Senate Bill No. 1033

Introduced by Senator Hill

February 12, 2016

An act to amend Sections 803.1, 2027, and 2228 of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 1033, as introduced, Hill. Medical Board: disclosure of probationary status.

Existing law, the Medical Practice Act, establishes the Medical Board of California for the licensing, regulation, and discipline of physicians and surgeons. Existing law authorizes the board to discipline a physician or a surgeon by placing her or him on probation, which may include requiring the physician or surgeon to complete specified trainings, examinations, or community service or restricting the extent, scope, or type of practice, as specified.

This bill would require the board to require a physician or surgeon to disclose her or his probationary status to patients before each visit while the physician or surgeon is on probation under specified circumstances, including the board finding the physician or surgeon committed gross negligence or the physician or surgeon having been on probation repeatedly, among others. The bill would require the board, by July 1, 2018, to adopt related regulations that include requiring the physician or surgeon to obtain from the patient a signed receipt containing specified information following the disclosure.

Existing law requires the board to disclose to an inquiring member of the public and to post on its Internet Web site specified information concerning each physician and surgeon, including revocations, suspensions, probations, or limitations on practice.

This bill would require the board, by July 1, 2018, to include in each order of probation a written summary containing specified information and to include the summary in the disclosure to an inquiring member of the public, on any board documents informing the public of probation orders, and on a specified profile web page of each physician and surgeon subject to probation.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 803.1 of the Business and Professions
Code is amended to read:

803.1.  

(a) Notwithstanding any other provision of law, the
Medical Board of California, the Osteopathic Medical Board of
California, the California Board of Podiatric Medicine, and the
Physician Assistant Board shall disclose to an inquiring member
of the public information regarding any enforcement actions taken
against a licensee, including a former licensee, by the board or by
another state or jurisdiction, including all of the following:

(1) Temporary restraining orders issued.

(2) Interim suspension orders issued.

(3) Revocations, suspensions, probations, or limitations on
practice ordered by the board, including those made part of a
probationary order or stipulated agreement.

(4) Public letters of reprimand issued.

(5) Infractions, citations, or fines imposed.

(b) Notwithstanding any other provision of law, in addition to
the information provided in subdivision (a), the Medical Board of
California, the Osteopathic Medical Board of California, the
California Board of Podiatric Medicine, and the Physician Assistant
Board shall disclose to an inquiring member of the public all of
the following:

(1) Civil judgments in any amount, whether or not vacated by
a settlement after entry of the judgment, that were not reversed on
appeal and arbitration awards in any amount of a claim or action
for damages for death or personal injury caused by the physician
and surgeon’s negligence, error, or omission in practice, or by his
or her rendering of unauthorized professional services.

(2) (A) All settlements in the possession, custody, or control
of the board shall be disclosed for a licensee in the low-risk
category if there are three or more settlements for that licensee
within the last 10 years, except for settlements by a licensee
regardless of the amount paid where (i) the settlement is made as
a part of the settlement of a class claim, (ii) the licensee paid in
settlement of the class claim the same amount as the other licensees
in the same class or similarly situated licensees in the same class,
and (iii) the settlement was paid in the context of a case where the
complaint that alleged class liability on behalf of the licensee also
alleged a products liability class action cause of action. All
settlements in the possession, custody, or control of the board shall
be disclosed for a licensee in the high-risk category if there are
four or more settlements for that licensee within the last 10 years
except for settlements by a licensee regardless of the amount paid
where (i) the settlement is made as a part of the settlement of a
class claim, (ii) the licensee paid in settlement of the class claim
the same amount as the other licensees in the same class or
similarly situated licensees in the same class, and (iii) the
settlement was paid in the context of a case where the complaint
that alleged class liability on behalf of the licensee also alleged a
products liability class action cause of action. Classification of a
licensee in either a “high-risk category” or a “low-risk category”
depends upon the specialty or subspecialty practiced by the licensee
and the designation assigned to that specialty or subspecialty by
the Medical Board of California, as described in subdivision (f).
For the purposes of this paragraph, “settlement” means a settlement
of an action described in paragraph (1) entered into by the licensee
on or after January 1, 2003, in an amount of thirty thousand dollars
($30,000) or more.

