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Role of medical board discipline

Robert Berenson, M.D.
Robert Berenson, M.D.

By Miriam Reisman

In the wake of medical malpractice pressures that have upset health care practice patterns in Pa. – prompting some physicians to leave the state, retire early or drop risky procedures – reform initiatives have developed on a number of fronts, including quality transparency, hospital infection reduction and patient safety improvement.

Reform efforts are also underway to address another aspect of patient safety and health care quality improvement: disciplinary activities of Pa.’s physician licensing boards. Medical board disciplining – in Pa. and nationally – has been criticized as infrequent and ineffectual in weeding our poor performers and protecting the safety of patients, prompting researchers to investigate which reforms should be considered.

As Pa. reforms the disciplinary activities of its medical boards, several issues emerge, including what constitutes a realistic expectation for the boards’ role in improving quality and reducing medical error and malpractice claims in the state, whether weeding out poor performers has a significant impact on medical quality improvement, and whether it serves as an effective deterrent against poor performance.

Reforms Recommended

In 2005 experts commissioned by the Bush Administration to assess the role of state licensing boards in physician discipline charged boards with being too lenient on doctors who practice poor medicine and suggested that more effective disciplining would help curb the costs of malpractice insurance. The project, headed by Randall R. Bovjberg of the Urban Institute, focused on six case studies looking at boards’ processes for disciplining physicians as well as practices that board staff or other experts believed to be effective in improving their impacts on quality. The study findings, which were released in February 2006, showed that the disciplinary process is predominantly a complaint-driven, reactive process generating a large volume of cases, most of which are closed without any action.

Many of the board members and managers surveyed for the study said they wanted to do more than react to complaints and were looking for proactive alternatives, including audits of physician practices, non-disciplinary use of clinical assessment centers or CACs (where physicians are referred for remediation/re-education), and efforts to encourage ongoing maintenance of competence. Almost all of those surveyed believed that increases in their budgets or IT resources would improve their output.

Case study participants also identified existing improvements in their disciplinary processes:

· Establishing advance rules where possible to improve practice without waiting for complaints.

· A special review process by board subpanels to resolve a subset of quality-related complaints.

· Use of national clinical assessment centers as an adjunct to discipline.

· Patient education through physician profiles posted online.

· Board review of hospital incidents and responsive safety mechanisms, wholly separate from discipline.

· Cooperation with hospitals for early detection of physician with deficits in capabilities, for remediation in place of discipline.

Some state boards, fueled by public scrutiny and greater awareness of medical errors, have begun to take a more aggressive stance toward physician discipline. For example, rather than wait for a complaint to be filed, the Massachusetts Board of Registration in Medicine now conducts a clinical review of any doctor who has lost or settled three or more medical malpractice cases but has never received any disciplinary penalties. In Maryland, where a few years ago the Board of Physicians came under fire for failing to discipline physicians who had serious malpractice cases, the state legislature expanded the board from 15 members to 21, as well as lowered the standard of proof required to take formal disciplinary action.

While licensing boards spend a significant amount of time and effort engaging competent physicians to improve their performance, the primary role of boards is dealing with the outliers, according to Robert Berenson, M.D., a senior fellow at the Urban Institute and an expert in health care policy. “While most of the activities around quality improvement are trying to focus on raising the performance of good physicians, the boards really need to deal with the ‘tail,’ or the unacceptable,” he says.

Berenson maintains that weeding out these poor performers will impact quality improvement, explaining that while such disciplinary actions may not show up in broad aggregate measures, they are certainly protecting patients from harmful physicians. “It’s the kind of activity that is not uplifting in that sense, but, if the number of patients who avoid egregious errors were a quality measure, then disciplining, or even weeding out bad doctors, should, by and large, impact quality improvement.”

Medical boards’ role in disciplining physicians is made even more important, albeit more difficult, by the increasing numbers of physicians who do not practice in hospitals, adds Berenson. Many services performed in hospitals can now safely and conveniently be performed in ambulatory settings and physician offices, so many doctors do not take part in the institutional credentialing process. No longer obligated to credential physicians and no longer corporately liable for their actions, says Berenson, hospitals have less formal control over the quality of their performance. “A greater burden is placed on the licensing board because there is no other institution around that’s looking at individual physicians,” he notes.

