Submitted to the Joint Legislative Sunset Review Committee
for their January 2005 Hearings on the California Medical Board
on behalf of California Citizens for Health Freedom
Frank Cuny, Executive Director ~ Phone:1.530.534.9758 ~ Donna Russell, Legislative Advocate
E-mail freedom@citizenshealth.org ~ 8048 Mamie Avenue, Oroville, California 95966

Open Letter on Needed Reforms of the Medical Board’s Discipline Process of Physicians in California

As the Executive Director of California Citizens for Health Freedom (CC4HF) I have attended all of the Medical Board of California (MB) meetings for the past eight years. CC4HF has also previously participated in the Joint Legislative Sunset Review (JLSRC) hearings on the MB. CC4HF has reviewed a number of physician disciplinary cases, at their request, and provided non-legal advice to the physicians. I have also been an observer and witness in Administrative Court hearings as well as at settlement conferences.

For the last couple of years the effectiveness of the disciplinary process of the Board of Medical Quality Review (BMQR) has had negative press and necessitated legislative hearings and laws being passed to attempt to improve the disciplinary process. Senator Figueroa, Chair of the Business & Professions Committee (SB & PC) and the JLSRC has been a prime mover in getting these positive changes made.

CC4HF recognizes the MB’s need for a more a efficient and effective disciplinary process for addressing physicians who do harm to a patient, whether it involves incomplete or inaccurate information as part of treatment or informed consent, addiction to drugs or alcohol, incompetence, sexual misconduct with a patient or fraudulent billing practices.

We applaud the efforts of Senator Liz Figueroa, and the other members of the JLSRC , in passing legislation that provides both the MB and the public with more information about physicians’ conduct than they had access to in the past, and the establishment of an independent Enforcement Monitor (EM) for 2 years.

The appointment of Julianne D’Angelo Fellmeth as the EM by the DCA was an excellent choice and it is important to consider her recommendations before making additional alterations in the disciplinary process.

The members of the MB should to be recognized for their commitment to changing policies to create a more effective and fair disciplinary process. This includes:

1. Sponsorship of SB 1691, which states the MB may not initiate disciplinary action against a physician solely on the basis that the advice or treatment rendered was non-conventional (provided there is compliance with some extra steps);
2. Forming a Non-conventional Medicine Committee to research and hear testimony on its validity;
3. Commissioning a resource binder on the range and validity of non-conventional/alternative medicine written;
4. Requiring all MB investigators to take a course developed from that instructional
resource binder;
5. Instituting a new policy that in disciplinary cases involving the practice of Alternative Medicine that a second expert evaluating consultant who practices alternative medicine (preferably the same type) will also review the case;
6. Forming a committee to improve communications to and with the public;
7. Directing the upgrade of the MB website- making more information about physicians available to the public-- is excellent.

CC4HF believes the aforementioned improvements should also result in positive changes which will assist in the performance of the law enforcement role of the Medical Board of California.

However, from the experiences of many physicians and from our perspective, the current laws, rules, policies, procedures, and practices of the agency’s enforcement bureaucracy are excessively dictatorial, especially when disciplining physicians who have done no harm.

For this reason it is important that code and policy changes be made that enables the MB, as a law enforcement agency, to be effective yet perform ethical, reasonable, fair, and Constitutionally compliant investigations and legal processes at all times.

We view the criminal type of investigations, legal procedures, and disciplinary processes currently done by the staff of the MB for cases involving physicians who practice in a professional manner and do no harm or fraud, to be miscarriages of justice.

This is a serious matter that both the Legislature and the members of the MB have attempted to address and remedy by directing the MB investigative staff to focus on cases of harm while assigning no-harm cases the lowest priority. Unfortunately, however, the practice of aggressively going after these cases is continuing. It is our impression that these are usually against physicians in solo/private practice, while other cases involving harm are dismissed as unworthy of investigation.

Physicians in hospital staff positions generally have vast legal resources to assist in their defense. Most solo and/or alternative medicine physicians do not have the financial resources, often in excess of $150,000.00, to effectively fight their case in Administrative Court and then be back before the Medical Board. As a result they cannot afford an adequate defense and are then forced to “plea bargain” even though they have done no harm.

