BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1950|
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THIRD READING
Bill No: SB 1950
Author: Figueroa (D)
Amended: 5/20/02
Vote: 21
SENATE BUSINESS & PROFESSIONS COMMITTEE : 6-0, 5/6/02
AYES: Figueroa, Johannessen, Machado, Murray, O'Connell,
Polanco
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Medical Board: Physicians Assistants
Committee: sunset
review
SOURCE : Author
DIGEST : This bill extends the sunset dates for the
Medical Board of California and the Physician Assistants
Committee and makes other changes to the board and
committee pursuant to recommendations of the Joint
Legislative Sunset Review Committee.
ANALYSIS : Existing law:
1. Establishes the Joint Legislative Sunset Review
Committee (JLSRC), subjects the various licensing boards
of the Department of Consumer Affairs (DCA) to sunset
review by the JLSRC, and provides for the elimination of
all the DCA boards on a specified schedule. The law
provides that when any board becomes inoperative and is
CONTINUED
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repealed (sunsetted), the DCA shall succeed to and be
vested with all duties and responsibilities of the
board. It is the intent of the Legislature that all
existing and proposed consumer-related boards or
categories of licensed professionals be subject to a
review on a four-year cycle, unless circumstances
warrant a longer or shorter interval with respect to a
given board.
2. Provides for licensing and regulation of physicians,
surgeons and midwives by the Medical Board of California
(board) and sunsets the board and its executive officer
on July 1, 2003, and permits the DCA to assume its
regulatory responsibility as of that date, unless
legislation is enacted by January 1, 2003.
3. Provides for licensing and regulation of physician
assistants by the Physician Assistant Committee
(committee) and sunsets the committee on July 1, 2003,
and permits the Department of Consumer Affairs (DCA) to
assume its regulatory responsibility as of that date,
unless legislation is enacted by January 1, 2003.
This bill:
1. Extends the inoperative and repeal dates of the board
for two years, to July 1, 2005, and January 1, 2006,
respectively, and extends the inoperative and repeal
dates of the committee for four years, to July 1, 2007,
and January 1, 2008, respectively.
2. Adds two additional public members to the current 19
member board and adds these two public members to the
current 12 member Division of Medical Quality.
3. Requires the board to disclose to the public additional
information, including: misdemeanor convictions
substantially related to the practice of medicine, and
civil judgments not overturned by appeal.
4. Provides that the number and amounts of settlements of
$30,000 or more in the possession or control of the
board shall be disclosed along with the average number
of settlements and amounts for the physicians specialty
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or subspecialty and disclaimers explaining the reasons
that a physician might settle a claim without being at
fault.
5. Clarifies that nothing shall be construed to amend or
limit the ability of the public to inspect public
records under the Public Records Act.
6. Requires that every attorney filing a civil complaint or
demand for arbitration seeking damages for death or
personal injury caused by the alleged negligence, error
or omission of a physician, at the time the complaint or
demand for arbitration is filed, to serve a copy of the
complaint or demand upon the board and requires the
board to treat this as a complaint from a patient.
7. Permits the board to waive certain licensing fees or
requirements for national or state disasters.
8. Repeals outdated requirement for State Auditor to audit
the board's disciplinary system.
9. Requires the Director of the DCA to appoint to the board
by March 31, 2003, an Enforcement Program Monitor to
evaluate the board's disciplinary system and report his
or her findings, as specified, to the board, the DCA and
the Legislature by October 1, 2003, and provide reports
every six months thereafter till March 31, 2005.
10.Grants the Board's Division of Licensing authority to
determine if an applicant for licensure has satisfied
the current clinical instruction requirement.
11.Requires the board to revoke the license of a physician
upon a decision of an administrative law judge that the
licensee engaged in any act of sexual abuse, sexual
relations with a patient or sexual conduct that is
substantially related to the qualifications, functions,
or duties of the licensee.
12.Increases the penalty for practicing medicine without a
license.
13.Permits the board to order a physician who is
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participating in the board's diversion program to be
examined by one or more physician or psychologist.
Makes failure to comply with this order, grounds for
suspension or revocation of the physician's license.
14.Requires the board to promulgate emergency regulations
to define the appropriate standard of care and level of
supervision required for the practice of midwifery.
15.Requires peer review bodies, as defined, to report
certain disciplinary actions taken against physician
assistants, to the relevant agency that has jurisdiction
over the particular licensee.
16.Grants the committee authority to issue a probationary
license to an applicant for licensure as a physician
assistant subject to terms and conditions as specified.
Comments :
This bill is one of six "sunset review bills" authored by
the Chair of the JLSRC. They are intended to implement
legislative changes as recommended by the JLSRC for several
licensing boards reviewed by the JLSRC in 2001/02.
Similar or Related Legislation this Session . Other "sunset
review bills" include: SB 1951 which deals with the
Acupuncture Board, SB 1952 which deals with the Cemetery
and Funeral Bureau, SB 1953 which deals with the
Contractors' Board, SB 1954 which deals with the Board of
Chiropractic Examiners, and SB 1955 which deals with the
Board of Podiatric Medicine, Physical Therapy Board, the
Optometry Board, and the Respiratory Care Board.
