A Modest Proposal:
Just Sic the Medical Board on California Motorists

       
   

 
Drivers in California simply have had it too easy for too long. Look at them, driving around in those fancy expensive cars and SUV's, talking on their cell phones, getting tickets and into accidents, failing to come to complete stops, cluttering the highways and refusing to carpool or use public transportation. Who do they think they are anyway...God?!

Plainly, traffic tickets and civil lawsuits are not effective measures in getting the attention of these self-absorbed and unsafe in the name of the public safety and good. The California Highway Patrol is just too understanding, traffic courts are too narrow in focus and only modestly punish isolated infractions, and the Department of Motor Vehicles lets drivers get away with much too much before it takes ultimately takes action. Enough! We need the Enforcement arm of the Medical Board of California to fix the problem. It will know what to do. It can approach the situation in the same way it is about to eliminate malpractice from the State of California, by simply disabling or eliminating all licensed physicians in the state. Since there will soon be few doctors left for it to go after, considering its vigilant intolerance and heavy-handedness, it makes perfect sense to re-channel the Medical Board's aggressive zeal against Southern California motorists.

There is no question about it. The Medical Board and other licensing agencies of the Department of Consumer Affairs have finally gotten their act together. They have become an awesome and formidable force with which to deal. Just ask any doctor who was recently on the receiving end of a Board Accusation over some bad result, mistake or alleged personal imperfection, resulting in the charge of gross negligence, repeated acts of negligence, unprofessional conduct or moral misconduct. Never mind how understandable the indiscretion or the physician's overall competence, skill, integrity and reputation.

Drivers in California can too experience what it is like to become a Respondent when the enforcement team of the Medical Board gets the nod to go after motorists.

Imagine learning that your family and business clients are being secretly interviewed by an investigator from the Medical Board, Special Traffic Safety Unit, pumping them for all sorts of information about your driving habits. Did you ever speed on the way to Vegas with an eye in the rear-view mirror; gun the car to make it through intersections just before the light turned red; drive while talking on the cell phone or reading a paper or map; cut off someone; or park without feeding the meter? Sounds like a pattern. Then there was that accident in which you were involved, currently in litigation: a rear-ender, where the plaintiff is demanding in damages in excess of what your liability insurance company is willing to pay and much more than the soft-tissue injury claim is really worth.

It seems that plaintiffs' counsel may have placed a call to the Medical Board and his client filed a complaint with the Board against you. Now the Board has opened up an investigative file and is calling you into one of its field offices to ask you some questions. What about? The accident, you are cryptically told. If you want the details, write to Sacramento. You do, but all the report states is that the investigation concerns a charge of gross negligence and repeated acts of negligence. You figure you'll tough this nonsense out. You announce to the investigator that you are unwilling to show up for the meeting with the Board investigator and its traffic consultant. That's okay, you're told. They will get a subpoena to compel your attendance. Okay, so you will show up. Oh, by the way, you're told, they plan on recording the interview.

You take off from work to go to the field office. It's hidden in some office building in an industrial complex. You nervously wait in a small waiting room after announcing your arrival to a clerk, who sits behind a bullet-proof bank teller window. You notice that the many of the people who are being buzzed through the heavy locked door to the back office are wearing handcuffs, guns and badges, and they all seem to regard you askance. It's beginning to occur to you that to the Board and investigator, you, as a California licensee, though a licensed driver for over 20 years, are the enemy. Indeed, the despised enemy they are after are not murderers, rapists or robbers. No, they are only after licensed California motorists. And now, the Board believes you may have made a mistake while driving. By the time you are invited to come in, you are already feeling guilty in a Kafkaesque sense. After all, it was just an unintentional, unfortunate accident, one which just happened to occur after many years of driving.

You are escorted into a room behind the electrically-locked door. The room is painted in a dull pastel color and adorned with framed pictures of the California forest. You are invited to sit down. On the opposite side of the table is a self-assured investigator, now fiddling with his tape recorder, and an old, ruddy, wrinkly gentleman who introduces himself to you as a retired truck driver—the Board's consultant for the interview. The Board investigator, who used to be city police officer, starts off. He asks you background questions, general questions regarding your driving history, then about how the accident occurred. Then the consultant asks you some pointed questions regarding traffic safety, how the accident could have been avoided and whether you realize how inept, thoughtless and dangerous was your conduct. Do you realize how many people are maimed and killed in traffic accidents? Do you realize SUVs, especially expensive, heavy-weighed Mercedes SUVs, can cause a lot of damage? The tape recorder is turned off. You are patronizingly thanked for coming by. As you are walked out, you find yourself solicitously quipping how you really learned your lesson, how driving safety is so important.