A recent report on the Internet stated, “In California, several years ago, we looked at the fact that 65% of the licensed MDs in the State were "solo" practitioners (not institutionally associated), but 95% of the prosecutions, annually, were against those same "solo" practitioners. At the time, ALL of the Medical Board members [who were physicians] were "institutionally associated." The staff of the California Medical Board clearly favored institutions over solo practice.” Although this seems to accurately portray our anecdotal experience, we are unable to verify these statistics.

If they accept a plea bargain and the probation required, this often means:

1. An inability to work at all, whether in a private practice or a HMO, because third-party-payer medical coverage plans (e.g. Medi-care) refuse to reimburse services of physicians on probation

2. Malpractice insurance firms will either not insure them at all or only do so at exorbitant, often prohibitive, premiums.

3. Being required to pay an annual administrative fee of $2,874 for probation supervision services.

4. Having to regularly report to a probation officer-- likening them to a criminal.

5. Probation officers are rarely knowledgeable about medical issues or practices. Some have assumed that alternative medicine is invalid and independently imposed their own additional, and seemingly uninformed, restrictions upon alternative practitioners; even threatened to bring action if an alternative physician did not convert to allopathic-conventional medicine.

Some physicians, who have done no harm to patients, have consequently left the profession because of this lengthy, expensive, and unjust process. This is a loss to both the community and the profession.

We agree with the Medical Board that the full weight of the law should be imposed upon physicians for serious, harmful violations involving their practice or conduct. However, we believe that the unjust negative impact on individuals being disciplined over no harm or minor problems in procedures are not only INJUSTICES done to those unfortunate physicians, their patients, and the community but they further erode the reputation and public’s trust of the MB.

NEGATIVE IMPACT OF THE CURRENT DISCIPLINARY PRACTICE

    The stresses that an individual experiences when disciplined are very destructive, and even more so when the action is unnecessary or for matters involving no harm.

    1.) Financial burden: loss of all or most income, sometimes for years, while needing many thousands for legal defense, often means loss of home, distress for dependants, retirement funds have to be used for legal expenses and ‘cost recovery’, bankruptcy and devastation
    2.) Physical and emotional health: depression, diminished health, early death, even suicide.
    3.) The family suffers, too: loss of home, divorce, no funds for college,
    4.) Professional consequences: destruction of years of dedicated study and work, which often can never be repaired, loss of social and professional regard,
    5.) Their patients also experience a high rate of stress: When their trusted physician, upon whose care they depend, is disciplined, particularly if their physician is a specialist in Pain Management, Environmental and/or Alternative Medicine is now unavailable to them due to insurance coverage frequently denying coverage for a physician on probation, the physician having to practice far away in order to satisfy the requirement of having a ‘supervising physician’ or the physicians’ license being suspended or revoked.

    Some patients have searched for years to find a physician who can meet the extraordinary challenges of their medical care after numbers of allopathic-conventional or conservative physicians were unable to do so; and now they are separated from the one physician it took them years to find.

    Several years ago hundreds of patients attended the MB meetings in support of their physicians who were being disciplined. These patients had personally experienced the quality of treatment being provided and knew that their physician was being disciplined for an issue other than harming a patient.

    For these patients, if they lost the unique clinical skills and services of their chosen physician, it meant desperately trying again to find another physician who could give skilled treatments within their choices and unique needs. The lucky patients could sometimes find another practitioner but usually then discovered that the differences in insurance coverage or distance they would have to travel was so great they were not able to afford access to the new doctor either physically or financially.

    At times the disciplinary actions by the agency are equivalent to abandonment of the patient. For some patients it has seriously decreased their quality of medical care resulting in diminished levels of health, loss of the ability to hold a job, and decreased their chance of recovery and in some cases hastened --and for some it could be argued, was the direct cause of —their death.

Some reasons why unjust complaints are filed against physicians

    It is not uncommon for complaints to be filed against physicians for capricious and vengeful reasons that have nothing to do with patient care, which are often motivated by disgruntlement, financial gain or to eliminate a particularly successful competitor for an area’s patients.

