Advocates Debate Doctor Probation Notices in California

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By David McAfee

Nov. 18 — The Medical Board of California's decision to consider whether physicians should be required to notify their patients when they have been placed on probation raises a number of issues that are hotly contested by patient and physician advocates, health experts say.

The Medical Board of California decided late October to establish a “task force” to look into a patient advocacy group's request to force physicians in California to notify their patients when they are on probation. While the board rejected the petition, submitted by Consumers Union, it said the matter deserved additional inquiry and input from the public.

Lisa McGiffert, the Project Director for Consumers Union's Safe Patient Project, says the issue is “very much alive” despite the medical board's denial of the group's petition. There are about 500 doctors on probation in California, a small fraction of the between 102,000 and 130,000 licensed physicians in the state, according to Consumers Union.

“Our next step is to go back to them with a proposal to require doctors on probation for sexual misconduct, substance abuse issues, repeated gross negligence and repeated violations of probation to inform their patients,” McGiffert told Bloomberg BNA on Nov. 4. “It is our belief that this will include most of the 500 doctors.”

The medical board denied the request to implement a requirement for physicians on probation to report that detail to their patients because of the possibility that it could damage doctor-patient relationships when there is only a minor infraction involved. Such a rule, which is supported by Consumers Union, the Center for Public Interest Law at University of San Diego and Consumer Watchdog, might be an unnecessary burden on the practitioner, according to the medical board and some health experts.

‘Potential Hardship.’

Michael F. Schaff, chair of the Corporate and Healthcare departments at Wilentz, Goldman & Spitzer PA in Woodbridge, N.J., agreed with the board's reasoning. Requiring doctors to notify patients that they are on probation may create a “burden on the doctor” and could lead to a host of other issues, he said.

“Our position would be, as a lawyer who represents physicians, that it creates a potential hardship on the doctors. So that's our concern,” Schaff told Bloomberg BNA on Nov. 9. “If you get a letter from your doctor saying this person has been reprimanded, you'd think twice before you decide to go back—especially if you don't know all the details, and some of the details may be confidential in nature.”

Dennis Hursh, managing partner of Pennsylvania physician's law firm Hursh & Hursh PC in Middletown, Pa., echoed Schaff's sentiments. This type of notification, he said, “could absolutely ruin a physician's practice.”

“Patients simply don't understand the rigid quality guidelines that physicians are held to,” Hursh told Bloomberg BNA in a Nov. 18 e-mail. “I believe many, if not most, patients would equate a probation to a determination that the physician shouldn't be practicing or isn't safe.”

Consumers Union, however, rejects the idea that the notification would create widespread problems. The group says it hasn't come across probation orders for minor infractions like those mentioned by the medical board, including “billing issues, tax issues and medical recordkeeping.”

“Our perception is that the board takes probation very seriously and issues these orders when they believe the doctor needs to be watched,” McGiffert said. “It is disturbing that board members think doctors are on probation for these kinds of minor issues.”

McGiffert also said that the medical board is concerned about the doctor-patient relationship, but that relationship “is based on trust.”

“There is no greater violation of that trust than when a patient is harmed by a doctor who the patient didn't know was on probation,” McGiffert said.

Information Is Publicly Available

Some health experts also say a probation notification rule would be duplicative, considering the information is often made publicly available by the medical board. In many cases, patients are already able to access the information online.

“Typically these types of suspensions or reprimands are public,” Schaff told Bloomberg BNA. “They may not go into the details associated with it, but a lot of times these come out of the board of medical examiners and people should be able to find it if they decide to make it public.”

Grace D. Mack, a Wilentz shareholder added that New Jersey has a website, NJdoctorlist.com, specifically for that purpose.

“It's a state website where you can go and put in the doctor's name and see if there has been any disciplinary action,” Mack said during a joint interview with Schaff. “Other states have a similar thing.”

But Consumers Union, in its administrative petition to the board, said that seniors—the most likely group to seek health care—are also the group that is least likely to go online.

“About four in ten adults ages 65 and older do not use the internet, compared with only 3 percent of 18- to 29-year-olds. One-in-five African Americans, 18 percent of Hispanics and 5 percent of English-speaking Asian-Americans do not use the internet, compared with 14 percent of whites,” the authors of the petition wrote. “Even in cases where a patient is aware of the Medical Board, it is unlikely that it would occur to a patient, who has been in a particular physician's care for many years, to check whether the physician has recently been disciplined.”

Schaff suggested that the advocacy group's concern was unrealistic, saying access to internet is “less and less of an issue” in modern times.

“My mother, who's 85, has internet access and these seniors understand it, and kids walk around with cell phones that have internet access,” Schaff said. “I think if you were talking 10 years ago, you might be correct. But today I believe most people have internet access or some methodology … you can go to the local library and go on a computer for free.”

Board to Create Task Force

Consumers Union says it does not yet have the specific language of the motion adopted to create the task force and that its members have not yet been appointed. The group says the information currently available, however, looks promising.

“Some board members have been speaking very generally about it, as if the goal is to educate patients to look up their doctors instead of doctors informing patients,” McGiffert said. “However, at the end of a recent radio program, a member of the board indicated that their enforcement committee is going to look into ways to inform patients.”

McGiffert added that the board “heard that the public was behind getting patients notified, but balked at including all doctors” because of minor actions resulting in probation.

“We agree that there are variations, but we are slowly reviewing these orders and have yet to come across any that we would categorize as ‘minor,’” McGiffert said. “Probation is a revocation of a license that is set aside for a certain time while the doctor has to meet certain conditions—including such things as having a chaperone when seeing female patients and prohibiting prescribing narcotics—things that would be important for patients to know.”

Schaff, however, said he's “a little cynical” about the task force. Setting up a group to look into the issue doesn't necessarily mean the board takes it seriously, he said.

“I think they'll do their job, but the fact that there is a task force set up doesn't mean the board thinks it's a significant issue,” Schaff told Bloomberg BNA. “It just means that, from my perspective, that there have been people complaining about it and the board thinks it's appropriate to look into from a political perspective.”

Probation Notification in Other Regions

Consumers Union is only petitioning California for the rule, but the group says that could change depending on whether the idea gains traction.

“We are not pushing this in other states, but based on the overwhelming support we have received in California, we might see some other states picking up the issues,” McGiffert told Bloomberg BNA. “California and we suspect other states' boards are able to require patient notice and do so occasionally, but not as a consistent standard in probation orders.”

Hursh says people trust medical boards to “cull out bad physicians” and that a forced probation notification rule doesn't do anything “to advance the quality of care in the state.”

“If a physician should not be practicing, his or her license should be revoked,” Hursh said, adding that if the opposite is true then the doctor should be able to safely treat patients.

“Hospitals routinely place physicians on probation or require mentoring or supervision for certain procedures, but I have never heard of any of these hospitals notifying patients of potential concerns,” Hursh told Bloomberg BNA.

To contact the reporter on this story: David McAfee in Los Angeles at dmcafee@bna.com

To contact the editor responsible for this story: Allison Gatrone at agatrone@bna.com

For More Information 
Consumers Union's administrative petition is available at http://src.bna.com/9o.