You cannot believe it. Several months later, without warning, the California Department of Justice serves you with an Accusation by the Board, seeking revocation of your driver's license and reimbursement of the costs incurred by the State in investigating and prosecuting you. It's like a bad nightmare from which you cannot wake up. As you are about to discover, it will be one from which you will not awaken anytime soon. You're beginning to realize that it was a mistake to go that interview without an attorney, even though you could not imagine how this would be something you could not explain away and put in perspective. Although the pleading served on you invites you to file a Notice of Defense by yourself, simply signing and returning the form, it's now clear that as incredible as it may be, your driver's license and ability to drive are on the line. You need a lawyer.

Is the Board serious? Your attorney explains exactly who and what you are up against, and what to expect. You have also learned that your insurance company went ahead and settled the underlying civil suit before obtaining depositions and any significant discovery from the driver you hit, even though there was some question that the accident may have been a fraudulent set-up. Unfortunately, your lawyer advises, discovery is limited in administrative proceeding under the Administrative Procedure Act. You still cannot believe it. One lousy accident. Why are they doing this to you? Revocation of your license? This is not a licensing case; at worse it is a simple act of neglect. Why are they proceeding against your license to drive? Won't the administrative law judge see this and dismiss the case? Your attorney tells you the judge has no jurisdiction to do so. That decision rests with a civil servant, the chief enforcement officer of the Board (rather than the elected Board members themselves), and at this point, dismissal by the Board is an unlikely scenario. But these facts do not involve gross negligence or even repeated acts of negligence. Nevertheless, the Board alleges that you were traveling at an unsafe rate of speed, failed to maintain an adequate stopping distance, and allegedly straddled the lane immediately before your reared that other driver's car, which you insist came to a sudden, unexpected stop in front of you. From the Board's standpoint, this constitutes driving incompetence, gross negligence and repeated acts of negligence. At least, that is how the Board is characterizing it. Consequently, the Board has jurisdiction and a right to proceed to hearing on the charges.

What's involved in a trial? Sounds costly and personally risky. You learn that even if you get a favorable decision from the administrative law judge, the Board has the prerogative to non-adopt the judge's proposed decision, and enter a different and more Draconian order affecting your license to drive. You further learn that the superior court offers only limited protection in review of Board decisions, which are generally accorded great deference by the courts. Appellate recourse is not something which can be counted on either. Won't the Board be interested in settling?

A combined settlement conference, pre-hearing conference is conducted at the Office of Administrative Hearings. The good news, you learn from your lawyer, is that the Board is willing to come off its settlement demand for the surrender of your driver's license. The bad news is it is nevertheless insisting, if you want to settle without a hearing, that you agree to a 60 days suspension of your driving privileges; revocation of your license stayed pending five years probation, for which you will have to pay the $2500 annual "costs" of probation over the five years; appointment of a monitor in the car anytime you drive; passing a driver's competence exam; 10 hours of continuing drivers education during each year of probation; taking and completing an approved course on drivers' etiquette and controlling road rage; reimbursing the Board its costs, currently $15,000; along with obeying all laws, including traffic rules; and any time you are out of state will toll the term of probation. The Deputy Attorney General is not kidding. That's what her client wants. It is also what is provided under the Board's disciplinary guidelines for an Accusation on these charges. Your attorney counters. For a settlement of the Accusation, he proposes that instead you will agree to complete the one- to two-week Board-sanctioned Drivers Assessment and Commuter Education (D.A.C.E.) course offered by the University of California in San Diego, at a cost to you of about $10,000. To sweeten the deal, he also shrewdly agrees that you will pay the Board its enforcement costs, in exchange for a dismissal of the Accusation. The D.A.G. tells your attorney that the Board will not go along with that; it will needs down time and probation. You attorney asks her to call her client, the enforcement officer, and relate your settlement offer for consideration. She promises to do that when she gets back to the office. Your attorney insists that she calls now; that's why you are all present for the settlement conference. She states she knows her client will not go for your proposal. But there was something your attorney said that reminded her about something. The new guidelines actually now include successful completion of the D.A.C.E. program as one of the elements appearing in the disciplinary guidelines. The Board will be also insisting on D.A.C.E. in any pre-trial settlement, in addition to all the other terms its outlined.