Some medical insurance firms use the disciplinary process of the MB as an effective method to resist and avoid paying for services and products their contracts cover and to create an effective deterrent to other physicians –warning them that they, too, could easily fall prey to this devastation if they order certain things, regardless of the patient’s need for the service or its being specifically covered in the policy.

    One physician ultimately lost his license because he, like all good business people, paid for a disputed insurance-covered item-- an ordered test the insurance company refused to pay for-- out of his own pocket, only to be charged with and convicted for insurance fraud. [See comments on the $6,900-one-question-be-the-teacher in the section on PACE, below.]

Physicians have been disciplined at the complaint of the “Quackbusters” or other individuals who oppose non-conventional treatments despite the fact the treatment was effective, safe and done at the request of the patient.

Physicians have also been disciplined by hospitals, HMOs or huge medical corporations initiating action against them because they were patient advocates , possible witnesses in suits against them, or potential whistle blowers against the inadequate or inappropriate practices of the hospital/ HMO/med-corp.

FACTORS INCREASING COSTS FOR PHYSICIANS TO DEFEND THEMSELVES

    Some of the expenses physicians face in the disciplinary process include:

    Cost recovery : This can be a moderate amount, a negotiated amount or a punishing amount of $100,000.00 or more.

    Physicians involved in the disciplinary process have been warned that the longer it takes to settle a case the greater the cost recovery, and that if they submit information about the validity of their practice it will potentially involve major increases in the ‘cost recovery’. Essentially they are warned that to expect or demand informed consideration they will be punished financially.

    One physician was told that the cost recovery would be increased from $5,000.00 to $50,000.00 in order for research submitted to them on the validity of the treatment in question be considered at all, instead of just pleading guilty.

    In another case, the superior court issued a writ of mandate in February of 2002 that “the Medical Board” “vacate the judgment revoking the license” and “reinstate NAME OF PERSON as a licensed M.D. in this state” and “remanded…the matter of the Accusation of ___, M.D., to the Medical Board for such further action as the Medical Board deems appropriate IN ACCORDANCE WITH THE DECISION OF THE COURT.” [Emphasis in capital letters was by the court.]

    The response of the enforcement arm of the Medical Board to this court order has been, to this date: 1) to ignore the order; 2) refuse to vacate the findings against the doctor; 3) demand that the doctor attend all the expensive probation ordered classes; 4) continue on probation; and continue pay for probation; AND 5) demand payment of the entire $40,000 ‘cost recovery’ by a set date or have the medical license wholly revoked.

    When the basic unfairness of the demand for payment of cost recovery in this case was pointed out and they were told that the financial devastation resulting from this surgeon being unable to practice at all for a number of years (due to probationary status) prohibited compliance with payment of cost recovery they then decided upon a further action to prosecute.

    In this case the MB prosecution of the doctor was based on perjured testimony from the complainant and seemingly shoddy investigation that never bothered to seriously investigate the doctor’s claims and evidence that something was crooked.

Mandatory course attendance:

The PACE program offered by the University of California at San Diego is often a requirement as part of the agency’s ‘negotiated settlement’ (plea bargain). While it is intended to improve quality of care, nevertheless it is primarily designed for physicians who practice conventional medicine who have some problem associated with their treatments.

A number of physicians whose practice involved safe and effective alternative medicine, and who had neither patient complaint nor harm as part of the ‘offense’ for which they were being disciplined, have been required to attend the PACE program. While the PACE program may be an excellent program for some conventional physicians, it does not address issues of those physicians who are being disciplined for things involving alternative medicine or ‘no harm’

Examples of PACE inappropriateness:

    1. An alternative practitioner whose problem involved insurance billing charges --not harm from treatments given-- was required to pay $6,900 for the PACE program. The ENTIRE PACE program for this doctor consisted of answering one question and then having to return to do an educational presentation on alternative medicine for all other physicians in the program and the place where the class was held.

    2. Another physician had a similar experience. After taking a test and receiving a score of 100% he was told to go home since they did not offer any training in alternative medicine.

