By Samantha Young, CALIFORNIA HEALTHLINE
June 25, 2021
SACRAMENTO — The board that licenses and disciplines doctors in California is failing to hold bad actors accountable, endangering patients in the process.
That’s the verdict of state lawmakers and patient advocates who have been working for years to reform the Medical Board of California.
But an attempt this year to give the board more money and power to investigate complaints of fraud, gross negligence, sexual misconduct and other misbehavior is under attack from one of the most politically potent forces in California’s Capitol: doctors themselves.
And so far, it seems, the doctors are winning.
The California Medical Association (CMA), whose top lobbyist sat next to Gov. Gavin Newsom at the infamous French Laundry dinner last fall, swooped in to slash a proposed hike on physicians’ licensing fees even though the board, which relies on those fees, is teetering on insolvency. It also beat back a proposal to put more non-physician members of the public on the board, which would have diminished the influence of the doctors who represent a majority.
“The strength and the power of the CMA is that they are able to deflect and obstruct the beneficial and necessary legislation to protect the consumer and to ensure the success of the medical board,” said former state Sen. Jerry Hill, who four years ago lost his push to overhaul the board. “That’s what I found, and that’s what I see occurring this year.”
This year’s bill was approved by the state Senate after it was amended under pressure from the doctors’ group. The measure is now before the state Assembly, where it remains a target of the California Medical Association. As currently written, SB 806 would authorize a smaller licensing fee increase, restore the board’s authority to recoup investigative costs from doctors who have been disciplined and create an independent monitor to evaluate the board’s complaint and disciplinary processes.
The mission of the medical board, composed of eight physicians and seven members of the public, is to license and discipline doctors. But critics say the board has allowed some doctors who have committed wrongdoing to keep their licenses, despite reports of egregious behavior, while families complain they’ve been left in the dark for years.
The board received 10,868 complaints in the 2019-20 fiscal year. During that period, it initiated 1,956 investigations, revoked 35 physician licenses, put 170 doctors on probation and reprimanded 108 doctors, according to the board’s 2019-2020 Annual Report. An additional 96 physicians surrendered their licenses.
In his independent review of cases that came before the panel last year, board member Eserick “TJ” Watkins told lawmakers the board had settled 84% of complaints, with a bias toward allowing doctors to continue to practice without real rehabilitation.
“This board’s value is we protect the doctors, and we’ll go over and above in order to do so,” said Watkins, one of the board’s members representing the public.
Earlier this year, the board’s executive director told lawmakers the board is taking longer to investigate complex cases than it did six years ago, in part because of more complaints and vacancies among the board’s support staff. In fiscal year 2019-20, those cases took an average of 548 days from start to end, he said, compared with 310 in fiscal year 2013-14.
Patients and their families who have testified at legislative hearings describe an unresponsive and uncommunicative board that usually allows doctors accused of negligence or malpractice to continue to practice.
“I thought there would be a lot of integrity and thoroughness to the investigation process, and I didn’t get a sense that the medical board really looked at the matter,” said Alka Airy, who in 2019 filed a complaint of unprofessional conduct and potential negligence against the University of California-San Francisco’s Lung Transplant Program after her sister, Shilpa Airy, died the year before.
Shilpa Airy died of heart failure in 2018 while waiting for a lung transplant. Her sister, Alka Airy, filed a complaint with the Medical Board of California in 2019 alleging that doctors involved with the University of California-San Francisco Lung Transplant Program failed to evaluate how her sister’s lung failure affected her heart or refer her to a cardiologist. Airy said the board closed the complaint without taking action.(Alka Airy)
According to the complaint, doctors who treated Shilpa Airy between 2015 and 2018 failed to evaluate how her lung failure affected her heart or refer her to a cardiologist. She died of end-stage heart failure while waiting for a lung transplant. Airy said the board closed the complaint without taking action. The board declined to comment.
By comparison, when Alka Airy filed a complaint with the California Board of Registered Nursing, she said, she was interviewed by an investigator who requested additional records beyond what the doctors or hospital may have provided. Airy said she is still waiting to learn the outcome of the case.
A UCSF spokesperson said its clinicians have fully cooperated with all investigators and could not comment on pending investigations.
“I think my experience was very similar to thousands of other folks who sent in complaints to the medical board,” Airy said. “It’s not a transparent process. So much happens behind closed doors.”
