Consumer background and composition on state medical boards: Who are these citizen members and do they adequately protect the public?

Introduction

Modern state medical boards issue licenses to physicians (MD & DO) as well provide oversight of the medical profession, including investigation of complaints which may lead to various forms discipline, from education and supervision to suspension or revocation of medical licenses. Boards typically also develop policies and guidelines for the practice of medicine and improving healthcare quality. ¹ Historically, however, medical boards were more focused on licensure by ensuring applicants had completed education and residency requirements. ² During the 1960s and 1970s, medical boards came under public scrutiny for lack of oversight of the medical profession. Part of the perceived problem was that the voting membership of medical boards was limited to physicians, and complete self-regulation of the medical profession ³ was no longer acceptable. Political leaders responded by appointing non-physicians or “public members” or “citizen members” as voting members to medical boards, with California being the first state to adopt this measure in 1961.^4–6

The inclusion of public or citizen members on state medical boards has become valued in health care regulation, ⁵ and by 1999 all but three state medical boards included public members in their ranks. ⁶ The Federation of State Medical Boards (FSMB), an umbrella organization that represents the 71 medical boards in the United States, has stated, “…public members bring unique value to the process of medical regulation, and we should be doing more in the regulatory community to recruit and retain them.”. ⁷ The FSMB recommends that public or citizen members should comprise at least 25 percent of the membership for state medical boards, although some medical regulatory professionals believe consumer participation should account for at least one-third (33 percent) of positions on state medical boards. ⁶ However, how many public members are actively serving on state medical boards? Furthermore, who are these “public members” or “citizen members” serving on state medical boards? What are the background and qualifications necessary for non-physicians to be selected for oversight of the medical profession? And what information and lessons can be learned from these questions that can aid professionals who wish to improve and reform state medical boards?

The FSMB released the following guideline language for selection of public members for state medical boards ⁸ :

“Public members of the Board should reside in the Board's respective jurisdiction and be persons of recognized ability and integrity; are not licensed physicians, providers of health care, or retired physicians or health care providers; have no past or current substantial personal or financial interests in the practice of medicine or with any organization regulated by the Board (except as a patient or care giver of a patient); and have no immediate familial relationships with individuals involved in the practice of medicine or any organization regulated by the Board, unless otherwise required by the law.”

The FSMB recommends that public members have no professional or personal connection to healthcare, yet, how many state medical boards are following FSMB's guidance concerning the background and also the number (percent) of public members? Moreover, is the FSMB's guidance, correct? If physician members of public boards are not considered biased, why should consumer members of medical boards with medical knowledge/expertise be considered biased?

The FSMB released a report in 2018 that provided an accounting of designated slots for public members as well as physicians and allied health professionals on the nation's state medical boards, ¹ however, this report did not provide background information on the public members nor did the report ascertain the percent of designated public member slots that are filled. Studies from 2016 ⁹ and 2005 ¹⁰ measured public participation on state medical boards; however, neither study attempted to analyze all state medical boards. This study will count the number of public members currently serving on state medical boards, review the background/resumes of public members currently serving on state medical boards, and count current public member vacancies on state medical boards.

Data/methods

Websites of state medical boards were located on the FSMB's directory page. Most state medical boards websites provide lists of board members, and several of these websites offer extensive professional and personal (marital status, children, hobbies, etc) information regarding their board members. For state medical boards that only provided names of board members (no background information), Google searchers were conducted on the board members; given that many medical board members in the United States are appointed through some political process (gubernatorial appointment, etc), information is readily available on the Internet. The number of physicians (MD & DO), allied health professionals (RN, NP, DPM, etc), and public or citizen members were counted for each medical board, and vacancies were counted as well. Citizen members were further analyzed to determine if they have any healthcare professional experience or knowledge, training as a lawyer, and/or did they have patient safety or quality improvement experience (either professionally or as an advocate). Some citizen members could be categorized in two or all three of these categories. For example, a personal injury lawyer who prosecutes medical malpractice cases would be counted in each category (lawyer, healthcare knowledge, and patient safety/quality experience), while a nurse with quality improvement experience would be counted in two categories (healthcare experience and patient safety/quality experience).