An administrator for the Medical Board once told me that only reason “the PACE course for physicians who practice alternative medicine is only required “to save the butt of the Board” because the PACE program is the Board’s legal cover for saying the physician is safe and competent to resume practice.

Suggested Ideas for Consideration

1. Modify the Mission Statement of the Board.
We suggest the mission of the Medical Board regarding protecting the public be amended to include “enhancing the quality of medicine and protecting the rights of physicians”.

2. Establish Policy Ensuring the Expert Medical Consultant Gets A More Balanced Report
        Problem 1: A number of physicians found that the report submitted by the MB staff to the Medical Consultant did not include all the appropriate or accurate information. This resulted in a consultant giving an opinion without having all the relevant information.

        Solution 1: If physicians are able to (a) review the report prior to it going to the consultant and are able to (b) append whatever they consider to be important information to that report, this would reduce the numbers of decisions that are unknowingly based upon incomplete and/or erroneous information.    
    Also, if the medical consultant and the physician were able to phone and/or e-mail each other directly, to seeking clarification or get or give further information, that would assist the process.

        Problem 2: The experience of a number of physicians is that communications between the consultant and the investigator are prejudiced against the physician.

        Solution 2: We suggest that the physician have the opportunity to meet with the consultant and the investigator so that the consultant has information from each side.
    For the legal protection of the ‘suspected’ physician, the consultant and the MB, some easy but fully documentable method of instituting this improved communication process must be crafted.

3 . Amend Investigation Policies and Practices

There are some excellent enforcement agents of the Medical Board. However, they are underpaid and burdened with excessively large caseloads.

        A. Revise the Standards for Investigations
            1. Institute a policy that investigations focus on obtaining all relevant facts in cases prior to building case against practitioners .

    Whenever the primary agenda of an individual or agency is to first build a prosecutable case, that inevitably colors perceptions and decisions that influence what facts and evidence are seen as relevant, get included in the report and acted upon.

    The sworn police officers’ investigative role should be to, first, gather all the relevant the facts and artifacts, secondly, to document them completely and preserve any relevant artifacts, then, only after the entirety of the evidence is gathered and their reports are duly reviewed with a finding that sufficient evidence indications probable cause to move forward with prosecution is made by the supervisors and attorneys, should staff attempt to build a case for prosecution.

    What investigators, attorneys and support staff seem to believe (and may be at times directed to do) is that their job is to build a case for prosecution every time they go into the field or interview someone and to assume the suspect is guilty from the outset.

    Some physicians, from their experience, believe that the investigators they dealt with sought to build a case rather than find the truth. They believe these investigators focus on cases involving physicians in private practice, particularly in alternative and/or complementary medicine, since the MB has continued to build cases on alleged “community standards of care” even when there is no harm and no patient complaint. [see Standards of Practice, below]

        2. Make Standards, Expectations & Explicit & Compliance Mandatory

    Have a policy and procedure statement, which every officer, assistant AG and enforcement staff person must sign, and agree to abide by or face termination for failure to sign or practice, which would include the following:

• “The purpose of an investigation is to find accurate information and relevant artifacts and preserve them, possibly for use as evidence, NOT to build a prosecutorial case.”
• “Investigation methods must dispassionately and without bias or prejudice obtain the widest range of relevant facts, all of which shall be included within the final written report.”
• “Neglecting to include any evidence (e.g., exculpatory) that is discovered and may influence the decision regarding prosecution in field notes and/or report at any step constitutes an immediate serious breach of ethics, policy and law.”

    B. Institute a Policy for Conservation of Field Investigation Notes :

    The MBC Enforcement Operation Manual directs that investigators destroy all their field notes after their final report is signed off by their supervisor. The manual even notes that recent laws and court decisions should give sufficient legal protection for this policy. In the last 15 years law enforcement agencies have regrettably instituted this policy because they now have legal protection for doing so. Just because something is ‘legal’ does not always make it the right or ethical thing to do.

