Critics complain the California Medical Board takes too long to discipline doctors

Team 10 investigates how long cases take

Team 10 raised serious questions about the suicide of Junior Seau last month. The questions focused on Seau taking the sleeping pill Ambien and the doctor who prescribed them. Dr. David Chao is now on probation for things unrelated to Seau. But his probation has triggered more digging by Team 10 into the state agency that oversees doctors.


SAN DIEGO -- In a video deposition, attorney Marc Stern asked, "Doctor, how many times have you been a party to a lawsuit?"

"A number of times," said Dr. David Chao.

"What's your best estimate?" asked Stern.

"My guess is a dozen," Chao replied.

Chao is the former physician for the San Diego Chargers. Tom Fagan chose Chao for his surgery.

"I had an old knee that had too many surgeries, too many scopes," Fagan said. "He was ultra charming and confident."

Fagan is a painter. He focuses on sports figures, including Chargers players. 

"They are million-dollar players," Fagain said. "Why would the Chargers use someone that's not the best? And that's what I assumed." 

Fagan claims Chao damaged a leg artery during his knee replacement surgery in 2007.

He said he almost died, and lost his leg.  

"When I first looked at my leg, it was this big instead of normal size," Fagan said.

According to one of several lawsuits filed against Chao, the doctor was not at the hospital when Fagan began having complications after surgery.

Court records show Chao also did not assign another doctor to care for his patient while he was gone.

When the emergency room asked Chao to return, he sent another doctor instead.

So where was he?

Court records show he originally claimed under oath that he was "driving to Los Angeles" to visit his mother.

Later court records show Chao bought vodka in the San Diego nightclub Belo that night.

Chao declined to be interviewed, but his attorney talked to Team 10:

"Dr. Chao – everyone should know – was dismissed by Mr. Fagan from that case," said Robert Frank, of Neil, Dymott, Frank, McFall & Trexler APLC. "Mr. Fagan pursued his case against the hospital and took a settlement of $1.4 million because the case related to the post-operative care of Dr. Chao's surgery."

The California Medical Board oversees Chao's license. Julie Fellmeth watches the board.

"Doctors can kill you if they are negligent, impaired or reckless," Fellmeth said.

She is the senior attorney and the administrative director for Public Interest Law.

"I have monitored the board for 27 years," she said.

In the Fagan case, records show the board did not discipline Chao.

The board said it could not find anyone to say the doctor's effort fell below the standard of care.

But Fagan's attorney, Janice Mulligan, wrote in an email to a board investigator that she had two surgeons "outraged by Chao's conduct" and the doctors were willing to testify Chao's treatment "fell far below ... the standard of care."

"There are key problems with the Medical Board's enforcement – it takes too long," Fellmeth said.

The medical board reviewed at least five of Chao's other cases dating back to 2007.

The board recently put him on probation.

"He has probation but the probation doesn't stop him from continuing to run his orthopedic practice, sports medicine practice, perform surgery and see patients just like he always had," Frank said.

Chao is not the only doctor whose cases have taken years to review by the medical board.

"We are talking three to five to eight years if the doctor fully contests the proceeding and many doctors do," Fellmeth said.    

She said she believes the board and inept political oversight allow doctors to keep their licenses. Fellmeth cites other cases where patients are seriously injured under a doctor's care.

"At the very least (what) the medical board should do is to disclose truthful and factual information about the doctor's record while the process is ongoing," she said.

Fellmeth said attempts at reform are stymied by the California Medical Association. Thirty-nine thousand of the state's doctors are members, including Chao.

Public records show the association spent $2.2 million in lobbying efforts last year.

"They hire lawyers and lobbyists to represent and promote the medical profession in the legislature, in the court and before the medical board," Fellmeth said.

The CMA has given another $5 million to oppose the patient safety initiative on the ballot for this fall. The Troy and Alana Pack Patient Safety Act would require random drug tests for doctors and would raise the current $250,000 cap on pain and suffering cases.

Chao is no longer affiliated with Scripps Hospital and is one of nine local doctors on probation by the medical board as of mid-July.