Berenson, who was not a co-author of the government study, agrees with its finding that boards should be more proactive and blames a lack of funding for their continued reliance on the traditional complaint-driven system – funding, he says, that could be used to develop better measures for physician behaviors and to do much more in the way of proactive surveying of patients and surveying of medical directors at hospitals and health plans, although he concedes that there are privacy and legal concerns that complicate the issue.

If investigating sounds punitive, “so be it,” says Berenson, responding to concerns that a punitive approach to discipline may fuel the inclination to underreport errors. “We can call it punitive, but investigation is an inevitable and important activity.” It may be underfunded, he says, but that doesn’t mean the function isn’t necessary.

Pa. Performance Criticized

When it comes to disciplining physicians, Pennsylvania’s Board of Medicine has been criticized as having one of the worst records in the nation, although it has recently begun to improve its standing. In a 2003 report, the Washington-DC-based consumer and advocacy group Public Citizen said the Commonwealth’s board was dangerously lax in enforcing disciplinary standards and consistently ranked near the bottom among states in taking serious actions against its licensees. Using information from the Federation of State Medical Boards, which compiles annual summaries of board actions, Public Citizen ranked Pennsylvania 45th in the nation in 2003 in taking enforcement action. (Rankings are based on the number of license revocations, surrenders, suspensions and probations/restrictions per 1,000 physicians in the state.) In 2005, according to the report, Pennsylvania’s Board of Medicine, which falls under the auspices of the Department of State, handed out 194 serious actions; with close to 43,000 physicians licensed by the board, this means that 2.8 percent were disciplined, bringing the Commonwealth’s current ranking up to 36th in the nation.

A more important figure, which suggests the importance of removing poor performers, is the percentage of doctors that account for the majority of malpractice awards, says Wolfe. According to another report, The Facts About Medical Malpractice in Pennsylvania, issued by Public Citizen in March 2004, the “real malpractice crisis” is the small fraction of doctors who commit most of the negligence and medical errors. Using data from the federally-funded National Practitioner Data Bank (NPDB), which covers malpractice judgments and settlements since 1990, the report indicated that nationwide about five percent of doctors account for 54 percent of malpractice payouts, while just two percent of doctors, each of whom has made three or more claims, were responsible for 30 percent of all payouts. The authors of the report said that although a reliable estimate for Pennsylvania could not be included in the report because of complications with the MCARE Fund, it is likely the state approximates the national data.

“A small percentage of doctors can do an enormous amount of damage,” says Wolfe. “It’s pretty straightforward what you need to do: weed out the bad doctors. You’ll not only prevent future malpractice suits, but you’ll also protect a large number of people who are injured or killed through negligence.”

Wolfe has criticized Pennsylvania and other states for not being more vigilant and proactive in disciplining doctors who repeatedly commit medical errors and medical negligence. According to the 2003 NPDB, 13 physicians in Pa. who made between four and 15 malpractice payouts totaling more than $5 million per doctor were not disciplined by the state board. Nationally, only about 11 percent of the nation’s doctors who made three or more malpractice payouts received disciplinary action. “When you have a doctor with 10 malpractice payouts against him,” says Wolfe, “you should use these data as a hypothesis-generating source for further investigation.”

Public Citizen’s specific recommendations to states also include strengthening medical practice statutes, restructuring medical boards to sever links with state medical societies, and increasing resources for investigating and disciplining physicians. He cites Arizona as one of the states whose medical board has made significant efforts to improve its disciplinary procedures. A series of critical investigative news stories, he says, prompted the state legislature to institute reforms that led to increased funding and staffing for the board. As a result, says Wolfe, Arizona’s ranking for disciplinary action went from No. 38 in 1998 to No. 4 in 2003. He says that more states should be doing the same to improve past performance and protect patients from incompetent doctors. He specifically blames medical boards’ poor leadership for the lack of adequate funding. “They should be marching to the legislature and demanding it: ‘We don’t have enough funds, we don’t have the capacity to do a better job.’”

Criticism Questioned

Not surprisingly, Public Citizen’s criticism of states’ efforts in disciplining physicians has been viewed with both skepticism and scorn by board officials and physician organizations, some faulting the way that the rankings are determined (i.e., counting disciplinary actions against all licensed physicians in the state as opposed to only those who are practicing), others arguing that the premise of the rankings may be based on the false assumption that more discipline translates to improved quality of care, and still others questioning Public Citizen’s underlying motives and possible financial ties to trial lawyers.

