Welcome to the WOEMA WINDOW. This e-newsletter is sent to members by email on a monthly basis. The e-newsletter provides links to this page. Below are the items that appeared in the November 2018 issue.
- Navigating the Medical Board of California
- FREE CME: WOEMA Webinar Series
- CAST YOUR VOTE! Submit Your ACOEM Election Ballot
- Resident Presents Poster on TB Prevention Competition
- COEH Builds Bridges: Impacts of New Policies on Occupational Health – January 25-26, 2019
- Support the WOEMA Legislative Affairs Committee with a Donation
Navigating the California Medical Board
an editorial by Steven Feinberg, MD
As a physician, you are most definitely aware of the Medical Board of California (MBC). I thought it would be helpful to provide some information to help physicians hopefully avoid, or if contacted, deal effectively with MBC complaints.
The Medical Board of California is responsible for investigating complaints and taking disciplinary action against the licensee, if a violation of law is confirmed.
In the year 2017–2018, the MBC received 10,888 complaints, opened investigations in 1,627 cases and took disciplinary action in 450 cases. There were 504 cases referred for administrative action to the attorney general’s office and 36 cases referred for criminal action to the district or city attorney’s office. Criminal action refers to drug violations, sexual misconduct, unlicensed practice of medicine, patient deaths (second-degree murder/involuntary manslaughter), and fraud.
What to do if you are contacted by the MBC?
First and foremost be honest. Never, ever, lie. One lie, however small, taints your entire testimony. Do not ever, under any circumstances, make changes to medical records retrospectively. It is a good idea to notify your malpractice carrier. My personal belief is that it is smart to be represented by an attorney. If you have made a mistake, fess up to it and work with the MBC to settle the issue in an amicable and fair manner.
Complaint Review Process
A complaint can come from the public (patient, family, friend, etc.), from another physician, or from an anonymous source. The Board also receives complaints from Mandated Reports, such as malpractice settlements, arbitration awards, and judgments from insurance companies, attorneys, courts; peer review action reported by medical facilities/hospitals; criminal charges and convictions reported by courts or self-reported; reports of death outside of a general acute care hospital; and Adverse Event Report. The complaint review process starts with a triage by the Central Complaint Unit and the patient is contacted for authorization to obtain records, and then the physician is contacted for a treatment summary and medical records. The complaint is then reviewed internally by an MBC medical consultant with possible outcomes including 1) case closure; 2) refer for formal investigation; or 3) issue a citation and fine.
The next stage is the Investigation Process which includes obtaining all the medical records, interviewing all witnesses (patient, prior or subsequent treating physicians, physician, others) and then having the file reviewed by an MBC Expert Reviewer.
Role & Tasks of the MBC Expert Reviewer
The MBC considers the role of the Expert Reviewer as the most critical component of the enforcement process as that opinion is essential to protecting medical consumers but also is essential to exonerating physicians from baseless complaints.
The Expert Reviewer does not deal with whether the case is criminal or administrative. These issues are decided by the MBC based on the facts which will dictate whether or not the case is referred for criminal charges as well as administrative charges.
The role of the expert reviewer is not to be an advocate for the MBC but rather to be an objective reviewer (independent, impartial and unbiased) who establishes whether or not there has been a departure from the accepted standard of care. The opinion must be based solely upon information provided by the Board; however, the expert reviewer may refer to peer-reviewed journal articles, medical text and other authoritative reference materials which helped to define the accepted standard of care. The opinion should be based upon knowledge of the accepted standard of care drawing from the reviewer’s education, training, and experience and knowledge of the medical literature.
The MBC Reviewer is tasked with discussing the standard of care in place at the time of the act or treatment and not by today’s standards. The Reviewer must provide for each (separate) medical issue an explanation of his or her conclusions. The conclusion for each medical issue should state either there was: 1) no departure; 2) simple departure; 3) extreme departure: and/or 4) lack of knowledge.
The MBC Reviewer should be the same specialty as the subject physician, must be familiar with the standard of care in the community at the time of the incident(s) in question and must have experience with the procedure or treatment at issue during the time frame of the alleged misconduct.
The MBC Reviewer is to consider whether there has been Evidence of Mitigation; have there been factors in the case that prevented treatment consistent with the accepted standard of practice? Mitigation evidence is evidence that tends to explain or provide a context for the alleged wrongful act to cast it in a more sympathetic, reasonable and understandable light. An example of mitigation evidence would be a tragic life event, i.e., something that causes extreme stress such as a death in the family.
