Butte Glenn Medical Society

Physician Litigation Stress Program

Physician Litigation Stress Program
Butte-Glenn Medical Society (BGMS) Board of Directors, the California Medical Association and MIEC, a malpractice insurance company that endorses the Society, recognize that physicians may find themselves facing stressful litigation or under investigation by the Medical Board of California. In 2019, BGMS launched the Physician Litigation Stress Program to help all physicians prevent and manage litigation and minimize risk. We plan to host a meeting with lawyers from CAAHCP, the California Academy of Attorneys for Healthcare Professionals, later in 2019. Scroll down to the bottom of hte page to find other resources from MIEC and from the California Medical Association which continues to advocate for physicians.

On July 10, 2019, the Medical Board of California's Executive Director, Kimberly Kirchmeyer, joined BGMS at Enloe Conference Center from 5:30 to 6:30 pm. The BGMS Board of Directors hosted this meeting, which included a presentation on how the MBC functions as a law enforcement agency, how they manage complaints, and provide an overview of what physicians need to know. Here is the MBC Executive Director's presentation:

https://www.bgmsonline.org/site/assets/files/1093/mbc_butte-glenn_med_society_july_2019.pdf

Questions for MBC that were gathered before the July 10 event from BGMS/CMA members. Answers to these questions were woven into Kimberly Kirchmeyers' PowerPoint presentatin linked above.

1) What is the distribution of outcomes once an accusation has been filed (Withdrawn/Letter of Reprimand/Revoked-stayed with terms and conditions/ Revoked)? What mechanism is in place to correct a factual error in a filed accusation?
2) Can the Medical Board of California share how its actions are beneficial to health care consumers or improving access to quality medical care? Actions such as complaints, investigations, probations, suspensions, etc. seem to be the only metrics available.
3) Does the Medical Board of California have interest in moving toward a Just Culture approach in regulatory oversight as has been successful in other high reliability operations that benefit from regulatory oversight of consumer safety; i.e. the FAA and licensed pilots/carriers?
4) What criteria does the MBC use to decide when to file accusations on death certificate cases? I am defending about 5 cases where the clients are solid physicians with no prior record of MBC investigation or discipline. As opposed to formal disciplinary action, wouldn't the public be well-protected if the MBC simply brings a perceived situation to the doctor's attention and requires a pain management/prescribing course? The filing of an accusation seems overly harsh for an otherwise solid physician who is not running a pill mill or a repeat offender.
5) Why is the MBC attempting to prosecute death certificate cases where the care in question took place before the 2014 Pain Management Guidelines were promulgated (actually adopted in 2015)?
6) Has the MBC hired any new staff to process Petitions for Penalty Relief? What happens to a Petition filed by a physician after 1 year of probation to modify a term of his/her Probation, if it has not been processed by the 2nd year mark? Can it be converted into a Petition for Penalty Relief to get off probation without filing a whole new Petition?
7) When does the MBC expect to roll out their Physician Health Program (to replace the former Diversion Program) and what steps has the MBC taken towards that goal?
8) What is the MBC's position on undertaking actions related to medical cannabis recommendations, given the legalization of recreational cannabis in California?
9) Does the MBC consider unintended consequences of physician discipline that have a disproportionate impact on career of the clinician involved? Example: physician is put on probation, private 3rd party payors drop the physician from their provider lists, the physician's practice is compromised primarily of private insurance patients. Result: early retirement.
10) Has the MBC considered giving more details and documentation in response to 800(c) discovery requests?


OTHER RESOURCES: Another resource can be found through the Medical Insurance Exchange of California at miec.org.

The California Medical Association continues to work with the Medical Board of California. Below is an update from CMA's Center for Policy Vice President, Yvonne Choong, as of June 28, 2019:

Death Certificate Project
In 2017, the MBC began using death certificate data and the Controlled Substance Utilization Review and Evaluation System (CURES) database to identify physicians who were prescribing to the individuals who had died as a result of drug overdoses. CMA staff has been closely following MBC efforts to use death certificate and CURES data to identify licensees who may be prescribing controlled substances inappropriately. CMA continues to track inquiries from members and work with the MBC staff to gather information about this project.