The Pennsylvania Medical Society (PMS) accuses Public Citizen of trying to vilify the physician community and mislead the public about the quality of care in the Commonwealth, according to Chuck Moran, PMS director of communications. In 2003, he claimed the watchdog group released erroneous data regarding the number of duplicate malpractice payouts awarded in Pennsylvania’s liability cases. Public Citizen eventually retracted the information. Furthermore, Moran rejects the notion that there are inherent conflicts of interest between a state medical board and the PMS, and that the two must sever their relationship in order for the physician discipline system to be effective. According to Moran, while the PMS observes the board’s disciplinary proceedings, it does not interfere with or have influence over the final disciplinary decisions. He maintains that the PMS is an advocate for strengthening the medical board, sharing resources and working with state legislators to improve quality of care.

Public Citizen’s efforts would be better spent addressing legal reform, says Robert Surrick, Esq., attorney and former executive director of the lobbying group Politically Active Physicians Association (PAPA). “Pennsylvania has a catastrophe on its hands,” he says, referring to soaring malpractice costs and the exodus of physicians from the Commonwealth, “but disciplining physicians is not the problem.” The real issue, says Surrick, is the overwhelming number of frivolous lawsuits filed and the subsequent victimization of thousands of innocent physicians. Surrick contends that the majority of medical malpractice suits brought against physicians are either dropped, dismissed or withdrawn. He accuses trial lawyers of exploiting the notion that physicians are not doing a good job and using that mantra to justify what he describes as frivolous lawsuits, which drive up malpractice insurance costs for physicians and, in turn, health care costs for consumers. Says Surrick, “Perhaps someone should think about disciplining the lawyers who engage in this practice.”

While groups like PAPA and Public Citizen continue to spar over what is to blame for rising insurance premiums – bad doctors or frivolous lawsuits – others say the answer may lie somewhere in between.

“We need an improved system of discipline, and we need to create a better tort system,” says James N. Thompson, M.D., president and CEO of the Federation of State Medical Boards (FSMB). According to Thompson, in the current tort system where “anyone can sue anyone,” the number of malpractice claims against a physician may not be a valid and reliable indicator of his or her professional competence. Thompson says there is probably a “zone in which there is an overlap between malpractice claims and substandard practice” but that more research is needed to validate the correlation between the two.

When it comes to physician discipline, Thompson says that most states do a remarkably good job, considering the lack of resources and over the past decade he has seen a gradual increase nationwide in the number of disciplinary actions by medical boards. According the FSMB’s Summary of 2005 Board Actions, the nation’s state medical boards took a total of 6,213 disciplinary actions in 2005, up from 4,662 in 2001 – an increase of nearly 25 percent. While a state-to-state comparison would be unfair due to the wide variety of activity and ability with regard to boards’ functions, says Thompson, those states who are provided with greater authority and leeway to investigate and implement disciplinary action against physicians tend to do much better than others in rooting out substandard care.

Reform Underway in Pa.

The Medical Care Availability and Reduction of Error (MCARE) Act signed into law in 2002, requiring Pa.’s physicians to report all malpractice settlements and judgments, helped lead to the increase in the number of actions taken by the Pennsylvania State Board of Medicine, according to the FSMB. In addition to requiring physicians to report to the board liability complaints, disciplinary actions, controlled substance convictions, and any arrests for criminal offenses within 60 days of the occurrence, Act 13 empowers the board to initiate an investigation against a physician based on these reports. The board is also permitted under Act 13 to impose disciplinary sanctions or corrective measures against a practitioner based on the results of its investigation.

According to the Pennsylvania Department of State, which oversees both the State Board of Medicine and the State Board of Osteopathic Medicine, more than 10,000 case files between the two boards have been opened as a direct result of Act 13’s self-reporting requirements. Although MCARE allows up to four years to initiate action on these files, more than half have already been reviewed and closed as not warranting prosecution. Approximately 8,300 of these case files are currently under review for prosecution. (According to the Department, there are also about 1,100 files not related to MCARE that are open for review and possible prosecution of physician licensees.)

