BILL NUMBER: SB 1033 INTRODUCED
BILL TEXT
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. 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.
(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.
(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.
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) (i) 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.
(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.
(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. (a) 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:
(a)
(1) 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.
(b)
(2) 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.
(c)
(3) 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.
(d)
(4) Providing the option of alternative community
service in cases other than violations relating to quality of care.
(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:
(1) The board made a finding in the probation order that the
licensee committed any of the following:
(A) Gross negligence.
(B) Repeated negligent acts involving a departure from the
standard of care with multiple patients.
(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.
(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.
(E) Felony conviction arising from or occurring during patient
care or treatment.
(2) The board ordered any of the following in conjunction with
placing the licensee on probation:
(A) That a third party chaperone be present when the licensee
examines patients as a result of sexual misconduct.
(B) That the licensee submit to drug testing as a result of drug
or alcohol abuse.
(C) That the licensee have a monitor.
(D) Restricting totally or partially the licensee from prescribing
controlled substances.
(E) Suspending the licensee from practice in cases related to
quality of care.
(3) The licensee has not successfully completed a clinical
training program or any associated examinations required by the board
as a condition of probation.
(4) The licensee has been on probation repeatedly.
(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.
(d) Section 2314 shall not apply to subdivision (b) or (c).
(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.