NOTE: See Senate Business and Professions Committee for
background information.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/22/02)
Center for Public Interest Law
The Medical Board of California
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Consumers Union
CALPIRG
California Nurses Association
OPPOSITION : (Verified 5/22/02)
Doctor's Company
California Association of Professional Liability Insurers
California Academy of Family Physicians (unless amended)
ARGUMENTS IN SUPPORT : The Center for Public Interest Law
argues in part:
"Physicians are members of a highly regulated profession;
in California, that regulation is carried out by the
Medical Board. A physician's incompetence or impairment
can kill or permanently injure patients. Undeniably,
patients have a right to expect that the state agency
charged with public protection as its 'paramount' priority
will disclose true, accurate, and complete information
about the licensees of the State of California, so patients
can make informed choices about their health care
practitioners.
"But that does not happen. MBC's Web site fails to include
all true, accurate, and complete information about its
licensees' disciplinary, malpractice, hospital privileges,
and criminal history. MBC does not disclose medical
malpractice settlements -- no matter how many there are or
their amount. It does not disclose misdemeanor criminal
convictions -- no matter how 'substantially related' they
are to the practice of medicine (e.g., driving while under
the influence)?.The absence of this information on MBC's
Web site lulls patients into a false sense of security that
these events have not occurred - a dangerous assumption in
some cases.
"Since 1993, the board has disclosed medical malpractice
judgments and arbitration awards to the public. Due to the
disclosure requirement, however, judgments have been few
and far between since then (as documented by the San
Francisco Chronicle (January 6, 2002) and the San Diego
Union-Tribute (April 29, 2002). Doctors and their lawyers
have found numerous ways to evade the disclosure
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requirement. In 2001, the board received 1,337 malpractice
reports. However, only 62 of those were arbitration
awards, and only 50 of those were malpractice judgments -
meaning all the rest (1,225 to be exact) were settlements,
none of which have been disclosed to the public ."
The JLSRC has documented that ten other states require the
disclosure of medical malpractice settlements. The JLSRC
surveyed those states and found no increases in medical
malpractice insurance premiums or doctor complaints.
The JLSRC further observes that all other stakeholders -
medical malpractice insurers, medical groups and hospitals
- all insist in obtaining medical malpractice settlement
information as a pre-requisite for doing business with a
doctor. Only patients - the only stakeholder who could die
- is denied this information.
The Center for Public Interest Law points out that, "The
Federation of State Medical Boards supports the disclosure
of settlements. Prior Medical Board members now support
the disclosure of settlements. Indeed, the current Medical
Board unanimously supported the disclosure of all
settlements over $30,000 at its May 2002 meeting in Newport
Beach. All of these various entities support settlement
disclosure in different ways - with different disclosure
triggers and/or thresholds. All of them require
disclaimers and explanations to help patients understand
the significance of settlement information. But the point
is that all of them have decided that settlement
information is relevant and valuable to consumer choice. "
The Center also points out that since some physician
specialties are sued more frequently than others, "the
Medical Board has agreed to provide additional information
to help patients put settlement information in context,
such as the average number of malpractice payouts suffered
by physicians in a particular specialty, and/or the average
amount of payouts by specialty. Patients can easily tell
the difference between a physician (especially a physician
in a high-risk specialty) with one or two settlements in an
otherwise unblemished 25-year career and a physician with
two $1 million settlements, one judgment, revocation of
privileges by a hospital, and two DUI convictions"
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ARGUMENTS IN OPPOSITION : According to the California
Association of Professional Liability Insurers, "Settlement
of a lawsuit is not an indicator of physician incompetence.
Consistently, the carriers see that physicians in surgical
specialties, particularly neurosurgeons, cardiac surgeons
and obstetricians are sued and settle far more frequently
than other specialties. Some of the best practitioners in
these high-risk specialties are sued and settle frequently.
A California study showed that 17% of obstetricians?more
than one in six?has been sued six times or more. An
unintended consequence of SB 1950 is that it would create a
further disincentive for specialists to take on
particularly difficult cases involving a high risk of
morbidity or mortality.
"It is wrong to assume that physicians settle only cases
with some merit on the plaintiff's side. Many factors
enter into the decision to settle, such as the availability
of witnesses, the ability of those witnesses to convey
information to a jury, the complexity of the medical issue,
the relative sympathy for the plaintiff, the potential for
adverse or biased media coverage, the relative economic
impact on the physician in being away from his practice
during trial, the emotional consequences to the physician
in being away from his or her practice during trial, the
emotional consequences to the physician in going to trial,
and in some cases the exposure of the physician over the
policy limits.
"More often than not, the assurance of confidentiality is
the overriding factor facilitating settlement of a case.
This is even truer when the physician believes the case
against him or her is without merit. Physicians have the
right to consent to a settlement under California law, and
we firmly believe many more will refuse to settle if they
know that at some point the board will release the
settlement. This will drive up insurance expenses as more
cases go to trial, resulting in increased premiums for
physicians and decreased access to care, particularly in
the higher-risk specialties.
"The Medical Board receives settlement information
currently. It is charged with evaluating circumstances of
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the case and the factors enumerated above, and add that
information to other it has obtained from its experts to
determine if the physician presents a danger to the public
or warrants disciplinary action. Posting settlement
information of the board website is a poor substitute for
that sort of investigation. Even worse, since settlement
information has been released by the Medical Board, it will
carry with it the implication that it bears on the
physician's competence, when by itself the fact of a
settlement is meaningless."
CP:jk 5/22/02 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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