Board spokesperson Carlos Villatoro said the board bases its disciplinary decisions “on the facts and circumstances of each case” to determine whether revoking a physician’s license is necessary.
“The board does not have the authority to punish a licensee by imposing a level of discipline that goes beyond what is necessary to protect the public,” Villatoro said via email.
Advocates for patients and even some board members believe that tipping the board’s balance of power to public members could regain some of the public’s trust. But that provision was removed from this year’s bill after the California Medical Association argued the panel — like other comparable state boards — needed the expertise of people in the profession it regulates.
Dr. Howard Krauss, himself a former trustee of the CMA, has been on the board for eight years. In that time, he said, he’s never witnessed a decision that pitted physicians on the board against public members.
“The optics of having a board with one more public member than a physician might be of benefit,” Krauss said at an emergency hearing this month.
Critics say the board also lacks the resources and the ability to pursue timely investigations, hamstrung by a legislature beholden to the CMA, whose 50,000 pediatricians, surgeons and other physicians are influential members of every lawmaker’s district.
The California Medical Association is one of the most prolific campaign contributors in Sacramento and has given to Newsom and all but one of the 119 lawmakers currently serving in the state legislature.
In addition to making campaign contributions directly to lawmakers, the association spent $18.6 million between Jan. 1, 2011, and March 30, 2021, lobbying lawmakers and state agencies on a variety of issues, from flavored tobacco to medical malpractice caps, according to records filed with the California secretary of state’s office. It employs its own lobbyists and hires outside lobbying firms.
The group routinely scores access to the state’s top leaders. Among the movers and shakers at the French Laundry dinner party in Napa Valley in November were the association’s top lobbyist, Janus Norman, and CEO, Dustin Corcoran.
CMA spokesperson Anthony York said the organization is “like any other group in the Capitol” that advocates for its members. He said the $367 increase in licensing fees that lawmakers initially proposed — from $783 to $1,150 — would have been too big a burden on doctors who fought to stay open during the pandemic.
Family medicine physicians in California earned an average annual wage of $220,240 as of the first quarter of this year, according to the state Employment Development Department. “A lot of physician practices are struggling to keep their doors open,” York said. “Now is not the time for a fee increase.”
After state Sen. Richard Roth (D-Riverside) introduced the legislature’s must-pass bill to reauthorize the medical board in May, the CMA issued an “action alert” to its members, urging doctors to call, text and email their senators to voice their opposition. Eight days later, it declared a partial victory when Roth amended his bill to lower the fee increase to $863 and eliminate a requirement that the board be controlled by public members, a provision that had been backed by Senate leader Toni Atkins.
“While the bill is not perfect,” the association wrote on its website, the removal of those provisions “was a major victory.”
Despite repeated requests from the medical board, lawmakers haven’t approved a licensing fee increase in 16 years, even though the fees are the board’s primary source of income. The CMA agreed to the last fee increase in 2005 as part of a deal that also took away the board’s ability to recover legal and investigative costs for cases in which doctors had been disciplined.
York said the association remains opposed to the provision that would restore the board’s ability to recoup investigative costs and has concerns about the role of the independent monitor.
In its report to the legislature, the medical board projected it would be insolvent by the end of 2021-22 without an increase in licensing fees.
Doctors “just don’t want to pay for it,” said Bridget Gramme, an attorney at the Center for Public Interest Law at the University of San Diego School of Law. “What is the money going for? It’s going for a stronger discipline system, which they don’t want.”
Roth, who chairs the Senate Business, Professions and Economic Development Committee, said the CMA’s influence wasn’t the reason he amended the bill to reduce the fee increase. Rather, he said the board hadn’t justified the large fee increase — even though he included it in the original version of the bill — and could make do with a modest fee increase combined with better money management.
“Everybody had an opportunity to voice their perspective,” Roth said, pointing out that the bill still includes provisions that doctors oppose. “The goal is to make sure that we have a medical board that is functioning effectively and efficiently, that the enforcement process does the right thing at the right time for the right reasons, and that we squeeze every bit of operational efficiency that we can afford.”
As he watches from afar, Hill, the former legislator, said he doesn’t think the California Medical Association will give up until it kills every provision it opposes.
“This whole thing is part of CMA’s playbook. It’s how they operate,” Hill said. “They hire just about every available lobbyist in Sacramento to remove the rest of what was in the bill.”