(B) The board shall not disclose the actual dollar amount of a
settlement but shall put the number and amount of the settlement
in context by doing the following:

(i) Comparing the settlement amount to the experience of other
licensees within the same specialty or subspecialty, indicating if
it is below average, average, or above average for the most recent
10-year period.

(ii) Reporting the number of years the licensee has been in
practice.

(iii) Reporting the total number of licensees in that specialty or
subspecialty, the number of those who have entered into a
settlement agreement, and the percentage that number represents
of the total number of licensees in the specialty or subspecialty.

(3) Current American Board of Medical Specialties certification
or board equivalent as certified by the Medical Board of California,
the Osteopathic Medical Board of California, or the California
Board of Podiatric Medicine.

(4) Approved postgraduate training.

(5) Status of the license of a licensee. By January 1, 2004, the
Medical Board of California, the Osteopathic Medical Board of
California, and the California Board of Podiatric Medicine shall
adopt regulations defining the status of a licensee. The board shall
employ this definition when disclosing the status of a licensee
pursuant to Section 2027. begin insert By July 1, 2018, the Medical Board of
California shall include the summary of each probation order as
written pursuant to subdivision (e) of Section 2228. end insert

(6) Any summaries of hospital disciplinary actions that result
in the termination or revocation of a licensee’s staff privileges for
medical disciplinary cause or reason, unless a court finds, in a final
judgment, that the peer review resulting in the disciplinary action
was conducted in bad faith and the licensee notifies the board of
that finding. In addition, any exculpatory or explanatory statements
submitted by the licentiate electronically pursuant to subdivision
(f) of that section shall be disclosed. For purposes of this paragraph,
“peer review” has the same meaning as defined in Section 805.

(c) Notwithstanding any other provision of law, the Medical
Board of California, the Osteopathic Medical Board of California,
the California Board of Podiatric Medicine, and the Physician
Assistant Board shall disclose to an inquiring member of the public
information received regarding felony convictions of a physician
and surgeon or doctor of podiatric medicine.

(d) The Medical Board of California, the Osteopathic Medical
Board of California, the California Board of Podiatric Medicine,
and the Physician Assistant Board may formulate appropriate
disclaimers or explanatory statements to be included with any
information released, and may by regulation establish categories
of information that need not be disclosed to an inquiring member
of the public because that information is unreliable or not
sufficiently related to the licensee’s professional practice. The
Medical Board of California, the Osteopathic Medical Board of
California, the California Board of Podiatric Medicine, and the
Physician Assistant Board shall include the following statement
when disclosing information concerning a settlement:

 

“Some studies have shown that there is no significant correlation
between malpractice history and a doctor’s competence. At the
same time, the State of California believes that consumers should
have access to malpractice information. In these profiles, the State
of California has given you information about both the malpractice
settlement history for the doctor’s specialty and the doctor’s history
of settlement payments only if in the last 10 years, the doctor, if
in a low-risk specialty, has three or more settlements or the doctor,
if in a high-risk specialty, has four or more settlements. The State
of California has excluded some class action lawsuits because
those cases are commonly related to systems issues such as product
liability, rather than questions of individual professional
competence and because they are brought on a class basis where
the economic incentive for settlement is great. The State of
California has placed payment amounts into three statistical
categories: below average, average, and above average compared
to others in the doctor’s specialty. To make the best health care
decisions, you should view this information in perspective. You
could miss an opportunity for high-quality care by selecting a
doctor based solely on malpractice history.

When considering malpractice data, please keep in mind:

Malpractice histories tend to vary by specialty. Some specialties
are more likely than others to be the subject of litigation. This
report compares doctors only to the members of their specialty,
not to all doctors, in order to make an individual doctor’s history
more meaningful.

This report reflects data only for settlements made on or after
January 1, 2003. Moreover, it includes information concerning
those settlements for a 10-year period only. Therefore, you should
know that a doctor may have made settlements in the 10 years
immediately preceding January 1, 2003, that are not included in
this report. After January 1, 2013, for doctors practicing less than
10 years, the data covers their total years of practice. You should
take into account the effective date of settlement disclosure as well
as how long the doctor has been in practice when considering
malpractice averages.

