Bill on Doctor Discipline Opens Medical Wound

Some hospital officials and the California Medical Assn. are sharply divided over legislation, scheduled for an Assembly vote today, that would place new restrictions on hospitals seeking to discipline physicians accused of incompetence.

The bill, which has passed the Senate, would impose a detailed protocol and timetable on hospital disciplinary proceedings and give accused doctors the right to be represented by attorneys at hearings. Critics say the measure would make it virtually impossible for hospitals to remove inept doctors.

The California Medical Assn., principal backer of the legislation, insists that the bill’s primary objective is to assure that doctors are treated fairly. The bill’s sponsor, Sen. Barry Keene (D-Benicia), says the measure would ensure that disciplinary proceedings are carried out uniformly statewide and in a fashion that would avoid reversal by the courts.

But consumer advocates and the chiefs of medical staffs at 80 hospitals in California say the measure would, in effect, protect incompetent doctors.

Dr. Sidney Wolfe, director of the Public Citizen Health Research Group in Washington, called the California bill a step “backward instead of forward . . . at a time when way too few doctors are being disciplined.”

Hospitals monitor the performance of their doctors through a practice known as “peer review.” The review, which is done by a panel of the doctors’ colleagues, can be tripped off by a complaint or an unexpected patient death. All disciplinary actions must be reported to state medical authorities for further investigation that can ultimately bar a physician from practice.

Last year, hospitals disciplined 169 doctors and the Board of Medical Quality Assurance conducted further investigation of less than 5% of these cases, a board spokeswoman said.

Weeding Out Incompetents

Shrouded in confidentiality and increasingly controversial, peer review is widely considered an important tool in weeding out careless or incompetent doctors from hospitals, thereby improving patient care. But growing concern has focused on both the effectiveness and fairness of the process. Fueling the debate is a U.S. Supreme Court decision this summer that sided with an Oregon doctor who charged that his fellow doctors manipulated the peer review process to deny him the opportunity to compete for business.

Dr. Howard Lang, council chairman of the CMA, said the changes in peer review practices in California are needed to prevent peer review from becoming “economically motivated witch hunts not based on the quality or competence of the physician.”

The legislation sets forth detailed, formal hearing procedures, which Lang says would safeguard the rights of doctors. He charged that current practices have sometimes denied doctors “the basic due process rights enjoyed by common criminals.” But he would not cite examples.

Pasadena attorney Joseph Saunders, who says he represents the medical staffs of more than 80 hospitals opposing the legislation, declared:

“The CMA has taken up the cudgel for the marginal doctor.”

He said the proposed hearing procedures are “incredibly complex and cumbersome and will be inordinately expensive and time-consuming.”

Dr. Vincent Esposito, chief of staff of St. Mary’s Medical Center in Long Beach, expressed “outrage” at the legislation in a letter to colleagues at hospitals throughout the state and declared that “meaningful peer review will disappear.”

Esposito defended the current system as “fundamentally fair.”

Doctors are notified of a pending disciplinary action and can request a hearing of their peers where they can bring in their own witnesses, submit documentary evidence and cross-examine their accusers. They can appeal the result to a higher hospital board, and finally seek redress in Superior Court, where judges have a relatively wide latitude in reviewing the case, Saunders said.

Right to an Attorney

Under the new proposal, doctors would be entitled to have attorneys represent them at the hospital hearings. The burden of proof, currently on the accused doctor, would be shifted to the hospital. And a formal timetable would be imposed, requiring a minimum 60-day notice before a hearing.

“This measure will kill peer review in hospitals in California,” Saunders said. “More patients are likely to become victimized by inferior doctors.”

The CMA’s Lang disagreed. “That’s hyperbole,” he said. “It will not bring peer review to a halt.”

While Saunders asserted that lawyers will complicate and increase the expense of hearings, Lang said that attorneys may well streamline the peer review process.

The proposed procedural changes are contained in Keene’s bill, which passed the Senate without a single negative vote, according to Keene’s press secretary, Stan Draenos. The bill, SB 2565, is scheduled to be voted upon today by the full Assembly, Draenos said.

Discussion of the bill was minimal in the Senate, opponents said, because they did not realize the bill’s importance or voice their opposition until after its passage.

An attack on the bill in late June before the Assembly Health Committee resulted in the addition of about 15 amendments.

These were thrashed out largely during heated private meetings between two powerful interest groups: the California Medical Assn., which represents 34,000 doctors statewide, and the California Assn. of Hospital and Health Systems, with 460 member hospitals.

Negotiated Additions

The amendments, Keene said, “were the product of negotiation” between the two groups.

While the amendments have quelled some of the opposition, the medical community remains sharply divided over the measure.

In its original form, the bill attracted strong opposition from the California Assn. of Hospitals and Health Systems. But recently the association’s board chairman, Joseph Hummel, concluded in a memorandum to members “that further active opposition would have been counterproductive for hospitals.”

“The initial bill they (the CMA) proposed was essentially a bill solely to protect physicians and not the public. Now it has a better balance,” said Dr. Paul Deiter, a board member and counsel for the Southern California Permanente Medical Group, which employs doctors who work at Kaiser hospitals.

One change in the bill explicitly exempts large physician groups--including doctors employed by the Kaiser group--from complying with the new peer review procedures, said Duane Dauner, president of the California Assn. of Hospitals and Health Systems.

Keene said he believes the measure would “not damage peer review.” He said, “I believe it will make peer review more effective . . . because the (disciplinary) actions will be challenged less often in court.”