Medical Board Faces Revision or Death

California’s system of disciplining physicians may soon face radical surgery amid concerns that complaints drag on for years before resolution and that doctors in detox programs are not carefully monitored.

As state lawmakers and outside monitors press for changes, the Medical Board of California is moving to raise physicians’ licensing fees for the first time in 11 years to bolster inquiries.

The board’s executive director said he planned to recommend that all his investigators be assigned to the state attorney general’s office. Advocates hope that would speed the pace of investigations into serious complaints, which take an average of 2.6 years to complete.

If adopted, the changes to the medical board would amount to one of the most extensive overhauls of a California professional regulator in years.

But the fee increase -- from $600 to $800 for a two-year license -- is facing skepticism from the influential doctors’ lobby, and the overall reforms could be scuttled by Gov. Arnold Schwarzenegger’s proposal to abolish the medical board altogether and give its responsibilities to his administration.

The medical board was created as part of a deal in 1975: The Legislature would limit malpractice awards for pain and suffering to $250,000; in return, complaints against doctors would be promptly and effectively investigated.

“Clearly the promise of [that deal] has not occurred,” said Julie D’Angelo Fellmeth, who was appointed in 2003 as the board’s enforcement monitor. Fellmeth, executive director of the Center for Public Interest Law at the University of San Diego School of Law, issued a report in November recommending major changes in the medical board to improve its ability to protect patients.

The board regulates the state’s 91,000 doctors, who fund its enforcement activities through licensing fees. The 21-member board has a majority of 12 physicians, with the other seats going to members of the public appointed by state leaders. All serve four-year terms.

Fellmeth’s report identified a number of shortcomings, including:

* Lax oversight of the diversion program, in which doctors with substance abuse problems can receive treatment confidentially without losing their licenses.

The board is supposed to make sure doctors are being screened randomly for drug use, but the monitor found that the private groups responsible for testing often scheduled them for Tuesdays and Thursdays rather than weekends -- allowing the doctors to have a good idea about when they would have to provide samples.

The testers also had poor follow-through: Four out of 20 doctors who relapsed after graduating from the program were not tested for periods as long as four months.

* A lack of cooperation between board investigators and lawyers in the attorney general’s office who are responsible for prosecuting the cases. A proposal in 1990 to bring prosecutors in at the beginning stages of an investigation was not enacted.

* A statewide hiring freeze that reduced the board’s enforcement staff, which has not yet been replenished. The board employs 30 fewer investigators than it did 12 years ago, even though it has far more complaints.

* The failure of insurers and courts to fully and promptly report malpractice lawsuit settlements, and hospitals to report instances in which doctors were disciplined by their peers.

As part of previous efforts to improve physician regulation, those groups were mandated to report possible misconduct.

The monitor found that the board had failed to publicly disclose civil malpractice settlements it learned of, revealing settlements for only seven doctors in two years since that requirement was enacted.

* The slow pace of collecting medical records as part of investigations. It takes investigators 2 1/2 months on average to collect the records, even though doctors and hospitals are required to turn over records in 15 days.

The monitor said investigators rarely used their subpoena powers or warrantless searches that can be conducted with the consent of the patient.

Discussion about reforming the board was to begin today at a board meeting in Burbank and continue Tuesday when state Sen. Liz Figueroa (D-Fremont) holds an oversight hearing in Sacramento.

David Thornton, the board’s executive director, said he agreed with most of the monitor’s criticisms, many of which he said were first identified by staff.

He called the disjointed relationship between prosecutors and investigators “a territorial thing” and said he would recommend today that the investigators be assigned to the attorney general’s office.

“If the investigators are no longer employed by the medical board, then they’re working for the same boss” as the prosecutors, he said.

He also said that would help erase the public perception that slow investigations or those that didn’t result in charges were the result of clubbiness among doctors.

Nathan Barankin, a spokesman for Atty. Gen. Bill Lockyer, said that although coordination could be improved, “the fundamental problem” was that there were not enough investigators and lawyers for all cases.

But the California Medical Assn. has successfully opposed efforts by the board to increase its fees, and Jack Lewin, the association’s chief executive, said the group was not convinced that a fee increase was necessary now. “We haven’t the evidence of an effective and clear understanding yet of why the fees need to be increased and what they will go for,” he said.

One of the notable things about this examination of the board is that, unlike previous such efforts, it is not being sparked by crisis.

The 1975 changes that established California’s modern board were motivated by rapidly escalating malpractice premiums.

Changes in the early 1990s were sparked by the board’s failure to discipline Dr. Milos Klvana, who was convicted in 1989 of nine counts of first-degree murder involving eight infants and a fetus, as well as outrage over the board’s action in summarily closing hundreds of cases that had not been investigated.

Outside observers say the board has made dramatic improvements since then, and both Fellmeth and Figueroa said they believed that the current leadership and staff were committed to improving its operations. Both said Schwarzenegger’s plan to eliminate the board was unwise.

“I think it’s really wrong to say, ‘Oh, yeah, it has a lot of problems, let’s get rid of it,’ ” Figueroa said. “The problems will still remain. They’ll be larger and they’ll be hidden.”