By Divya Sriharan
On January 5, 2022, the President and Vice President of the Medical Board of California (MBC) sent a letter on behalf of the Board to California Senate President Pro Tempore Toni Atkins and Assembly Speaker Anthony Rendon, copying all members of the legislature and seeking legislative support for its proposed extensive changes to the Medical Practice Act to enhance public protection. The letter attaches a nine-page memo containing a series of detailed legislative proposals which the Board approved at its November 2021 meeting (Agenda Item 13) and describing specific areas where stricter reforms are needed, as well as requesting an increase in licensing fees on doctors.
The push for reform stems from a bombshell interview of a Board member on national news, along with consistent coverage from outlets such as the Los Angeles Times, regarding the Board’s failure to protect the public from bad doctors. Eserick “TJ” Watkins, a public member of the Board, has been outspoken in his belief that the Board is failing to seriously discipline doctors, along with his criticism of the heavy influence of physician lobbying groups. The Los Angeles Times investigated and reported on many instances of the Board reinstating licenses for physicians who had lost their licenses for sexual misconduct, along with cases where negligent doctors were allowed to continue to practice.
The Board’s letter to legislators requests a series of specific reforms. Of note, the Board requested a lower burden of proof to make it more efficient and less expensive to discipline doctors. According to the letter, although medical boards in 41 other states apply the preponderance of the evidence standard, meaning they need only prove that it is more likely than not that the physician committed misconduct, California’s evidentiary standards require the Board to demonstrate “clear and convincing” proof to a reasonable certainty before actions such as probation, suspension, or revocation can be taken. This higher standard, the Board asserts, has made it more difficult to quickly and easily discipline doctors, as more investigation and time must go into meeting the evidentiary standard.
The Board also asked for an extended waiting period for doctors to petition for the return of their revoked licenses. Currently, the waiting period is three years, though the Board would like it extended to five. The Board also recommended a new application fee for doctors requesting reinstatement, in order to cover the costs of the proceedings. The Board currently has no mechanism to cover those costs and spent 1 million dollars on litigation and hearing expenses in the last year.
The Board has also proposed to establish a public board member majority in order to restore the public’s trust in the Board and its actions. Currently, section 2001(a) of the Business and Professions Code sets the Board’s composition at eight licensee members and seven public members.
At this writing, AB 2060 (Quirk) has been introduced to seek the public member majority reforms proposed. In addition, SB 1441 (Roth) seeks to amend Business and Professions Code section 2501. This bill would require MBC and the Osteopathic Medical Board of California to annually review, and update as necessary, the disciplinary policies and procedures established relating to the healing arts. Other bills may be amended to incorporate these reforms as the legislative session continues.