The state of Illinois refused to renew Chao's medical license. A representative said his application was refused because of his cases with the medical board in California.

To the critics who say the California Medical Board takes too long to discipline doctors, the board defends its practices, saying doctors deserve a thorough vetting of any accusation made against them, and that takes time.

The board revoked 1,160 doctors' licenses across the state in the past five years, out of 128,000 doctors.

The following exchange is comprised of questions and answers between Cassandra Hockenson with the California Medical Board and Team 10 Senior Investigative Producer J.W. August regarding board policy and questions raised by the Team 10 report from Mitch Blacher.

Team 10: Tom Fagan lost his leg after Dr. David Chao performed surgery on it. The medical board said it couldn't find anyone to say the doctor's effort fell below the standard of care. But I am in receipt of an email sent to a board investigator on this case from attorney Janice Mulligan saying she had two surgeons "outraged by Chao's conduct" and who would testify Chao's treatment "fell far below the standard of care." Why was this information never part of the record provided to the judge in evaluating the Chao case?  What is the procedure for new information? How is it supposed to be handled?

Hockenson: With regards to this question, did this individual file a complaint with the medical board? This is a piece of information you failed to mention. Without knowledge of a victim obviously there can be no investigation involving that individual's circumstances. 

Team 10: This is the case where the doctor didn't respond to initial pages from staff at Scripps when the patient began having problems. Court documents revealed the doctor was in a night club. They also show he purchased vodka, running up a tab at the bar. He initially claimed he was visiting his mother in Los Angeles.

Hockenson: As we have mentioned to you several times, we have no control over the hospital and its actions against Dr. Chao. However, if a hospital does take an action they must file a report with the board under Business and Professions Code 805. We license and regulate, and when there is a problem with one of our licensees we need to be notified in order to take administrative action. Arrests and criminal convictions are notification "per se" excessive malpractice cases that exceed $30,000 are also reported by law to the board and posted.

Team 10: Julie Fellmeth tells us that Dr. Chao’s isn't the only case that has taken years to review by the medical board. Can you explain why the long delays in MB cases? 

Hockenson: Every investigation is different and like it or not the physician is entitled to "due process." An investigation can take time because we need to obtain the records and permission to review these records from the patients. In addition, the physician is entitled to counsel and the same discovery proceedings ensue as in any court case. There are interviews, sometimes undercover work … it moves forward just like any other case whereby you are looking to restrict one's rights and ability to make a living…  Then there is the burden of proof that has to be met to move forward and that is a high standard "Clear and Convincing Evidence" which requires a 75 to 80 percent certainty. The medical board works very hard to complete these investigations and reduce the timeline. Here is a link to our annual reports which go back to fiscal year 1999-2000 and you can look and compare the stats: http://www.mbc.ca.gov/Publications/Annual_Reports/

Team 10: Why isn't the public notified on the website that a doctor is currently being investigated? As Ms. Fellmeth says, "At the very least, the medical board should do is to disclose truthful and factual information about the doctors record while the process is ongoing." Comment? 

Hockenson: By notifying the public a doctor is being investigated, you expose that investigation and could damage the outcome. Especially one that requires "undercover" work. The board does provide truthful and factual information regarding that physician on our website. Anyone can check on a physician under "verify a license" and we recommend it. Of course, that does not include an ongoing investigation because it could damage the process as discussed. 

Team 10: Fellmeth says, quoting here, "Right now, it takes about 15 to 16 months for the receipt of a complaint to the file of formal charges … if that happens … and that only happens in about 10 percent of the cases." Comment? 

Hockenson: This has been answered above. Also, if you want to compare stats you now have a link to our annual reports.

Documents

  • Click here to read Dr. Chao’s case before the California Medical Board, which resulted in his probation.
  • Click here to read excerpts of Dr. Chao’s deposition in the Fagan case. Fagan’s attorney, Janice Mulligan, questioned Dr. Chao.
  • Click here to read the operative report following Fagan's surgery. It's a form filled out by other doctors on Fagan's procedure.
  • Click here to read the official statement by Scripps hospitals on the revocation of Dr. Chao's medical staff membership and privileges.
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