Monday, April 29, 2013

California Medical Board Under Attack

The California Medical Board is under siege. In a strongly worded article, Michael Hiltzik of the Los Angeles Times on 4/26/13 in an article entitled "Legislature Should Pull Plug On Inept Medical Board of California" urged Sacramento law makers to "sunset" the Board, fire the executive director and start fresh.  Mr. Hilltzik has reported extensively on surgical centers, especially Lap Band surgery centers. 

However, Mr. Hilltzik does not address where the funds will come for the investigations he recommends be initiated on their own without any patient or other complaints. There is an allegation that the accrediting agencies such as Joint Commission which regulates hospitals are in the pockets of the surgery centers. The article is inflammatory in my opinion and does not suggest how a "new" agency would operate or be funded. The Medical Board is self-funded from physician dues and fees. 

As an attorney who represents physicians on a regular basis, I find the proposal of just starting over or turning the agency over to the Attorney General's Office to be simplistic. There are many tasks performed by the Medical Board of an administrative nature. When there are criminal investigations, those should be addressed on a case by case basis as to which agency should handle the criminal side of the investigation. Should it be the DEA, county District Attorney Offices, city attorney's offices and local law enforcement? Each case is different and requires different skills and resources. The U.S. Drug Enforcement Agency is the one that issues physicians a certificate to prescribe medications, including Schedule II drugs.

I have seen the Board over the past 5 years become very aggressive where physicians did not document medical exams or demonstrate sufficient medical necessity when they prescribed pain medications. In one case I handled last year, the physican's state criminal case of prescribing to undercover officers was dismissed but the Board insisted on revocation of the license. 

For those interested in the issues, a review of the Medical Board's 410-page report entitled "A Report to Senate, Professions and Economic Development Committee" addresses the issues raised and the challenges faced by the Board and that are being addressed in its "sunset review."  The Medical Board currently follows up on every complaint made to it - whether anonymous or frivolous. This is in addition to those requiring serious investigations. 

Over the past 5 years, the Medical Board referred 47% more cases to the Attorney General's Office  referred 74% more probation violation cases to the Attorney General's Office, have referred 204% more cases for criminal action, issued 35% more revocations, and imposed 49% more license restrictions while cases are pending. The Medical Board has become much more aggressive over the past 5 years.

In another article in the Los Angeles times on the same day, entitled "California Board Backs Some Prescription-Drug-Abuse Reforms" by the reporters Lisa Girion and Scott Glover (who have reported extensively on prescription drugs) indicated that the Board embraced a host of proposed reforms. This article was more even handed in its reporting. 

Is this simply a political issue where the Medical Board is a scapegoat for the difficult issues in our health care system, surgery centers and the public’s use of prescription drugs? In fact, the California Medical Board has been aggressive towards physicians on enforcement but attacking the Board instead of logically addressing the complexities in regulating and investigating surgery centers and the prescribing of pain medications does not make sense. For years, physicians were assured they would not be criminally prosecuted or disciplined for prescribing pain medications for legitimate pain. However, pain can be subjective and physicians are not human lie detectors. This needs to be addressed intelligently.

The issues raised concerning prescription drugs seem appropriate for a task force. Where are the pharmacy boards, the DEA, the distributors and manufacturers of these medications who obtain full reports on the drugs prescribed and dispensed? Where are the investigations of the patients who lie to physicians and emergency room personnel in hospitals? How about the FDA who does not require the manufacturers of these drugs to advertise how addictive they can be and how interactions can lead to respiratory failure? 

How do the “chronic pain” patients who refuse surgery for chronic back and spine injuries or who have cancer fit into the regulatory scheme? Are the County Coroners reporting drug related deaths to the Medical Board and seeking information on who were their treating or prescribing physicians or running CURES reports on the deceased? For example, in the 2011-2012 fiscal year, the Board only received 4 reports from coroner's offices in California. 

How will the governmental agencies separate excessive prescribing without medical necessity from those cases of legitimate prescribing? It is too easy just to blame physicians for patients who mix alcohol and drugs when they should not and expect the physicians to police the patients. There is a huge difference between pill mills or clinics fronting as medical clinics that are dealing drugs and physicians who are treating patients. 

Family members of patients who died of drug overdoses wearing t-shirts with the word ENOUGH are fueling the attack on the Medical Board. While these families are understandably distraught, the statistics show that 2/3 of the people who pass away from drug overdoses bought or obtained the medications from others. In addition, there is a crisis where those who began taking prescription drugs and can no longer obtain them, go to cheaper, easier to obtain illegal narcotics such as heroin. 

With the writing on the wall, the California Medical Board, this past Friday, April 26, 2013, in Los Angeles, decided it was time to become publicly proactive.  The Board issued a press release showing its support to more aggressively fight prescription drug abuse. The Board also voted to support legislation requiring coroners to report prescription drug overdose deaths to the board and to give the panel the authority to curtail a doctor's prescribing in some cases. The Board also voted to create a task force to develop guidelines for prescribing painkillers.

Stay tuned. The pressure on the Medical Board is significant. This will mean more aggressive investigations, increased discipline and difficulty obtaining Board approval of settlements where there are overprescribing allegations involving pain medications. 

Posted by Tracy Green, Esq. Please email Ms. Green at or call her at 213-233-2260 to schedule a complimentary telephonic or in person  consultation.  

Any questions or comments should be directed to Tracy Green an experienced Medical Board attorneyhealth care litigation attorney, physician attorney and DEA investigation attorney. She is also very familiar with the issues of operating a pain management clinic, overprescribing issues, DEA licenses and related issues in medical practice areas. The firm website is:


DISCLAIMER: Green & Associates' articles and blog postings are prepared as a service to the public and are not intended to grant rights or impose obligations. Nothing in this website should be construed as legal advice. Green & Associates' articles and blog postings may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement of their contents and contact their attorney for legal advice. The primary purpose of this website is not the commercial advertisement or promotion of a commercial product or service and this website is not an advertisement or solicitation. Anyone viewing this web site in a state where the web site fails to comply with all laws and ethical rules of that state, should disregard this web site.

The information provided on this website is for informational purposes only. It is not intended to create, and does not create, a lawyer-client relationship with Green & Associates, Attorneys at Law. Sending an e-mail to Tracy Green does not contractually obligate them to represent you as your lawyer, or create any type of client relationship. No attorney-client relationship will be formed absent a written engagement or retainer letter agreement signed by both Green & Associates and client and which specifies the scope of the engagement.

Please note that e-mail transmission is not secure unless it is encrypted. E-mail messages sent to Ms. Green should not include confidential or sensitive information.