    The MBC’s Enforcement Operation Manual, effective date April, 1993, Rev 09/00, Section 8.1, page 5 reads:
“G. Destruction of Interview Notes. MBC investigators shall destroy all field notes once a final investigation report has been prepared by the investigator and approved and signed by the investigator’s supervisor [1]. Because of Proposition 8 and the United States Supreme Court decisions [2], there is virtually no risk in good faith destruction of investigation notes if:

    1. the notes are destroyed “in good faith” [3];
    2. the notes are incorporated into a formal report [4];
    3. the formal report accurately reflects the contents of the notes [5]; and
    4. the prosecutor turns over a copy of the formal report to the defense counsel before trial [6].”

    Since it is by choice -- and not legally mandatory-- that agencies adopt this regrettable new policy which denies defendants the ability to subpoena primary field data and the agency to review what steps were taken and what was observed, it is strongly recommended that the MBC EOM policy on this be immediately revised to re-instate the tradition of preserving field notes.

    Points Establishing the Wisdom of Conservation of Field Notes

A long-standing tradition within law enforcement, which ensured the rights of subpoena of the initial raw field data (e.g., field notes) by the accused, was that the officer and, more recently, the agency, retain the originals and true and complete copies of all field notes. It is important that both the officer and the agency possess identical versions of the original field notes.

        [1] Supervisors do not have sufficient time to read every field note and cross check its complete entry into a final report. To expect or demand this level of corroboration is unrealistic.
        [2] Relying upon special interest laws and court decisions to grant sufficient legal cover for destroying investigational evidence is an abhorrent standard of practice. It may be legal but completely lacking in ethics.
        [3] To assume that every investigator would scrupulously include every item from field notes is also unrealistic, whether from simple error, crush of time or motive. Things may be left out because they do not appear to be important or relevant at the time but which may be crucial to the ability to prove either guilt or innocence later.
        [4] Who can ever know the all motives for destroying information? If pressures for enforcement/prosecution numbers are explicit or implied then motives to destroy field notes that contain exculpatory or conflicting evidence may influence such decisions.
        [5] If the originals are destroyed then who can ever know if they are accurately and fully incorporated into the final report? Assuming that supervisors and/or investigators are incapable of human error or a corrupt motive is naive and dangerous to justice.
        [6] If the original and true copies of the investigator’s field notes (raw investigation data) are conserved, then they are available for use by both the prosecution and defense at a later time, but more importantly they are available to help in establishing where, when and what was observed, seen, heard, found, and who was or wasn’t contacted.

    C. First Educate, Then Enforce Employee Performance Standards

    Speaking with and listening to testimony of investigators in court reveals that at least some have no more than a high school education and some years of working the streets. When this general lack of education, which can be coupled with a specific lack of depth and breadth of professional education and training due to civil service exemptions and other ways of evading current acceptable pre-employment educational standards for police officers, occurs it creates a situation of having a sworn law enforcement officer who may be sub-standard in all areas of performance but nearly impossible to remove due to the very protective processes that allowed hiring the person in the first place.

    Within regulations governing civil service, personnel and other applicable employment standards of education and conduct, demand, expect and enforce the following:

    1. Require annual Continuing Education in all aspects of law enforcement, most particularly presenting material especially relevant to functioning within the sphere of the MB.
    A. The Medical Board should develop special courses, in conjunction with POST, provide the classes and then hold employees maximally responsible for attending, learning and complying with the course content.

    2. Develop policy standards that each employee must sign, agreeing to abide by for continued employment within the Medical Board.
    A. Ethics (examples below)
        1. “Violating a person’s Constitutional rights and/or laws safe-guarding them from unlawful detention, arrest,         search, seizure of person or property, etc., is an extremely serious breach of law and ethics and not tolerated.
        2. “To shade or color the report in any way to influence whether a case is prosecuted or not is unethical and is sufficient reason for termination.

Recommended CHANGES in B&P CODES Involving MBC Discipline

1. The MB should comply with case law by no longer be determining the “community standard of practice”.

        In 1987 the ruling made by the 3^rd Appellate Court in Seymour v. BMQA stated, “that NO state regulatory board may set standards, they may only decide whether a standard, which has been established by “the industry” has not been met in a disciplinary action.”

