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MEDICAL BOARD OF
CALIFORNIA: AN
“INSIDER’S PERSPECTIVE”
by Joseph P. Furman, Esq. and
Dan Groszkruger, Consulting
Editor
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“Unprofessional
Conduct” should
not encompass a
single isolated act
of medical
malpractice . . .
But, the MBC has
sometimes
mischaracterized
garden variety
simple negligence
. . . [as grounds for
discipline]
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The following excerpts are from an
interview with Joseph P. Furman, Esq., an
attorney now in private practice in Los
Angeles. Until early 2004, Mr. Furman
supervised attorneys who represented the
Medical Board of California in physician
discipline cases. He agreed to be
interviewed by CAPsules editor, Dan
Groszkruger, to share his unique
perspectives with CAP members.
Q. Have the goals of the
Medical Board of California
(“MBC”) changed?
A. Historically, the MBC
suffered from a lack of
appropriate prioritization
with respect to physician
discipline. An insignificant
case involving no patient
harm could consume more
investigational resources
than a much more serious
case (e.g., an incompetent
or impaired physician
whose misconduct led to
serious patient harm). The
MBC thus neglected some
serious cases involving potential patient
harm, while at the same time
misallocating resources on trivial or
minor cases against good doctors.
Recently, a statute was enacted that
explicitly spells out the MBC’s
investigative and prosecutorial priorities.
Other legislative actions and policies
have also forced the MBC to better
allocate its resources. Unfortunately,
these policies have not yet been fully and
faithfully implemented at the middle and
lower levels of the bureaucracy, where the
enforcement “rubber hits the road.”
Q. Who serves on the MBC?
A. The MBC is composed of 21 members,
12 of whom must be physicians. Some
physician members are
appointed because they are
esteemed in their fields of
medicine; others are
appointed because of their
political views or
connections with elected
officials.
Q. Is the Division of
Medical Quality the same
entity that issues a California
license to practice medicine?
A. The Division of Medical
Quality is composed of 14
Board members. The other
7 Board members make up
the Division of Licensing.
The Division of Licensing qualifies
applicants and issues licenses. The
Division of Medical Quality is the MBC’s
disciplinary and enforcement arm.
Q. What type of conduct is most likely to
bring an individual physician to the attention of the MBC?
A. Now (by statute), the MBC’s top investigative and enforcement priorities are cases
involving gross or repeated negligence resulting in serious injury or death. Next in priority
are cases alleging substance abuse, excessive prescribing of controlled substances, and
sexual misconduct.
“Unprofessional conduct” provides the general basis for the MBC’s enforcement unit to
investigate and to impose license discipline. With respect to quality of care cases,
“unprofessional conduct” includes gross negligence, repeated negligent acts, and
incompetence. “Unprofessional conduct” should not encompass a single isolated act of
medical malpractice involving so-called “simple negligence.” But over the years, the
MBC has sometimes mischaracterized “garden variety” simple negligence as gross
negligence, repeated negligent acts, or incompetence.
Q. Is a single complaint or treatment event, where the patient dies or suffers permanent harm,
sufficient to commence MBC disciplinary action?
A. A complaint involving even a single treatment can be sufficient to trigger MBC
disciplinary action, particularly if there is a bad outcome. All that is required to trigger
disciplinary action is for one or two medical experts hired by the MBC to opine that the
physician’s conduct represented an “extreme departure” from the standard of care. Of
course, this is often a highly-subjective matter of opinion.
Q. Should a physician, who is under investigation, attend an interview at the local MBC office
without being represented by an attorney?
A. A physician under investigation should not attend an MBC interview without having
his or her attorney present. MBC investigators are sworn peace officers who carry
firearms, handcuffs, and have authority to make arrests. As law enforcement officers,
their job is to build disciplinary and, sometimes, criminal cases against physicians. As in
other law enforcement contexts, any statement you make can be used against you later.
Some physicians naively regard an MBC inquiry or investigation as an opportunity to engage
in a collegial review with one’s peers. Indeed, some physicians understandably believe that,
because they have done nothing wrong, they can simply show up, clear up any
“misunderstanding” or explain their side of the story, and the investigation will go away.
Unfortunately, this often doesn’t happen.
Q. What type of discipline is sought by the MBC for unprofessional conduct?
A. Discipline usually sought includes license revocation, suspension, and probation. The
MBC publishes a “Manual of Model Disciplinary Orders and Disciplinary Guidelines.”
For many offenses, the guidelines specify a range of discipline, such as “stayed revocation,
with 5-7 years probation.” In addition, payment of large monitoring fees and “cost
recovery” are usually required elements of negotiated settlements.
Q. If the physician refuses to accept discipline, what further sanctions does the physician risk
if he or she demands an administrative hearing?
A. Simply by exercising due process rights to a hearing, the physician significantly raises
his or her legal and financial exposure. “Cost recovery” provisions add insult to injury
by allowing the government to recover from the disciplined physician its investigative
and prosecutorial costs, including legal fees generated by prosecuting attorneys in the
Attorney General’s Health Quality Enforcement Section. Cost recovery thus provides a
powerful negotiating tool for the MBC.
Q. If the physician is exonerated after a hearing, does the physician have his or her own legal
fees and expenses reimbursed by the MBC?
A. Even where an innocent physician proceeds to hearing and prevails, the physician’s
legal fees and expert witness costs will not be reimbursed by the MBC. The statutory
cost recovery scheme is unabashedly one-sided.
Q. Does the MBC take into account that a license revocation and probation may harm the
physician’s ability to practice?
A. The MBC’s enforcement unit does not always take into account the potentially
devastating repercussions of its disciplinary actions. MBC disciplinary actions frequently
result in the physician’s exclusion from participation in many HMOs, PPOs, and IPAs.
Mr. Furman is now in private practice as a healthcare lawyer. As well as handling civil
litigation and criminal defense on behalf of physicians, Medi-Cal, Medi-Care, and other
regulatory and hospital matters, his law practice focuses primarily on the defense of physicians
facing professional license discipline by the Medical Board of California.
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