Legislature should pull plug on inept Medical Board of California
Legislators should sunset the medical board's do-nothing, know-nothing membership and executive director, and start over fresh.
By Michael Hiltzik
Los Angeles Times
April 26, 2013
The time has come to put the Medical Board of California out of its misery.
The board oversees the licensing of doctors and their discipline for misdeeds or incompetence. It also has jurisdiction over doctor-owned surgical clinics. Long ago the board acquired the reputation of being one of the least effective regulatory bodies in Sacramento.
But evidence has mounted that it's worse: It's a danger to the community.
Because of its ineffectiveness in a variety of spheres, patients have died. Dangerous doctors have been allowed to continue operating for years after their malpractice first surfaced; surgical clinics allowed to remain open for years after dangerous conditions there were identified.
Today the board is facing a sort of medical crisis of its own: It's up for legislative re-authorization under the state's sunset rules. The legislators in charge of that procedure are talking about rubbing out the current membership and their executive director as of Jan. 1, and starting over fresh.
"That's not an idle threat," says Sen. Curren Price (D-Los Angeles), who chairs the board's sunset review with Assemblyman Richard Gordon (D-Menlo Park).
Let's hope not.
The board has sat inertly by while its disciplinary program against incompetent and dangerous doctors falls to pieces. Its regulation of the 1,200 physician-owned outpatient surgical centers under its jurisdiction — settings where patients routinely undergo surgery under potentially life-threatening conditions — is almost nonexistent.
"People are dying at these outpatient centers and your paramount responsibility is to keep that from happening," Julie D'Angelo Fellmeth, a San Diego public interest lawyer who was appointed by the legislature to monitor the board's enforcement program in 2003-2005, lectured the members last week. One would think the board knew that, but the news seemed to strike the members like a bolt from the blue.
The board's enforcement record is dismal. Since 2007 California has typically ranked among the worst states in terms of serious disciplinary actions per 1,000 licensed physicians; the public interest group Public Citizen reported in 2011 that the board had failed to take action against more than 700 physicians whose privileges had been reduced or revoked by hospitals or other clinical settings, including 102 who had been found to pose an "immediate threat" to patients.
The board says statewide hiring freezes and furloughs have eroded its enforcement staff. But in 2010 it was given the authority to hire 18 investigators despite the freeze. It still hasn't filled the positions.
The real crime of the medical board's nonfeasance is that it's a fraud on the public. Today's board is largely the product of a major change in malpractice oversight in 1975. That's when the legislature enacted MICRA, the Medical Injury Compensation Reform Act, to address a largely fabricated malpractice insurance "crisis." MICRA limited payouts for malpractice judgments so severely that it effectively made malpractice lawsuits extinct in California.
In return for the elimination of patient lawsuits as a check on dangerous doctors, the medical profession agreed to accept tougher disciplinary standards and procedures from regulators. After a few more legislative tweaks, the medical board was born.
But the promise of tougher enforcement never was fulfilled. The legislature and governor's office deserve plenty of blame for that. Although the board is funded entirely from license fees paid by doctors, not from taxpayer revenue, it wasn't exempted from the layoffs and furloughs imposed by the Schwarzenegger administration as budget-cutting measures. Meanwhile, medical lobbies such as the California Medical Assn. have opposed efforts to increase license fees to adequately fund the board's activities.
The board, which by law comprises eight physicians and seven "public" members, is unpaid except for expenses and per diems while on official business. (Four seats subject to appointment by Gov. Jerry Brown are currently vacant.) Californians get what they pay for: The members don't seem to have any conception of the breadth of their authority, and precious little inclination to use it.
That was made evident by board President Sharon Levine's appearance on March 11 before the sunset committee headed by Price and Gordon. Levine, an executive at Kaiser Permanente, made some remarkable assertions in her testimony. For example, she excused the board's terrible record on discipline by explaining that it must wait for a complaint from a patient or other outside source before opening an investigation of a doctor.
In deference to Levine's tenure on the medical board, which started in 2009 (she became president last year), I'm inclined to take a charitable view of this statement. So I'll merely call it the single most ignorant description by a government regulator of his or her authority I've heard in 30 years.
The fact is that the board has all the power it needs to act on its own, with or without a complaint; indeed, such proactivity is the hallmark of effective state medical boards. In a blistering letter following the hearing, Price and Gordon cited the specific provision of California law that "unequivocally authorizes" the board to initiate its own investigations.
More blunders came when Levine addressed the board's oversight of outpatient surgery centers owned by physicians, which came under its jurisdiction as the result of a state court ruling in 2007.
The board has outsourced oversight of these clinics, which perform an increasing number of such serious procedures as weight-loss and cosmetic surgeries, to four private, nonprofit accreditation organizations. These accreditors are not government regulators. They don't have subpoena power or the authority to close down a dangerous clinic, and they don't have consistent standards or procedures for granting accreditation.