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JAMA Forum Archive, 2012-2019: Health policy commentary from leaders in the field
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Prognosis Is Guarded for California’s “Patient’s Right to Know Act”

Historically, most patients have been unaware that if their physician or other licensed clinician has been on probation for such reasons as substance abuse, sexual misconduct, or avoidable medical errors, it’s up to them to seek that information out. Fewer still know enough to probe the website of the relevant state medical board.

Image: Pictac/Thinkstock

But now, the public is clamoring for change. A recent survey of more than 1200 adults by Consumer Reports revealed that 82% of patients favor probationary status disclosure by medical licensees. Chief among the patient grievances is the discovery that the placement of licensees on probation is never communicated directly to patients. In contrast, hospitals, clinics, and malpractice carriers are routinely apprised.

Equally objectionable to patients is that many are not able or willing to access information online, and even if they are, it may be difficult to find on user-unfriendly state medical board websites. Recently, however, persistent efforts by a California state senator, Gerald A. (Jerry) Hill (D, District 13) to place the onus of disclosing probationary status on licensees have garnered national attention. Now in its third iteration, Sen Hill’s bill, called the Patient’s Right to Know Act, is being reconsidered; the prognosis for its enactment, however, remains guarded.

Opposition to Self-reporting

For close to a decade, the notion of clinicians’ self-reporting their probationary status to patients has been resolutely opposed by both the Medical Board of California (MBC) and the California Medical Association (CMA). In the view of these 2 entities, self-disclosure by disciplined licensees is liable to undermine due process protections and may well result in a de facto suspension, and licensees disciplined for relatively minor transgressions are bound to be unfairly penalized.

The CMA also maintains that a mandate to self-disclose disciplinary status stands to “destroy the doctor-patient relationship” and to “take time away from important patient appointments.” Moreover, the association said that self-disclosure of provider-specific information to patients is duplicative because the same data is accessible online.

Nonlegislative efforts to address patients’ “right to know” have fallen flat. Although the staff of the MBC recommended in 2012 that licensees on probation be required to inform patients about their status to ensure that “the public has the ability to make informed decisions regarding their healthcare provider,” the MBC rejected the proposal. In 2015, the Consumers Union, the policy and advocacy division of Consumer Reports, filed an administrative petition with the MBC, seeking to incorporate a statement to the effect that “physicians who continue to see patients be required to inform their patients of their probationary status.” This petition was also rejected, as was a subsequent filing of a watered-down version of the original petition.  

Previously, in 2016, Sen Hill introduced a bill (SB-1033) with an eye toward mandating the MBC to “require a licensee on probation … to disclose on a separate document her or his probationary status to a patient, the patient’s guardian, or the health care surrogate prior to the patient’s first visit.” Although it was approved by the Senate’s Business, Professions, and Economic Development Committee and its Appropriations Committee, the bill lacked sufficient votes to pass on the Senate floor. A second effort, a bill  (SB-798) introduced during the 2017 legislative session, was blocked early in the process.

The current bill, the Patient’s Right to Know Act of 2018 (SB-1448), has passed 2 senate committees and is under review by the Committee on Appropriations. High-profile athletes have spoken out in support for the bill, including the 2012 Olympic gold medalist gymnast Jordyn Wieber, whose testimony contributed to the conviction of the former USA Gymnastics and Michigan State University sports medicine physician, Lawrence G. Nassar, MD, on multiple counts of criminal sexual conduct against his patients. In a statement, Wieber said that “every effort must be made to make sure patients have every piece of information that is vital to their health and safety.”

The circumstances that underlie patients’ “right to know” are hardly California-specific, and apply throughout the nation. Yet no other state has given this matter serious consideration, despite widespread assertions of the importance of consumer–centered health care.

Predicting Repeat Offenders?

A report on physician misconduct and public disclosure, issued by the California Research Bureau, concluded that “malpractice payout histories … are directly predictive of future disciplinary actions for five years and indirectly predictive for a longer time period.” A study by the Federation of State Medical Boards reported a similar relationship between sanctions and recidivism, noting “a very large number of repeat offenders among physicians who have received board sanctions.” A more recent study established that “web-based [California] physician ratings were lower for doctors on probation.” Given that the single best predictor of future discipline is current discipline, the misguided nature of this laissez-faire approach could not be more self-evident.

The moral imperative for patients’ right to know about clinicians’ probationary status is also  compelling. Thus, the national acquiescence with the status quo and apparent inaction by lawmakers seem inexplicable. It’s possible that limited familiarity with the workings of state medical boards and the exalted status of the medical profession are at play. Whatever the root causes, the “patient’s right to know” must not be denied.

wAbout the author: Eli Y. Adashi, MD, MS, is a professor of Medical Science and the former dean of Medicine and Biological Sciences at the Warren Alpert Medical School of Brown University in Providence, Rhode Island. (Image: Brown University)
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