How to speak Medical Board-ese
On August 9th 1991, I was arrested in my home by two agents of the Medical Board of California in the presence of my teenage daughter. Until then, I didn’t know anything about our State’s medical board.
After being arrested, I was handcuffed, jailed, held on a $50,000 bail and occupied a solitary confinement cell for 15 hours. I was finally bailed out of jail in the middle of the night after Suzanne Arms contacted a former client (thank you Angie!) who paid $5,000 to spring me. In case you are not familiar with the world of bail bondsmen, you don’t get your bail money back just because you didn’t flee the state and show up at all your court hearings. As Angie noted, it was “bye-bye muchachos” to that 5K.
I was charged with illegally practicing medicine, that is, providing non-medical midwifery care without a license at a time when California had no licensing for traditional midwives.
I was criminally prosecuted for 20 months, which included 16 court appearances and cost abou $40,000 in legal fees. Each of these court “appearances” was a personal mini-nightmare for me. Put poetically my mother didn’t raise me to be a “felon-in-waiting“, a phrase coined by LM Maggie Bennett. My attorney, Anne Flower-Cummings, also defended Kate Bowland and the other two midwives in 1974-76 a case that went to the California Supreme Court. Mothers and midwives lost, as a Stare Decisis ruling by the state Supreme Court declared that the unlicensed practice of midwifery was an illegal act, therefore a crime.
Luckily, my case turned out better than Kate’s. On April 29th, 1993 the DA suddenly ,and with no explanation. dropped the criminal charges against me. Six days later the San Jose Mercury published an editorial shaming the CMA for arresting midwives and other “caring professionals like Gibson“, while letting incompetent doctors literally and figuratively get away with murder without a beep of protest by the MBC.
Infamous 60-Minute Episode, Downfall of the “Do Nothing MBC system”
The supportive editorial in the Mercury followed on the heels of a 60-Minutes‘ expose about the abysmal failure of the MBC to take effective action against bad doctors. At the time there were over 100,000 MDs licensed by the MBC. However, in the previous three years, they’d only revoked the license of four doctors — that 1.33 per year.
Mike Wallace interviewed a MD stylishly dressed in an orange jumpsuit and handcuffs who was serving a life sentence for murdering his male lover. Nonetheless, he still had a valid license to practice medicine in the state of California. Then Mike Wallace interviewed the director of the MBC, Ken Wagstaff, and asked him why the Medical Board had not revoked the license of this convicted murder?
Mr. Wagstaff, who was very soon to loss his job, said lamely that the Medical Board saw no need to revoke his licensed, since the doctor was in prison and “couldn’t use it anyway”. Apparently their unwritten policy was to never lay a finger on the doctors they license, no matter how incompetent or egregious their behavior.
It was not the MBC’s finest hour, but this 60-Minute episode brought an end to its “do nothing” policies.
After being shamed on national TV for its obvious incompetence, the MBC was desperate to resuscitate its reputation by “doing something” that looked “manly” and decisive and “competent”. But its foundamentally incestious arrangement with organized medicine meant not revoking the medical license of very many MDs, and certainly not the white, wealthy and influential doctors who were dues-paying members of the California Medical Association (CMA).
Since it’s a fundamentally rigged system (more on that latter) the next chapter in the life of the MBC was a pseudo-activism that looked a lot better than it actually was. In this new turn of events, its investigations and disciplinary processes used very special nets that let the MD-sharks out through big invisible holes, while ensnaring all the little fish, that is, non-MD practitioners such as midwives and physician-assistants.
If you read the list of MBC disciplinary actions published in the agency’s “Action Report” you’ll also see a disportionate number of ethic names. Disciplinary actions by the MBC taken against doctors with hard-to-pronounce names reflecting a Chinese, Hindu, Spanish, middle-eastern or Muslim heritage. Disciplinary actions against these MDs and physician assistants are disproportionate and often draconian. They frequently have their license revoked or are put on many years probation for a relatively minor lapse of protocols that did not result in patient harm.
Apparently, arresting midwives was another of their many attempts to look manly and decisive!
I walked out of the Courthouse that in April of 1993 as a “free” person, but I still wanted to see the people at “The Medical Board” that ordered my arrest. So three days after the DA dropped the criminal charges against me, I drove to Sacramento and attended my first Quarterly Board meeting May 2nd, 1993. Its 28 years later and I’ve been attending quarterly meeting of the California Medical Board every since.
Medical Board 101: Who’s on First and How Can You Tell ?
The agency’s governing board consists of 15 people, 12 of who are MDs. As a body, they preside over their Quarterly Meetings and make all the final decisions for the MBC as an agency and for licentients such as licensed midwives.
These people are all political appointees — 13 are named by the governor, one by the Senate and the other by the Assembly. Political appointments are generally some form of “pay-back” to organized medicine for contributing ‘generously’ and otherwise actively supporting the election or re-election of political power-brokers that a majority of elected officials in our state need to stay on the right side.
My informed impression of the Medical Board after sitting through an average of two days-longs Quarterly meetings every year for almost 3 decades, countless “Interested Parties Meetings” and Midwifery Advisory Council meetings (a total of a 1,000 hours or more) is that MBC’s governing Board has an inheriently incestious relationship with organized medicine. The primary power behind the throne is the CMA, which is an arm of the AMA.
This is not a “mistake” but an “on purpose“. The governing Board of the MBC was structured by the Legislature to allow indirect control by organized medicine. In essence, ‘regulatory capture’ is a built into the system. As they say in Silicon Valley, it’s a ‘feature” not a ‘bug”. The former president of the CMA was appointed by a Democratic governor in 2o11 and now has been on the Board for 10 years. His current term expires June of this year, but Governor Newsom will probably re-appoint him, as the Governor needs the support of the CMA in his fight against a recall election.
