State Medical Boards: Doctor Discipline Action Report

Until he was banned from California, Dr. Walter Freeman performed 3,500 "ice pick lobotomies" through patients' eye sockets.

Until he was banned from California, Dr. Walter Freeman performed 3,500 “ice pick lobotomies” through patients’ eye sockets.

May 2011 Report by:
Sidney M. Wolfe, M.D., Rebecca Kahn, Cynthia Williams
Using analysis of data released by the Federation of State Medical Boards (FSMB) on disciplinary actions taken against doctors in 2010, we have calculated the rate of serious punishments (revocations, surrenders, suspensions and probation/restrictions) taken by state medical boards in 2010. 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 (see figure below).

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 (see Methods at the end of this report for the details of our calculations).
10 Worst States (lowest three-year rate of serious disciplinary actions)
As can be seen in the table below, the bottom 10 states – those with the
lowest serious disciplinary action rates for 2008-10 – 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.
This year we have again done further analyses to determine which states
have had the largest decreases or increases in their rankings compared to
other states between the year of their highest rate and the 2008-10 period.
All of the states with the greatest decrease or increase in rankings had
considerable changes in the actual rates between their highest year and
2008-10.
As can be seen below, five states had decreases of at least 24 in their
ranking of state disciplinary actions from the year of their highest rate until
the latest (2008-10) rate.
States with Largest Decreases in Rank for the Rate of Serious Disciplinary Actions from Their Highest Rank to 2008-10.

State Highest rate and rank:

Massachusetts
Georgia
Vermont
Utah
Montana
As can be seen in the table above, Massachusetts fell 24 places in ranking
from 2002-4 until 2008-10. If the rate of serious disciplinary actions in 2008-
10 had been as high as in 2002-4 (1.58 more serious actions per 1,000
doctors per year), 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):
State Actions:

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.

For the state of North Carolina, the most populous of the above states with
large increases in ranks, the increase of 1.62 serious actions per 1,000
licensed physicians translates into an increase of 46 more physicians
seriously disciplined than if the rate had stayed as it was in 2001-3 (1.62
multiplied by 28.3, the number of thousands of physicians).
For the state of Washington, the second most populous of those states with
large increases in rank, the increase in 1.70 serious actions per 1,000
licensed physicians translates into 1.70 multiplied by 21.4 (the number of
thousands of physicians) for an increase in 36 more physicians seriously
disciplined than if the rate had stayed as it was in 2002-4.

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.2 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.
1 Jung P, Lurie P, Wolfe SM. U.S. Physicians Disciplined For Criminal Activity. Health Matrix 2006;
16:335-50.
2 Larson, M, Marcus B, Lurie P, Wolfe SM. 2006 Report of Doctor Disciplinary Information on
State Web Sites: A Survey and Ranking of State Medical and Osteopathic Board Web
Sites, available at http://www.citizen.org/Page.aspx?pid=700.
determine whether a board with, for example, a low disciplinary rate has
been starved for resources by the state or whether the board itself has a
tendency to mete out lower (or no) forms of discipline. From the patient’s
perspective, of course, this distinction is irrelevant.
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. Serious
attention must be given to finding out which of the above bulleted variables
are deficient in each state. Action must then be taken, legislatively and
through pressure on the medical boards themselves, to increase the amount
of discipline and, thus, the amount of patient protection. Without adequate
legislative oversight, many medical boards will continue to perform poorly.
Methods:
Public Citizen’s Health Research Group has calculated the rate of serious
disciplinary actions per 1,000 doctors in each state. Using state-by-state
data just released by the FSMB on the number of disciplinary actions taken
against doctors in 2010,3 combined with data from earlier FSMB reports
covering 2008 and 2009, we have compiled a national report ranking state
boards by the rate of serious disciplinary actions per 1,000 doctors for the
3 Federation of State Medical Boards. Summary of 2010 Board Actions, available at
http://www.fsmb.org/pdf/2010-summary-of-board-actions.pdf.

Because some small states do not have many physicians, an increase or
decrease of one or two serious actions in a year can have a much greater
effect on the rate of discipline in such states (and their ranks) than it would
in larger states. To minimize such fluctuations, we therefore calculate the
average rate of discipline over a three-year period: the year of interest and
the preceding two years. Thus, the newest ranking is based on rates from
2008, 2009 and 2010, not the rate for 2010 alone.
Our calculation of rates of serious disciplinary actions per 1,000 doctors by
state is created by taking the number of such actions for each state
(revocations, surrenders, suspensions and probation/restrictions — the first
two categories in the FSMB data) and dividing that by the American Medical
Association (AMA) data on total M.D.s as of December 2010 in that state.
We add to this denominator the number of osteopathic physicians for the
37 boards that are combined medical/osteopathic boards. We then multiply
the result by 1,000 to get board disciplinary rates per 1,000 physicians. This
rate calculation is done for each year and the average rate for the last three
years is used as the basis for this year’s state board rankings (Table 1). We
then repeated these calculations for each of the seven previous three-year
intervals (2001-3, 2002-4, 2003-5, 2004-6, 2005-7, 2006-8, and 2007-
9.
In previous years, we used AMA data on non-federal MDs, but since then
the AMA now only provides information on the total number of licensed
physicians, without a breakdown by federal/non-federal status. We therefore
amended our traditional protocol to use data on the total number of M.D.s in
each state as the denominator in calculating the rates. When we did this for
the first time, to ensure that the ranks based on this new denominator are
as comparable as possible to data from previous years, we entered the data
for total physicians and re-calculated the rates of serious actions of every
state for each year in the period from 2001-6, as well as the related threeyear
rankings. All states’ rates, as currently calculated, are therefore
somewhat lower than rates in our previous reports because of the larger
denominator. However, this had no effect on the rankings of most states
because the larger denominators affect all states6: the ranks of 39 of the Physician Characteristics and Distribution in the U.S. American Medical Association, 2011
Edition.

States for the 2002-4 interval, for example, were identical to what they had
been in our report for that interval issued in 2005,7 in which we used only
non-federal physicians. Of the 12 states with different ranks, the rank of six
increased by only one place and the other six decreased by one place.
employees. Moreover, these physicians were disproportionately represented in a small number
of states (e.g., Alaska, District of Columbia, Maryland and Hawaii).
(Wolfe, SM, Lurie P. Ranking of the Rate of State Medical Boards’ Serious Disciplinary Actions:
2002-2004, available at http://www.citizen.org/Page.aspx?pid=2381.)
RANKING OF STATE MEDICAL BOARDS’ SERIOUS DISCIPLINARY ACTIONS, 2010

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

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Here’s an interesting article regarding poor physician discipline:  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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