Health Letter, August 2015
By Michael Carome, M.D.
Public Citizen has a long history of advocating for strong state medical boards. These boards play a central role in protecting patients from dangerous doctors. Among a medical board’s most important functions are investigating allegations of physician incompetence or unprofessional conduct and, subsequently, disciplining physicians determined to have engaged in such misconduct.
In April, Public Citizen learned that Louisiana lawmakers — apparently at the behest of the Louisiana State Medical Society — were considering legislation targeting the Louisiana state medical board. The proposal would have protected incompetent and unprofessional physicians while seriously compromising patient safety in Louisiana. Alerted to this threat to patient safety, Public Citizen launched an urgent and successful lobbying effort against the bill.
The Louisiana medical board: One of the best-performing in recent years
For many years, Public Citizen ranked the oversight performance of state medical boards based on the rate of serious disciplinary actions taken per 1,000 physicians. Public Citizen repeatedly has expressed concern that most state medical boards too often fail to take these actions — which include medical license revocation, surrender, suspension and probation or restriction — against incompetent or dangerous physicians.
In the most recent ranking in 2012, Public Citizen deemed Louisiana one of the country’s best-performing states for physician discipline. Louisiana placed second for its rate of serious disciplinary actions over the prior three years. Public Citizen has ranked Louisiana among the top 10 performing states for such actions since 2009. (Rankings have not been issued since 2012 because data on disciplinary actions taken by each state medical board, compiled by the Federation of State Medical Boards [FSMB], are no longer made publicly available.)
The Louisiana State Medical Society, however, apparently believed that the Louisiana State Board of Medical Examiners (LSBME) had been performing too well when it comes to investigating and disciplining physicians, and protecting patients. Seeking change, the society found lawmakers in the Louisiana House of Representatives willing to introduce legislation that would weaken the LSBME.
The Louisiana House bill
The bill, initially designated as House Bill (HB) 573, was introduced April 3 by three members of the Louisiana House of Representatives. The initial 37-page bill included numerous provisions that would have substantially undermined the LSBME’s ability to investigate allegations of incompetence or unprofessional conduct. The bill also would have impeded the board’s ability to effectively discipline physicians found guilty of misconduct and would have limited transparency in these cases.
The following nine provisions of the proposed legislation would have caused the most harm to patients and public health in Louisiana:
- Requiring the board to accept only non-anonymous complaints made in writing. This would have deterred the many individuals who have witnessed physician misconduct and are afraid to use their names when reporting it.
- Requiring that a minimum of four board members agree to take disciplinary action against a physician, instead of the simple majority of a quorum (that is, two of three convened members) currently required.
- Limiting the definition of “unprofessional conduct” by creating a specific list of behaviors that could be considered unprofessional. Under this definition, the LSBME would have lacked the flexibility to discipline physicians for other behaviors that could reasonably be judged to constitute unprofessional conduct.
- Removing the ability of the LSBME to make available to the public consent orders, agreements and other dispositions. Consequently, the board would have been able to tell the public that a physician was disciplined, but not why.
- Requiring the destruction of all LSBME records and information related to a complaint and initial investigation that is dismissed. This would have made it impossible to track a pattern of incompetence or unprofessional conduct by a physician.
- Allowing courts to suspend enforcement of final disciplinary actions indefinitely — which could have unnecessarily delayed such actions against physicians.
- Prohibiting the LSBME from acting on complaints if the care related to the complaint was more than three years before the complaint was filed — even if the incompetence resulted in serious injury or death of a patient.
- Imposing unnecessary, arbitrary procedural deadlines at multiple steps in the LSBME’s investigation process. These deadlines likely would have restricted the ability of the board to fully and properly investigate complaints. They also would have provided opportunities for physicians found guilty of misconduct to delay disciplinary action based solely on procedural grounds.
- Prohibiting the LSBME from spending money on any activity or function sponsored by the FSMB. Severing ties between the LSBME and the FSMB would have deprived the board of important resources used by all other state medical boards, weakening the board.
Public Citizen action
After carefully analyzing HB 573, Public Citizen on May 5 wrote a letter to all members of the Louisiana House and Senate. The letter highlighted the nine most damaging provisions of the proposed legislation, listed above, and urged Louisiana legislators to reject the bill.
In summarizing the many problems with the bill, Public Citizen wrote:
HB 573 would seriously undermine the mission of the LSBME to protect patients from incompetent or unprofessional physicians. The bill represents a transparent attempt to tilt the board process for investigating and disciplining physicians from one that protects patients and public health to one that protects dangerous physicians.
Within days, Public Citizen’s letter, combined with outrage expressed by other patient advocates, began to have the desired impact. On May 14, the House introduced an amended bill, redesignated as HB 843. This new version of the bill, trimmed to five pages, eliminated five of the nine most harmful provisions of the original bill. The revised bill was passed by the House on May 26 by a vote of 87-8. The bill then moved to the Louisiana Senate for consideration.
With momentum building in the right direction, and with hopes to encourage senators to remove the remaining damaging provisions from the bill, Public Citizen reached out to major local media outlets to call attention to the safety concerns about HB 843. On June 2, the New Orleans Times-Picayune, one of the most prominent newspapers in Louisiana, ran a story highlighting the remaining serious problems with the bill that had been identified by Public Citizen and other patient advocates.
In the end, Public Citizen’s advocacy efforts paid off: On June 8, the Louisiana Senate, by a vote of 33-5, passed an amended version of HB 843 that stripped out all of the remaining harmful provisions. The final bill, reduced to three pages, was passed by the House by a vote of 100-1 and was forwarded to the Louisiana governor for signature.
The final action by the Louisiana Legislature is a big win for patients throughout Louisiana. Moving forward, Public Citizen will remain vigilant for similar legislation intended to weaken the medical board in Louisiana or in any other state. Upon becoming aware of any such legislation, we once again will sound the alarm and work hard to stop such measures from becoming law.
 Wolfe SM, Williams C, Zaslow A. Public Citizen’s Health Research Group Ranking of the Rate of State Medical Boards’ Serious Disciplinary Actions, 2009-2011. May 17, 2012. https://www.citizen.org/sites/default/files/2034.pdf. Accessed June 25, 2015.
 Carome M, Levine A, Wolfe SM. Letter to Members, Louisiana House of Representatives, and Louisiana State Senators. May 5, 2015. https://www.citizen.org/sites/default/files/2256.pdf. Accessed June 25, 2015.
 Litten K. Medical Examiners changes could protect ‘pill mill’ doctors, opponents say. The Times-Picayune. June 2, 2015. http://www.nola.com/politics/index.ssf/2015/06/pill_mill_opiates_medical_exam.html. Accessed June 25, 2015.