The current structure simultaneously insulates the decision-making process from the public interest while favoring insiders and special interest groups. It also has has NO accountability. There is no “recall” vote for appointees that violate the public trust by rigging the game towards special interests of organized medicine or otherwise abuse their power for corrupt purposes.
This is particularly easy to accomplish when the public’s “business” is handcuffed by Roberts’ Rules of Order. This makes Board meetings so constructive and madding that you’d have to be masochist to attend more than one of them. Most midwives don’t come unless the political circumstances are dire.
The majority of Board members are MDs and the majority of doctors appointed to the Board are members of the state chapter of the American Medical Association (AMA), which is the California Medical Association (CMA). The AMA sets national policy, but in our political system the practice of medicine is controlled by the states. So the AMA very carefully and specifically instructs the members of its state chapters to go to their state legislators and lobby for or against the AMA’s agenda. Then it distributes hundreds of thousands (sometimes millions) to the lobbying efforts of those state chapters.
I’m not kidding, I read their reports of what states, what issues, and exactly how much they would contributing to sway votes to their side. This is like inviting the Mafia to appoint our the Supreme Court Justices and then expecting them not to act on behalf of their crime bosses.
The result is “the best damn government money can buy!“.
The AMA feels no shame whatsoever about its part in this rigged system that it’s spent 175 years perfecting (the AMA incorporated in NY state in 1847). It publishes and posts its instructions to members of state chapters on its website.
In 2020, it circulated a self-congratulatory letter bragging that it successfully blocked the independent practice of many different types of non-physicians practitioners in 12 states. This included psychologists, nurse-midwives, nurse-practitioners, physical therapists, podiatrists, optometrists, several other non-MDs.
The AMA strategy was either to stop state legislatures from authorizing independent practice (requiring physician supervision) and/or to severely restrict the scope of practice of all these practitioners and that is just what they did!
The letter was to congratulate and thank all the members of these 12 state chapters for having successfully implemented the AMA’s strategy by preventing the independent practice of ANY non-physician practitioners. The bill will be sent to the taxpayers as we pay MD prices to see a nurse practitioner
This happened to LMs in 2013 with passage of AB 1308.
There is an effective way to “unrig” the system. While the “plan” is simple, the politics are not.
However, the regulatory board for the practice of allopathic medicine (MDs) in other states flips the majority of its appointees from mostly MDs to a majority of non-MD — members of the lay public. These “regulators” are people who have already been the patients of medical doctors or are their potential patients. This is night & day different from appointing doctors who below to the AMA.
If you don’t want to be eaten, don’t invite a shark to dinner!
Deciphering the labyrinth collectively known as THE Medical Board of California
But after attending 3 or four meeting I realized that THE medical board was actually two very different things.
The Medical Board of California is an agency that employed a staff of 250-some people. They answer phones, mail out licensed and sometimes ak legal action against doctors and midwives and other practitioners.
The Medical Board of California also 15 people — mostly doctors — appointed by the governor to regulate the practice of medicine and 18 other “allied healthcare practitioners”. They meet in hotel ballrooms for two days every 3 months in “Quarterly Meetings” to discuss issues related to the practice of medicine.
It did not take long for me to realized that talking about “the Medical Board” could be really confusing. If I didn’t tell my listeners which meant
Vocabulary to keep everyone from getting confused between “Board members” and “Agency staff” . I personally find it help to make a specific distinction between the “Board” and the “agency”, and respective “members” or “staff”.
“Member of the Board” referred to 15 political appointees who sit on the requatory board that comes together every 3 months for two days in a “Quarterly Meeting”. These public meetings are tightly run by Roberts Rules of Order, which is a “gentleman’s agreement” for limiting debate. This parliamentarian model both organizes and limits the interaction between members of the Board with one another, and between Board members and the public.
The Board’s job collectively is to make policy decision for the agency after the legally-required opportunity for public debate. It’s technically illegal for Board members to get together over dinner and drinks and all decide to vote in favor or opposition of an “agenda item”.
However, there is no way to prevent Board members from having both personal and professional prejudices (midwives bad, doctors good!) or using the power of their votes to promote their special interest group. This includes voting against economic and political rivals (midwifery).
Sometimes agenda items are of little public interest and no one comes forward to speak for or against it. At other times, there are many hours-long public “hearing” over controversial issues. After the hearing is gaveled to a close, the Board’s decisions are arrived at by a majority vote of its seated members. The agency staff has does not have a vote, not even the director.
Thirteen of the 15 Board members are political appointees by the governor. This usually means they gave generously to his election/re-election campaign or were chosen by a politically-powerful special interest group. In this case, influential or favored members of the CMA, ACOG, Trial Lawyers, med-mal carriers, etc get picked to represent the interests of their particular special interest group.
The other two appointees to the Board are chosen by the California Legislature — one by the Senate and the other by the Assembly.
Board members are NOT employees of the MBC. Their only financial connection with the MBC is to be reimbursed by the agency for plane fare and hotel accommodations. It should be noted that the vast majority of MDs appointed to the Board are dues-paying members of the CMA, which is the state chapter of the national organization — the AMA.
MBC agency staff: There are approximately 250 agency staff that have a 9-to-5 job at the California Medical Board as an official state agency with its main headquarters in Sacramento.
The workings of the MBC as a state agency is staffed by non-political employees. It is very different than the Board that directly ‘governs’ (i.e. regulates) the practice of medicine via its policy-making role. The “board make policy, the agency staff carries it out as the daily functions of “regulating” the individual licentients.
While the Agency staff are not per se political, they still have strongly-held opinions. It’s best to stay on their “right side” if possible. However, the law is the law, so many regulatory aspects are not within the control of the Staff or of Ca LMs.
That is when we pray for a friendly legislator!