The History of the Federation of State Medical Boards: Part Four — The Rise of Medical Discipline, 1960s and 1970s

Changing Expectations for the Disciplinary Role of State Medical Boards

In January 1960, the Federation Bulletin published one of the last editorials penned by Walter Bierring, the organization's long-time Secretary-Treasurer. A concerned Bierring was unequivocal in his observations on the contemporary state of disciplinary affairs.

“If a state cannot, or does not, for just cause, revoke a license or discipline a physician… a fatal weakness exists. If no machinery exists for investigations and hearings…discipline does not really exist. If there is nothing beyond what the state or county society can do, a license to practice becomes a potential license for abuse.”3

Bierring's assessment reflected a grudging acknowledgement within the profession, and growing concerns from the public, that the disciplinary framework used to regulate medicine remained too much of a hit-or-miss affair. His comments portended the Report of the AMA Medical Disciplinary Committee, whose findings marked the beginning of a fundamental shift in the role and function of state medical boards. Federation representatives Harold Jervey (South Carolina) and Stiles Ezell (New York) served the committee as consultants. The committee's findings proved troubling. While pointing to admirable efforts and adequate funding in some states (e.g., California, New York, Ohio, Oregon), the overall picture of medical regulation drawn by the report was disappointing. The committee found that, for a variety of reasons, relatively few state medical boards penalized unfit physicians and surgeons. Money was one obvious factor, as one state board member confided that his board possessed “no budget for such purpose.” More surprising was the lack of established procedures for disciplinary matters on the part of some boards.

The committee's interviews with 15 state board secretaries highlighted the fact that apparently only a minority of boards had formalized rules and procedures governing investigations and hearings. Professional ethos compounded matters further. Boards actively seeking to fulfill their disciplinary role were hampered by a professional culture in medicine whereby physicians were reluctant to serve as complainants or witnesses lest they breach unwritten rules governing conduct. Boards often encountered physicians reluctant to report a colleague for fear of being sued or to avoid embarrassing a fellow professional.4

From a regulatory perspective, one particularly discouraging — though not surprising — finding from the report was that physicians looked for leadership on this topic not from the Federation or their state's medical board but from organized medicine. The medical profession had long attempted to utilize state and local associations as a mechanism for conflict resolution and for exercising some degree of oversight. So deeply engrained was this bifurcated view of discipline that one of the fundamental questions the committee believed it important to answer was delineating where the “dividing line” ran between medical society and state medical board authority in disciplining physicians. Their recommendations reflected the profession's desire to retain some measure of control even when the final adjudicatory power fell clearly within the purview of state medical boards.5

The most disconcerting aspect of the committee report, however, stemmed from the portrait it drew of state medical boards and their willingness to fully assume a robust disciplinary function in regulating the practice of medicine. The report acknowledged that while limiting factors were clearly at work, “adequate mechanisms” existed for the vast majority of state boards to carry out this function. The reason behind the infrequent application of the board's statutory powers (i.e., the “failure” to act when “necessity arises”) resided elsewhere.

Comments attributed to state board members within the report revealed a deeply engrained mindset that perceived the disciplinary role in its most limited fashion. A “sizable number” of boards' responses to the survey reflected a belief that “discipline is…of secondary importance” or a subject to be avoided. During personal interviews, one board acknowledged that they had no budget for investigating disciplinary matters but insisted that “none is…needed.” Despite the relative paucity of actions being taken against the nation's estimated quarter million physicians, 13 out of 15 board members interviewed believed their board functioned adequately in handling discipline. Similarly, 10 out of 15 felt no statutory changes were needed in their state. Feedback at the four regional conferences with 24 state medical boards in attendance evinced a similar sense of complacence.6

Lest one question the conclusions drawn from the AMA report, it should be noted that the report mirrored the findings of a contemporaneous but lesser known Federation survey of state boards taken in 1959–1960. Under the heading of “problems of discipline,” Lall Montgomery (Indiana) explored state medical boards' definition, handling and scope of authority in resolving allegations of unprofessional conduct on the part of a physician. The survey results showed that just over half (22) of the 41 responding boards had a statutory definition for unprofessional conduct and a significant minority of boards (11:41) lacked statutory authority to revoke a license. Yet despite such apparent deficiencies in the statutory language, most boards (29:41) expressed satisfaction with their state's medical practice act as written.7

