Study Questions Emphasis in Medical Malpractice

Despite massive publicity in the last decade about attempts to reduce the number of incompetent doctors in practice in the United States, state licensing boards took serious action against just 563 physicians in 1983--but victims of injury and death caused by physicians have been alleged to number from 136,000 to 310,000.

Moreover, this problem of alleged pervasive incompetency has been overshadowed as organized medical groups have induced state legislatures to focus instead on sharp hikes in medical malpractice insurance.

Debate Over Cause

As a result, a Ralph Nader group charges in a new report, the debate over malpractice problems has ignored the underlying cause of the crisis--too much poor medicine practiced by too many doctors.

Responding to the Nader analysis, however, a top official of the American Medical Assn. asserted there is no necessary link between the rates of doctor discipline and the number of people killed or injured by malpractice. And, he added, the AMA has been among those advocating more stringent disciplinary procedures for erring physicians.

Nationwide, the Nader group contends, only 1.45 of every 1,000 doctors delivering care in facilities not owned by the federal government were subjected to serious discipline in 1983. There were 389,467 non-federal doctors in 1983. “In summary, there is a tremendous and dangerous gap between the amount of malpractice . . . and the amount of doctor discipline,” the Nader report, which included the estimate of malpractice victims, concluded.

The Times separately obtained comparable figures for 1984, which indicate some increase in serious disciplinary actions--but only to an average of 1.85 per 1,000 doctors.

In California, a crisis a decade ago led to work stoppages and slowdowns by physicians protesting large increases in malpractice rates.

The protest prompted legislation that greatly expanded the Board of Medical Quality Assurance--the major doctor discipline agency here--but also accorded doctors special treatment in lawsuits, limiting the amount for which they could be sued and imposing other restrictions on the right of patients to recover damages.

New York 34th in Discipline

In fact, the new Nader tabulation indicates that many states affected by the insurance crisis recorded the lowest rates of serious disciplinary actions in the country.

New York, for instance, ranked 34th among the states in the vigor of its physician discipline. Illinois ranked 36th and Massachusetts ranked 41st--revoking the license of just one of its 13,697 doctors in 1983.

The implication, argued Nader’s Washington-based Health Research Group, is that premiums may be driven up not by greed by lawyers and patients or defects in the court system but because medical boards are still failing to detect and put out of business doctors whose ineptitude hikes rates for all physicians.

Medical groups, however, were quick to dispute the alleged relationship between the number of physicians who may warrant license action and the number and amount of malpractice judgments.

California’s chief of medical licensing, for instance, contended that few malpractice suits produce evidence that can be used to revoke a physician’s license and, conversely, that many of the worst doctors are seldom sued--possibly because they have been canceled by insurance carriers or simply don’t bother to seek coverage.

Even states--led by California--that have moved most aggressively to find and put out of business the worst of their physicians still discipline far too few doctors, the Nader group charged. And despite its reputation as a vigorous pursuer of incompetent doctors, California ranks only 11th among the 50 states in serious disciplinary actions taken against its physicians in 1983, the year selected for analysis by the Nader researchers.

In this ranking, California took the three most serious types of license action--revocation, suspension or probation--against only 117 of its 50,981 physicians, according to the Nader tabulation. The number translates to 2.29 actions for each 1,000 physicians in the state.

How States Ranked

The total put California well behind such states as first-place Utah, which issued serious sanctions against 12 of its 2,306 doctors (5.2 per 1,000 physicians), and third-place Florida, which moved against 71 doctors of 17,105 (4.15 per 1,000)--revoking the licenses of 36 to lead the nation in that category. Nine states--Delaware, Vermont, Montana, Idaho, New Hampshire, Rhode Island, West Virginia, Kansas and Alabama--along with the District of Columbia took no serious actions at all.

Nevertheless, the Nader report cited Florida, Kentucky and California--three states that have beefed up their disciplinary agencies--as among the most vigorous in the country.

The Nader report was based on data compiled by the Federation of State Medical Boards, a Fort Worth association of the agencies that oversee doctor discipline. However, the federation criticized the Nader document, arguing that it ignored all but the most serious discipline cases and failed to include in its tabulation such actions as fines, censure notices and voluntary surrenders of licenses by doctors.

The Nader report “emasculated our figures,” asserted Dr. Bryant Galusha, director of the federation. “I’d like to see an honest-to-God study. I think we’re making giant steps forward but, no doubt, there is a long way to go.”

Differences in Reporting

Dr. Sidney Wolfe, director of the Nader group, countered, however, that there are major differences in reporting of minor license actions by states and that the three most major sanctions are often the only ones that succeed in ending or forcing major improvements in the care delivered by inferior doctors.

The federation supplied to The Times its own tabulations for 1984--figures the Nader group said the board had declined to release to it. The 1984 figures reflected some differences among states and indicated that only 721 physicians were subject to the three most stringent types of discipline last year--with another 728 drawing less serious forms, including censures and reprimands.

