California Medical Assn., medical board reach compromise

A bill calls for the state medical board to release more settlement information, add public members and be watched more closely.

By Andis Robeznieks, amednews staff. Sept. 2, 2002.

It appears there will be some public disclosure of malpractice settlements in California now that the state medical association, medical board and Legislature have reached a compromise on the issue.

"It's a package that not everyone is thrilled with, but everyone can live with," said Bob McElderry, associate director of the California Medical Assn.'s center for government.

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At press time, a bill reauthorizing and reorganizing the Medical Board of California was awaiting the signature of Gov. Gray Davis. Because passage of the bill is necessary to the continuation of the medical board until Jan. 1, 2006, McElderry says the governor has no choice but to sign it.

"This is a bill that, for all intents and purposes, the governor can't veto, because then the medical board would be eliminated statutorily," McElderry said. "The medical board is supporting the bill, and we just removed our opposition, so that lets you know where everything is."

The board's call for public disclosure of all malpractice settlements was a major sticking point, but the CMA agreed to a compromise.

Starting next year, the board will disclose whether a physician in a low-risk specialty has had three malpractice settlements above $30,000 in a 10-year period. For high-risk specialties, disclosure would occur after four settlements above $30,000.

Disclosure thresholds differ for low-risk and high-risk specialists.

Although the terms had not been defined, McElderry said specialties such as family practice, dermatology, pathology and radiology would probably be considered low-risk, while cardiovascular, neuro and some orthopedic surgery specialties, plus obstetrics-gynecology and some pediatric subspecialties would be labeled high-risk.

"It didn't get specifically defined in the statute, so we're going to leave it up to [liability] insurance carriers to define," McElderry said.

No dollar amounts will be posted on the medical board's Web site, but it will state whether the settlement was average, below average or above average for the physician's specialty.

McElderry said it was a victory of sorts for doctors that no settlements before 2003 will be posted. There had been a push to include settlements from the last five years in the formula. On the other hand, he sees any posting of settlements as a negative.

"We don't view settlement information in any way, shape or form to be meaningful disclosure ... and it could damage the reputation of many fine physicians who take on high-risk cases," McElderry said.

Setting priorities

He predicted the end result would be a clogged court system in which physicians fight over low-end malpractice claims that now get settled more for "business purposes" than anything else.

The operations of the medical board had come under increased scrutiny after a scathing series of articles in the Orange County Register this spring.

No old settlements or amounts will be posted on the medical board's Web site.

The newspaper reported that the board's enforcement activity has decreased even as complaints increased, and that 65% of those who filed a complaint were dissatisfied with how the board handled it.

McElderry cheered a section of the bill calling for a state official to monitor and evaluate board actions for two years and a provision giving precedence to investigations for drug or alcohol abuse, errors of gross negligence and incompetence, and repeated acts of neglect.

"The biggest victory for physicians is that we have been able to place into law a prioritization of investigations that will now focus the board's investigations on the most egregious violations," McElderry said. He said a lack of focus had "diluted the resources and mission of the board" and delayed investigations of cases where patient harm had occurred.

Board member and ex-CMA board trustee Ronald L. Morton, MD, agreed the board needed to "tighten the pores in our net," but he said significant progress has been made in speeding up investigations.

He added that the board can't act against negligent doctors until a complaint is made.

"We need to hear 'We're having a problem with Dr. X in location Y,' " the Bakersfield, Calif., ophthalmologist said. "Then we have to gather the facts, interview patients, interview colleagues, and sometimes there can be large chunks of time lost in the process."

Postings will categorize settlements as average, below- or above-average by specialty.

The board has 19 members -- 12 physicians and seven public members. Proposed changes call for adding two nonphysicians to the board, but Dr. Morton and McElderry downplayed the impact of such a change.

Dr. Morton said public members are thought to favor consumers and be more likely to prosecute negligent doctors, but he called this "more perception than substance" and -- on this point, at least -- McElderry agreed with him.

"It's just going to make it a really big board," he said. "Physicians are traditionally harder on their own than the public members are, so we're not sure if it's going to get them what they hope it will get them."

One aspect of the bill is unresolved. California physicians pay $600 every two years in licensing fees, and McElderry said this probably will be increased by between $10 and $50 a year.

Dr. Morton predicted the increase should not hurt most physicians in the state. "If 30 bucks makes a difference, you're probably not doing something right in your practice."

ADDITIONAL INFORMATION:

Weblink

California Senate Bill 1950, reorganizing and reauthorizing the Medical Board of California (http://info.sen.ca.gov/pub/bill/sen/sb_1901-1950/sb_1950_bill_20020808_amended_asm.html)

CMA response to Senate Bill 1950 (http://www.calphys.org/html/sb1950.htm)

Medical Board of California (http://www.medbd.ca.gov/)