The inferences drawn from the AMA report's assessment of state medical boards' disciplinary activity were clear, and in many ways consistent with the findings of the earlier Federation survey: the greatest obstacle impeding state medical boards was a reluctance to fully embrace their disciplinary role and function. To the extent that most state medical boards conceived of their disciplinary role, it remained largely a secondary endeavor supplementing the self-regulatory efforts of the profession. The licensure role of state medical boards was not only paramount, it was their raison d'être, a consideration fully understood and embraced by the licensing community at the time of its establishment in the last quarter of the 19th century and for decades afterward.8 Nearly a century later, however, societal expectations — and to an extent those of the profession as well — had begun to shift. State medical boards and the Federation were now placed in a position that called for them to demonstrate their ability to recognize, and react appropriately to, the paradigm shift underway in regard to the primary function of state medical boards.

Having served as consultants to the AMA committee, the Federation's Harold Jervey and Stiles Ezell monitored the progress of the committee and its report. Looking back, it seems clear that their written pronouncements and public statements in early 1961 reflected an attempt to not only prepare the licensing community for the stinging assessment that was forthcoming but to marshal that community behind the new imperative focusing on medical discipline. The Federation's leadership understood that a pendulum swing had occurred, resulting in greater public demand for a “more critical appraisal” of physician behaviors.9

Ezell used the pages of the Federation Bulletin to underscore the coming shift toward a disciplinary focus. He saw this shift as one that would proceed at an irregular pace among the states as it encountered localized pockets of acceptance and resistance inside the profession and the regulatory community. Within the near future, statutory limitations, financial constraints and insufficiently developed procedural guidelines would constrain progress. More importantly for Ezell was the necessity for a fundamental shift in perspective within the profession and among the state board community.10

Jervey's 1961 presidential address to the Federation membership did not equivocate — there were problem physicians in practice and clear “deficiencies” in the disciplinary function inherent to the current construct of medical regulation. Jervey offered a personal estimate that between one and three percent (2,500–7,000) of the nation's practicing physicians warranted punishment for serious offenses. If the scope was broadened to include ethical violations, he believed there were probably 15,000 to 20,000 doctors whose behavior warranted attention.11 Jervey enumerated the many issues compounding the situation: a professional culture that left physicians reluctant to offer testimony or provide a deposition against a colleague accused of misconduct; systemic problems arising from inadequately developed procedural guidelines and poor record keeping; outdated statutory language that sometimes hampered boards; and inadequate financial resources for investigative staff. Jervey's survey of the state of disciplinary affairs did not spare his colleagues and contemporaries on state boards when he claimed “the attitude of too many leaves much to be desired.” He condemned the “veiled secrecy” of some state medical board proceedings and proclaimed a professional imperative for all state board members to police their ranks. Jervey even called for more thoughtful appointments to state boards by insisting that board members would need a “flair for the judicial” to operate effectively in the emerging era of heightened expectations.12

Finally, Jervey clearly defined what he saw as the appropriate role for the Federation — to serve as a central repository for all disciplinary actions taken by state medical boards. This was not the first time Jervey had issued such a call. Two years earlier, Jervey lamented the lack of a central office that might facilitate communications with state medical boards and gather the necessary statistics and documents to support analysis for more complex initiatives. The timing for this proposal proved fortuitous. A Federation contingent led by Jervey, Louis Jones (California) and McKinley Crabb (Texas) soon commenced negotiations with the AMA to achieve this goal. In September 1962, the Federation announced that it had received an appropriation of $10,000 from the AMA to establish a central repository for all state board disciplinary actions.

Several conditions were attached to this generous gift: (1) the Federation must establish a permanent central office; (2) the central office must maintain close communications with all state boards to obtain updated information on disciplinary actions taken; and (3) the Federation would prepare and forward a monthly report of all actions to the AMA.13 Indeed, the AMA's gift was the first in a multi-year annual contribution that helped sustain the disciplinary data bank during its first decade.

