Editorial: Put non-physicians in charge of the state medical board

It’s become a common scene at the quarterly meetings of the California Medical Board, the 15-member state panel that oversees physicians and other healthcare professionals: Witnesses tell heartrending stories about loved ones maimed or killed by a routine medical procedure, then blast the board for imposing little or no penalty on the doctor responsible. Even the board admits that the public has lost a lot of faith in its ability to protect consumers from bad doctors.

That’s why the board has joined a number of experts and advocates in urging the state Legislature to adopt several meaningful reforms, including one that’s rich in symbolism: Giving control of the board to people who aren’t doctors. Meanwhile, the board has burned through its budget and is in serious need of a cash infusion to keep investigating complaints and licensing doctors.

As it happens, the board’s statutory authority is up for its periodic renewal this year. So you might think that lawmakers would use the opportunity to make some badly needed changes in the board and try to restore the public’s confidence in its work.

But instead of taking a big swing at the problems, the state Senate bunted in late May, proposing no change in the board’s makeup, suggesting a small increase in funding and offering little in the way of concrete action to improve enforcement efforts. A Senate committee had proposed to go further, only to run into a buzzsaw of opposition from one of the state’s most influential lobbying forces, the California Medical Assn.

Specifically, the committee’s version of the bill (Senate Bill 806) endorsed the idea of adding two members from the general public to the board, giving non-physicians a slim majority of 9 to 8, and raising the biennial license renewal fee to $1,150 — a 46% hike. But before the Senate voted, the bill’s author, Sen. Richard Roth (D-Riverside), dropped the proposed change in the board’s makeup and cut the fee to $863 — a 9% bump.

Granted, changing the board’s balance of power and boosting its budget won’t necessarily lead to more effective enforcement and fewer instances of bad doctors continuing to practice. They’re just two parts of a larger package of needed changes, many of which the board itself has identified and more of which need to be embraced by the Legislature. But they’re necessary parts.

One benefit of having a majority of non-physicians on the board is that it could give the public more confidence that the board is focused on protecting healthcare consumers, not healthcare providers. That’s what the law requires, but the public has to take it on faith that the board is complying because it does so much of its enforcement work in secret.

Complaints about doctors are confidential, and unless some formal disciplinary action is taken — which happens in only about 3% of the cases — there is no disclosure to the public. And even when doctors are put on probation, reprimanded or hit with some other sanction, they don’t have to reveal much to the people they treat; they only have to disclose to new patients if they are currently on probation, and only if that penalty was imposed after January 2019. Otherwise, it’s up to patients to check the state’s database or ask the board for information about a doctor’s record.

No matter who holds a majority on the board, it will still rely on medical experts to investigate complaints and on the state Attorney General’s Office to provide the legal guidance and muscle needed to impose sanctions. But it’s up to the board members to decide whether to accept the recommendations from their investigators and the AG. Astoundingly, the board doesn’t regularly track how often it accepts, modifies or rejects those recommendations, or how often the settlements reached with physicians adhere to its own guidelines. It did gather those data for fiscal year 2019-20, though, and found that the board approved 99% of the proposed settlements without changes, even though less than half of those settlements comported with all elements of the board’s guidelines.

The numbers buttress the argument by patient advocates that the board and its experts are too lenient on doctors who give substandard care. Public board member Eserick “T.J.” Watkins, a life and fitness coach and former member of the state’s Physical Therapy Board, told a Senate committee that by his own estimation, the board deviated from its guidelines 90% of the time. According to Watkins, the board goes out of its way to protect physicians, not the public.

Bridget Fogarty Gramme, director of the Center for Public Interest Law at the University of San Diego School of Law, offered another compelling reason to give public members a majority on the board: to avoid the risk of antitrust lawsuits. The Supreme Court held six years ago that licensing boards run by people who work in the industry they regulate can be sued for antitrust violations if they’re not subject to “active supervision” by state officials. That’s arguably the case here, where the doctors on the medical board decide who can and cannot practice in California.

The center also has called for the state to appoint a temporary enforcement monitor to audit the board’s enforcement process, as the state did almost two decades ago. SB 806 declares the Legislature’s intent to appoint a temporary monitor, but it wouldn’t actually make it happen, and that’s a problem.

A monitor could explore whether too many complaints are being dismissed without investigation (as more than 80% have been in recent years), why so many settlements aren’t hewing to the board’s guidelines, how the process could be made more transparent, and whether the board was gathering and analyzing data effectively.

One clear limit on the board’s ability to investigate complaints quickly and thoroughly is its shortage of funds. The board’s budget comes from licensing fees paid by doctors, which haven’t increased in 15 years; meanwhile, its costs have grown faster than its revenues, putting it on the path to insolvency. That’s why it sought a significant fee hike.

The medical association argued against the increase, contending that the board’s financial problems were caused by its own methods and inefficiencies. A 2020 consultants report to the board found, however, that most of those costs are outside the board’s control and that a fee increase of almost 50% was needed to get the board back to the level of funding and reserves required by law.

It’s easy to understand why the association would resist the higher fees, given the many costs their members have to bear. But they have a vested interest in a medical board that weeds out bad practices and bad doctors who damage their profession’s reputation. Consumers, too, need to tell legislators that they want a medical board they can trust. The current version of SB 806 falls short of that goal.