BILL ANALYSIS �
AB 1848
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 1848 (Atkins) - As Amended: April 18, 2012
SUBJECT : Physicians and surgeons: expert witness testimony.
SUMMARY : Requires physicians licensed in other states to
register with, and obtain authorization from, the Medical Board
of California (MBC) before providing expert witness testimony in
California courts. Specifically, this bill :
1)Requires a physician and surgeon who holds an active and valid
license to practice medicine in another state to file a
written request for authorization with the MBC, using a form
that the MBC shall create, and receive the approval of the MBC
prior to providing expert witness testimony, under oath,
relating to the practice of medicine in any legal proceeding
in the state.
2)Requires, prior to providing that testimony, the person to do
all of the following:
a) Obtain authorization from the MBC to provide expert
witness testimony after submitting to the MBC a copy of his
or her valid license or certificate from each state in
which the person holds licensure or certification and a
photographic identification issued by one of those states
in which the person holds licensure or certification. The
MBC must notify the person, within 20 calendar days of
receiving a request for authorization, whether the MBC has
approved or denied that request. If the person requests
authorization to testify within 20 calendar days of the
MBC's receipt of the person's request for authorization,
the MBC shall make reasonable efforts to notify the person
whether that request is approved or denied within that
shorter time period.
b) Satisfy the following requirements:
i) The person has not committed any act or been
convicted of a crime constituting grounds for denial of
licensure or registration under current law, as
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specified, and is in good standing in each state in which
he or she holds licensure or certification.
ii) The person has the appropriate education and
experience to provide expert witness testimony, as
determined by the MBC.
iii) The person shall agree to comply with all applicable
practice requirements set forth in current law pertaining
to the healing arts and the regulations adopted pursuant
to that law.
c) Submit to the MBC, on a form prescribed by the MBC, a
request for authorization to provide expert witness
testimony.
d) Submit a statement declaring whether the person has
previously held or applied for a California medical license
and whether that license or application was ever suspended,
revoked, or denied.
e) Submit a list of any felonies or misdemeanors of which
the person has been convicted in any jurisdiction.
f) Submit a statement indicating whether the person has
previously applied for, or held, an expert witness
registration and whether any previous expert witness
registration has been revoked by the MBC, or a similar
board, committee, medical society, or administrative body
in any other jurisdiction.
g) Submit any additional information required by the MBC.
3)Requires the request to be accompanied by a fee in an amount
set by the MBC by regulation sufficient to cover the
reasonable costs of processing the request. All fees
collected shall be deposited in the Contingent Fund of the MBC
and shall be available, upon appropriation by the Legislature,
to cover the cost of developing the authorization process and
processing the requests for authorization.
4)Provides that, if the MBC fails to approve or deny the request
within 20 business days after receipt of the request and
payment of the filing fee, the request shall be deemed
approved. The MBC shall issue an expert witness registration,
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which shall be valid for two years from issuance, to all
approved requesters.
5)Specifies that an expert witness registration does not
authorize the holder to practice medicine, as specified, that
an expert witness registration shall be treated as a license
in any disciplinary action, and that the holder of the
registration shall be subject to discipline by the MBC.
6)Provides that a physician and surgeon who is authorized under
this bill to provide expert testimony relating to the practice
of medicine shall be deemed to consent to the jurisdiction,
and regulatory and disciplinary powers, of the MBC and shall
be subject to current law enforcement provisions for
unprofessional conduct.
7)Requires an expert witness registration issued pursuant to
this bill to be disclosed upon request to a member of the
public and to be posted on the MBC's Internet Web site.
EXISTING LAW
1)Provides, under the Medical Practice Act (Act), for the
licensing and regulation of physicians and surgeons by the MBC
under the Department of Consumer Affairs, including
disciplinary procedures for physicians and surgeons who
violate the Act.
2)Provides exceptions from MBC's licensing requirements to
permit physicians and surgeons who are licensed in other
states to practice medicine in California in specified
circumstances.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author, "The intent of
this bill is to fix the problem of deceptive or fraudulent
testimony provided by medical expert witnesses - in particular,
those that are licensed from out of the state. In California,
because medical expert witness testimony is considered the
practice of medicine, the Medical Board of California (MBC) has
jurisdiction over California licensees who provide expert
witness testimony. Thus, in the event that a CA licensed
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physician provides fraudulent or deceptive medical expert
witness testimony, the MBC has the authority to investigate and
discipline that licensee. Unfortunately, however, in the case
of a licensee from other than California, the MBC has no
recourse in deterring such behavior nor preventing additional
opportunities for the out of state licensee from continuing to
be a medical expert witness in other cases."
Background . In 2004, the California Attorney General issued a
formal opinion concluding that "when a physician testifies as an
expert in a civil proceeding regarding the applicable standard
of medical care and whether the defendant has breached that
standard, the physician may not, on the basis of his or her
testimony, be held liable in a subsequent tort action brought by
the adverse party, but may be subject to professional discipline
by the Medical Board of California if the testimony constitutes
unprofessional conduct."
Under current law, the MBC can discipline its licensees for
unprofessional conduct, which would include providing expert
witness testimony that is fraudulent or meets the definition of
unprofessional conduct. Because physicians who are licensed in
other states do not fall under MBC's authority, the MBC cannot
impose disciplinary action against out-of-state physicians who
provide false expert witness testimony.
This bill establishes a mandatory process for physicians
licensed in other states to register with, and obtain
authorization from, the MBC prior to providing expert witness
testimony in court and gives the MBC 20 days within which to
process requests for registration.
Support . The California Medical Association states, "Currently,
loopholes in state law do not prevent medical expert witnesses
that hold an out of state license that provide deceptive or
fraudulent testimony from repeat offenses. AB 1848 would
address this problem by requiring out of state medical expert
witnesses (to) apply and register with the MBC, prior to serving
as a medical expert witness in this state."
Opposition . The Consumer Attorneys of California have raised a
number of concerns with this bill. They assert that California
law has ample restrictions and qualifications in place to ensure
experts are qualified to testify, that the playing field is
already uneven for patients, and that patients face great
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difficulty finding experts to testify against large healthcare
providers. They believe the bill will prevent juries from
hearing from the most qualified experts in the field, and that
it will have a chilling effect on potential out-of-state experts
who would be subject to discipline by the MBC with exclusive
authority to grant or deny their certification. They also
believe the bill encompasses areas outside of medical
malpractice litigation and that it unnecessarily duplicates the
MBC's Expert Reviewer Program, which is tasked with reviewing
whether a departure from a professional standard of conduct has
occurred by a licensed physician. They also state that the
bill's sponsor has failed to provide any examples for why the
bill is needed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association (sponsor)
American Academy of Pediatrics, California
American Society for Dermatologic Surgery
Association of Northern California Oncologists
Medical Oncology Association of Southern California
Opposition
Consumer Attorneys of California
Consumer Federation of California
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301