More lay members sought as lawmakers challenge who sits on medical boards

In this era of patient safety, some are turning to legislation and others to litigation to change the makeup and authority of state medical boards. Those pushing for reforms believe the proposed changes will better protect the public and police the profession.

Lawmakers this year filed bills in Florida, Georgia, New Jersey and New Hampshire to add more public nonphysician members to the boards and give patients a greater voice in overseeing physicians. Board leaders said such legislation is part of a steady trend of placing more nonphysicians on boards, which some view as a way to keep physicians honest about regulating other doctors.

Meanwhile, a physician and three patients filed a lawsuit in North Carolina, claiming that the state medical society has too much power over the medical board. The suit asks that the process calling for the society to nominate physicians for board appointment be declared unconstitutional.

Medical board officials said these efforts are the latest wave of scrutiny for boards, which typically become targets of legislation after media reports focus on problem physicians or lax discipline by boards. Even if some of the measures fail to become law, the proposals have brought new examination of the boards that could lead to later reforms, officials said.

"Everybody's always looking to change the medical board in some way," said Jim McNatt, MD, medical director of Georgia's Composite State Board of Medical Examiners.

At present, all but three states (Alabama, Louisiana and Mississippi) have public members on their medical boards, according to the Federation of State Medical Boards. MDs and DOs make up 71% of medical board members while 24% are public members. The remaining board spots are filled by other health care professionals. About 10 years ago, public members made up roughly 10% of boards.

"We've seen steadily increasing representation" of public members, said Dale Austin, FSMB senior vice president and chief operating officer. "The doctors see value in public members asking basic questions or bringing up the patient's vantage point."

Attempts to boost public membership

Some state legislators said boards need more accountability to ensure patient safety and keep doctors in check. One step is to make sure public members are appointed to the boards, they said.

Georgia State Rep. Mike Keown, a Republican, introduced a measure this year to add two nonphysician seats to his state's 13-member board, which now has one public member. Keown said the bill had been adjusted and he is seeking one member, which he said would still give the public adequate representation.

"It's the old adage of the fox guarding the henhouse," Keown said. "This gives an opportunity for someone from the outside to look in."

At press time, the bill was in committee. Keown said if it didn't pass this year, he would bring it back in the next session.

Responding to legislation in its state, Florida Board of Medicine officials said they do not need to increase the board from three to four nonphysician members, saying consumers already are well represented on the 15-member board.

Meanwhile, New Jersey Assemblywoman Charlotte Vandervalk, a Republican, wants to strengthen her state's board, in part, by expanding the board's public members from three to five and requiring more information to legislators about board actions and operations. She said she realizes her bill may not pass this session, but the proposal will bring attention to the New Jersey State Board of Medical Examiners.

"The idea is to hold the board more accountable about what it is doing," she said.

In Washington state, a bill would have altered the medical board's power by giving disciplinary authority to the state secretary of health. The bill passed the state House in March, but never came to a vote in the state Senate. Some officials doubt that will be the last of proposed changes to the board.

"The Legislature is always looking for better ways to protect the public," said Laurie Jinkins, assistant secretary of the state Dept. of Health. "Our major concern in all of these bills is can it advance patient safety."

Sometimes, battles unfold in the courthouse instead of state chambers.

In North Carolina, a lawsuit filed Feb. 28 seeks to change how doctors are nominated for the North Carolina Medical Board. Family physician John Faulkner, MD, and three patients filed the suit in Wake County Superior Court against the board, Gov. Michael Easley, the state and the North Carolina Medical Society.

The suit claims that the board has failed to investigate and prosecute physicians who endanger patients "because of the control exercised" by the medical society, which nominates seven of the 12 board members to the governor. The society denies the claim. The three patient plaintiffs said they or family members were harmed by poor physician care. Dr. Faulkner, who does not belong to the medical society, said his wife was injured in a preventable operating room fire.

Burton Craige, the Raleigh, N.C., attorney for the plaintiffs, said he wants the state General Assembly to take notice of the lawsuit and change the process of naming board members. "We're hoping that the Legislature will fix this problem. If they fix the problem, then we'll drop the lawsuit," he said.

The North Carolina Medical Board said it has no control over the selection process and should not be named in the lawsuit.

Steve Keene, general counsel of the North Carolina Medical Society, said society membership is not a requirement to be nominated for a board vacancy.

He said the society "solicits nominations from the entire licensed physician community" when a physician position comes open on the board and said the process is fair.

"It makes good sense to look to an organization that has the ability to identify the most qualified candidates from the physician community," Keene said. "You get consistently better results having the statewide organization vetting those potential candidates."