If you have ever worked in California, you have probably seen a sign somewhere in your office or a place you visited warning you that the building may contain chemicals that cause cancer.

The warnings are everywhere and have been for decades following a law passed in 1986. Last month, Gov. Jerry Brown signed a new law requiring crisis pregnancy centers to post signs that say, according to the law, “that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women.”

And California — both at the state level and at the local level — has long been a leader in requiring detailed food labels, nutritional information on restaurant menus, and health inspection ratings on licensed facilities.

So when I heard that Consumers Union was making a push to require physicians to tell their patients when they are on probation with the Medical Board of California, I thought that this was an idea that might ultimately have some legs.

The day before Halloween, Consumers Union’s Safe Patient Project, led by Lisa McGiffert, presented a petition to the Medical Board of California at a meeting in San Diego. The effort marshaled six activists and patient advocates to testify.

Here is the case they made: They noted that there are nearly 500 doctors in California on probation for repeated gross negligence, substance abuse, sexual misconduct, among other infractions. Consumers Union put together a handy list that you can see online.

As the law stands now, doctors on probation have to tell hospitals where they practice and the insurance companies that provide them malpractice coverage about the fact that they are on probation.

But they don’t have to tell their patients.

Unless a patient happens to read a news story about a doctor who has done something wrong or frequently checks the medical board’s website to see if their doctor has a disciplinary record, the typical patient would have no idea that the person prescribing them medicine, performing an operation on them, or treating their children has a disciplinary history.

By telling doctors that they have to tell their patients, the Medical Board would be ensuring that everyone who deserves to know actually does know that a physician has acted in such a way as to put their license in jeopardy. It would prompt an open dialogue between patients and physicians about the nature of the violation and what it means — or doesn’t mean — for the patient’s ongoing care and treatment.

For example, a patient may not care that a doctor had been caught fudging the facts in an insurance claim. Other patients may care a great deal, however, when hearing that a doctor took photographs of patients without their knowledge.

This wasn’t the first time the Medical Board of California had heard about this issue. As Consumers Union noted in its briefing, the board’s own staff recommended in 2012 that doctors on probation be required to inform their patients. The Board — dominated by physicians — rejected the recommendation.

This October, the Board did a little better. It formed a task force, which would include members of Consumers Union, to study the issue.

“Californians deserve to know when their doctor is on probation for a serious offense that could put their health at risk,” McGiffert of Consumers Union said in a prepared statement.

“Today’s hearing made clear that the Medical Board is taking this issue seriously and understands that it needs to do more to ensure Californians aren’t left in the dark. We look forward to working with the Board so that patients are properly informed when their doctor has a history of serious misconduct.”

The statement also provides more evidence for why this matters:

The Medical Board’s own research … found that 17 percent of the 444 doctors who were actively practicing while on probation during FY 2011-2012 and 2012-2013 required additional discipline or surrendered their licenses while on probation. By comparison, similar research has found that less than 1 percent of doctors who were unsanctioned were subsequently disciplined during a follow-up period studied.

To understand where the task force might take the issue and how it might navigate a middle passage between what Consumers Union wants and what the Medical Board of California undoubtedly wants, it helps to understand why the Board rejected the petition. McGiffert later told me the Board provided several reasons:

  • The petition was too prescriptive.
  • We should make all boards do this and not just pick on the Medical Board of California.
  • Concern that it will harm the patient-doctor relationship.
  • Doctors on probation due to minor transgressions shouldn’t have to inform patients.

On that last point, McGiffert said: “None of us have read an order so far that put a doctor on probation for a minor transgression.”

An article in the San Diego Union-Tribune by Paul Sisson nailed it:

The debate over patient notification of doctors’ violations is probably news to most people. Health experts said the public likely assumes that regulators have long required physicians to tell their patients about disciplinary measures taken against them. In reality, a survey conducted by the medical board’s staff found no states that compel routine disclosure of such information by physicians to their patients.

California could be the first, as it has been on so many other public safety issues.

William Heisel is a contributing editor with the Center for Health Journalism. Contact him at wm.heisel@gmail.com.

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