BILL ANALYSIS
AB 1767
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Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
AB 1767 (Hill) - As Introduced: February 9, 2010
SUBJECT : Physicians and surgeons: expert testimony.
SUMMARY : Requires the Medical Board of California (MBC) to
provide legal representation to a physician and surgeon who
faces disciplinary action by a specialty board as a result of
his or her participation in an MBC evaluation. Specifically,
this bill :
1)Requires MBC to provide legal representation for a physician
and surgeon in a specialty board's disciplinary proceeding if
that individual is subject to the disciplinary proceeding as a
result of providing expertise to MBC.
2)Makes legislative findings and declarations.
EXISTING LAW :
1)Requires MBC to provide legal representation to any person
hired or under contract who provides expertise to MBC in the
evaluation of an applicant or the conduct of a licensee when
that person is named as a defendant in a civil action arising
out of the evaluation or any opinions rendered, statements
made, or testimony given to MBC.
2)Provides immunity from civil liability to any person providing
testimony to MBC indicating that a licensee may be guilty of
unprofessional conduct or may be impaired because of drug or
alcohol abuse or mental illness.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "[MBC]
does not want to have a 'chilling effect' should a complaint be
made to a specialty board and the physicians are then required
to use their own resources to represent themselves. These
physicians should not be penalized for assisting [MBC].
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"[MBC] feels that providing representation for physicians who
testify for [MBC] in disciplinary proceedings will help protect
these physicians and encourage them to continue to participate
in [MBC's] enforcement process."
Background . The MBC established the Expert Reviewer Program in
July 1994 as an impartial and professional means by which to
support the investigation and enforcement functions of MBC.
Specifically, medical experts assist MBC by providing expert
reviews and opinions on cases and conduct professional
competency exams, physical exams, and psychiatric examinations.
Requirements for participating in the Expert Reviewer Program
are:
1)Possess a current California medical license in good standing;
no prior discipline; no pending accusations; and no complaint
history within the last three years;
2)Board certification in one of the 24 American Board of Medical
Specialties (the American Board of Facial Plastic &
Reconstructive Surgery, the American Board of Pain Medicine,
the American Board of Sleep Medicine and the American Board of
Spine Surgery are also recognized) with a minimum of three
years of practice in the specialty area after obtaining board
certification; and,
3)Have an active practice (defined as at least 80 hours a month
in direct patient care, clinical activity, or teaching, at
least 40 hours of which is in direct patient care) or have
been non-active or retired from practice no more than two
years.
Participating physicians are reimbursed $150 per hour for
conducting case reviews and oral competency exams, $200 an hour
for providing expert testimony, and usual and customary fees for
physical or psychiatric exams.
According to MBC, a recent situation arose in which an expert
reviewer provided the MBC with external reviews of care provided
by another licensed physician in several matters under
investigation. The expert reviewer opined that certain aspects
of the care and documentation did not meet the applicable
standard of care. An accusation was filed, and the expert
reviewer testified before an administrative law judge (ALJ) who
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found that one of the two issues was justified. MBC issued a
public letter of reprimand against the physician being
investigated. The physician who received the letter of
reprimand subsequently filed a grievance with a medical
specialty board, of which both the expert reviewer and the
licensee being investigated are members, asking that the expert
reviewer be expelled from the specialty board for giving biased
and false testimony before the ALJ. Had the accusing physician
filed a civil suit, MBC could have provided representation for
its witness. Unfortunately, MBC could not provide assistance
because current law does not provide for defense in this
situation.
REGISTERED SUPPORT / OPPOSITION :
Support
Medical Board of California
Opposition
None on file.
Analysis Prepared by : Sarah Huchel / B. & P. / (916) 319-3301