Results/findings

Sixty-eight (n = 68) state medical boards had websites that listed their board members during an online search in December 2020 and January 2021. There was a total of 778 active board members identified for these 68 state medical boards, with 38 vacant slots, during the review time (December 2020-January 2021). Physicians accounted for 69.5 percent (n = 541) of the identified board members, allied health professionals (RN, PA, DPM, etc) 7.7 percent (n = 60), and public or citizen members constituted 22.7 percent (n = 177) of the identified board members. There were 22 public member slots vacant, or 11 percent, scattered over 16 different medical boards while there were 15 physician vacancies, or 3 percent, spread over 10 different state medical boards.

The range of public membership was 0 to 57 percent for the 68 state medical boards; five medical boards had zero public or consumer members. The mean was 23 percent, and the mode was 25 percent and 28.5 percent for identified public members. Thirty-one (31) of the 68 boards had identified public members that account for at least 25 percent of their current voting board members, while 10 medical boards had identified public members that hold at least 33 percent or a third of their currently filled voting positions.

When analyzing the 177 identified public or citizen members on the 68 state medical boards, 34 percent (n = 60) had health care experience, 23 percent (n = 40) were attorneys, and 9 percent (n = 15) had identifiable patient safety experience either professionally (risk, safety, quality) or as advocates. Five (n = 5) of the attorneys were personal injury medical malpractice lawyers. Again, some citizen members were classified into two categories (for example, hospital quality manager being tabbed for healthcare and patient safety experience) or three categories (personal injury lawyer who prosecutes medical malpractice cases). Fifty-one percent (n = 91) of public members did not fit into any of three categories (no healthcare, patient safety/quality, or legal experience).

Discussion/conclusions

There is a social contract between the medical profession and society. ³ Society has designated licensed physicians as our healers, and in return physicians have historically asked for autonomy and the ability to self-regulate, among other things. However, tension exists between society and the medical profession due to the high prevalence of crippling and fatal errors ¹¹ and the perception that self-regulation of the medical profession has not adequately protected the public from errors and dangerous physicians.^4–6 Medical boards of the first half of the 20^th century, populated only by physician voting members, represented an improper approach. ¹² This study shows that public participation is happening in state medical boards, but more public members could be added to break up physician super majorities in state medical boards and public members with medical know-how should be included to counter physician control of medical boards. Credible public oversight of the medical profession is necessary.

Public members of medical boards can inhibit secrecy, ⁴ provide oversight and even a quasi-policing function, ¹³ be the social conscience of medical boards, and keep the public's interest in mind. However, merely including consumers on medical boards does not necessarily ensure the patient voice is represented or heard. ¹⁴ Consumers, often with a lack of medical knowledge and minority status on medical boards, can be outmatched, outwitted, and even co-opted by the physician supermajorities present on most state medical boards, which can mean many boards are effectively controlled by the medical establishment. ⁹

As a patient safety professional and advocate, I was asked to serve on a patient safety committee of the hospital system – Catholic Health Partners -- where my brother had died from medical errors 12 years earlier. The appointment was an honor and helped bring closure to my parents and myself. This patient safety committee had 20 to 25 physicians, nurses, and other healthcare professionals/administrators at any given meeting along with me and two other consumer representatives. The two other consumer or patient representatives were an attorney (who did not practice in healthcare) and a family member who (to the best of my recollection) had received care at the hospital system. The consumer members were given access to all discussions and materials and treated with the upmost kindness and respect. However, with a super majority of medical professionals at any given meeting, it was too easy for the doctors and nurses to “talk shop” and steer conversations towards their professional comfort zone. Moreover, the limited expertise and medical knowhow of us three consumers often felt like no match for the doctors and nurses in the room. What constitutes true consumer representation on patient safety committees and boards, when are consumers merely window dressing, and where is the line drawn between these two realities?