The incident causing the malpractice claim may have happened
years before a payment is finally made. Sometimes, it takes a long
time for a malpractice lawsuit to settle. Some doctors work
primarily with high-risk patients. These doctors may have
malpractice settlement histories that are higher than average
because they specialize in cases or patients who are at very high
risk for problems.

Settlement of a claim may occur for a variety of reasons that do
not necessarily reflect negatively on the professional competence
or conduct of the doctor. A payment in settlement of a medical
malpractice action or claim should not be construed as creating a
presumption that medical malpractice has occurred.

You may wish to discuss information in this report and the
general issue of malpractice with your doctor.”

(e) The Medical Board of California, the Osteopathic Medical
Board of California, the California Board of Podiatric Medicine,
and the Physician Assistant Board shall, by regulation, develop
standard terminology that accurately describes the different types
of disciplinary filings and actions to take against a licensee as
described in paragraphs (1) to (5), inclusive, of subdivision (a). In
providing the public with information about a licensee via the
Internet pursuant to Section 2027, the Medical Board of California,
the Osteopathic Medical Board of California, the California Board
of Podiatric Medicine, and the Physician Assistant Board shall not
use the terms “enforcement,” “discipline,” or similar language
implying a sanction unless the physician and surgeon has been the
subject of one of the actions described in paragraphs (1) to (5),
inclusive, of subdivision (a).

(f) The Medical Board of California shall adopt regulations no
later than July 1, 2003, designating each specialty and subspecialty
practice area as either high risk or low risk. In promulgating these
regulations, the board shall consult with commercial underwriters
of medical malpractice insurance companies, health care systems
that self-insure physicians and surgeons, and representatives of
the California medical specialty societies. The board shall utilize
the carriers’ statewide data to establish the two risk categories and
the averages required by subparagraph (B) of paragraph (2) of
subdivision (b). Prior to issuing regulations, the board shall
convene public meetings with the medical malpractice carriers,
self-insurers, and specialty representatives.

(g) The Medical Board of California, the Osteopathic Medical
Board of California, the California Board of Podiatric Medicine,
the Physician Assistant Board shall provide each licensee, including
a former licensee under subdivision (a), with a copy of the text of
any proposed public disclosure authorized by this section prior to
release of the disclosure to the public. The licensee shall have 10
working days from the date the board provides the copy of the
proposed public disclosure to propose corrections of factual
inaccuracies. Nothing in this section shall prevent the board from
disclosing information to the public prior to the expiration of the
10-day period.

(h) Pursuant to subparagraph (A) of paragraph (2) of subdivision
(b), the specialty or subspecialty information required by this
section shall group physicians by specialty board recognized
pursuant to paragraph (5) of subdivision (h) of Section 651 unless
a different grouping would be more valid and the board, in its
statement of reasons for its regulations, explains why the validity
of the grouping would be more valid.

begin insert

(i) By July 1, 2018, the board shall include each licensee’s
probation summary written pursuant to subdivision (e) of Section
2228 on any board documents informing the public of probation
orders, including, but not limited to, newsletters.

end insert

SEC. 2.  

Section 2027 of the Business and Professions Code is
amended to read:

2027.  

(a) The board shall post on its Internet Web site the
following information on the current status of the license for all
current and former licensees:

(1) Whether or not the licensee is presently in good standing.

(2) Current American Board of Medical Specialties certification
or board equivalent as certified by the board.

(3) Any of the following enforcement actions or proceedings
to which the licensee is actively subjected:

(A) Temporary restraining orders.

(B) Interim suspension orders.

(C)  begin insert (i) end insert begin insert   end insert Revocations, suspensions, probations, or limitations on
practice ordered by the board or the board of another state or
jurisdiction, including those made part of a probationary order or
stipulated agreement.

begin insert

(ii) By July 1, 2018, the board shall include, in plain view on
the BreEZe profile web page of each licensee subject to probation,
the summary of each probation order as written pursuant to
subdivision (e) of Section 2228. For purposes of this subparagraph,
a BreEZe profile web page is a profile web page on the BreEZe
system pursuant to Section 210.

end insert

(D) Current accusations filed by the Attorney General, including
those accusations that are on appeal. For purposes of this paragraph,
“current accusation” means an accusation that has not been
dismissed, withdrawn, or settled, and has not been finally decided
upon by an administrative law judge and the board unless an appeal
of that decision is pending.

