Medical Board files accusation against "Dr. Bob" for gross negligence: now what?

Medical Board files accusation against "Dr. Bob" for gross negligence: now what?

"Dr. Bob" Sears, the California pediatrician beloved by anti-vaccinationists for his baseless "alternative" vaccination schedule, how-to seminars for parents wanting to duck school vaccination requirements, and fee-for-service vaccination exemption letters, has been charged by the Medical Board of California in a three-count Accusation with gross negligence, repeated negligence and failure to maintain adequate and accurate medical records.

As explained by both Orac and Steve Novella, the charges arise from the treatment of a patient referred to as "J.G." in the Accusation, or complaint, filed by the Board. Briefly, the Board alleges that Dr. Bob, as he likes to be known, failed to obtain a detailed history of J.G.'s previous vaccine reactions and to use that information to provide an evidence-based recommendation for future immunizations. The Board alleges that J.G. was given a blanket exemption from future vaccinations based on a patient history that seems to have included only his mother's claims that J.G.'s 2-month vaccines "shut down stools and urine" for 24 hours and that he was "like a ragdoll" for 24 hours and "not himself for up to a week" after his 3-month vaccines. This forms the basis of the Board's accusation that Dr. Bob was grossly negligent. The fact that the actual exemption letter was not in J.G.'s file underlies the charge that Dr. Bob failed to maintain adequate records.

The charge of repeated negligence is based on J.G.'s presentation at Dr. Bob's office with a headache after having been hit on the head with a hammer by his dad two weeks previously. Repeated negligence legally requires two or more negligent acts, so the Board cites the failure to conduct neurological testing after head trauma in addition to the vaccination exemption.

The Accusation's factual allegations also include bizarre incidents like prescribing garlic for J.G.'s otitis media and constipation. Curiously, these incidents are not specifically made the basis of any negligence claim, even though they most certainly would fall below the standard of care. (Pediatrician John Snyder, MD, has done an excellent analysis of Dr. Bob's treatment of J.G. in Forbes.) 

As is required by California law, the case will be prosecuted by the California Attorney General. Dr. Bob's response to the Accusation is due September 17, although it would not be unusual for the Attorney General to agree to an extension of time to respond. The case could go to mediation or arbitration from there, but only if both parties agree to it. Or, the AG and Dr. Bob could settle the case by stipulating to certain facts and whatever discipline the parties could agree to. I have to doubt that the Board and Dr. Bob could hammer out an agreement that is satisfactory to both, given his tendency to self-righteousness. Given the stakes, I imagine Dr. Bob will exercise his right to a full administrative hearing before an administrative law judge (ALJ), although that is a dicey move, considering the probable difficulties, discussed below, with finding an expert to testify in his behalf. 

Interestingly, in California, medical disciplinary cases are heard by ALJs who sit on a "Medical Quality Hearing Panel." These ALJs must have medical training recommended by the Medical Board and have at their disposal their own panel of experts. The case would proceed in a fashion that pretty much parallels a civil trial, with discovery, pre-trial motions, and the actual hearing. Following that, the parties would submit their proposed findings of fact and conclusions of law to the ALJ, who would, in turn, issue his own findings and conclusions. These would go to the Board for consideration, with the Board having the final say-so in what happens to Dr. Bob. Needless to say, whatever transpires, Dr. Bob can appeal.

"Gross negligence" in medical disciplinary cases is defined in California law as "extreme departure" from the standard of care. "Negligence" is simply a departure from the standard of care."Failure to maintain records" is what it says. For these alleged offenses, the Board is seeking revocation or suspension of Dr. Bob's medical license and his authority to supervise physician assistants. Per California law, suspension can last up to one year. California law also provides for probation (which is mentioned, but not specifically sought, by the Board), with the medical doctor picking up the tab for the cost of monitoring his probation. Similar to the use of probation in criminal cases, if the conditions of probation are met further sanctions, such as revocation, can be avoided.

I am not a California lawyer, and no one knows how this case will play out, but it is interesting to contemplate the limited options available to Dr. Bob at this point unless he out and out beats the rap. Since it appears uncontestable that J.G.'s vaccination exemption was not in his chart, failure to maintain medical records seems a given. That single failure, however, would unlikely support a revocation or even a suspension. It could, however, get him a public letter of reprimand or perhaps probation. 

Reading Dr. Snyder's analysis of J.G.'s treatment raising questions in my mind regarding the ability of Dr. Bob to defend this case on the issue of negligence. He will need to put on expert testimony that his conduct met the standard of care. Otherwise, the only evidence of meeting the standard, or failing to do so, will be that of the state's expert(s), which, I assume, will be as devastating as Dr. Snyder's.  Yet, it is hard to imagine that he could find a physician willing to testify that the standard of care was met. Even if he does find someone, his expert will be subject to cross-examination and, presumably, easily discredited. 

If the AG is successful in proving gross and/or repeated negligence, and barring out and out revocation, some sort of probation seems likely to me, either to avoid revocation or suspension, in combination with suspension, or as the penalty itself. Per California law, probationers

"shall be subject to the division's Probation Surveillance Compliance Program and shall be required to fully cooperate with representatives of the division and its investigative personnel."

Probation can include:

"(a) Requiring the licensee to obtain additional professional training and to pass an examination upon the completion of the training. The examination may be written or oral, or both, and may be a practical or clinical examination, or both, at the option of the board or the administrative law judge.

(b) Requiring the licensee to submit to a complete diagnostic examination by one or more physicians and surgeons appointed by the board. If an examination is ordered, the board shall receive and consider any other report of a complete diagnostic examination given by one or more physicians and surgeons of the licensee's choice.

(c) Restricting or limiting the extent, scope, or type of practice of the licensee, including requiring notice to applicable patients that the licensee is unable to perform the indicated treatment, where appropriate.

(d) Providing the option of alternative community service in cases other than violations relating to quality of care."

Given these options, the Board will most certainly include provisions in its order that would eliminate the possibility of Dr. Bob ever issuing a vaccination exemption again, even if he were allowed to continue to practice.(Personally, I'd love to see community service ordered as part of his discipline, in the form of giving vaccinations at a free clinic.) Whether the Board could, given the particular facts of this case, exclude him from giving pseudoscience-based vaccination advice altogether is less clear since, disappointingly, no such incident is alleged.  Of course, he can recommend his alternative schedule all day long, but a parent's ability to implement it will be curtailed by California's elimination of the personal belief exemption. 

In any event, unless he beats all the charges, Dr. Bob faces the distinct prospect that his ability to actually practice as an "I'm not anti-vaccine" anti-vaccine pediatrician will be limited, at least as far as handing out bogus vaccine exemptions is concerned. That is not to say that he can't, or won't, continue his career as an anti-vaccine activist. But at least his ability to do harm to individual patients will have been curbed. He is on notice that the Board is watching closely and that any future offenses will most certainly have graver consequences. Other charges can always be filed. Of course, he may choose to go the Wakefield route, tanking his practice and becoming a martyr for the cause. In that case, he will find himself giving talks to chiropractic "pediatricians," lecturing on "Woo-Boat" cruises, all the while hanging out with like-minded anti-vaccine kooks and being reviled by his fellow physicians. That, to me, would be the worst sentence of all. 

Points of Interest 09/13/2017
Points of Interest 09/10/2016