It could get tougher for bad doctors
State Medical Board seeks legislative reforms to facilitate disciplinary action.
Long under fire from patients and consumer advocates, the Medical Board of California is asking lawmakers to pass far-reaching reforms to help it discipline bad doctors, including lowering the standard of proof necessary to prove cases.
In an 11-page letter and memo sent to Legislative leaders this week, board officials also asked them to increase the waiting time for doctors to petition to reinstate their revoked licenses. Additionally, the board seeks a hike in licensing fees on doctors, its primary source of revenue.
“We hear from people every day about the impact that the board has on their lives,” President Kristina Lawson said in an interview Friday. “These proposals were developed because we’re listening, we want to improve, these proposals will help us improve, and we need the Legislature’s help to improve.”
Lawmakers said they welcomed the recommendations and would review them as they begin to introduce bills during the legislative session that began Monday.
Previous efforts to pass major reforms have been stymied by the California Medical Assn., the powerful doctors lobby, which worked to kill earlier increases to licensing fees and measures to beef up the board’s disciplinary powers. On Friday, without committing to specific proposals, association President Dr. Robert E. Wailes pledged to support reforms that protect the public.
“To protect patients and the sanctity of the physicianpatient relationship, the Medical Board of California must have a strong and robust licensing and disciplinary process,” Wailes said. “We look forward to working with the board and the Legislature to make appropriate and necessary reforms that put the safety of patients first.”
That was welcome news to lawmakers who have pushed back against the doctors lobby.
“If the California Medical Assn. is ready to sit down
and work toward comprehensive reform, I’m ready to do so, and I am ready to do so now,” said state Sen. Richard Roth (D-Riverside), chairman of the Business, Professions and Economic Development Committee, which oversees licensing boards. “But we can’t address these on a piecemeal basis, and that’s what has been forced on us in the past.”
Patients, consumer advocates and some legislators have long contended that the board goes easy on bad doctors and fails in its primary mission to protect the public.
A Times investigation last month found that since 2013, the board has reinstated 10 physicians who had lost their licenses for sexual misconduct. They included two doctors who abused teenage girls and one who beat two female patients when they reported him for sexually exploiting them.
In July, The Times found that the board had consistently allowed doctors accused of negligence to keep practicing and harming patients, at times leaving them dead, paralyzed, brain-damaged or missing limbs.
In previous interviews, Lawson has defended the panel as “dedicated and committed to protecting California consumers” while acknowledging that it has “room for improvement.” She said the board is bound by rules and regulations that complicate efforts to put bad doctors out of business.
The board’s recommendations include changing evidentiary standards to make it quicker, easier and less expensive to discipline doctors, according to the memo by Executive Director Bill Prasifka outlining the panel’s legislative requests for 2022.
Under current law, the board must show “clear and convincing proof to a reasonable certainty” that disciplinary actions such as public reprimands, probation, suspension or revocation are warranted.
That is a lower burden of proof than the “beyond a reasonable doubt” standard in criminal prosecutions. But it is a higher bar than the “preponderance of evidence” in civil litigation, which requires a greater than 50% probability that a claim is true.
Medical boards in 41 other states and U.S. territories apply the preponderance standard, according to the memo.
“As a result, California is out of step with most other jurisdictions, making it more difficult, time consuming, and expensive to prosecute instances of unprofessional conduct in this state,” it stated.
Lawson said the board “really spent some time thinking about whether it makes sense that we’re required to meet a higher burden of proof in California” than panels elsewhere.
“The board as a group concluded that we wanted to raise this as an issue, and we wanted to pursue parity with other boards across the country,” she said in the interview.
The board’s recommendations also would extend the waiting period for doctors to petition for the return of revoked licenses from the current three years to five — a move Lawson signaled in an earlier interview with The Times after it reported on questionable reinstatements.
“So while that isn’t an outright prohibition on reinstatement, it is an additional limitation on their right to petition,” she said in the earlier interview.
The board has requested a new application fee from doctors seeking reinstatement, to cover the costs of the proceedings. In the last fiscal year, the board spent nearly $1 million on litigation and hearing expenses, with no mechanism to recover those costs, the memo said.
The board’s recommendations also would enhance reporting of physician misconduct.
In addition to currently mandated reporting by healthcare facilities and educational institutions, the board is calling for medical groups, insurance providers, temporary staffing agencies and others to report misconduct.
The board’s memo resurrected earlier requests to increase its funding and change its makeup of eight physician members and seven nondoctors known as “public members.” Reformers for years have demanded significant increases to medical license fees and a shift in the balance of the board to a majority of public members, in the hope of getting more patient-friendly decisions in disciplinary cases.
Such measures in the past have been quashed amid vehement opposition by the deep-pocketed doctors lobby.
Longstanding critics of the board greeted the new recommendations with both skepticism and cautious optimism.
“The Medical Board making these recommendations is one thing,” said former state Sen. Jerry Hill (DSan Mateo). “The Medical Board pursuing and advocating for these changes is another.”
During his time in the Legislature, Hill fought for three years to pass legislation requiring doctors who have been placed on probation for sexual misconduct and other violations to notify patients. Hill said the Medical Board was often as much of a hindrance as the physicians lobby.
“In many cases, we found the Medical Board was singing the same tune as the California Medical Assn.,” Hill said. “So if the Medical Board is taking a strong position and communicating that clearly, that would be helpful.”
State Sen. Melissa Hurtado (D-Sanger) said she was surprised to receive the board’s requests, which came as she plans to introduce her own reform bill within weeks. Hurtado said the board’s recommendations show that the agency needs to be overhauled to meet its basic mission: ensuring patient safety.
“This is a great first step by the Medical Board, but there is so much work that needs to be done,” Hurtado said. “I appreciate their input, but I have my own, too. We have so many cases that have come out of the city of Bakersfield, which I represent, and this is something that is personal to me.”
Marian Hollingsworth, co-founder of the advocacy group Patient Safety League, said she was “kind of stunned” by the board’s recommendations. In the past, she said, board officials have told advocates it was up to them to ask for legislative reforms.
“I don’t know if it’s desperation or panic or realization that because of the L.A. Times articles, that they’re in a very bad place PR-wise,” she said. “Their reputation is really on the line.”
Hollingsworth said she is encouraged by the requested change to the evidentiary standard and hopes it could lead to “better patient protection.”