(E) Citations issued that have not been resolved or appealed
within 30 days.

(b) The board shall post on its Internet Web site all of the
following historical information in its possession, custody, or
control regarding all current and former licensees:

(1) Approved postgraduate training.

(2) Any final revocations and suspensions, or other equivalent
actions, taken against the licensee by the board or the board of
another state or jurisdiction or the surrender of a license by the
licensee in relation to a disciplinary action or investigation,
including the operative accusation resulting in the license surrender
or discipline by the board.

(3) Probation or other equivalent action ordered by the board,
or the board of another state or jurisdiction, completed or
terminated, including the operative accusation resulting in the
discipline by the board.

(4) Any felony convictions. Upon receipt of a certified copy of
an expungement order granted pursuant to Section 1203.4 of the
Penal Code from a licensee, the board shall, within six months of
receipt of the expungement order, post notification of the
expungement order and the date thereof on its Internet Web site.

(5) Misdemeanor convictions resulting in a disciplinary action
or accusation that is not subsequently withdrawn or dismissed.
Upon receipt of a certified copy of an expungement order granted
pursuant to Section 1203.4 of the Penal Code from a licensee, the
board shall, within six months of receipt of the expungement order,
post notification of the expungement order and the date thereof on
its Internet Web site.

(6) Civil judgments issued in any amount, whether or not
vacated by a settlement after entry of the judgment, that were not
reversed on appeal, and arbitration awards issued in any amount,
for a claim or action for damages for death or personal injury
caused by the physician and surgeon’s negligence, error, or
omission in practice, or by his or her rendering of unauthorized
professional services.

(7) Except as provided in subparagraphs (A) and (B), a summary
of any final hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff privileges
for a medical disciplinary cause or reason. The posting shall
provide any additional explanatory or exculpatory information
submitted by the licensee pursuant to subdivision (f) of Section
805. The board shall also post on its Internet Web site a factsheet
that explains and provides information on the reporting
requirements under Section 805.

(A) If a licensee’s hospital staff privileges are restored and the
licensee notifies the board of the restoration, the information
pertaining to the termination or revocation of those privileges shall
remain posted on the Internet Web site for a period of 10 years
from the restoration date of the privileges, and at the end of that
period shall be removed.

(B) If a court finds, in a final judgment, that peer review
resulting in a hospital disciplinary action was conducted in bad
faith and the licensee notifies the board of that finding, the
information concerning that hospital disciplinary action posted on
the Internet Web site shall be immediately removed. For purposes
of this subparagraph, “peer review” has the same meaning as
defined in Section 805.

(8) Public letters of reprimand issued within the past 10 years
by the board or the board of another state or jurisdiction, including
the operative accusation, if any, resulting in discipline by the board.

(9) Citations issued within the last three years that have been
resolved by payment of the administrative fine or compliance with
the order of abatement.

(10) All settlements within the last five years in the possession,
custody, or control of the board shall be disclosed for a licensee
in the low-risk category if there are three or more settlements for
that licensee within the last five years, and for a licensee in the
high-risk category if there are four or more settlements for that
licensee within the last five years. Classification of a licensee in
either a “high-risk category” or a “low-risk” category depends
upon the specialty or subspecialty practiced by the licensee and
the designation assigned to that specialty or subspecialty by the
board pursuant to subdivision (f) of Section 803.1.

(A) For the purposes of this paragraph, “settlement” means a
settlement in an amount of thirty thousand dollars ($30,000) or
more of any claim or action for damages for death or personal
injury caused by the physician and surgeon’s negligence, error, or
omission in practice, or by his or her rendering of unauthorized
professional services.

(B) For the purposes of this paragraph, “settlement” does not
include a settlement by a licensee, regardless of the amount paid,
when (i) the settlement is made as a part of the settlement of a
class claim, (ii) the amount paid in settlement of the class claim
is the same amount paid by the other licensees in the same class
or similarly situated licensees in the same class, and (iii) the
settlement was paid in the context of a case for which the complaint
that alleged class liability on behalf of the licensee also alleged a
products liability class action cause of action.

