Senate Turns Down Bill Requiring Doctors on Probation to Notify Patients

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Patients Will Remain in the Dark About Doctors Who Have Committed Serious Offenses But Are Still Allowed to Practice

SACRAMENTO, CA (June 1, 2016) – The California Senate voted this week against SB 1033, legislation that would have required doctors on probation for serious offenses to notify their patients. Currently, doctors who are put on probation by the Medical Board of California must disclose their disciplinary status to the hospitals where they work and their malpractice insurers, but they have no such requirement to inform their patients.

SB 1033, introduced by Senator Jerry Hill, was supported by Consumers Union, the policy and advocacy division of Consumers Reports, a number of consumer and patient safety organizations, and Californians who have been harmed or lost loved ones due to medical harm. Consumer Reports recently highlighted examples of California doctors who were put on probation and allowed to keep practicing despite committing very serious offenses.

“Many doctors on probation have committed egregious offenses that put their patients at risk and yet they are still allowed to practice medicine,” said Lisa McGiffert, manager of Consumers Union’s Safe Patient Project. “Today’s vote means that most Californians will remain in the dark when their doctor is on probation for offenses that could jeopardize their health.”

Under SB 1033, doctors would have been required to notify their patients when they have been put on probation for serious offenses, including gross negligence, repeated acts of inappropriate or excessive prescribing of medication, sexual misconduct, and drug or alcohol abuse that threatens the doctor’s ability to practice safely. Doctors who have been put on probation repeatedly also would have been required to notify their patients.

SB 1033 required the Board to post online a plain-language description explaining why the doctor has been disciplined, the length and end date of the probation, and any practice restrictions that have been imposed. Doctors would have been required to share that same description with their patients.

The bill was defeated following aggressive opposition by the politically powerful California Medical Association, which claimed that requiring doctors to notify patients about their probationary status would deprive them of their due process rights.

Doctors who are put on probation are afforded full procedural due process and are entitled to have their case considered by an administrative law judge. However, most doctors settle their case by stipulating to some or all of the charges in the accusation.

When a complaint is filed against a doctor, the Medical Board staff investigates it to determine whether it is legitimate. Bogus complaints are dismissed. Legitimate complaints are referred to the Department of Consumer Affairs for investigation. If the Department determines that offenses have occurred, the agency sends the complaint to the Attorney General’s Office, which interviews the physician, patients, other stakeholders, and related medical experts. If the Attorney General concludes that the case meets the rather onerous standard set in California law for doctors of clear and convincing evidence, then they pursue the case and post the accusation on the Medical Board’s website. The doctor can appeal the accusations and ask for a hearing with an administrative law judge or they can agree to probation by stipulating to some or all of the charges in the accusation.

The bill also included a delayed implementation date so that doctors put on probation beginning in 2017 would have been subject to the notice requirement and would know that at the time they stipulated to the probationary order. Doctors whose probation began prior to 2017 would not have been subject to the law.

“We’re extremely disappointed that state lawmakers have put the interests of doctors with a history of serious misconduct above the public’s right to know,” said McGiffert. “Californians deserve to know when their doctor has been put on probation for serious and dangerous misconduct.”

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Consumers Union is the public policy and advocacy division of Consumer Reports. Consumers Union works for health reform, food and product safety, financial reform, and other consumer issues in Washington, D.C., the states, and in the marketplace. Consumer Reports is the world’s largest independent product-testing organization. Using its more than 50 labs, auto test center, and survey research center, the nonprofit rates thousands of products and services annually. Founded in 1936, Consumer Reports has over 8 million subscribers to its magazine, website, and other publications.