State Malpractice Disclosure System Points Up Flaws : Health: Medical board officials acknowledge more cases should be reported to hot line to alert the public.

When Ventura County bookstore manager Alex Roe died more than two years ago from pneumonia, the legal machinery that acts as a restraint on medical malpractice in California began rolling.

The family won almost $2 million in a lawsuit last year, alleging that two physicians had misdiagnosed Roe as having a routine case of chickenpox.

Although the malpractice award was then believed to be the biggest in county history, it never reached the state consumer hot line set up in 1993 to inform the public about physicians who have lost sizable malpractice cases or who have been disciplined by the Medical Board of California.

The case was one of many that fell through the cracks, illustrating what public records and interviews show to be serious flaws in a system designed to make physicians more accountable and give the public important information about health care providers.

The Times and two other newspapers sued the medical board successfully last year to obtain computerized records of all publicly available data.

According to a Times computer analysis of the board’s hot line information, only 47 of the thousands of physicians who had practiced in California had judgments against them in excess of $30,000.

But medical board officials acknowledge that they should have many more cases on file--and that the public is getting shortchanged.

Dixon Arnett, executive director of the medical board, said it may be missing as many as three-quarters of the publicly reportable malpractice cases. He said part of the blame rests with county clerks who have not always promptly reported malpractice judgments, as required by state law.

“We know that there is a huge disparity here,” Arnett said. “We don’t know what the right number should be, but it should be a significantly higher number.”

The Times found numerous instances of malpractice judgments that did not reach the board’s consumer hot line, including the case of a Rancho Santa Margarita construction worker who was awarded $425,000 after a surgeon allegedly amputated vital parts of his nose without permission, causing chronic breathing and bleeding problems. The operation was to correct a deviated septum.

The jury verdict in Orange County Superior Court against Dr. Jorge Luhan of Newport Beach, entered in April, 1993, was not reported to the medical board, said board spokeswoman Candis Cohen.

Luhan did not return telephone calls to his office Thursday and Friday. One of his attorneys, Bruce Bolger of Los Angeles, said the case is being appealed. His appellate briefs argue that the judgment ought to be overturned because the case was filed after the statute of limitations had expired and because the award was excessive.

The Medical Board’s Cohen said that, even if clerks know an appeal is planned, they are obligated under the law to report the judgment within 10 days. A Los Angeles County jury in 1993 awarded about $450,000 to a paraplegic who required several corrective operations after a surgical procedure.

The board decided in May, 1993, to release to the public information about malpractice cases.

But under the board’s narrowly defined policy, only the relatively small number of malpractice awards resulting from jury trials are made public. Also:

* The hot line only contains the names of physicians who have lost lawsuits since Jan. 1, 1993, because board officials say they do not have the resources to research earlier malpractice cases.

* Excluded from the hot line are many physicians whose employment contracts provide them with protection from malpractice suits. These include doctors who work for the University of California, health maintenance organizations and military hospitals.

* Withheld by the board is information about malpractice cases that end in judgments of less than $30,000, arbitration awards or out-of-court settlements.

Most Cases Shielded

Experts say as many as 95% to 97% of all malpractice cases are automatically shielded from the public by the medical board. In Los Angeles County, where about 2,000 malpractice cases are filed each year, one court official estimated that only about 3% will reach a jury.

Among the cases not included on the board’s hot line is a Los Angeles cardiologist’s $1-million settlement in 1991 of a lawsuit stemming from the death of basketball star Hank Gathers. The board also has no public record of one of the largest malpractice awards in state history--a $3.9-million judgment in 1991 against a San Diego County obstetrician for a problem delivery that left a child a paraplegic.

The medical board’s limitations reflect decades of resistance by physicians and their supporters in the Legislature to any release of malpractice records by the board.

Physicians and their supporters argue that the loss of a malpractice case should have little bearing on whether a physician is judged competent or not.

They say many malpractice suits are settled because it is more expensive for insurance companies to go to trial than to pay a settlement. They also say many physicians, such as gynecologists or those who work in the busiest hospitals, attract more malpractice suits simply by the nature of their work.

“A malpractice judgment does not necessarily indicate bad medical practice,” said Sandra Bressler of the California Medical Assn., the political arm for most of California’s physicians. “If indeed some bad medical practice is involved, then the medical board should and has in many cases moved in to discipline the doctor. But to simply look at a malpractice judgment and conclude that this person is a bad physician is not always appropriate.”

Jamie Court, with the consumer watchdog group Consumers for Quality Care, called the low number of malpractice cases reported by the medical board “scandalous.”