The “Standard of Care” for general practitioners is defined as that level of skill, knowledge and care and diagnosis and treatment ordinarily processed and exercised by other reasonably careful and prudent physicians in the same or similar circumstances at the time in question.
Specialists are held to the standard of skill, knowledge and care ordinarily possessed and exercised by other reasonably careful and prudent specialist in the same or similar circumstances at the time in question.
Negligence is the failure to use that level of skill, knowledge and care in diagnosis and treatment that other reasonably careful physicians would use in the same or similar circumstances. A negligent act is often referred to as a “simple departure” from the standard of care.
Gross negligence, on the other hand, is defined as “the want of even scant care” or “an extreme departure from the standard of care.” Gross negligence can be established under either definition, both are not required. The difference between gross negligence and ordinary negligence is the degree of departure from the standard of care.
Incompetence is generally defined as “an absence of qualification, ability of fitness to perform prescribed due to your function.” Incompetence is synonymous with lack of knowledge. A physician may be competent to perform a duty but negligent in performing that duty.
Types of Evaluations
The types of evaluations performed by the MBC Expert Reviewer include the following categories:
- Quality of Care /Excessive Treatment Violations
- Surgical misadventure
- Failure to diagnose
- Failure to recognize complication
- Exceeding the scope of expertise
- Sexual Misconduct
- The MBC Reviewer Is to assume it did happen but is not to evaluate or comment on credibility of anyone (the judge will do that).
- Any act of sexual abuse, misconduct or relations with the patient constitutes unprofessional conduct and grounds for discipline (except for contact between physician and spouse or equivalent domestic relationship).
- Sexual exploitation is a criminal offense. Engaging in an act of sexual intercourse/contact with the patient or a former patient when the relationship was traumatic primarily for the engaging in those acts.
- Drug Violations
- Excessive/Inappropriate Prescribing
- Prescribing controlled substances to a known addict for nonmedical purposes
- Prescribing without medical indication
- Prescribing without appropriate examination
- Physician cannot prescribe or administer controlled substances in the treatment of known addict, treatment that is non-therapeutic in nature, or treatment that is not consistent with public health and welfare.
- General Unprofessional Conduct
- Conviction of a crime
- Ethical violations (such as borrowing money from a patient)
Pain Management Cases
Many reviews involve pain management and medication issues. The MBC Expert Reviewer considers the quality of physician reporting including the following categories:
- History/Physical Examination
- Treatment Plan, Objectives
- Informed Consent
- Periodic Review
- Compliance with Controlled Substances Laws and Regulations
Possible Investigation Outcomes
The possible investigation outcomes include: 1) case closure; 2) issue citation and fine; 3) refer for other disciplinary action; or 4) issue a public letter reprimand.
There are 3 types of decisions: 1) Stipulated Settlement; 2) Administrative Hearing: and 3) Default Decision. In a stipulated settlement, the physician and the MBC agree to terms of settlement. An administrative hearing involves a Judge. If the physician does not respond, the MBC will offer a default decision.
All decisions go to a Panel of the MBC, except Surrender of License and Default Decisions. The Panel has the final word and can adopt, non-adopt or reject the Administrative Law Judge’s recommendation.
There is an appeal process which can include 1) an Order to Vacate; 2) Board – Petition for Reconsideration; 3) Superior Court – Writ of Mandate; 4) Court of Appeals; and 5) Supreme Court.
Disciplinary outcomes can include: 1) Revocation/Surrender; 2) Probation (with terms and conditions which can include educational programs, prohibited practices, prescribing restrictions, and practice/billing monitor); 3) Suspension; 4) Public Reprimand; and 5) Accusation Withdrawn/Dismissed.
At the conclusion, there is a final reporting on the MBC website and Newsletter, on the National Practitioner’s Databank, and to the Federation of State Medical Boards.
The best way to avoid problems with the Medical Board of California, is to practice good medicine within the standard of care for your specialty in the community. Practice evidence-based medicine. Good medical documentation of a quality history, physical examination and review of records is of paramount importance. Avoid boilerplate macros with electronic medical record reporting – if you did not do it, do not put it down. If you get a letter of concern from the medical Board, stay calm, get representation, and do not ever change anything in the medical record retrospectively. Lastly, if questioned, always be truthful.
