Study: Scant Doctor Discipline Means Tons of Goofy Behavior

Until he was banned from California, surgeon Freeman jabbed the brains of 3,500 patients with icepicks through their eye sockets

Until he was banned from California, Doctor Walter Freeman jabbed the brains of 3,500 patients with icepicks through their eye sockets. You think we’re kidding?

May 2011 Public Citizen Report by:

Sidney M. Wolfe, M.D., Rebecca Kahn, Cynthia Williams

________________________________________________________________

Using data released by the Federation of State Medical Boards (FSMB), we have calculated the rate of serious punishments (revocations, surrenders, suspensions and probation/restrictions) by state medical boards. This rate of serious actions per 1,000 physicians is slightly lower than the rate in 2009 and continues to be significantly lower than the peak for the past 10 years. The rate in 2010 alone — 2.97 serious actions per 1,000 physicians — is still 20 percent lower than the peak rate in 2004 alone of 3.72 serious actions per 1,000 physicians. If the national rate of doctor discipline per 1,000 doctors had remained as high in the year 2010 (2.97) as it was in 2004 (3.72), there would have been a total of 745 additional serious disciplinary actions in 2010 taken against U.S. physicians than there actually were. With a typical doctor having between 500 and 1,000 or more patients in their practice, the positive impact of this on the large number of patients going to these doctors would be enormous.

Rate of Serious Actions per 1000 Physicians

The most recent three-year average state disciplinary rates (2008-10) ranged from 1.29 serious actions per 1,000 physicians (Minnesota) to 5.98 actions per 1,000 physicians (Louisiana), a 4.6-fold difference between the best and worst state doctor disciplinary boards.

10 Worst States

As can be seen in the table below, the bottom 10 states – those with the lowest serious disciplinary action rates, were (starting with the lowest):

Minnesota

South Carolina

Wisconsin

Connecticut

Massachusetts

Rhode Island

Florida

New Hampshire

Utah

Vermont

This list includes not only small states such as New Hampshire and Vermont but also large states such as Florida, Massachusetts and Minnesota. The table above shows that three of these 10 states (Minnesota, South Carolina and Wisconsin) have been consistently among the bottom 10 states for each of the last eight three-year periods. In addition, Connecticut has been in the bottom 10 states for each of the last five three-year cycles.

Florida has now been in the bottom 10 boards for the last three three-year periods. For the first time since we have been reporting on state boards, Utah is among the bottom 10 boards.

Massachusetts fell 24 places in ranking from 2002 until 2008. If the rate of serious disciplinary actions in 2008 had been as high as in 2002, there would have been 56 more serious disciplinary actions taken against Massachusetts physicians in 2008-10 than actually occurred.

10 Best States (highest three-year rates of serious disciplinary actions)

The top 10 states for 2008-10 are (in order from the top down):

Louisiana

Alaska

Ohio

Oklahoma

Wyoming

North Dakota

New Mexico

Arizona

Nebraska

Colorado

Table 2 also shows that five of these 10 states (Alaska, Arizona, Colorado, Ohio and Oklahoma) have been in the top 10 for all eight of the three-year average periods covered in this report.

State Lowest Rank

Hawaii

Delaware

Maine

North Carolina

Washington

Arkansas

Discussion:

These data demonstrate a remarkable variability in the rates of serious disciplinary actions taken by the state boards. Once again, only one of the nation’s 15 most populous states, Ohio, is represented among those 10 states with the highest disciplinary rates. For the third year in a row, one of the largest states in the country, Florida, is among the 10 states with the lowest rates of serious disciplinary actions. Absent any evidence that the prevalence of physicians deserving of discipline varies substantially from state to state, this variability must be considered the result of the boards’ practices. Indeed, the “ability” of certain states to rapidly increase or rapidly decrease their rankings (even when these are calculated on the basis of three-year averages) can only be due to changes in practices at the board level; the prevalence of physicians eligible for discipline cannot change so rapidly.

There is considerable evidence that most boards are underdisciplining physicians. For example, in a report on doctors disciplined for criminal activity that we published in 2006, 67 percent of insurance fraud convictions and 36 percent of convictions related to controlled substances were associated with only non-severe discipline by the board. In this report, we have concentrated on the most serious disciplinary actions.

Although the FSMB does report less severe actions, such as fines and reprimands, it is not appropriate to provide such actions with the same weight as license revocations, for example. A state that embarks on a strategy of switching over time from revocations or probations to fines or reprimands for similar offenses should have a rate and a ranking that reflects this decision to discipline less severely.

A relatively recent trend has been for state boards to post the particulars of disciplinary actions they have taken on the Internet. In October 2006, Public Citizen’s Health Research Group published a report that ranked the states according to the quality of those postings. The report showed variability in the quality of those Web sites akin to that reported for disciplinary rates in this report. There was no correlation between state ranking in the web site report and state ranking in that year’s disciplinary rate report (Spearman’s rho = 0.0855; p=0.55). A good web site is no substitute for a poor disciplinary rate (or vice versa); states should both appropriately discipline their physicians and convey that information to the public. However, no state ranked in the top 10 in both reports.

This report ranks the performance of medical boards by their disciplinary rates; it does not purport to assess the overall quality of medical care in a state or to assess the function of the boards in other respects. It cannot.

What Makes the Better Boards “Better”?

Boards are likely to be able to do a better job in disciplining physicians if the following conditions are met:

• Adequate funding (all money from license fees going to fund board activities instead of going into the state treasury for general purposes)

• Adequate staffing

• Proactive investigations rather than only reacting to complaints

• The use of all available/reliable data from other sources, such as Medicare and Medicaid sanctions, hospital sanctions, malpractice payouts, and the criminal justice system

• Excellent leadership

• Independence from state medical societies

• Independence from other parts of the state government so that the board has the ability to develop its own budgets and regulations

• A reasonable legal standard for disciplining doctors (“preponderance of the evidence” rather than “beyond a reasonable doubt” or “clear and convincing evidence”)

Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner.

Ranking of Serious Doctor Disciplinary Action Rates by State Medical Licensing Boards:

1 Louisiana

2 Alaska

3 Ohio

4 Oklahoma

5 Wyoming

6 North Dakota

7 New Mexico

8 Arizona

9 Nebraska

10 Colorado

11 Hawaii

12 Kentucky

13 Delaware

14 Iowa

15 West Virginia

16 North Carolina

17 Oregon

18 Washington

19 Maine

20 Illinois

21 Virginia

22 Kansas

23 Arkansas

24 New York

25 Missouri

26 Indiana

27 Tennessee

28 Pennsylvania

29 Idaho

30 Nevada

31 Alabama

32 Montana

33 Mississippi

34 Texas

35 California

36 South Dakota

37 District of Columbia

38 Michigan

38 Maryland

40 Georgia

41 New Jersey

42 Vermont

43 Utah

44 New Hampshire

45 Florida

46 Rhode Island

47 Massachusetts

48 Connecticut

49 Wisconsin

50 South Carolina

51 Minnesota

*          *          *

Here’s an interesting article regarding this subject: http://host.madison.com/news/local/health_med_fit/some-doctors-not-disciplined-even-following-large-malpractice-settlements/article_a330511e-68a2-11e2-9ecf-001a4bcf887a.html

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