California bill calls for physician review of prescribing patterns
■ Prosecutors oppose legislation to allow doctors to examine evidence against doctors before an arrest is made.
By Andis Robeznieks — Posted July 19, 2004
Stories of doctors being the subject of showcase arrests because of their prescribing volumes have made the medical community uncomfortable, but when two of these arrests occurred in the far northern California district of state Sen. Sam Aanestad, DDS, he decided to do something about it.
Dr. Aanestad introduced the Medical Crimes: Investigations and Prosecutions bill endorsed by the California Medical Assn. The bill calls for a physician review of a doctor's prescribing patterns before an arrest is made and also for the timely return of any medical records seized during an investigation.
"He doesn't believe law enforcement should be involved in dictating the standards of care in a developing field of medicine," said Dr. Aanestad's chief of staff, Brett Michelin.
The bill, which passed the Senate by a 33-1 vote, is also supported by the Medical Board of California. It is opposed by the California District Attorneys Assn.
Calls to the California District Attorneys Assn., the Los Angeles district attorney and the Shasta County district attorney were not returned.
An analysis of the bill prepared by the California Assembly Committee on Public Safety's staff stated that opponents objected to the time and cost associated with complying with the bill. The staff also believed it would encroach on the independent judgment of prosecutors and would establish physicians as a special class of defendants.
They asked: If doctors were allowed a special review of their cases, would attorneys, accountants and other professions soon demand the same?
"I think the law enforcement concerns are just anxiety about getting on a slippery slope," said CMA Associate Director of Government Relations Bryce Docherty. "We think this bill strikes an appropriate balance between allowing law enforcement to do its job while protecting physicians' ability to provide care to patients who need it."
Michelin said the money not spent on unsuccessful prosecutions would easily cover the costs of medical reviews and the delivery and copying of medical records.
To help the bill's chances of passage in the lower house, Michelin said, it has been amended so that a prosecutor could still make an arrest even if physicians who reviewed the case found an arrest to be unwarranted.
"It makes the bill a whole lot weaker then Sen. Aanestad would like," Michelin said, adding that if an arrest is made over the objections of physician reviewers, it would tend to weaken the prosecutor's case against the physician.
Scott Fishman, MD, chief of the Division of Pain Medicine and associate professor of anesthesiology at the University of California, Davis, said the bill is especially important because of the "damned if you do, damned if you don't" aspect of treating pain. He also said that, because of the lack of pain specialists, primary care physicians are being called upon to provide pain treatment, and they shouldn't be criminalized for "making less-than-perfect decisions."
"Even if they find they've done nothing wrong, the physician has already been punished by the process," Dr. Fishman said.
Michelin said the stories of Redding, Calif., physicians Frank Fisher, MD, who was exonerated of murder and fraud charges after a five-year legal fight, and James Gregory White, MD, who had his patient records seized in January 2002 and is still waiting for their return, prompted Dr. Aanestad to act.
If passed, Dr. Aanestad's bill would require that medical records (either copies or originals) be returned to the physician within five business days. This provision helped the bill earn the California Board of Medicine's support.
"Our concern was clearly the issue of consumer protection and continuity of care," said Linda Whitney, the board's chief of legislation. "Our mission is consumer protection, and they can't get proper care if they can't get access to their records."
The CMA, Docherty said, is committed to getting the bill passed. "If the bill dies this year, we're definitely going to come back with a similar bill next year," he said.