Editorial: State lawmakers are fumbling the chance to improve patient safety

The lobbying group for state physicians is having its way with the state Legislature this year, neutering two bills aimed at improving patient safety. Unless lawmakers suddenly reverse course, they’re poised to punt on the chance to upgrade the state board that disciplines bad doctors, and they’ll defang a proposal to require doctors to reveal potential conflicts of interest to the people they treat.

At issue are a Senate bill (SB 806) to reauthorize the Medical Board of California, the agency in charge of licensing physicians, and an Assembly bill (AB 1278) to require doctors to disclose directly to patients what they’re being paid by drug and medical device companies.

As Times reporters Jack Dolan and Kim Christensen documented recently in horrifying detail, the medical board has repeatedly failed to protect the public against doctors with a track record of grievous errors. A study by Public Citizen found that California‘s agency ranked 33rd among state medical boards, imposing serious discipline (such as revoking or suspending a physician’s license) at well less than half the rate of the most aggressive state board, Kentucky’s.

Even one of the board’s own members, Eserick Watkins, has publicly accused it of caring more about doctors than the public. In fiscal year 2019-20, the board agreed to settlements with doctors accused of misconduct that, in more than half the cases, stopped short of what its own guidelines recommended.

Dr. Sidney Wolfe, one of the authors of Public Citizen’s report, said a common response from state boards with low rates of serious discipline is that they don’t need to take a lot of actions because they have “much better doctors.� But “there is no evidence whatsoever,� Wolfe said, that doctors in one state are better or worse than in another state.

There’s broad agreement among legislators that the board is failing the public. Improving its performance, though, means giving it more independence and more funding while requiring more transparency. And sadly, the current version of SB 806 whiffs on all three of those needs, as it does on many of the changes the board sought.

The original proposal would have, for the first time in 15 years, raised the licensing fees paid by physicians to the level that consultants hired by the board said was necessary to sustain it. It also would have given nonphysicians a majority of the board’s seats, signaling an intention, at least, to put patient safety ahead of doctors’ interests. Whether the change in membership altered the board’s behavior would depend on the people appointed.

Both of those provisions were dropped in the Senate by the bill’s author, Sen. Richard Roth (D-Riverside), in the face of opposition from the doctors lobby. He watered the measure down further after the bill passed the Senate, adding a section sought by the board that would allow its executive director to settle complaints with confidential letters of advice that, once complied with, would be expunged from the board’s files. Future boards would have no way of knowing about the problems that were cited.

Such a mechanism would make sense for minor issues, such as record-keeping errors. But the bill puts no guardrails around the board’s discretion. Instead, it would allow the board to send complaints about any violation, no matter how severe, to its executive director to be resolved this way. That’s putting far too much faith in a board whose track record cries out for skepticism.

This is, after all, a board that has kept patients in the dark about the complaints it receives, more than 95% of which result in no public record (more than 80% are dismissed without an investigation). Patient advocates say that the board has even dismissed complaints about serious misconduct without speaking to the victims.

Lawmakers seem content to put off questions about the board’s funding and its enforcement practices until 2022 or 2023. The bill would install an enforcement monitor to examine the board’s handling of complaints and report back to the Legislature, but the report won’t be worth the time and money spent on it if legislators aren’t willing to resist the medical lobby’s efforts to keep the board from becoming more effective and transparent.

The situation with AB 1278 is just as discouraging. When it was introduced, the bill — sponsored by the Center for Public Interest Law at the University of San Diego — would have required doctors and surgeons to tell patients they treat outside the emergency room if they’d received payments from the manufacturers of the drugs and devices they were about to prescribe. The point was to alert patients to potential conflicts of interest that might lead doctors to prescribe something that wasn’t the best choice for the patient.

A slew of physician and drug-industry groups objected, however, and the bill’s author, Assemblyman Adrin Nazarian (D-North Hollywood), bent over backward to accommodate them. The measure now would require physicians only to notify patients about the federal database that records all gifts and payments by drug and device companies to physicians, rather than calling attention to issues specific to each patient’s treatment.

To be clear, there are plenty of legitimate reasons for doctors to be paid by drug and device companies — for example, they may hold patents on a device, or they may train other professionals in the best practices for a class of drugs. And patients may find it reassuring that their doctors have a relationship with the companies behind the products they’re being prescribed.

Regardless, shedding a small bit of light on these payments is better than no light. Yet even the watered down version of AB 1278 is too much transparency for the doctors lobby, whose spokesman told Christensen that the requirements were too burdensome. The resistance is not unusual; special interest groups exist to protect their members’ interests. It’s up to lawmakers to protect the public interest, and on these two bills, they’re falling far short.