More cases are being processed, and a steady flow of MCARE prosecutions has begun, says Catherine Ennis, spokesperson for the Department. In order to be able to manage their excess caseload, she says, the Boards of Medicine and Osteopathic Medicine have increased their resources substantially, doubling their annual budgets to $8.8 million and $1.5 million, respectively, for 2005-06 in anticipation of the increase in investigative and expert witness costs associated with MCARE prosecutions. The 2006-07 budgeted amounts are $9.3 million and $1.6 million, respectively.

At the same time, says Ennis, additional staff has gradually been added to assist in the handling of MCARE case files, including two medical experts who were contracted to assist with in-house reviews of MCARE files. A Deputy Chief position was created to oversee the prosecution of professional licensee cases, with particular focus on MCARE cases. In all, since MCARE was enacted in 2002, the Department’s staff complement has increased by 81 positions, including prosecuting attorneys, investigators and support staff to help process the mountain of malpractice information. The Department has so far filled 61 of these positions, enabling the board to focus the extra resources needed to prosecute more serious disciplinary cases

Under MCARE, the boards are given the authority to develop the criteria and standards for reviewing complaints and conducting investigations. According to the Department, “based on the experience of the past two years, both boards are currently reviewing the guidelines for changes that would fine tune the screening criteria to focus on physicians with multiple lawsuits or insurance awards against them, to move the guidelines’ definition of “gross negligence” more in line with that used by the medical malpractice community, and to further prioritize cases more likely to require action against the licensee.”

While Surrick sees the exorbitant number of MCARE cases filed and dismissed as further evidence that frivolous malpractice lawsuits are rampant in Pa., others say the increased investigative activity by the medical board reflects the opportunity for some positive reforms in the disciplinary system that could have a significant impact on the malpractice crisis.

Paula Bussard, senior vice president of Policy and Regulatory Services for the Hospital & Healthsystem Association of Pennsylvania, says that in addition to boards taking more disciplinary authority, they should work with legislature to make the disciplinary process more efficient. Due to bureaucratic procedures, disciplining a physician can be a long, protracted process. According to Bussard, one of the greatest challenges will be to ensure timely and thorough investigations of complaints. “For discipline to work, it needs to be timely and effective. If these investigations take forever, it’s hard for people to have confidence in the system,” she says and also recommends ongoing periodic evaluation of the process. Bussard believes that strengthening the boards’ accountability over professional practice will help reduce serious events, negative outcomes and other malpractice that results in litigation.

FSMB’s Thompson acknowledges that there has indeed been a call from the public for greater accountability by the boards and more investigations and disciplinary actions, but he also emphasizes the importance of guiding physicians at the front end, as well. “Instead of being the hammer – the end of the line – medical boards need to begin working with hospitals, medical societies and managed care organizations to establish a proactive system where physicians are identified before they get into trouble, before they violate some of the aspects of medical practice,” says Thompson. “In a system like this, you would prevent bad outcomes, keep physicians in the workforce, and have fewer disciplinary actions against them,” he adds.

William M. Sage, M.D., J.D., professor of law at Columbia University School of Law and principal investigator for the Project on Medical Liability in Pennsylvania, agrees with this collaborative approach, suggesting that medical boards work more closely with nursing boards and other health professions’ oversight bodies in regulating their health care practitioners. “Just as ‘team training’ has great potential to improve quality and safety within academic settings, professional oversight should try to become more interdisciplinary and cooperative,” he says.

The licensing board cannot be expected to do it all, says Sage, who advocates self-regulation by hospital medical staff as a way to identify, not only physicians who are providing poor care, but also system flaws that may be contributing to medical errors. Although there are certainly bad doctors, says Sage, most medical errors are committed by good doctors working in imperfect systems, a notion put forth in the Institute of Medicine’s widely publicized 1999 report, To Err is Human: Building a Safer Health System, which said that up to 98,000 Americans die each year from medical errors in hospitals.

While Pennsylvania’s Board of Medicine cannot do much about systemic problems, it says it is making a serious effort to meet the goals of MCARE and discipline those physicians whose actions violate the required standard of care. As far as the impact that the board’s more aggressive stance will have on the malpractice crisis, it is too early to tell.

Says Ennis, “The medical malpractice crisis is a combination of many issues, including poor medical practice, a litigious society and insurance company economics. The ultimate purpose of board oversight and physician discipline and education is to protect the public and improve patient safety and satisfaction. The more effective and diligent we are in identifying and disciplining doctors who do not meet appropriate standards of practice, the better the medical care will be in the Commonwealth.”

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