Physician Negligence: The Medical Board of California--Law & Policy

Physician Negligence: The Medical Board of California--Law & Policy

Physician Negligence: The Medical Board of California--Law & Policy

The Medical Board of California licenses about 100,000 physicians in California and another 27,500 who are licensed here but reside and practice in another state.  Each year just over 2 percent of California physicians are subjected to Medical Board disciplinary action.  Nationally, the rate of discipline is about 3%, making California 41rst among state Medical Boards taking disciplinary action. (See Public Citizen report, 2010, and Federation of State Medical Boards statistics for 2010).

These statistics, while iluminating and perhaps frustrating to consumer groups who accuse the State of California of being lax in physician discipline, probably don't mean much to the 98% of California doctors who do not face Medical Board disciplinary action.  However, for those on the receiving end of a Medical Board Accusation, the matter is serious indeed.  Careers can end and legal bills can pile up exponentially through the process of investigation, administrative hearing, and appeals.

California Medical Board disciplinary cases have a number of different points of origin.  Some are based on patient or family  member complaints to the Board.  The Medical Board posts its complaint form on its website.  Some come from medical staff, nurses or fellow physicians, while still others come from  reports from insurers and hospitals required under Business and Professions Code sections 801 and 805.

While the bases for a accusations are numerous, the most frequent appear to be negligence (patient quality of care matters), prescribing violations or substance abuse, and sexual misconduct.  Accusations may also derive from conviction of a crime deemed substantially related to the functions, duties or qualifications of a physician and surgeon, and these may include tax offenses, DUI's, Fraud, Domestic Violence, and a host of other state and federal offenses. The conviction itself is deemed proof enough.

This article looks at only one area as a basis for a Medical Board Accusation and disciplinary action: Negligence. Physician negligence is regulated by Business and Professions Code Section 2234 (b) [Gross Negligence] and (c) [Repeated Negligent Acts]. 

Negligence is found where there is a departure from the "Standard of Care" for a particular diagnosis, treatment or procedure within a medical practice or specialty.  The standard of care is based on expert opinion rather than a code section or regulation.  It is therefore fluid and subject to the changes in standard medical practices as reflected in expert testimony, medical research, and medical publications relevant to medical care in California and, at times. the nation.  Gross Negligence is found where the departure from the recognized standard of care is deemed an "extreme departure" and therefore within the meaning of Business and Professions Code Section 2234(b).

Section 2234 (c) of the Code defines Repeated Negligent Acts as "two or more negligent acts or omissions".  Neither the Code nor the Medical Board deem a single negligent act sufficient to warrant  discipline.  (Although informal "Citation and Fine" may apply). There must be more than one act, and Board policy and interpretation of Section 2234  has long held that the acts must be discrete, separate violations of the standard of care, rather than a continuation of a single act or patient encounter.

As subsection (1) of Section 2234(c) states: "An initial negligent diagnosis followed by an act or omission medically appropriate for that negligent diagnosis of the patient shall constitute a single negligent act."  For Repeated Negligent Acts to be found there must be two or more "separate and distinct" negligent acts.  In practice, the Medical Board rarely charges Repeated Negligent Acts (violation of Section 2234(c)) in an accusation without also filing at least one charge of Gross Negligence.

For Gross Negligence under Section 2234 (b) to apply, a single instance or act is enough.  Procedurally,  the Medical Board, through its investigators and the Attorney General's Office, will have the facts and chart records of a patient matter reviewed by a medical consultant (Board physician) who determines whether expert review is warranted.  If so, a Board approved expert then reviews the facts and circumstances, including the patient records, and a recorded verbal or written statement from the potential respondent doctor, to determine whether or not there has been an "extreme departure" from the standard of care that can be charged as gross negligence.

Initially, the Board's expert will state in a written report the applicable standard of care, and then using the facts, documentation and circumstances of the case, he or she will determine whether there was a departure from the standard and whether the departure was simple or extreme i.e. warranting the filing of an accusation accusing the doctor of Gross Negligence.

In most instances, expert review is conducted by a physician who is board certified in the same speciality or specialities as the doctor under investigation.  Only where the issue is generic to all physicians regardless of speciality would a doctor with a different certification or training be asked to opine on gross negligence for the Medical Board, e.g., excessive prescribing.

A physcian facing an accusation for Repeated Negligent Acts and/or Gross Negligence as a basis for discipline may be subject to revocation of his or her license or a term of probation with various terms and conditions if found culpable at an administrative hearing or through a negotiated stipulated decision.  Either of these results are reported to the National Practitioner Data Bank and create a permanent record of disciplinary action.

The first thing a doctor facing a potential accusation must determine is whether the Board's investigation and any proposed charges of negligence are supported by the facts and the applicable standard of care.  This is not something the physician can do on his or her own, notwithstanding excellent qualifications.  It requires hiring an unbiased expert physician to conduct an independent review. 

Obviously finding and hiring an outside medical expert is not something most physicians are used to doing on a regular basis.  The subject of a Medical Board investigation involving negligence should therefore consider finding experienced counsel at an early stage to assist with this process. The attorney should have knowledge of the experts likely to testify in such matters and be able to advise his or her client accordingly in terms of acquiring an appropriate independent expert to review the case.

When a physician is contacted by an investigator for the Medical Board about a potential quality of patient care case or issue, he or she should retain experienced counsel before making any statement or offering any explanation of the care rendered in a particular case.  Otherwise, the physician risks unknowingly providing information that might be misinterpreted by a Medical Board expert in a finding of negligence, when it is possible that a different but equally honest and factual reponse would have helped resolve the issue in the physician's favor.   When in doubt, early retention of counsel is advisable.

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