Can the Medical Board of California Discipline a Doctor for Gross Negligence?
GROSS NEGLIGENCE IS A MEDICAL BOARD HOT BUTTON
From 2019-2020 the California Medical Board received over 5000 complaints of conduct the board deemed “gross negligence”. What is Gross Negligence? It is a standard established by law but defined less clearly by a standard of care. Business & Professions Code §2234 is the starting point. It defines various types of “unprofessional conduct”. Not surprisingly it finds that “Gross Negligence” is unprofessional. (Business & Professions Code §2234 (b))
WHAT DOES GROSS NEGLIGENCE MEAN?
Everyone knows what gross negligence means. It's negligence but worse. But how much worse? What really triggers the medical board and their experts?
The term “gross negligence,” means the lack of even slight care. It is an extreme departure from the ordinary standard of care. It has to be extreme to qualify but not it is gross negligence even if it does not wanton or willful misconduct. In other words, it is legal talk for a very general rule.
It is worth looking at some published legal cases to see how courts have viewed “Gross Negligence” in practical, real world terms. You will find that the worse the outcome, the less the extreme the conduct needs to be. This is not "the law" but it is "the reality". Here are a few cases to make our point.
Kearl v. Board of Medical Quality Assurance (App. 2 Dist. 1986) 236 Cal.Rptr. 526, 189 Cal.App.3d 1040.
An anesthesiologist was grossly negligent because he failed to record the patient's vital signs at five minute intervals. This anesthesiologist didn’t forget to monitor ever five minutes. He did that but he violated community standards that required both monitoring and recording vital signs at five minute intervals.
The doctor had served as chief of anesthetic and operative services for the military at a hospital in Tokyo. Upon completion of his military service, he returned to California where he completed his residency. He was not board certified but he practiced anesthesiology and worked on over 20,000 cases, 15,000 involved general anesthesia.
There were two patients involved. One suffered brain damage (minor) and the other died. The case is not clear as to why the patient died but it seems that the failure to record data may have been seen as a sign of either a coverup or overall sloppiness. The takeaway from this case is that the worse the outcome the more severely the physician’s failure will be viewed.
Yellen v. Board of Medical Quality Assurance (App. 2 Dist. 1985) 220 Cal.Rptr. 426, 174 Cal.App.3d 1040
The physician was grossly negligent when he injected and prescribed medications which were medically inappropriate and dangerous. Again there was a death. The person who died was a child and the doctor had made these same errors with other patients.
The child was 16 months old and had a 103 degree fever. The doctor’s brew consisted of:
1. APAP—Acetaminophen—1 dram
2. Opium Tincture = 10 minums
3. Chlorpromazine Thorazine—1 grain
4. Benzocaine USP fine powder—3 grains
5. Lidocaine Hydrochloride Injection 2%—40 minums
6. Prednisolone Tabs USP 1/6 grain
7. Phenylpropanolamine Hydrochloride—1 grain
8. Ampicillin—38 grains
9. Saccharin—40 grains
10. Compound Spirits of Aurenti—10 minums
11. Propylene Glycol—1 dram
12. Polysorbate Atusp—5 minums
13. Methylcellousc USP powder—10 grains
14. Aqua (water)—mix to four ounces
15. Liquid Purp (food coloring) red and blue
So here you had a death and a doctor who was a nut. Not a close case.
Franz v. Board of Medical Quality Assurance (1982) 181 Cal.Rptr. 732, 31 Cal.3d 124, 642 P.2d 792
This case supported the physician. The court found that the evidence did not support a finding of gross negligence. The doctor allowed a nonsurgeon to operate when patient developed complications from earlier surgery. However, no surgeons were available to operate, and he had a good faith basis to believe the procedure would be performed properly.
Gore v. Board of Medical Quality Assurance (App. 2 Dist. 1980) 167 Cal.Rptr. 881, 110 Cal.App.3d 184.
Here the department was a failure to exercise standard of care in diagnosis, monitoring and treatment that was basically and routinely taught to students in medical school.
These cases were all cases where the doctors were disciplined by the board and sought judicial review. To get to that place there had to be a complaint to start the investigative process.
Quick Overview of the Medical Board Review Process
Most gross negligent complaints are patient (or patient lawyer) initiated.
The board will investigate using a law enforcement and subpoena process. There will be an interview with an investigator, medical expert and usually a Deputy Attorney General. The matter is reviewed by the Board's expert and a written report issues.
How Good Are the Board's Review Doctors?
There is tremendous variability in the skill levels of reviewers. The review can be by a physician who practices in your area and is board certified.
But ! The pay for review work is very low so the expert is either overbilling to balance the low pay, desperate for work or someone who is truly dedicated to improving the quality of medical care. It is a roll of the dice. On technical matters you can't assume that the physician conducting the screening interview or the ultimate expert is truly versed in your particular area and issues. At times, a submission by your lawyer with the relevant evidence needs be submitted.
The Horowitz office works with Dr. Mark Ravis on Gross Negligence cases. Dr. Ravis is currently licensed as a physician and a California attorney. Daniel Horowitz is the groups’ premier trial attorney and unless you can negotiate a resolution, gross negligence cases go to an administrative hearing. There are two goals at those hearings. First to win - to convince the hearing officer that you are correct and to make a strong enough record that the Medical Board agrees. Second, to make a record for appeal. If you lose, you can hope that like Dr. Franz, the Superior Court overrules the board. Call us if we can help.