But the license federation’s figures appeared to group at least one category often used by California authorities--the stipulated settlement in which a doctor agrees to surrender his license to resolve a revocation case but does not officially admit guilt--among the less serious outcomes. The stipulated settlement has been a principal means by which the California agency has separated bad doctors from their licenses for at least the last five years.

Most states reported about the same number of serious actions in 1984 as in 1983. But there were some distinct differences between the two years. Florida, for instance, dropped from 71 to 48 serious actions while New Jersey increased from 38 to 57. Kentucky’s total nearly doubled from 11 to 21 and California’s dropped from 117 to 80--though the exclusion of some stipulated settlement cases may have accounted for much of the difference.

Ohio improved its total from 11 to 29 and Pennsylvania increased from 10 to 34 while Illinois upped its number from nine to 28. Massachusetts improved its showing from two actions to 12, which would have propelled Massachusetts into about 30th place in the standings among states. Utah still recorded the highest total ratio. Only three states--Alaska, Delaware and Montana--and the District of Columbia took no serious actions.

The American Medical Assn. quickly disputed the accuracy of the Nader estimates of the number of people injured or killed by doctors. A check by The Times of supporting data used in preparation of the Nader estimates found that the middle figure between the two estimates--203,000 killed or injured a year because of doctor negligence--is in line with formulas developed by a federal government investigating panel in 1976.

Publication of the formula developed by the old U.S. Department of Health, Education and Welfare (now Department of Health and Human Services) included a warning similar to the major conclusions of the new Nader study: That, in the mid-1970s rush to enact laws to cushion the impact of malpractice action against physicians and limit their liability, state legislatures ignored an underlying cause of the malpractice problem.

“The issue has less to do with defects in the existing litigation and claims . . . process than it does with the vast number of injuries, complications and other adverse results sustained by patients,” predicted the nearly decade-old report government report on which the Nader group based one of its three separate estimates of the malpractice toll.

As alternatives to permitting doctors further immunity from civil malpractice liability, the Nader report recommended that:

--All states increase their medical license renewal costs to $500 a year and put all the money raised from the fees into special budgets earmarked for expansion and strengthening of doctor discipline agencies. States now charge only $15 to $150 a year, with California’s charge at $100.

--States that have not yet done so take action to expand substantially their doctor discipline agencies, following the pattern of Florida, Kentucky and California. Florida, which recently made major changes in its agency, has tripled its number of disciplinary actions since the new board took over in 1979, according to Dr. Richard Jay Feinstein, the agency’s immediate past head.

--Malpractice insurance carriers use a system of experience rating in which doctors with the worst claims histories are charged premiums far higher than the vast majority of doctors whose work does not result in injury or death to patients.

--Lawyers be required to notify medical license boards whenever patients win out-of-court settlements or jury verdicts in malpractice suits. Even in states like California that have a form of mandatory notification now, some suits never come to board attention because of loopholes in the existing law. Until recently, California lawyers defending doctors were able to have courts order sealed any information on suit settlements and, though that loophole was closed last year, suits settled for less than $30,000 are still exempt from reporting.

--Require that Professional Review Organizations--groups that oversee the practice patterns of doctors and hospitals for federally financed programs such as Medicare and Medicaid (Medi-Cal in California) turn over to license boards any evidence they uncover of incompetency or negligence by doctors.

--Doctors be required to undergo periodic competency tests before they can renew their licenses. Although the AMA vigorously objected to this proposal, in particular, BMQA director Ken Wagstaff said the California agency hopes soon to restructure its competency examination program so most physicians who lose malpractice suits will be required to undergo a mandatory test.

“It is time to demand quid pro quo to attack the basic source of the (malpractice) problem, malpractice and malpractitioners,” argued the Nader group’s report.

“It is time to realize that the competent and conscientious practitioners who are in the majority and who now suffer the obloquy of guilt by association are unjustly paying the price for an unfortunately too substantial minority of incompetent, careless, undertrained or disabled physicians.

Different Emphasis

“It is time for the medical profession to give more than lip service to the weeding out of bad apples.”

In a telephone interview from Washington, Wolfe contended that although the AMA, other medical associations and many state medical groups have endorsed state programs to expand discipline agencies and take more license actions, organized medicine as a whole has placed inordinate emphasis on reducing the right of patients to sue doctors.

Disciplinary crackdowns, Wolfe asserted, are viewed almost as an “afterthought” by medical groups which bow to pressure from their members and put the lion’s share of their emphasis and lobbying pressure on tort reform legislation. “The name of the game for them (organized medicine) is reforming the tort system so patients are not (as) able to recover damages as they should (be) when they are injured,” Wolfe argued.

Wolfe declined to estimate the proportion of doctors in practice who are not competent enough to work either at all or without supervision. He noted, however, that AMA estimates have concluded about 10% of doctors have serious drug and alcohol problems--a proportion that mirrors that of the general population.

