Public Is Vulnerable to Bad Doctors, Study Says

California consumers are offered little protection from incompetent doctors by a state disciplinary system that has become unwieldy and too “solicitous” of the physicians it regulates, a public interest group concluded Wednesday.

In a 100-page report, the University of San Diego’s Center for Public Interest Law asserted that a massive restructuring of the California Board of Medical Quality Assurance and the procedures it uses for disciplining physicians will have to be undertaken by the Legislature before consumers can be assured that incompetent doctors are being weeded out of the medical system.

Of the 70,000 physicians licensed to practice medicine in California, only a handful are publicly disciplined each year because the system is too “slow and lenient” and has become overburdened by a staggering backlog of cases, the report declared. Moreover, the authors of the report estimated that possibly as many as 10% to 15% of the state’s doctors “are so severely impaired they are not fit to practice medicine,” a figure emphatically disputed by the board’s executive director.

“We have a system in trouble on all fronts. . . . It doesn’t need just one thing. It’s broken down from A to Z,” said Robert C. Fellmeth, the center’s director and chief author of its report.

Fellmeth, who issued similar reports two years ago about the State Bar’s disciplinary system and now serves as a discipline monitor for the Bar, said the report on doctors represents a yearlong investigative effort by a team of lawyers. He said the public interest law center monitored the board for years before finally deciding that the mountain of consumer and physician complaints it had collected warranted further investigation.

The release of the highly critical document follows by two months a report by California’s Little Hoover Commission, a state watchdog agency, which found that the board had been “singularly inactive” in disciplining incompetent physicians responsible for treating nursing home patients.

The two reports, along with recommendations that the board itself will release on April 15, are expected to spawn a major legislative effort by lawmakers this year to reform the disciplinary process for physicians.

Kenneth J. Wagstaff, the board’s executive director, said he will welcome many of the proposed changes, particularly recommendations that physician licensing fees be raised to pay for a bigger investigative staff.

But he took issue with the conclusion that the system had completely broken down and he accused the authors of the report of inflating some of the facts and figures, specifically the contention that 10% to 15% of the doctors are impaired.

“There are not 10,000 drunk and addict doctors walking the streets of California,” he said. “I think it is true that the vast majority of the physicians of this state are dedicated and competent but it’s also true that the system is slow and that the system has backlogs.”

James Wheaton, an attorney who worked on the study, said that because the system is backlogged it is unknown how many incompetent physicians are actually practicing in California. He said the estimates used in the document came from American Medical Assn. reports.

Fellmeth said the legal team concluded that the system is “moribund and no longer protecting the consumers of California” because of a series of factors that prevent the board from taking tough, swift action against incompetent physicians.

He said these factors range from the board’s failure to learn of most malpractice and criminal cases against doctors until months after they are filed in the courts, to its apparent unwillingness to put pressure on coroners to report any suspicions that doctor neglect may have contributed to a patient’s death.

Once a complaint has been lodged against a doctor, Fellmeth said, the case must wind its way through a procedural labyrinth that could take as long as seven or eight years to complete. He said that during the administrative process, which sometimes lasts as long as four years, the doctor will continue to practice because the board has no authority to temporarily suspend licenses.

Because other physicians play a major role in each step of the disciplinary process, he said, a “Dutch uncle” approach is often taken. Instead of being disciplined, the doctor is counseled about his mistakes.

“The system is solicitous to physicians in the extreme and I think the board doesn’t make any secret about that,” Fellmeth said. “It openly describes the purpose of the system as rehabilitation of physicians.”

To reform the system, the report suggested sweeping changes, including:

- The creation of a medical quality court, composed of lawyers with medical expertise, to decide doctor disciplinary cases. Those cases are now decided by the board.

- The granting of new authority for the board to temporarily suspend the licenses of doctors who are accused of particularly egregious offenses.

- The approval of large hikes in physician licensing fees to pay for increased staff to investigate disciplinary cases.

- The establishment of new procedures to enable the board to learn immediately when criminal or malpractice cases are filed against doctors or when hospitals or clinics revoke their hospital privileges for any reason.

- The establishment of a statewide toll-free telephone number for consumers to make complaints.

State Sen. Robert Presley (D-Riverside) said he will consider sponsoring legislation to put many of the recommendations into effect.

Wagstaff predicted, however, that the establishment of a medical quality court would receive strong opposition from most doctors, who believe that physicians should continue to have a major role in the disciplinary process.

Charles McFadden, executive director of the California Medical Assn., said his group has not taken a position yet on the recommendations but, he noted, “organized medicine historically has been very leery of non-physicians judging physicians in medical matters.”