The deputy attorney general has got to be kidding. The Board can't be real about this. Even if you lost at trial, seriously the punishment couldn't be that bad. Your lawyer and the administrative law judge assure you that these are indeed the guidelines the Board expects to be exacted if the allegations are sustained. But it is such a weak case, you offer. Maybe yes, maybe no, depending on a number of factors. One thing is clear. Even in weak cases, for political reasons the Board would prefer to try the matter and let the A.L.J. decide rather than risk the Board being accused of going too easy on accused drivers. But isn't the Medical Board concerned about losing, you ask? Won't it have to reimburse you your defense costs if you prevail, just like you would be required to do if it proves its charges against you? Unfortunately, your attorney advises, it doesn't work that way. If the Board wins, you pay its costs as well as your own. If the Board loses, you still get to pay all your own costs.

Can't we get the Board representative to appear, just as is required of Respondent for the mandatory settlement conference, and try to convince him to accept your reasonable and focused resolution of the case? No. The D.A.G. advises that her client does not come in for settlement conferences. You look to the A.L.J., who serves at the pleasure of the Board, and he prudently remains mum. The D.A.G. does state that if you are interested, she would recommend a settlement, reducing the probation to three years, eliminating the need for a monitor present whenever you drive, but all other terms it offered would have to be the same to be acceptable to the Board.

Because you hate this whole thing, do not want to go to trial, and really do not have the funds to pay for the process and the risk of an adverse decision, disgusted you authorize your attorney to accept this. Just get it over, you direct. You are then reminded that anytime there is a discipline involving probation, under a California and federal law certain government-supported insurance companies may refuse to provide you coverage. Since California law also requires liability insurance in order to operate a motor vehicle, your inability to secure liability coverage may effectively prevent you from being able to drive. Your attorney also reminds you that this may also mean the end to your membership in the drivers' association/club to which you belong. These organizations tend to suspend or drop membership upon learning of a discipline on a driver's license, if not merely the filing of an Accusation against a member. Still, you can't take this any longer. You are risk adverse. Just to get over with it, as distasteful and onerous as it would be, you reluctantly agree to accept the D.A.G.'s proposal.

The following week you get a call from your attorney. The D.A.G. just phoned. The Board refuses to approve the D.A.G.'s offer you just got done agreeing to. It seems the Board is insisting on the full five years probation and the presence of a monitor in your car each time you drive.

Sound fantastical? It's already happening to doctors and other health care providers defending their licenses under similar circumstances on Accusations filed against them by the Medical Board and related licensing enforcement agencies. While the administrative law judges have become more forceful in resolving cases that should be settled, and the Medical Board has become more realistic though still tough in the positions it takes, the same cannot be said of all the other licensing agencies. The filing of an Accusation has an immediate adverse impact on most physicians (reputation, staff privileges, provider status), and the discipline sought and potentially imposed continues to be demanding with pervasive consequence to the doctor's name and ability to practice his or her profession. Not infrequently this will also impact the physician's right to receive Medicare/Medicaid, if not private health care insurance reimbursement. Because of the politics involved and the Board's statutory authority to recover its costs upon successful prosecution, the agency has little incentive to dismiss even weak cases. Although a licensee is able to secure a fair and favorable outcome in Board proceedings, the fact remains that the filing of the Accusation has an immediate and profound effect?on the order of a life-threatening illness in the family.

The Board has become more bold, often taking action predicated on nothing more than a bad result, occasioned by at worst an act of neglect or poor judgment. For any variety of reasons, it will label the conduct with jurisdictional vernacular, and on that basis proceed against the health care provider's license. Particularly at risk are doctors whose patients have had a catastrophic result irrespective of the alleged act of wrongdoing, where sex is included in the charge, or where the doctor is foreign born, culturally different or demonstrating a weak command of the English language or expressive skills. The practical and economic threat posed by these administrative proceedings provoke settlement in many cases, the doctor reluctant to fight at the risk of an even worse result and more expense. As the Board seeks more and more onerous discipline against medical licensees, interfering with their ability to function and remain gainfully employed, medical malpractice may be reduced or eliminated. However, that accomplishment will not be due to the aggressive, intolerant supervision and punishment of bad actor licensees by the Board, but rather virtual attrition of all physicians in this state, good or bad, who are unable or do not have the stomach to stand up to the Board's search and destroy swagger.

When few doctors are left practicing in this state, the Board will need something else to occupy its time and the voracious machinery it has developed. Thus my modest proposal: why not sic it on Los Angeles drivers? Give it ten to twenty years, and the only licensed drivers on our crowded freeways will be the Highway Patrol and Board investigators. By then the Medical Board of California new Special Traffic Safety Unit will have effectively destroyed most drivers' ability to defend their license to operate motor vehicles, and with fewer licensed drivers on the road, public safety should be improved. If it can intimidate and crush physicians, California drivers will be a piece of cake.
 


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