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Doctors Behaving Badly

Public Citizen Report Says Maryland Needs to Crack Down on Physician Discipline

Jefferson Jackson Steele
Heal Thyself: The Maryland Board of Physicians' executive director Irving Pinder says that the state's system of disciplining doctors works, though improvements are underway.

By Edward Ericson Jr. | Posted 5/5/2004

Maryland, despite its international reputation as a leader in sophisticated medicine, ranks near the bottom among states for disciplining bad doctors, according to an annual report by the national consumer group Public Citizen.

"At one point Maryland slipped, 10 or 15 years ago," says Dr. Sidney Wolfe, director of Public Citizen's Health Research Group and the report's author. "We're not sure why."

The report, released on April 14, takes the number of serious disciplinary actions against doctors--license revocations, license surrenders, suspensions, and probations or restrictions of a doctor's practice--and calculates each state medical board's disciplinary rate per 1,000 physicians. Typically these kinds of disciplinary actions are taken when a doctor becomes a drug addict or dealer, engages in improper sexual relations with patients, or commits serious crimes. (On Dec. 17, 2003, the Maryland Board of Physicians disciplined two doctors for murder. One had his licensed revoked, the other suspended.)

In 2003, the national average was 3.55 serious disciplinary actions per 1,000 physicians. (There are 23,000 licensed to practice in the state of Maryland, though not all of them practice here.) For the year, Maryland ranked 42nd among all states plus the District of Columbia, with a rate of two per 1,000. The highest-ranking states were Kentucky and Wyoming, both of which meted out serious discipline to more than 11 out of every 1,000 licensed doctors in their states last year.

"Patients are more likely to be injured in states with poor disciplinary records than in states that do a better job," Wolfe says.

Some Maryland medical authorities have grown weary of the rankings, which they say don't reflect reality.

"Look at the quality of doctors," says Irving Pinder, executive director of the Maryland Board of Physicians, which handles doctor discipline in the state. Maryland has a higher quality of medical practitioners, Pinder says, because the state weeds out problem doctors before they're ever licensed here. Fewer end up getting disciplined here than in other states because fewer mistreat patients, he says. "So I ask: If you need a doctor and have a serious ailment, would you want to go to Kentucky, Wyoming, or Maryland?"

Michael Preston, executive director of MedChi, the Maryland state medical society, says Wolfe's methodology overcounts physicians in Maryland, which has a large number of researchers with M.D.s who don't treat patients.

"We are an exporter of doctors," Preston says. "We have three medical schools in the state and a lot of residencies. Most people, once they get a [medical] license, they don't give it up [even if they move out of state]." He notes that Public Citizen divided the number of disciplinary actions into nearly 23,000 doctors licensed in Maryland. But, Preston says, "best we can tell, there aren't more than about 12,000 doctors practicing here."

Wolfe defends his methodology. "Pretty much all states have the same proportion of doctors that need to be disciplined," he says, adding that 1 percent--10 per 1,000--is a good rule of thumb. He notes that Maryland ranked much higher in the mid-1990s, when the state presumably had the same ratio of nonpracticing research physicians and licensed doctors who practiced in other states as it does now.

In fact, based on a three-year rolling average of disciplinary actions per 1,000 doctors, which Public Citizen uses to even out the discipline rates in states with a very small number of doctors, Maryland's ranking has sunk from 23rd in 1995 to 47th in 2003.

Pinder says improvements are underway.

The poor ranking was one of several factors that spurred legislative reform. In August 2002 there was an investigative report by The Sun, which profiled Dr. Ghevont W. Wartanian, a Baltimore ob-gyn who had been sued for malpractice 18 times in 20 years (losing nine cases and paying at least $2 million in settlements) but had not (and still has not) been disciplined by the Maryland Board of Physicians. A month after that story the state Office of Legislative Audits released a scathing report that showed a huge backlog of cases at the Board of Physicians. The state legislature revamped the board last summer and changed some key rules in a bid to make it more effective.

For example, the board was expanded from 15 members to 21, adding five "consumer" (nondoctor) representatives and a member with a background in risk management. Gov. Robert Ehrlich named the new members last September, and in March the board selected a new chairman, says Pinder, who served as acting chairman through March.

The legislature also lowered the standard of proof required to discipline a doctor in most cases. The old rules required "clear and convincing evidence" of wrongdoing. The new rules--except for cases alleging a failure to meet the required standard of care--require only a "preponderance of evidence." That's the difference between being 75 percent certain and only 51 percent certain, Pinder says.

Despite the state's budget woes, the legislature lifted a three-year hiring freeze on the Maryland Board of Physicians. Pinder says he is hiring two more investigators "and working on improving the investigative process."

Perhaps the most important legislative change, though, was the removal of MedChi from the disciplinary process.

Under the old law, every case in which a Maryland doctor was accused of breaching the "standard of care" required for the minimum conduct of competent medicine the board had to refer the case to MedChi, a nonprofit doctors association that lobbies on doctors' behalf, for a "peer review" by two doctors in the same field as the one who was accused. The board could act to discipline the doctors only when both peers agreed there was misconduct. If the peers didn't agree, the case typically would be dropped and the matter kept secret. Critics said the arrangement was a conflict of interest.

The new law puts the peer-review process out to bid, and another nonprofit, Delmarva Foundation, won the contract for physicians. Pinder says this will speed up the process of peer review while improving it.

"In Maryland we do a lot of standard-of-care cases," Pinder says. "A lot of states don't do them so much--they're the hardest to do, they cost the most money and take the most time, [and] a lot of times you can't get two peer reviewers to agree that there is a case."

The new rules require a third peer reviewer as a tiebreaker, though Pinder isn't sure that will help his office bring more cases.

Wolfe says the reforms, while laudable, fall short. MedChi could still win the right of peer review in subsequent bidding, he notes, and the burden of proof for wrongdoing in those key peer review cases is still higher than for other types of offenses.

"The majority of states have preponderance of evidence, period," Wolfe says. "That's what the standard should be."

With the recent scandal at Maryland General Hospital, in which hundreds of patients received faulty test results--including some false negatives for AIDS tests--the checks and balances of the state's medical system will continue to face scrutiny.

Meanwhile, the battle for tort reform continues. Doctors have teamed up with malpractice insurers to try to cut what they call frivolous lawsuits and "out of control" jury awards, while consumer advocates and trial lawyers claim that the small number of atrocious doctors needlessly harm patients but aren't banned from practicing medicine because of a too-clubby enforcement system.

MedChi's Preston, who holds a seat on the board of Maryland's largest malpractice insurer, Medical Mutual Liability Insurance Society of Maryland, says such criticism misses the larger point: that the disciplinary system is meant to protect patients, not punish doctors.

"Hammering more doctors is not a measure of patient safety," he says. "That's why I've become so dismissive of this survey. It's just not a measure of anything useful."

Pinder stresses the patient safety mission as well. "I think you're going to see improvement," he says. "We're not out to get people, but we want to get the bad doctors out of there. Our mission is to protect the public. It is a very long, drawn-out legal process."

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