- Medical Board of California Website: http://www.mbc.ca.gov/
- Guide to the Laws Governing the Practice of Medicine by Physicians and Surgeons, 7th Edition: 2013, the Medical Board of California. http://www.mbc.ca.gov/About_Us/Laws/laws_guide.pdf
 Intractable Pain Treatment Act: May prescribed controlled substances in the course of treatment for intractable, chronic, non-cancer pain that cannot be alleviated with conventional treatment. Patient must be evaluated by the treating physician and by a specialist in the area deemed to be the source of the pain.
FREE CME: WOEMA Webinar Series
Thursday, December 13 • 12:00 PM PDT
Topic: The OSHA Silica Standard – Fresh Challenges for Medical Surveillance
Speaker: Paul Papanek, MD, MPH, FACOEM
The new OSHA standards for occupational silica exposure are now being phased in, and are in effect for many workers with occupational silica exposure who required medical surveillance. This webinar will describe the new surveillance requirements, and will emphasize some novel challenges posed by the standard, including what to do if employees refuse certain parts of the exam, or decline to have further specialty evaluations, as the standard mandates for workers with certain abnormal findings. Many OEM physicians or other providers in WOEMA states may be called on to offer these surveillance exams.
Learning Objectives – after this webinar, attendees will be able to:
- Describe what types of workplace silica exposures trigger a requirement for medical surveillance exams
- List the principal component of those exams
- Articulate a strategy for how to communicate with employees and employers about the surveillance results and next steps
CAST YOUR VOTE! Submit Your ACOEM Election Ballot
WOEMA reminds all members to vote in the annual ACOEM Board of Directors and Officers Election. Members eligible to vote (Active, Associate, Fellow, Masters, Residents, and Past Presidents) receive an electronic ballot directly from ACOEM that includes candidate bios and position statements. Terms of Office will begin at the annual Membership Meeting at AOHC 2019 in Anaheim.
WOEMA member, Leslie Israel, DO, MPH, FACOEM, is a candidate for election to the ACOEM Board of Directors.
Resident Ifeoma Ogbonna, MD, Presents Poster on TB Prevention
At the Western Occupational Health Conference (WOHC) 2018 in San Francisco, twelve resident physicians presented posters on occupational and environmental medicine research or projects that have been conducted. Ifeoma Ogbonna, MD was awarded second place ($125) in the poster competition for “TB Knowledge, Attitude, and Preventive Practices among Healthcare Workers and Ancillary Staff in an Underserved Medical Institution”. Dr. Ogbonna is a third year Occupational and Environmental Medicine resident at Meharry Medical College. She is also working on completing her MSPH in public health. Over the course of her training, she has come to appreciate and love research and all things concerning Occupational Medicine. Since she began medical school, she found it to be a difficult journey. However, during her intern year of Internal Medicine, she was introduced to Occupational Medicine through a friend and colleague. After in depth research, the decision to switch to Occupational Medicine was easy and has been the best decision concerning her life and career. Currently, her short-term goal is to complete her residency and MSPH program, and take her Occupational board exams.
Healthcare and ancillary workers in hospital settings are at an increased risk of exposure and acquisition of tuberculosis (TB). The level of knowledge among clinical healthcare workers (CHCWs) and non-clinical healthcare workers is important in the diagnosis, treatment, control, and prevention of TB. Published reports suggest variation in knowledge of TB among CHCWs and ancillary staff based on TB prevalence, facility type, available resources, provider training and clinical experience, educational attainment of staff, etc. The purpose of this cross-sectional study was to assess knowledge of TB among CHCWs and non-clinical ancillary staff in an underserved medical institution. Results showed statistical significant differences in knowledge between clinical healthcare workers and non-clinical healthcare workers. However, there was no difference in knowledge between residents and attending physicians. Clinical healthcare professional was a strong predictor of knowledge; In addition, birth in a high TB burden country strongly predicted TB knowledge among attending physicians and residents. Comprehensive knowledge of TB is important for providers to accurately diagnose, manage and prevent TB. The findings from this study will generate data to guide TB education efforts for providers and healthcare facility ancillary staff. Results will help to clarify misconceptions about TB transmission and prevention, enhance the quality of care for patients with TB and reduce the risk of nosocomial transmission of TB.
