Effective July 1, 2019, The Patients Right to Know Act of 2018 (SB 1448) will require both Doctors of Medicine (“M.D.s”) and Doctors of Osteopathic Medicine (“D.O.s”) to provide notice to all patients prior to their appointment if the licensee is placed on probation, pursuant to a probationary order made on or after July 1, 2019. This information will also be placed in plain view on the licensee’s profile page on the respective medical board’s online license information website.
The Medical Board of California (“MBC”) and the Osteopathic Medical Board of California (“OMBC”) will now require all physicians subject to probation on or after July 1, 2019, to obtain a signed disclosure from all patients before their next appointment. This disclosure letter must be signed by the patient, patient guardian or health care surrogate and returned to the physician prior to the start of the appointment. The patient may bring the signed disclosure on the day of the appointment, but it must be received before they meet with the physician. A copy of the signed letter must be placed in the patients’ medical record. The written disclosure is required to include:
- The physician's probation status;
- The length of the probation and end date;
- The practice restrictions placed on the medical licensee by the MBC or OMBC;
- Contact information for the MBC or OMBC; and
- An explanation of how the patient can find further information about the licensee’s probation on the licensee’s MBC or OMBC website profile page.
The law only applies to physicians who have been placed on probation as a result of any of the following offenses:
- The commission of any act of sexual abuse, misconduct or relations with a patient or client as defined in California Business and Professions Code Section 726 or 729.
- Drug or alcohol abuse directly resulting in harm to patients or the extent that such use impairs the ability of the licensee to practice safely.
- Criminal conviction involving harm to patient health.
- Inappropriate prescribing resulting in harm to patients and a probationary period of five years or more.
Additionally, the law provides several exceptions to the disclosure requirement. These exceptions include:
- If the patient is unconscious or otherwise unable to comprehend the disclosure and sign the copy of the disclosure;
- If the visit occurs in an emergency room or an urgent care facility or the visit is unscheduled, including consultations in inpatient facilities;
- If the licensee who will be treating the patient during the visit is not known to the patient until immediately prior to the start of the visit; or
- If the licensee does not have a direct treatment relationship with the patient.
Given the new law, physician groups should take time now to determine whether any physicians in their group have pending probationary orders that become effective on or after July 1, 2019 and how many patients may need to receive the necessary disclosures. While it is the physician’s responsibility to make the disclosure, it is in the interest of the medical group to help facilitate these disclosures and monitor that all physicians in their group are aware of the requirements. We recommend supplying the physicians with notification of the new disclosure requirements to ensure they are aware of their responsibilities and that these disclosures are being received by patients.
It is important to note that the burden is on the physician to notify the patient of the probationary status of his/her license. This law does not place an obligation on the hospital to perform any task, but any hospital or medical group may elect to monitor the physician’s fulfillment of his/her obligation to notify patients.
Most hospital medical staff bylaws include a provision that any restrictions on a physician’s license are automatically imposed on the physician’s practice at the hospital. Assuming the physician has notified the medical staff of the probation or the medical staff has otherwise been informed of the probation, the appropriate medical staff committee can determine the information it wishes to obtain from the physician to ensure compliance with the probation terms. This may include requiring copies of letters that are sent to the Medical Board to evidence compliance. Generally, probation will be combined with educational and other requirements so it is reasonable to request that the physician submit the same information to the medical staff that he or she is submitting to the Medical Board.
Please consult with legal counsel if you have questions about this law and how it will impact your organization.