The ramifications of this largesse for the Federation are impossible to overstate. In one fell swoop, the organization gained the modicum of financial resources that had eluded it for half a century. The gift nearly doubled the Federation's modest budget and allowed the organization to function in a “business-like fashion” rather than as a virtual organization. Federation Secretary McKinley Crabb soon negotiated the lease of separate office space from the Texas medical board, which at that time maintained offices in Fort Worth. The establishment of a permanent office in Fort Worth, with Crabb as chief executive officer, meant that for the first time the Federation would not be solely reliant upon the good graces and personal work space of the organization's officers and executive committee who volunteered their time and effort.14 Just as important, establishing and maintaining a national database of disciplinary actions provided the Federation with a distinctly progressive initiative that directly supported its membership.

The era of the Federation as an all-volunteer entity had ended. With the establishment of its first national office, the Federation began immediately to collect statistics from state medical boards and circulate information among them, answering every question that came its way. In 1963 Remington-Rand set up a modern filing system at the Federation for tracking physicians who received disciplinary action from a state board. A monthly report naming physicians, their offenses and the actions taken by the state board was printed in the Federation Bulletin. In 1971, the Federation began distributing a monthly report of all disciplinary actions received directly to state boards. A copy was sent to the AMA as well for their records. By 1966, Crabb reported that the Federation's office had received more than 700 reports of disciplinary actions during 1965, several hundred more than the prior year's total.15 The increase stemmed from improved reporting on the part of state boards — an indication of just how seriously they were taking their commission in the disciplinary realm. The small Federation staff was attempting to expedite the clearance of licenses of doctors who moved from state to state. Reported information about doctors was collected at the Federation's central office and, in some cases, made available to hospitals and medical societies.

It seemed the Federation was now finding its proper role as leader, advocate and sometimes mediator on behalf of state medical boards; all the while protecting the boards' role as the party responsible for the enforcement of medical discipline and the final arbiter of physician qualifications to practice within their jurisdiction. However, this transition to an emphasis upon the disciplinary function on the part of state medical boards occurred slowly, and to some critics far too slowly for their satisfaction. Considerable work needed to be done, including revised statutory language and the crafting of better procedural guidelines for resolving disciplinary matters.

The Federation attempted to assist state boards on both counts. As called for previously in the Essentials of a Modern Medical Practice Act, the state medical board was the appropriate designated authority for handling disciplinary matters involving physicians within each state. Doing this job adequately meant securing funds for the board's operations in carrying out investigations into complaints, hearings and the subsequent legal defense required when physicians appealed a board decision — a not uncommon occurrence. Just as important, it also required a commitment to enforcing the standards that the boards set for themselves. Beginning in the early 1960s, the Federation held workshops and circulated model guidelines for holding formal disciplinary hearings. All state board members needed to acquire or reacquire the basic concepts of procedural and substantive due process and evidentiary rules and incorporate these into their rules and regulations. Boards were encouraged to establish protocols for implementing a complaint process and other measures such as utilizing a hearing officer acting as judge with the board as jury or dividing the board into separate panels charged with either an investigatory or adjudicatory function. Another recommended concept involved holding public hearings. Increasingly more common at Federation annual meetings were presentations such as those given by Howard Bobbitt (Oregon) in 1962 on investigative procedures and the preparation of case materials.16

