It is our view that physicians in private practice are being profiled for discipline by the Medical Board of California.
We believe this because there are a proportionally higher number of physicians in private practice being disciplined for cases involving no-harm to their patients than the number of hospital physicians who have mal-practice claims and harm to their patients that are not being disciplined.
Under the current administrative system of discipline, physicians who practice safe and effective alternative medicine are practicing in a state of fear. Physicians who have been disciplined claim they had less rights than child abusers and rapists had in criminal courts.
We recognize that physicians who practice in hospitals are harder to discipline. They have the advantage of “the good old boy club,” the protection of the legal team of the hospital, and their work involves the drugs and surgery standard of practice. Even if the patient is severely harmed or even dies from the treatment because it is conventional medicine the case is rarley invested.
Physicians in private practice are easier to discipline. They are more naïve in believing they would not be subject to discipline since their practice generally involves no harm. They do not have the support of a “good old boy club” or the hospital legal team. They become entrapped by the system. Being general practitioners, they have less income, and have limited financial resources to fight the power of the state in the way the case is built against them.
They may be more intensely investigated because of the bias and false view of some investigators, the staff of the Attorney General’s office, and the medical consultants of the board who view treatment that is not conventional as non-scientific and quackery. This, we think, motivates some of the investigators and attorneys to build cases that put these physicians out of business. This is because of their lack of knowledge of the differences in the approach of physicians in alternative medicine verses the standard allopathic approach. Investigators are not aware of the good science that supports the use of alternative medicine. They have also been subject to the propaganda against alternative medicine from the pharmaceutical industry. Much of this comes from the false and bias information provided by the Quackbusters organization.
The development of the cases against these physicians is not on the principles recommended by the National Federation of State Medical Boards which focuses on patient harm, full disclosure, and science. (See attachment 1.) Instead, the investigators use a process of bifurcation of the case.
Bifurcation is when a single-act that doesn't quality for prosecution cannot have action taken against it by the Board. The investigator will “break a single incident into segments producing multiple acts of negligence that qualify discipline action based on gross negligence”, according to an article published in Medical Economics May 10, 1999. The California Medical Association opposes this procedure. Of course, the Medical Board officials deny this allegation.
The last Sunset Committee made recommendations to the Medical Board.
On the issue of alternative medicine the recommendation was: “ Committee staff recommended that the Medical Board continue its efforts to stay current on the changing and emerging treatment modalities in medicine, including those associated with “alternative Medicine” to assure that inappropriate disciplinary actions against those using alternative therapies do not occur. It is also recommended that the board make recommendations to the legislature on ways to assure the appropriate regulatory oversight of those involved in non-traditional, experimental, or alternative medical modalities.
Vote: The Joint Committee adopted the recommendations of Committee Staff by a vote of 6-0”.
From our perspective, the Medical Board Failed to meet the above recommendations.
1. That the Medical Board have new policies that stop the practice of bifurcation of cases which build charges against a physician when the reporting complaint did not warrant charges be filed. This would greatly reduce the cost to the Medical Board and be a fairer system of justice.
2. That a complaint that involves only one patient, there is no harm to the patient and there is a failure to pay for lab tests or a payment of their medical bill, the case be dropped for lack of cause. This, we found in a number of recent cases, was the basis of complaints.
3. That a process be developed, during the early development of a case which allows the physicians under investigation have the opportunity to write their perspective on the charges. The reviewing medical consultants have the authority to call or meet with the physicians for clarification of the charges. That when ever possible the case be referred to a physician whose practice included the type of treatment in question.
We think that the physician-to-physician communication, prior to the technical legal process of a case, will greatly help the Medical Board to be more efficient. Also, it would give the physician who is being investigated fairer treatment.
4. That the Medical Board not use any of the members of the quackbusters organizations as consultants or advisors. It is the opinion of our organizations that the quackbusters are organized to attack alternative medicine. They have been proven not to have the credentials they claim and they have provided bias and false information to the board, to the public, as court witnesses, and to the legislature. (See attachment 2.)
We suggest the board consult with physicians and professionals who are in full time practice, rather than professionally hired bias witnesses.
5 - We would like to go on record recommending that the practice of Cost Recovery be stopped. We view it as an economic weapon used unfairly against physicians. It forces them to settle their case when they cannot afford to defend themselves.
6. The current Health & Safety Code 109300 is out dated and perceived by physicians to limit the treatment of cancer to only chemotherapy, radiation, and surgery. In Nevada, and other states, physicians are able to use effective alternative approaches for the treatment of cancer. These generally focus on using vitamins and other non-drug related products for building the natural immune system and healing properties of the individual. Since these are not drugs, they are not within the FDA drug review process.
We strongly recommend that the Medical Board publish a policy position defining the rights or limitations of physicians to offer alternative treatments of cancer in California.
7. We suggest that the Department of Consumer affairs work with the Naturopathic Physicians, Licensed Midwives and the citizens' organizations, in developing a new approach for providing licensing or certification for those professionals whose medical approach is alternative. We see this as important access and protection for citizens.
8. Due to the inability of the Board to make the changes over the years, the issue of the treatment of physicians practicing alternative medicine, we recommend that an enforcement monitor be appointed to independently review the disciplinary practices of the Board.
The enforcement monitor should be able to assist the board in shifting California from one of the most restrictive states in the nation against the alternative treatment of cancer and diseases of the aging, to a more modern approach. This would help California become a leading center in all forms of effective medicine and healing.
In all fairness, the enforcement monitor should assist the board in establishing a system that quickly and fairly reviews cases of physicians who feel they have been unjustly disciplined. If they were treated unjustly, their discipline should be rectified and their record cleared.