Controversial Estimate

In California, Robert Rowland, former head of the BMQA, became the object of vociferous calls for his resignation in 1983 when he estimated that 10% of California physicians either should not be allowed to practice at all or should do so under supervision of other doctors. He later said he thought the estimate might be low.

In Chicago, Dr. James Todd, senior deputy assistant vice-president of the AMA, which is based in that city, said his organization took major issue with the Nader group’s conclusions. Todd noted that the AMA and state medical societies--including the California Medical Assn.--have endorsed better funding for license and discipline agencies consistently for the last 10 years.

“It is not fair to lay the blame (for the volume of injuries and malpractice and the low number of license actions) at the feet of the medical boards or of the medical profession,” Todd contended in a telephone interview. “I think he (Wolfe) makes a mistake in equating license (discipline) activities with quality health care.”

Specifically, Todd argued there is a fundamental contradiction implicit in citing Florida as an example of stepped up discipline enforcement since 1979 because, Todd said, the state is also a “hotbed” of protest among physicians about rising malpractice rates today. “If (Wolfe’s) thesis is correct that medical malpractice only needs physician discipline to eliminate it, Florida (as third best on the Nader list) should have no medical malpractice problems.

“But it is the hotbed. An insurance company has gone into receivership and there is a vitriolic battle over tort reform. In no way has Florida’s disciplinary action done anything for professional liability.”

Todd said he would personally not object to increasing license fees to $500 a year--if all of the money was used specifically to strengthen licensure agencies.

But, argued Todd, “the thing we keep trying to get across is that nothing in this life is without risk, particularly in the health care field. In the best of hands and best of circumstances, the results (among different patients) are going to be different. Just because a result occurs below the expectation of the patient, that is not a cause to say, ‘Negligence!’ and go the the lawyer.”

Florida’s Feinstein said he agreed with Wolfe that medical boards need to be more vigorous but he disagrees with the Nader contention that the paucity of disciplinary actions is a major reason behind the malpractice crisis. Last March, Feinstein wrote an essay published by the New England Journal of Medicine based in part on comparisons of disciplinary actions among states.

The essay, however, lumped all types of discipline together and Feinstein said he believes Wolfe’s approach of isolating the three most serious and most distinct types is a more accurate way to compare states. In an editorial published in the same issue of the New England Journal, the publication’s editor, Dr. Arnold S. Relman, agreed with Feinstein’s call for better and greater discipline, noting that, “judging from the varied past performance of our state boards, there is plenty of room for improvement.”

“One of their (the Nader group’s) points is that the medical boards are not doing a very good job and that is probably correct,” Feinstein said in a telephone interview. “Even though Florida was called one of the best, we are still disciplining seven per 1,000 (including discipline of all sorts, not just the three categories tabulated by Wolfe), which is not a lot.”

He said he believes it is ironic that the Nader evaluation has emerged now, when many states are trying to beef up medical discipline.

“But on the contention that bad doctors and failures of the disciplinary system are causing our crisis, I disagree completely,” with the Nader group, he said. “There are doctors who are hurting patients because they are bad but they are not necessarily the doctors who are being sued.” SERIOUS MEDICAL DISCIPLINARY ACTIONS 1983 Some states’ rankings for 1983 medical disciplinary actions. California, with largest number of patient care doctors, was 11th.

Patient Actions Total Care Per 1000 Serious Revoca- Suspen- Rank State Doctors Doctors Actions tions sions Totals 389,467 1.45 563 181 151 1 Utah 2,306 5.20 12 6 0 2 Georgia 7,521 4.25 32 4 9 3 Florida 17,105 4.15 71 36 14 4 Arkansas 2,753 3.27 9 4 5 5 Arizona 4,665 3.22 15 5 4 6 Michigan 13,666 3.00 41 7 21 7 New Jersey 1,3416 2.83 38 9 20 8 Missouri 7,396 2.70 20 5 2 9 Colorado 5,209 2.50 13 5 2 10 Kentucky 4,736 2.32 11 2 2 11 California 50,981 2.29 117 29 26 12-13 Virginia 8,816 2.26 20 4 3 12-13 Hawaii 1,766 2.26 4 1 0 14 New Mexico 1,899 2.11 4 2 0 15 Alaska 493 2.02 1 1 0 31 Ohio 16,671 0.65 11 6 5 32 Texas 21,024 0.62 13 7 4 33 Oklahoma 3,786 0.53 2 0 0 34 New York 42,063 0.49 21 13 3 35 Pennsylvania 20,937 0.48 10 3 3 36 Illinois 19,842 0.45 9 2 4 41 Massachusetts 13,697 0.14 2 1 1

Proba- Rank tions 231 1 6 2 19 3 21 4 0 5 6 6 13 7 9 8 13 9 6 10 7 11 62 12-13 13 12-13 3 14 2 15 0 31 0 32 2 33 2 34 5 35 4 36 3 41 0