Physicians ready for fight against online disclosure of discipline records
If you are a physician in California who was disciplined in 2005, there’s a good chance that you have been looking forward to 2015.
In 2003, the Medical Board of California was ordered by state legislators to remove physician disciplinary records from its online database after 10 years, and so your misdeeds were about to slip into secrecy at the turn of the calendar.
Now, the Medical Board of California has effectively changed the rules. It pushed for and secured legislation this year that will remove the 10-year time limit on many types of discipline. Your record of bad behavior will be available on computers, phones, and game consoles forever starting Jan. 1, 2015.
When these new rules are enacted on Jan. 1, 2015, the medical board better have a sharp legal team ready to head to court. Doctors have already been using the agency's sometimes-fuzzy rules on online disclosure against the board.
No case has made its way to the U.S. Supreme Court, and it is hard to predict what would happen were a case to end up there.
To understand some of the legal issues at play, I’m going to focus in two posts on a doctor who fought the disclosure of his discipline record and exposed many legal problems with current state laws along the way.
Dr. James Fulton was a big figure in cosmetic surgery in Orange County, California. (He also happens to be one of the first medical board cases I ever wrote about.) He helped create Retin-A, the acne medication that has since become widely popular as an anti-aging drug. He had a dermatology practice in Newport Beach for many years where patients also underwent liposuction, breast augmentation, and other cosmetic procedures.
The Medical Board of California and other states where Fulton was licensed first started initiating discipline against him in 1997, according to court records. In April 2002, California filed an amended accusation against Fulton, alleging incompetence, gross negligence, repeated acts of negligence, and false documents in his care of several patients. He was accused of, among other things, overseeing several cosmetic procedures that went badly awry, and participating in “unauthorized human experimental procedures” on a patient.
In November 2002, the medical board and Fulton reached a “stipulation for surrender of license,” in which Fulton, then in his 70s, agreed to stop practicing medicine.
Fulton did what a lot of doctors do, though; he continued to trade on his name and his experience. I had written about him for the Orange County Register, but, of course, that did not mean that very many people actually knew that he had been having bad surgical outcomes with some of his patients. What people did know was that he had co-created one of the most prescribed wrinkle-fighters on the planet. His family had an ownership stake in Vivant Pharmaceuticals, the makers of Retin-A, according to court records. He worked as a representative for Vivant. And, despite medical board rules, he continued to use “Dr.” and “M.D.” in his title, court records show:
Advertising materials for the products attributed the titles ‘Dr.’ or ‘M.D.’ to [Fulton], described him as a ‘Lead Formulating Consultant,’ and mentioned his ‘35 years of experience as a physician.’ Vivant's products were sold to the public through a Web site that described appellant's medical education, and claimed that he was a ‘leading researcher, cosmetic surgeon and dermatologist.’ [Fulton] answered questions on the Web site regarding the causes and treatments for skin conditions as ‘Dr-Fulton.’ … An investigator from the Board purchased products from the Web site, which were delivered to California with an embossed inscription of appellant's signature ‘James E. Fulton, M.D.’
This worked for a number of years until, finally, while he was speaking at a conference in Malaysia, the chairman of the conference received a disturbing email. Court records show:
While [Fulton] was giving a lecture at a conference in Malaysia, the chairman of the conference received an email referencing the Board's Web site, with the comment ‘shame, shame, shame.’ [Fulton] was not invited to subsequent conferences.
So Fulton sued the medical board in 2008. He said that the board was required by state law to keep information about his disciplinary history off the board’s website. Fulton was no longer a licensed physician in California, he argued, and so information about him should not appear on the website. Court records show:
He alleged that the Board's disclosures of his disciplinary record caused him to lose work opportunities and suffer ‘public and private ridicule and embarrassment.’
The court went to trial, and the trial court ruled in the board’s favor. Fulton appealed. The Second District Court of Appeals of California took up several elements of Fulton’s case that are worth noting because of their possible bearing on future lawsuits against the board. I’ll write about those on Monday.
Cropped photo by romana klee via Flickr.