New Legislative Requests from the Medical Board of California to the California Legislation

Greetings from the Doctors’ Lawyer! I am pleased to begin 2022 with a new series entitled the Mountain Medicine Blog.

For the uninitiated, Mountain Medicine refers to wilderness medicine that addresses medical/technical aspects of high-altitude travel/mountain sports, a subject near and dear to my heart. Mountain Medicine blogs will cover all manner of topics related to medical licenses, management of investigations and allegations, updates in legal developments, and everything else that impacts medical licenses. As appropriate, we will weave in relevant topical material regarding true mountain medicine for amusement and fun!

The following is a summary of the proposals the Medical Board of California recently sent to the State of California legislature. This blog will focus solely on the MBC’s request for changes to Enforcement Program. Further, we will only analyze the most relevant of the ten (10) different requests.

Change Evidentiary Standard

The MBC is asking the California legislation to change its level of proof downwards from Clear and Convincing of a Reasonable Certainty to a Preponderance of the Evidence Standard. This would lower the standard required to impose discipline on medical professionals. We are opposed to this standard as it will give the MBC too much leverage in prosecuting its cases. Stay tuned for further developments.

Mandated Reporting

The MBC is asking the legislation to broaden the mandatory reporting group that reports to it for physician misconduct. It asks that “wellness committees, medical groups, health insurance, providers, health care service plan providers, locum tenens agencies, and organizations that employ physicians and surgeons to report discipline related to medical practice, and awareness of alleged misconduct, to the MBC so that it can begin its investigation. The MBC is tasked with protecting the public, but casting such a wide net of reporting is overreaching and ineffective. Physicians and Surgeons could instead be tasked with self-reporting, with a failure to self-report further evidencing misconduct.

Petition to Modify or Terminate Probation

The MBC seeks to extend the time a physician may petition it to reinstate a license or seek early termination of probation, as well as impose a fee on petitioners seeking such actions. I have assisted many clients with these petitions, and when a client has made a mistake and acted in accordance with the requirements of the imposed discipline, there should be no reason to force them to delay continued practice of their craft.

Medical Record Inspection Absent Patient Approval

The MBC asks the legislature to grant it broader authority to inspect patient records without the need for patient consent or subpoena. Presumably, this request will be revoked, as it seems destined to create liability for invasion of privacy by offended patients.

Investigatory Review Interview

The MBC seeks to require licensees to participate in interviews no later than 30 days after being notified by the Board.

In addition to the above, the MBC seeks to pause the statute of limitations when seeking subpoena enforcement, seeks easier access to pharmacy records, seeks an earlier exchange of expert witness testimony information, requires patient records to be retained for seven years, and increase the ability for it to issue letters of advice for minor violations. You can read the entire letter here: https://www.mbc.ca.gov/Download/Documents/MBCLegislativeRequests-20220105.pdf.

Please contact our office immediately if you find yourself under investigation, so we can protect your livelihood and provide counsel during a potentially difficult time.