On the statutory side, there was considerable work remaining to be done. In 1956, the Federation had sent copies of its Essentials document to all state medical boards but progress in gaining greater statutory uniformity in the legislative arena came slowly. There were more than 90 different grounds for the revocation or suspension of a license as stated in the various medical practice acts. Criminal abortion was the only punishable offense for physicians in all 50 states; narcotics use by physicians was close behind as a specific actionable basis for state boards in 47 states. Broadly defined behaviors such as “improper practice, incompetent practice, and unethical actions” appeared frequently but with a frustrating lack of precise definition that left the boards' decision vulnerable to legal challenges. Updating or rewriting these statutes proved difficult. It required political astuteness and dogged determination on the part of the state medical board in working with the legislature. The Federation recognized the necessity of updated laws defining violations that warranted investigation and discipline and urged state board members to review and thoroughly understand the statutes that addressed these matters. Despite the seemingly slow pace, there were signs of change on the legal front that boded well for state medical boards. The Kansas Board of Healing Arts received a supportive ruling from that state's Supreme Court (Kansas Board v. Foote) when it upheld the board's decision to revoke a physician's license based upon “extreme incompetency.” The court dismissed the plaintiff's argument challenging the revocation because state statute did not specifically list “incompetence” as a basis for revocation. The court rejected this contention and held that “extreme incompetence” constituted unprofessional conduct — a reasonable basis for action.17

Despite the considerable attention being given to the state medical boards' role and function in disciplinary matters, progress came slowly in the 1960s and 1970s. This was true regardless of the metric used to measure progress, e.g., the number of disciplinary actions taken by boards, the infusion of additional financial resources to bolster boards' efforts or legislative changes clarifying and/or strengthening medical boards' authority. Consequently, there was no shortage of critics; even some within the licensing community were unequivocal in their assessment that state boards were not yet performing adequately in their disciplinary role. Among the latter group, Robert Derbyshire (New Mexico) was the most prominent and influential. Derbyshire published extensively on the topic of medical discipline, beginning in the 1960s with his book, Medical Licensure and Discipline in the United States.

Narcotics violations and physician impairment stemming from substance abuse served as the cause/basis for half (51%) of all board actions taken in the 1963–1972 period described by Derbyshire.18 While some critics may have felt that state medical boards placed a disproportionate focus on physicians with substance abuse issues, physician impairment presented a significant challenge to state boards, particularly those seeking rehabilitation and recovery alternatives for their licensees. As early as 1958, Federation President C.J. Glaspel used his presidential address as a platform to warn state boards of the “danger” lurking in their midst in the form of physician impairment. Two years later, Federation board member John Fiorino signaled a shift toward a rehabilitative philosophy when he recommended that state boards seek out impaired physicians and counsel them to seek treatment as part of non-punitive efforts to salvage individual careers.19 Some states, such as California, even codified the mission of the medical board in terms of a rehabilitative focus though this left the board vulnerable to criticism that public protection should never be a secondary consideration.20

Significant progress toward a rehabilitation focus for impaired physicians came in 1969 when Florida passed legislation subsequently termed the “Sick Doctor Law.” The legislation defined a sick physician as one “unable to practice medicine with reasonable skill and safety to patients” due to mental or physical conditions that included impairment from drugs and/or alcohol. Within several years, two dozen states adopted legislation modeled upon Florida's law. As physician impairment programs began to take root, state medical boards now had meaningful rehabilitative options available to them. Early results in the 1970s from the Florida, Michigan, Virginia and Colorado state boards looked promising as these boards could point to a growing number of physicians with reinstated licenses and those in active compliance with the terms of their probation. This was not entirely new territory for state boards as the Medical Board of California had extensive prior experience in this realm dating back to the 1940s. However, California's financial and staff resources for such initiatives were atypical of most state medical boards.21

While inarguably the number of disciplinary actions identified by Derbyshire remained small throughout the 1960s and into the 1970s (e.g., a total of 1,971 disciplinary actions taken by boards between 1963 and 1972), it is also clear in retrospect that many state boards were on the cusp of major changes. New York state offers one of the more telling examples with the 1975 establishment of its Office of Professional Medical Conduct (OPMC), responsible for investigating complaints, and its State Board for Professional Medical Conduct to oversee disciplinary proceedings. With multiple investigators scattered across the state through central and regional offices, the OPMC investigated more than 3,000 complaints in its first three years alone, resulting in 311 board actions.22 Though the greatest surge in aggregate disciplinary actions would not come until the mid-1980s, the pendulum had clearly begun to swing in the direction of a regulatory system in which state medical boards assumed a more active, and increasingly transparent, role in carrying out their disciplinary function.