In January 2019, the CMA Executive Committee met with Denise Pines (President, MBC) and Kimberly Kirchmeyer (Executive Officer, MBC) to communicate concerns with the Medical Board's disciplinary process and the death certificate project. As a result of that meeting, CMA sent a letter to the MBC requesting that the MBC conduct a study to better understand whether physicians in specified specialties or geographic areas were being disproportionately disciplined by the MBC and requesting that the MBC review the processes used in the death certificate project to determine if the project could better target physicians who were prescribing inappropriately.

There have also been several media articles about the MBC death certificate data project. CMA provided quotes from CMA President Ted Mazer, MD that stated that CMA is continuing to work with the Medical Board of California on its disciplinary framework to improve effectiveness, prioritize patient safety, while protecting due process for physicians, including appropriate focus and scope of investigations and preserving the ability of physicians to provide appropriate treatment to patients. CMA has received inquiries regarding the status of the death certificate project and CMA's efforts to work with the MBC to reform the project to reduce the impact on physicians who have not prescribed outside the standard of care. CMA will be developing specific recommendations for changes to the MBC's current process for identifying physicians who are prescribing controlled substances in a manner that is outside the standard of care. These recommendations will be communicated in a formal letter to the MBC.

Collaboration with the California Academy of Attorneys for Health Care Professionals (CAAHP)
CMA is working with CAAHP attorneys to identify issues that physicians are experiencing which limit their ability to exercise their right to a fair investigation in MBC disciplinary cases, especially the death certificate project. For example, CMA is concerned that physicians identified through this project are being disciplined for failing to check the CURES database prior to the point in time when checking was voluntary and when the database was not functioning properly.

Physician Education on MBC Processes
Physicians regularly contact CMA when they come under investigation by the MBC. While CMA has develop resources in the California Physicians' Legal Handbook (CPLH) about the MBC's disciplinary processes and the physician's rights, physicians continue to be confused about what happens during the disciplinary process. Physicians often receive conflicting information about the process from their legal counsel, malpractice carriers, and other physicians which has contributed to a high level of mistrust about the system and the disciplinary process. CMA has been working closely with the MBC staff to identify helpful information about the enforcement process that should be shared with licensees in order to provide greater transparency about the MBC disciplinary process. For example, at CMA's request, the MBC posted two videos on the MBC website that explain the Medical Board Disciplinary Process and the Expert Reviewer's Role in the Enforcement Process.

Update to MBC Prescribing Guidelines
In November 2014, the MBC adopted "Guidelines for Prescribing Controlled Substances for Pain", which were intended to provide guidance to licensees about how to appropriately prescribe controlled substances. CMA staff and physicians were very involved in the stakeholder process used to develop the guidelines. The MBC Prescribing Guidelines were influenced by CMA's white paper "Prescribing Opioids: Care amid Controversy." The MBC will be updating its guidelines in 2019 to reflect changes in clinical practice and to include a focus on medication assisted treatment. CMA staff have been in discussions with MBC staff about CMA's interest in being included in the update process.

Staff have been monitoring this issue to determine how physicians are being impacted by investigations based on death certificate data and whether the investigations are resulting in disciplinary actions. In meetings with MBC staff, CMA conveyed concerns that licensees and their legal counsel were not aware of the scope of the investigations based on death certificate and CURES data. CMA also requested that the MBC provide educational resources to remind physicians about their legal obligations to respond to requests for medical records and otherwise cooperate with MBC investigations.

Convening on Pharmacy Issues
CMA staff has received multiple inquiries from physicians who have patients who have experienced difficulty having controlled substance prescriptions filled due to local pharmacy policies. For example, one pharmacy has imposed a hard 50 MME cap on opioid prescriptions, while other pharmacies are requiring extensive documentation and medical records before agreeing to dispense the prescriptions. CMA has raised this issue with the MBC as requested assistance in convening a meeting with the MBC, the Board of Pharmacy, retail pharmacists and other stakeholders to better understand these policies and how the medical community can work together to ensure that patients are receiving their prescribed medication. Planning for this meeting is in progress.
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