more doctor and one less public member ... the outcomes of the board would not be any different but we might earn less suspicion from the public, and the optics ... might be of benefit."
During the nearly 4-hour session, almost two dozen patients, parents, and consumer advocates complained loudly about what they perceived as overly-lenient board decisions in the wake of a doctor's avoidable harm. Their complaints were even angrier when they learned that a few days earlier -- at 9 p.m. PT on Friday, May 28 -- the author of the legislation backed out of calling for a public member majority board.
During the meeting, Ludmila Parada of San Jose told the story of how in 2013 a doctor misdiagnosed her husband with flu and a broken ankle instead of sepsis. The board said the care was substandard, Parada said, but it "made sure that the doctor did not receive any disciplinary action. ... My husband lost his hands and feet and this physician has a spotless record."
'We Do Not Go Searching for Complaints'
The backdrop for this escalated California drama is a 4-year "Sunset Review," a process by which the state Legislature and stakeholders examine the board's performance, culminating with a "Sunset bill" that proposes changes, some of which become state law.
When that "Sunset bill" was issued on May 20, it called for adding two more public member seats for a 17-member board and thus a public member majority. Its author, state Senator Richard Roth (D), who chairs the legislative committee conducting the review, said he believed a public member majority would "obtain more transparency and data with regard to the board's enforcement process, and how it makes decisions," Roth told MedPage Today.
"Why does it appear to take a very long time for an enforcement case [against a physician] to bubble up and become a [public] accusation?" he asked. "When the board settles 84% of its cases, and 54% of those stipulated settlements fail to meet all of the disciplinary guidelines that the medical board has promulgated, there should be some explanation. One has not been provided, at least provided to me clearly yet."
Roth acknowledged that he was moved by several recent cases in which physicians went for years, and in one case decades, escaping any board discipline despite egregious episodes of patient harm.
During a nearly 6-hour Sunset review hearing on March 19 to discuss what should go into the bill, several lawmakers expressed outrage over reports that the board failed to act against the licenses of certain physicians whose bad behavior or malpractice had been well documented.
In one case, the board in February filed an accusation against the former chief pediatrician for Santa Clara County some 20 years after allegations surfaced that he had sexually abused boys -- as young as 6 years old -- in his home and some 10 years after social services and other government officials became aware of it.
Lawmakers peppered the board's executive director, William Prasifka, at length, demanding answers about such enforcement lags.
"My question to the medical board, if you can answer, is why it took so long," Roth said, referencing the Santa Clara case.
Prasifka replied that the board is "a reactive body. We have to wait for a complaint, and it wasn't until much later in the process that the information came to our attention. ... We do not go searching for complaints."
State Assemblyman Evan Low (D) said he was "particularly struck and disturbed by [Prasifka's] response ... I think it's a failure for the board."
State Assemblyman Vince Fong (R) chimed in on the number of times the board puts physicians on probation, allowing doctors, such as one in his district, to continue to practice, resulting in harm to other patients.
In 2000, a physician entered into a stipulated settlement for violations in 1996 and 1997, and was placed on three years of probation. After his license was restored, he was placed on a five-year probation, he said.
"The MBC's most recent accusation filed against the physician cites gross negligence, repeated negligence, and failure to keep adequate and accurate records related to the wrongful deaths of a patient and her unborn son last year," Fong said.
What happened to Roth's Sunset bill so late that Friday evening has infuriated consumers anew: he deleted those two new public member seats.
Also gone was a provision that increased the initial and biennial renewal license fees for physicians from $783 to $1,150, in part to give the board more resources to investigate complaints -- beefing up its $62 million annual budget. Now the fee will rise to $863 instead.
Board President Lawson was befuddled. "Frankly, that concerns me from an optics perspective, to signal that [the fee increase and public board majority were] important, and now suddenly is not," she said.
Roth told MedPage Today that the "California Medical Association had another view of fee increases that was a much lower figure, taking into account what the CMA perceived to be ongoing efficiencies" the board was undertaking.
