Growing push for patients to get notified about doctors on probation

Feb. 27--While still under fire from legislators and patient advocacy groups, doctors who commit serious transgressions are now also under pressure from their peers.

A newly submitted bill supported by the California Medical Association seeks to strip away probation as an option for physicians whose actions harmed patients through drug or alcohol abuse, sexual exploitation or other felony-level misconduct. Instead of going through state regulators' administrative disciplinary process, they would instead face judicial scrutiny.

Meanwhile, the measure would not require doctors who are placed on probation for other reasons to inform their patients about that disciplinary action.

Patient notification is a long-standing point of contention between the association, which represents more than 43,000 doctors statewide, and patient advocacy groups. Most recently, the names and violations of about 500 California doctors on probation -- including 44 in San Diego County -- were included in a research report that will be used to conduct the state medical board's "sunset" review. That review, to be conducted by a state Senate committee during a hearing Monday in Sacramento, is required every four years to determine whether the board should continue operating.

The probation-doctors list resembles one released in 2015 by the group Consumers Union. It is accompanied by a recommendation from the Senate committee's staff for creation of a legal amendment that would "ensure that patients receive timely notification of their physician's probationary status."

Currently, doctors are often allowed to continue practicing medicine after being placed on probation for a range of violations, including sexually assaulting patients, making serious and repeated medical errors or practicing under the influence of drugs or alcohol. While the medical board does make disciplinary documents available to the public on its website -- and recently took steps to make those reports easier to find -- some lawmakers and patient advocates said the burden of discovery should never have been placed on consumers in the first place.

The public should not have to learn about the website on its own and then take the additional step of tracking down the disciplinary information on that portal -- especially when some residents don't have computers, said state Sen. Jerry Hill, D-San Mateo, who co-chairs the committee that will conduct Tuesday's review hearing.

"If (doctors are) on probation, they (currently) have to notify the hospital they're affiliated with and their malpractice insurance carrier. It just doesn't make sense that they don't have to notify the patient," Hill said.

In 2015, the Medical Board of California declined to move forward with a Consumers Union petition that would have required patient notification, saying it could damage the doctor-patient relationship for cases where the violations were minor and did not put patients at significant risk of harm. Physicians groups also said many doctors accept probation only because fighting accusations of wrongdoing through a formal hearing before an administrative law judge is a time-consuming and very expensive process.

In a statement last week, the California Medical Association said the new piece of legislation, Assembly Bill 505, is meant to address doctors with "the most egregious allegations." The measure would deny those physicians the chance to essentially plead out and go on probation rather than risking a court conviction.

"This will protect due process but allow the medical board to appropriately discipline bad actors and protect California patients," the association said.

But advocates who have long demanded probation notification for patients are not satisfied.

Lisa McGiffert, director of the Safe Patient Project at Consumers Union, said the bill does not appear to cover all violation categories. "A doctor who has repeatedly been grossly negligent would not have to notify patients," McGiffert said.

Another deficiency, she said, is the bill's focus on physicians whose drug or alcohol use has directly harmed patients.

"Presumably the (California Medical Association) thinks that doctors with serious drug problems are OK to continue practicing without patient notice as long as they didn't DIRECTLY harm a patient while on drugs," McGiffert said in an email.

The bill was introduced by Assemblywoman Anna Caballero, D-Salinas. She was not available Friday to discuss why her bill does not include patient notification. Legislative assistant Michelle Altawil noted that the legislation is only in its first revision.

"The issues that Sen. Jerry Hill has raised in his bill last year might become part of the discussion for our bill later on," Altawil said.

Hill had introduced Senate Bill 1033 in early 2016, but failed to gain traction amid opposition from the California Medical Association.

The senator said he expects significant discussion in the Legislature about the patient-notification issue. Any notification language that advances beyond committee hearings would still require passage by the full Legislature -- and get the governor's signature -- to become law.

After looking at the state medical board's disciplinary documents, especially those involving doctors who committed sexual assault, Hill said he is determined to keep applying the pressure for change.

"If you've read some of the cases and the clear evidence they've accumulated, you would see how vulnerable some of these young women have been and how they have been abused and taken advantage of," he said. "My daughters and my granddaughters and my wife all see physicians, and I want them to be told if those physicians have been on probation or if they have had a history of behavior that was inappropriate."

In the overall picture, it is very rare for a doctor to be placed on probation.

At any given time, only a few hundred are in that classification and subject to additional supervision, restrictions on their practice or requirements for retraining. That figure represents less than 1 percent of the nearly 140,000 licensed doctors in California.

According to the medical board's most recent annual report, 87 doctors voluntarily surrendered their licenses during the 2015-2016 budget year and the board revoked an additional 49. Gross negligence was the most common reason for discipline

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Twitter: @paulsisson

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UPDATES:

8:29 a.m. This article originally stated that the state's meeting was Tuesday. It is Monday.

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