I shared these feelings and observations with Catholic Health Partners (CHP) when I completed my term on their patient safety committee, and I also shared these feelings in blog posts and presentations through my patient safety organization, Sorry Works. These words in this publication should not be a surprise to CHP (now Mercy Health) or anyone in the patient safety community. The situation with CHP was not a personal problem or a case of bad intentions by this one hospital system, but appears, instead, to be part of a structural problem that is endemic throughout healthcare safety and regulatory committees that are trying to include consumers. Again, I am forever grateful for the opportunity given to me by CHP, however, the experience was an eye-opener that, in part, inspired me to conduct this research project. Further research – including surveys and interviews – of public medical board members should be initiated to learn their stories and perspectives.

The data from this study was only a “snapshot” in time; the composition of state medical boards (many of which are politically appointed) can change with the political winds. Compared to equivalent studies (which were also snap shots from 2016 ⁹ and 2005 ¹⁰ ), this study showed similar consumer or public representation on state medical boards (22 percent vs. 25 percent for the 2005 study and 15 percent for the 2016 study). However, neither the 2005 nor 2016 study attempted to analyze all state medical boards (nor did these studies analyze the background of public board members). Still, the FSMB's recommendation for at least 25 percent consumer representation on state medical boards is being followed by many state medical boards. Physicians, however, hold a super majority of votes on state medical boards (67 percent), and doctors also likely hold a knowledge advantage on boards ¹³ since 51 percent of identified consumer members (n = 91) have no healthcare experience or legal background. These 91 consumer members represent a variety of backgrounds, from car dealers and realtors to marketing professionals, educators, and retired politicians. Lawyers, which accounted for five percent (n = 40) of all board members, can be effective advocates on state medical boards, yet those lawyers without healthcare experience or knowhow can be just as outmatched or outwitted as the 91 public members who no healthcare, legal, or patient safety experience. The sixty (60) consumer members – or 7 percent --- with healthcare experience are a mixed group, with some having clinical experience while others have varied resumes in healthcare administration, human resources, equipment manufacturing, legal, etc. However, only 16 of the 60 consumer members with healthcare experience have any identifiable patient safety/quality experience (either professionally or as advocates). Moreover, 22 public member slots, or 11 percent of available public slots, were vacant during the time-period of the study compared to only 10 vacant slots for physicians, or 3 percent.

To encourage the recruitment of more public board members with medical experience to state medical board the FSMB's recommendation for consumer board members having no healthcare experience should be revisited and potentially revised. Public Citizen, a public advocacy group often critical of state medical boards and the current regulatory oversight of the medical profession, also suggests that public members should have no ties to the medical industry ¹⁵ and their stance should also be potentially revised. Physician members of medical boards are not presumed to be biased (at least by the FSMB), and public members with adequate healthcare experience to converse with and balance out physician board members should be given the same presumption of non-bias.

Medical boards are supposed to protect patients and families from incompetent and dangerous physicians. To perform this vital function, there are many factors to consider, from the functional of “how” oversight can be best achieved with a variety of stakeholders at the table, consumers included, to the optics of medical boards as seen by the media and the public. Does the public believe their interests are truly represented? Do patients and families in any given state feel they have a strong voice on their medical board? Thirty-one of 68 boards met or exceeded the FSMB's recommendation for 25 percent of voting slots occupied by consumers, and another 10 boards met or exceeded the 1/3 or 33 percent threshold suggested by some experts, ⁶ yet medical boards must consider eliminating physician supermajority blocs by balancing the number of physicians/medical professionals and consumers. Moreover, the patient voice should be more effectively represented by actively recruiting public members with medical experience – especially patient safety and quality improvement -- who can counter physician knowledge and power on boards. ¹²

Unfortunately, state medical boards can sometimes have difficulty filling public member slots; ⁹ 11 percent of public member slots were vacant in this study during December 2020-January 2021. Also, political leaders (governors, legislators) will forever have an inclination to appoint political friends and donors to boards. Public members without medical experience will, in some instances, be a reality out of necessity or due to political whims. State medical boards need to adequately train all new members, especially those without any medical experience,^7,9 learn about their experiences through further research, and can also adopt governance structures such as “Just Culture” to guide the actions of all their board members. ¹⁶ Going forward, reformers, including legislators, should consider codifying the necessary background and training requirements for public members and also contemplate incentives to assist with recruitment.