Doctors still don't have to tell you about their misconduct

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For the second year in a row, a bill that would have required doctors placed on probation for certain offenses to notify their patients has died in the state legislature.

SB 798 had passed the Senate, but its sponsor, State Senator Jerry Hill (D-San Mateo), says he pulled the bill from consideration in the Assembly rather than accept amendments that would have watered it down. Hill sponsored a similar unsuccessful measure last year.

The legislation would have affected doctors placed on probation by the Medical Board of California for sexual misconduct, drug or alcohol abuse while treating patients and criminal convictions involving the practice of medicine, as well as those previously ordered on probation. The measure would have required those doctors to begin disclosing their probationary status and any practice restrictions to new patients starting July 1, 2018.

Physicians on probation are already required to notify the hospital where they practice and their malpractice insurer.

"They're not required to notify the most important person in the health care continuum, which is the patient. And that's ridiculous," says Hill.

There are approximately 137,000 licensed physicians in California. About 600 of them, or less than half of 1 percent, are now on probation for offenses ranging from inadequate record keeping to sexual abuse of a patient. The notification provision would have covered about 40 percent of these doctors, Hill says.

Physician probationary status is already reported on the medical board’s BreEZe website. But the bill's supporters argued most members of the public don't know to go there to look up their doctors' licensing status.

The Medical Board supported the bill, although it opposed Hill's effort last year to pass a similar patient notification provision. In 2012, it rejected a proposal by medical board staff to enact a patient notification requirement.

"We’re hoping there’s going to be another bill," says Medical Board spokeswoman Cassandra Hockenson. "What happens next is up to the legislature."

The California Medical Association, the professional organization representing doctors, opposed the bill "because it eroded basic due process rights in the disciplinary process," says spokeswoman Joanne Adams. "We look forward to working with the legislature to ... find solutions to consumer concerns that do not violate the basic right to due process," she adds.

The due process concern is "a bogus argument," says Hill.

"The due process is there," he says. "Just as if I’m a criminal and I plea bargain something, I know what the terms are, I know I’m going to have to abide by whatever the sentence is. Part of that sentence in a stipulated judgment by a physician [would] be patient notification. Clear, upfront, no change."

In cases in which a doctor was accused of misconduct requiring notification but eventually pleaded guilty to lesser charges, the notification requirement would not have applied under his bill, Hill said. 

Once the Medical Board receives a complaint against a physician, it undertakes multiple rounds of review and investigation. Filing a formal accusation against a physician requires clear and convincing evidence, a standard that requires 80 percent certainty that a violation has taken place, the Board says.

Consumers Union, the policy and advocacy arm of Consumer Reports and a strong supporter of the bill, also rejected the due process argument.

"These are doctors who are not minor violators," says Lisa McGiffert, project director for the Consumers Union’s Safe Patient Project. "And the Medical Board goes through many, many steps to collect evidence and information before they file an accusation. They don’t frivolously file these accusations." 

A 2016 study by Consumer Reports that found that 82 percent of Americans favor patient notification.

"We think patients have a right to know, and we think patients are subject to possible harm if they don’t know," McGiffert says.

Even without the bill’s passage, the Medical Board has the authority to require doctors on probation to notify their patients. Hockenson says the Board has already undertaken a bilingual public outreach campaign to educate patients on how to look up their doctor’s information on the Board website.

"This issue was not swept under the rug by any means," Hockenson says.

The California Medical Association put forth a competing bill that also died in the legislature. AB 505, sponsored by Assemblywoman Anna Caballero (D-Salinas), would have eliminated probation as an option for doctors who harmed patients through drug or alcohol abuse, sexual misconduct or felony-level behavior. Such physicians would not be allowed to practice.

Hill says he plans to continue pursuing various options, including incorporating the patient notification provision into another bill. The legislature is in recess until Aug. 21.

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