(C) The board shall not disclose the actual dollar amount of a
settlement, but shall disclose settlement information in the same
manner and with the same disclosures required under subparagraph
(B) of paragraph (2) of subdivision (b) of Section 803.1.

(11) Appropriate disclaimers and explanatory statements to
accompany the information described in paragraphs (1) to (10),
inclusive, including an explanation of what types of information
are not disclosed. These disclaimers and statements shall be
developed by the board and shall be adopted by regulation.

(c) The board shall provide links to other Internet Web sites
that provide information on board certifications that meet the
requirements of subdivision (h) of Section 651. The board may
also provide links to any other Internet Web sites that provide
information on the affiliations of licensed physicians and surgeons.
The board may provide links to other Internet Web sites on the
Internet that provide information on health care service plans,
health insurers, hospitals, or other facilities.

SEC. 3.  

Section 2228 of the Business and Professions Code is
amended to read:

2228.  

begin insert (a) end insert begin insert   end insert The authority of the board or the California Board
of Podiatric Medicine to discipline a licensee by placing him or
her on probation includes, but is not limited to, the following:

begin delete

(a)

end delete

begin insert (1) end insert  Requiring the licensee to obtain additional professional
training and to pass an examination upon the completion of the
training. The examination may be written or oral, or both, and may
be a practical or clinical examination, or both, at the option of the
board or the administrative law judge.

begin delete

(b)

end delete

begin insert (2) end insert  Requiring the licensee to submit to a complete diagnostic
examination by one or more physicians and surgeons appointed
by the board. If an examination is ordered, the board shall receive
and consider any other report of a complete diagnostic examination
given by one or more physicians and surgeons of the licensee’s
choice.

begin delete

(c)

end delete

begin insert (3) end insert  Restricting or limiting the extent, scope, or type of practice
of the licensee, including requiring notice to applicable patients
that the licensee is unable to perform the indicated treatment, where
appropriate.

begin delete

(d)

end delete

begin insert (4) end insert  Providing the option of alternative community service in
cases other than violations relating to quality of care.

begin insert

(b) The board shall require a licensee to disclose her or his
probationary status to patients before each visit while the licensee
is on probation in any of the following circumstances:

end insert begin insert

(1) The board made a finding in the probation order that the
licensee committed any of the following:

end insert begin insert

(A) Gross negligence.

end insert begin insert

(B) Repeated negligent acts involving a departure from the
standard of care with multiple patients.

end insert begin insert

(C) Repeated acts of inappropriate and excessive prescribing
of controlled substances, including, but not limited to, prescribing
controlled substances without appropriate prior examination or
without medical reason documented in medical records.

end insert begin insert

(D) Drug or alcohol abuse that threatens to impair a licensee’s
ability to practice medicine safely, including practicing under the
influence of drugs or alcohol.

end insert begin insert

(E) Felony conviction arising from or occurring during patient
care or treatment.

end insert begin insert

(2) The board ordered any of the following in conjunction with
placing the licensee on probation:

end insert begin insert

(A) That a third party chaperone be present when the licensee
examines patients as a result of sexual misconduct.

end insert begin insert

(B) That the licensee submit to drug testing as a result of drug
or alcohol abuse.

end insert begin insert

(C) That the licensee have a monitor.

end insert begin insert

(D) Restricting totally or partially the licensee from prescribing
controlled substances.

end insert begin insert

(E) Suspending the licensee from practice in cases related to
quality of care.

end insert begin insert

(3) The licensee has not successfully completed a clinical
training program or any associated examinations required by the
board as a condition of probation.

end insert begin insert

(4) The licensee has been on probation repeatedly.

end insert begin insert

(c) The board shall adopt regulations by July 1, 2018, to
implement subdivision (b). The board shall include in these
regulations a requirement that the licensee obtain from each
patient a signed receipt following the disclosure that includes a
written explanation of how the patient can find further information
on the licensee’s discipline on the board’s Internet Web site.

end insert begin insert

(d) Section 2314 shall not apply to subdivision (b) or (c).

end insert begin insert

(e) By July 1, 2018, the board shall include, in the first section
of each order of probation, a standardized, single paragraph,
plain-language summary that contains the accusations that led to
the licensee’s probation, the length of the probation and the end
date, and all practice restrictions placed on the licensee by the
board.

end insert