        The standard of practice of a profession should be determined by the profession, through venues including (but not limited to) content of peer reviewed journals, textbooks and what is taught in professional conferences/ seminars, etc., not by individual prosecution experts.

        The current system, in which the MB appears to establish community standards of practice, as stated by their various consultants and “experts” on a case-by-case basis, is considered by many physicians and citizens to be not only wrong but too open to biases, prejudices and personal lack of depth and breadth of relevant information which often results in outright injustices.

        The standard of practice of the individual consultants and expert reviewers and witnesses contracted and paid by the MB’s may not necessarily be what the standard of care is for the particular physician under scrutiny, particularly those in private practice (as opposed to those practicing in large medical corporations) or singular or multi-concept holistic health. The consultants come from different backgrounds, often associated with University Schools of Medicine (that often espouse narrowly conservative views regarding what is acceptable), some are ‘board certified’ in totally unrelated specialty practices, some are semi-retired and not current on emerging treatment research and methods. There is also the risk that some consultants may give opinions that favor prosecution by the MBC, believing that is why they were hired, and to do otherwise would jeopardize their future income from this source

        If there is a question about a physician meeting the ‘standard of practice’ s/he should be given the opportunity to submit information regarding the issue in question, before any legal action is initiated, to the investigator, expert consultant and/or others making the determination. This might include, for example, an article in peer-reviewed literature, a certificate of attendance at an accredited conference and seminar or other relevant information regarding the treatment in question.

2. Base Disciplinary Criteria on “The 4 Elements of Malpractice”

        We recommend that the Business & Professions Code be amended to state that if a physician has done ‘no harm’ involved in the treatment provided they should not be disciplined. We suggest that this amendment be modeled on the guidelines established for determining whether a case involves malpractice settlement. [An Internet search has revealed that this tort standard is recognized and applied almost universally in the United States and around the world. [See below for a list of the four elements and a brief overview of their meanings and applications.]

More Legal Tidbits: The Four Elements of Malpractice By: Kevin Madden, J.D. www.uag.mx/206/ago99/n7.htm Universidad Autonoma de Guadaljara.

Medical malpractice is negligence committed by a professional healthcare provider whose performance falls below the standard of care practiced by those with similar training and experience, resulting in harm to a patient.

A patient must prove four elements in order to prevail in a negligence action:
1. A duty was owed to the patient by the health care provider;
2. The health care provider breached that duty;
3. That breach of duty is the cause of the patient’s injuries;
4. Those injuries resulted in damages. [The most important issue being “foreseeable damage”.]

The following is a brief description of each of the four elements of negligence. There are hundreds of cases in each jurisdiction in the country interpreting the law on these elements as it applies to different scenarios.

DUTY
The medical provider’s duty arises from the physician-patient relationship. Although the duty requires mutual consent, it is usually entered into implicitly.

For example, giving a patient an office appointment may create a relationship, or scheduling a procedure for a patient. A duty may also arise from giving medical advice to an acquaintance at a social gathering.

The doctrine of vicarious liability may impose liability on a provider for the wrong doing towards others. For example, hospital staff or nurses under a physician’s direction may perform negligent acts for which the physician may be deemed liable.

BREACH
Breach of duty means that the medical treatment provided fell below the standard of care. The standard of care is a minimum standard to which health care providers must adhere to avoid negligence

The standard is specific to each field of practice. For example, anesthesiologists determine the standard of care for anesthesiologists, whereas cardiologists determine the standard of care for cardiologists.

The standard is also somewhat specific to the practice setting, in that a small rural hospital with minimal equipment may not be held to the same standard of care as a large metropolitan or university hospital.

Expert opinion testimony is often necessary to prove a breach of duty. The plaintiff’s expert physician will come before the trier of fact and establish what the expert believes to be the standard of care, and how the conduct complained of deviated from that standard. A defense expert will then have the opportunity to appear to counter that testimony.

An expert witness is not required to prove a breach when the doctrine of res ipsa loquiter (the thing speaks for itself) applies.