The trend toward greater transparency and public accountability led directly to the inclusion of public members on state medical boards beginning in California in 1961. Historically, medical boards had been the exclusive domain of physicians but in the 1960s a growing chorus, including John Morton (New York) and Howard Horns (Minnesota), called for the inclusion of public members. The Federation moved cautiously with its recommendations in this regard but by 1976 public members constituted 10 percent of all state board membership on a path toward the current 25 percent representation nationally.23

State medical boards were hardly alone in the spotlight. A seminal case (Darling v. Charleston Memorial Community Hospital) established the responsibility of hospital administrators for ensuring the “competence” of their staff. Hospitals were in perhaps the best position to detect and address issues of physician competence through first-hand observation and peer-review, though many critics questioned the efficacy of the latter measure. Meanwhile, medical societies seemed eager to shift the spotlight and any expectations for a true disciplinary role on their part. In 1969, the AMA discontinued receiving disciplinary actions from state societies, citing incomplete and/or absent reporting as the primary reason for its action and characterizing the endeavor as a “waste of time.” Earlier in the 1950s, state medical societies had turned to grievance committees as a mechanism for professional self-regulation in response to public criticisms demanding greater accountability on the part of physicians.24 These proved predictably unsuccessful as a long-term mechanism to address systemic problems in medical regulation and may even have reinforced negative perceptions of the profession, such as lack of transparency or shielding colleagues.

Still, expectations remained highest for the medical licensing community. The lingering question was whether state medical boards could successfully realign their functions to meet changing expectations of their role. The Federation's Stiles Ezell echoed this question when he reflected back upon the rich heritage and role of the medical licensing community and then, looking into the future, offered the opinion that “stability” was no longer a given. The examining and licensing functions once so prominent in the state medical boards' conception of their function remained important; but they no longer commanded the center stage as they did in an earlier era. Discipline and a regulatory function had stepped from the shadows of an offstage chorus into central roles. To Ezell, state boards would have to accept “continuous evaluation,” both in terms of their performance and their flexibility, as the price for maintaining any vestige of professional self-regulation within the state-based system for licensing and discipline. One example of this was the structural realignment impacting many state boards beginning in the 1970s, when many were placed under larger (i.e., “umbrella”) state agencies. In general, these boards relinquished a degree of autonomy in return for access to greater resources demanded by the enhanced disciplinary focus.

Throughout the 1960s and 1970s, the Federation steered a course between buffeting crosswinds: professional versus public interests; the need for common standards against the preservation of a localized regulatory system; and state boards' traditional activities versus shifting expectations for the role of the boards. As the 1970s drew to a close, the Federation could look back upon momentous changes impacting both the organization and its member boards. Beginning in the 1960s, state medical boards entered an era of heightened accountability in which public interests moved to the forefront in multiple areas. The composition of state medical boards changed irrevocably with the inclusion of public, non-physician members. The boards' position within their state governments also changed as multiple states shifted the state medical boards into larger umbrella agencies licensing multiple professions — sometimes trading a measure of autonomy for access to greater resources such as investigative staff and in-house counsel. This manifested itself most clearly with the growing sophistication of the boards' disciplinary procedures as the primary focus of the boards shifted from their traditional licensing and examining function to a genuine disciplinary role regulating the practice of medicine. Heightened demands for accountability meant that even the traditional concept behind license renewal (i.e., a largely de facto administrative process) appeared to be misaligned when viewed through a continuing competence lens. Progress often came more slowly than many would have preferred but, in retrospect, the magnitude of the changes underway nationally among state medical boards warranted perhaps measured steps rather than movement by leaps and bounds. This pace of steady, incremental progress on multiple fronts served state boards well as the national government assumed an increasingly direct role in health care delivery.

The Federation's role and function in these changes often proved central. Sometimes the organization acted as a catalyst to change; other times it traveled at its own measured pace, seeking to move in concert with the majority of its member boards. Regardless, the transition to a robust disciplinary role for state medical boards provided the impetus for initiatives, such as the Federation's disciplinary data bank, that led directly to the birth of the modern Federation as a tangible rather than virtual organization and positioned it for further growth in the decades to follow.