Court ruling exposes loopholes in medical board's online disclosures

The legal case of skin care pioneer James E. Fulton exposed several legal problems with the way California regulates the online disclosure of doctors’ disciplinary records. Here are four things to pay attention to as the Medical Board of California attempts to roll out a new set of rules starting Jan. 1, 2015.

1) First, the court said that California laws governing public disclosure on the medical board’s site were vague and open to interpretation. This is crucial because it means that the interpretation can be challenged. The appellate court wrote:

The Board interprets sections 803.1 and 2027 to require that it disclose enforcement actions that occurred while former licensees were licensed in California, and to correct errors in disclosures. We accord respect and consideration to the Board's interpretation, but we apply our independent judgment in construing the statutes.

2) Second, the court called out a loophole in California law that may allow license surrenders to be kept secret. Discipline, as defined in the state code at the time of Fulton’s lawsuit, included “revocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a stipulated agreement,” court records show. Notice that there is no mention of license surrenders. Fulton surrendered his license – voluntarily handed it over – and so his specific type of discipline appears to fall outside of the rules for disclosure. The court ruled that “revocations” were basically the same thing as surrenders. But we all should know by now that court decisions have a way of turning on small word choices.

Here’s an example from a U.S. Court of Appeals case:

It is this difference between the word choice “recess” and “the Recess” that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution.

If “the” can become the focal point for a court ruling, why can’t the difference between a license being revoked – forcibly taken away – and surrendered – voluntarily handed over? The new law, even as amended, has the same language that does not explicitly list surrenders. Future courts may not be so generous. In the Fulton case, the appellate court wrote:

[State law] requires that the Board post enforcement actions, including license revocations and malpractice judgments, on its Web site for a period of 10 years after the information comes within its possession, custody, or control without providing for its removal if an individual is no longer licensed in California. Limiting required disclosures to current licensees would render this provision ineffectual.

3) And third, the court identified another loophole: the questionable authority the medical board has over someone once their medical license is removed. The court wrote:

Sections 803.1 and 2027 require the Board to disclose information about ‘licensees’ and ‘licensed physicians’ without explicitly stating whether the Board must make disclosures about individuals who no longer hold a license to practice medicine in this state.

That’s no small thing. Does the medical board continue to have authority over licensees once it takes their license away? Remember that medical board proceedings aren’t the same as criminal proceedings, or even the typical civil proceeding. They are being carried out by the state justice department on behalf of a licensing agency that only has the power to go after a licensed physician because of the license. The one exception here, I believe, would be the cases where the medical board takes action against someone – like a nail spa owner – who is practicing medicine in California without a valid medical license. But the fact that the law does not grant the medical board power to regulate the practice of medicine more broadly and to disclose information about people without licenses makes it an interesting legal target for those challenging the board’s disclosures.

Fulton lost his case in the lower court. And, in April 2010, the court of appeals ruled in the board’s favor, too. The case went no further. No state Supreme Court. No U.S. Supreme Court. In July 2013, Fulton died from colon cancer.

Along the way, the court also made reference to another case that could have bearing on future litigation in this area. I’ll write more about that in a future post.

Photo by jf cherry via Flickr.