CEOH Builds Bridges: Impacts of New Policies in Occupational Health
January 25-26, 2019
Early-Bird prices end November 26th! This joint symposium presented by UC Berkeley and UC Davis will explore the impacts of new policies on occupational health.
Day one of the symposium will discuss the making, implementation, and assessment of policies designed to improve worker health. Speakers will present information on the process by which a policy is created and why. The challenges and successes with implementing and assessing new standards in different industries will be discussed. Recent standards in lead, silica, hotel housekeeping, safe patient handling, workplace violence, and sexual harassment will be discussed in detail, along with a discussion of ongoing implementation and assessment strategies. Health policy experts will discuss how the impact of these policies might be assessed over time.
Day two of the symposium will explore current topics in occupational and environmental medicine. The Center for Occupational and Environmental Health at UC Davis offers this annual symposium to clinicians as a part of its mission to disseminate new knowledge related to occupational health and policy. This program is designed to improve provider competence in the prevention, diagnosis, and treatment of worker-related injuries with the intention of improving health outcomes for California workers.
Support the WOEMA Legislative Affairs Committee with a Donation
Dear WOEMA Member,
We are writing to update you on WOEMA’s efforts to represent you on important matters that affect your practice of Occupational Medicine, and to seek your continued support of these efforts through a contribution to WOEMA’s Legislative Affairs Fund.
The WOEMA Legislative Committee has the active participation of about 18 members, with designated legislative “liaisons” from each of WOEMA’s five member states. Of note, WOEMA continues to be the only ACOEM Component with a paid lobbyist on staff, and we believe that the decision by the WOEMA Board over 10 years ago to retain the advocacy services of Don Schinske has been of pivotal importance in increasing WOEMA’s footprint in the legislative and advocacy arena.
The basic task of the Legislative Committee is to track new bills and new regulations related to Occupational and Environmental Health in our five member states. To this end, the Committee holds weekly meetings with Mr. Schinske to review matters of importance, and to plan coordinated advocacy with other interested groups, especially the state medical associations and various state agencies. We meet every Friday morning at 7:30 AM PT by teleconference. New members are warmly welcomed to join us, and help with the important work of shaping public policy in the field of Occupational and Environmental Health.
With our lobbyist’s support, we have been very active representing your interests. Here are just a few of the recent initiatives WOEMA has taken on behalf of its members:
- This Spring, WOEMA met with DWC officials to discuss a variety of subjects, including the new California drug formulary, UR issues, and efforts to improve clinical quality.
- Met with legislators and Capitol consultants to discuss bills on topics ranging from valley fever to the use of genetic factors in apportionment decisions.
- Participated in hearings relative to the implementation of the formulary and, going forward, new work sessions around reform of the QME process.
- Organized support for California’s successful application for a US Dept. of Labor RETAIN grant.
- Continued to oppose legislative efforts to expand presumptions or change apportionments that are not based on medical evidence.
- Supported legislative proposals for sound public health measures relating to childhood lead exposure.
- Monitored and discussed relevant legislative and regulatory developments in Arizona, Hawaii, Nevada, and Utah.
- Began positioning our organization ahead of California’s upcoming push for universal healthcare coverage.
WOEMA’s Legislative Committee typically schedules meetings with key staff in the California Department of Industrial Relations, either in Sacramento or Oakland, and schedules visits with members of the California legislature on an ad hoc basis.
Finally, the leaders of the Legislative Committee are proud to assert that our hard work, sometimes frustrating but always engaging, has helped to greatly expand WOEMA’s footprint in the field of Occupational and Environmental Health. This work is vital for us. Helping to shape legislative and regulatory policy showcases WOEMA’s medical leadership on medical quality in our field, and has a direct bearing on our members’ practices and on the health and safety of the American workplace.
We would welcome monetary contributions of $50 to $200, but welcome any amount you are able to give to support the important legislative and regulatory work that WOEMA is doing on behalf of Occupational Medicine physicians in our member states. Thank you for your consideration of our request.
Rupali Das, MD, MPH, FACOEM
Co-Chair, Legislative Affairs Committee
Roman Kownacki, MD, MPH, FACOEM
Co-Chair, Legislative Affairs Committee
575 Market Street, Suite 2125
San Francisco, CA94105