On the two-seat deletion, he said it made more sense to him to embed an "Enforcement Monitor," an independent appointee who would "monitor and evaluate the enforcement efforts" of the board "with specific concentration on the handling and processing of complaints and timely application of sanctions and discipline imposed on licensees and persons in order to protect the public," according to the bill.
"I decided that it would be more efficient, more effective, and probably produce more data for us ... with a specific charter to produce a report so we can obtain the data we need," Roth said.
There's still a chance the Sunset bill will end up calling for a public majority board, he said. The Senate's version will move to Assembly committees with new amendments before being signed by the governor.
"Everything is still on the table," he said.
'A Bunch of People Meeting in a Hotel to Collude'
Some board members also expressed concern that if most of the board's seats continue to be filled by physicians, board members could be held personally liable for damages if a lawsuit against a decision -- perhaps one that suspends a physician's scope of practice -- results in awards for unfair restraint of trade.
They could lose their "state action anti-trust immunity," due to a 2015 Supreme Court decision dealing with -- of all things -- teeth whitening services.
The North Carolina Board of Dental Examiners had said that only dentists could whiten teeth. The Federal Trade Commission took issue with that decision because the board was dominated by practicing dentists, and because no higher government body supervised the North Carolina board's decisions.
The high court agreed. It held that such decisions by an unsupervised board controlled by "active market participants," those in the same profession they regulate, was a violation of the Sherman Antitrust Act.
Consumer advocate Robert Fellmeth, one of the original "Nader's Raiders" and executive director of the San Diego-based Center for Public Interest Law, is a former white collar crime prosecutor and expert in anti-trust law. He called the California board, and any other regulatory agency dominated by people in the professions they regulate, "a cartel ... that is no different than a bunch of people meeting in a hotel to collude."
Fellmeth, among others, believes the board is heavily influenced by the California Medical Association, which represents the interests of some 50,000 physicians and which was vehemently opposed to changing the board's composition.
Asked for comment, CMA spokesman Anthony York said in an email, "the majority of healing arts boards have professional majorities and we believe the field of medicine is complex enough to warrant physician majorities on the medical board. The idea of a public majority will not achieve the goals that advocates say they are out to achieve. We believe other reforms to the med board's enforcement system address the issues more directly."
Roth believes the California regulatory boards are off the hook because a 2015 opinion by then Attorney General Kamala Harris found that California has enough oversight of the medical board to constitute as "supervision" thus extending their anti-trust immunity.
Self-Regulation Still Rules
Various state advisory documents issued since the Supreme Court decision, however, are all over the map.
The California state Legislature's background paper for the sunset review process said this:
"Although the boards are tied to the state through various structural and statutory oversights, it is presently unclear whether current laws and practices are sufficient to ensure that the boards are state actors and, thus, immune from legal action. Changing MBC's composition to a public member majority may decrease MBC's risk of exposure to lawsuits and may have the added value of creating a more patient-centric program."
"Individuals who are directly affected by their own rulemaking may not be able to detect their biases, purposefully or inadvertently placing their benefit over those of the public," said a legislative analysis of Roth's bill from May 25.
Nationally, only a handful of 2,000 regulatory agencies that license everything from amusement parks to veterinarians have taken steps to safeguard against anti-trust lawsuit liability, said Rebecca Haw Allensworth, who specializes in professional licensing infrastructure at Vanderbilt University. Her paper after the North Carolina decision is titled "Foxes at the Henhouse: Occupational Licensing Boards Up Close."
"Every state has at least thought about it," she said, "even if what they decided to do was nothing."
"We have in this country a very long-standing model of professional self-regulation," Allensworth said. "And last I checked, every single medical board in the U.S. has a majority of physician members."
Some states, like Utah and Oklahoma, have decided to add monitors with authority to review decisions before they are finalized.
Allensworth emphasized that especially in medicine, doctors "want control over their own profession. One of the defining characteristics of the profession is that it's autonomous and it has the power to define itself, and that gives them control over competition. It gives them prestige that they're let alone and entrusted with the public trust."
Cheryl Clark has been a medical & science journalist for more than three decades.