The plaintiff must prove three things for the doctrine of res ipsa loquiter to apply: 1. It must be common knowledge among laymen that the accident is the sort that does not ordinarily occur in the absence of negligence; 2. The injury producing instrumentality or conduct must have been within the control of the defendant. 3. There must be an absence of intervening factors that may have altered the event.

CAUSATION
To achieve economic success in a lawsuit, the plaintiff must prove that the breach of duty was a substantial factor in the cause of the damages suffered. This is often the most difficult part of a case to prove.

DAMAGES
Damages are the losses suffered by the litigant. In medical malpractice cases, they are generally of three types. General damages include those for pain and suffering. Special damages include past, present, and future medical expenses, loss of income, wages, and profits and funeral expenses. Punitive damages are awarded for gross negligence.

3. Abolish ‘Cost Recovery’

    The MB should institute adequate increases in annual licensing fees to ensure its full function without cost recovery being used as a tool for obtaining adequate income, punishment or intimidation. We support the California Medical Association’s efforts to have cost recovery eliminated.

4. Prohibit the Practice of “Bifurcation” of Cases

    Bifurcation refers to the practice used by investigators and prosecutors of searching for items not within the initial charge to build cases of gross negligence when only a minor discrepancy/violation was found (which would disallow persecution for gross negligence). The investigator then searches for a number of other minor discrepancies and makes them each a separate charge (as if each were of weighty merit) in order to form a numerical aggregate that might be chargeable as gross negligence. This, to the experience of physicians being disciplined, is like “building a mountain out of a molehill”. This method has also been used in some cases to continue prosecution of a professional after the initial charge was successfully defended or dismissed.

. 5. Increasing the Use of ‘Level 3’ Interventions

    To resolve this practice of usually seeking a charge of gross negligence, often inappropriately, because there seemed no other avenue by which to adequately address some area of concern the agency should increase their “level 3” intervention process and mandate its implementation.

    In other words, develop some form of advising/consultation intervention process rather than the criminal style of investigation and prosecution which is often overkill and very costly both to the physician and the agency. This could include:
        A. The MB notify the physician that a complaint was lodged and the nature of the complaint,
        B. An airing of the specific concerns that the MB may have regarding the physician’s practice,
        C. MB offering suggestions on possible actions to reduce the chance of future complaints, including:
            1. Suggestions on courses available that may assist them to improve their practice.
        D. Some alternative form of informational advising other than the criminal investigatory approach. 
            1. The solution in many cases may simply be a certified/registered “cease and desist” letter explaining what had been observed, what the applicable statute was and asking for compliance by a reasonable date, while ensuring some two-way communication for clarifications on both sides.

6. Establish an Independent Review Commission

    An Independent Review Commission (IRC) and process be established, like many law enforcement agencies have, to assure that complaints against staff are first reviewed by individuals not within the line of authority and preferably not part of the agency. The IRC would have the authority to review the complaints about omissions and commissions of staff and make recommendations to the Chief of Enforcement, the Executive Officer and/or the Board regarding correction of the inappropriate action of the staff member or department. The findings of the IRC should be included as part of the Administrative Investigation used by the Chief of the EOP.

    A Citizen’s Complaint against any enforcement staff should go first to the Independent Review Commission; the IRC will then forward a copy of the complaint to the Chief of MBC Enforcement Operations Program. This ensures a cataloging and potential review of all such complaints. The EOM section cited below states the current policy, which is indicative of why the policies, regulations and codes need such a radical change on this issue.

    MBC Enforcement Operation Manual, Rev 04/01, Section 7.16, page 4: discipline: “Citizen complaints must be sent directly to the attention of the Chief, Medical Board Enforcement Program, 1426 Howe Avenue, Suite 100, Sacramento, California 95825.”

Goal for the Suggested Changes

    The suggested changes in the code (above) relating to enforcement would enable the Medical Board to have a disciplinary process that would be ethical, fair, provide better protection of the public, advance the practice of medicine in California, and it would be more efficient.

Sincerely,

Frank Cuny, Executive Director, CC4HF
Donna Russell, Legislative Advocate, CC4HF
The Board of Directors of California Citizens for Health Freedom
Coalition members of the Health-Freedom Movement