Court blamed the problem on the makeup of the board, which he said was designed to protect physicians. Physicians make up 12 of the board’s 19 members, most appointed by the governor.

“This new information only confirms our belief that doctors can’t police themselves and we need consumer control of the medical board,” he said. “The information released by the board doesn’t come close to addressing the depth of the problem.”

Verdict Overlooked

Just why the case of bookstore manager Roe was not registered in the medical board’s computer files remains unclear.

When Roe got ill and first went to the Thousand Oaks Urgent Care Center in July, 1992, he complained about a rash and other problems. A day later, he had coughed up blood, was having difficulty breathing and was showing other signs of distress, according to court records.

Two physicians at the clinic, Drs. W. Duane Dodd and Richard Small, diagnosed his condition as a routine case of chickenpox, court records state. In fact, Roe’s family alleged in their lawsuit, the chickenpox had developed into pneumonia. Within a day of being sent home from the clinic, the 24-year-old went into cardiac arrest. He died within two days.

In response to the suit, the doctors argued that they exercised proper clinical judgment and met standards of care.

The Roe case achieved relatively high visibility, according to Roe family attorney Steven Heimberg, because it was the largest malpractice award in county history, and because Roe’s mother, Jackie Pepper, made efforts to publicize it.

The suit resulted in a $2.3-million judgment by the jury, with Small found 90% liable and Dodd found 10% liable, records show. Attorneys subsequently negotiated the amount down to $1.85 million to avoid an appeal.

Pepper said she filed a complaint in June with the medical board against the two physicians, hoping it might lead to disciplinary actions against the doctors.

Pepper, who lives in Alabama, said the investigation did not begin until December. The board refuses to confirm or deny whether cases are under investigation.

Anyone making an inquiry on Dodd and Small recently would have been told only that the two physicians have clean records and valid medical licenses. But callers to the state hot line would not be told about the malpractice case.

“It’s outrageous,” Pepper said. “The people of California should know what they have done.”

The two physicians did not return repeated phone calls. C. Elliott Johnson, the Encino attorney who represented them, said he believes he could have had the judgment overturned on an appeal, but the physicians’ malpractice insurance carrier wanted to settle the case.

Records Analyzed

The problems with the state’s monitoring of malpractice judgments were unearthed during an analysis of electronic records that the board was required by court order to surrender in December to The Times, the Sacramento Bee and the San Jose Mercury News.

The newspapers brought suit in Sacramento Superior Court against the board last July to obtain all its computerized data on physicians who have lost major malpractice suits or have been disciplined by the board for misconduct, incompetence or other reasons.

A total of 145,000 physicians have practiced during the past decade in California. Removing doctors who died, were in military service, or quit their practices, The Times examined the records of 74,240 physicians currently licensed in California.

The analysis found that 1.6%, or 1,186, had been disciplined or lost malpractice judgments reported to the medical board.

In both Orange and Ventura counties, 1.9% of the licensed physicians had been disciplined or lost a malpractice judgment of more than $30,000. A third of the violations found among practicing Orange County physicians involve negligence or incompetence.

In Los Angeles County, the board’s public records showed that 1.7% of the practicing physicians had either malpractice or disciplinary problems.

Physician discipline rates of 2.4% were reported in Riverside County, while the rates were 1.6% and 1.2% in San Bernardino and San Diego counties, respectively.

Statewide, 352 infractions or 13.7% involved gross negligence, including excessively prescribing medications and making inadequate diagnoses. Another 21% involved incompetence or repeated negligence.

Incomplete Data

In the past two fiscal years, the board took 373 disciplinary actions against physicians. Records show that 161 had their medical licenses revoked or decided to surrender them voluntarily in the face of board action. Another 175 were put on varying periods of probation. “The data basically verifies our statistics . . . that about 2% of the doctors are either under discipline or investigation at any one time,” said Arnett, the medical board’s director.

But critics say the board’s data collection, especially recording malpractice cases, is so spotty that little can be concluded from the results.

Under state law, court clerks are required to report to the medical board all malpractice judgments of more than $30,000 within 10 days of being entered by the court.

The board is required to release information about the judgments but has the right to exclude information if it believes it is “unreliable.”

The board has excluded out-of-court settlements and arbitration awards from disclosure, because officials believe cases often are settled as a cost-saving measure.

Arnett said his policy is “to err on the conservative side” in deciding which cases to make public. He said he feared the board would be sued by physicians who felt their names were released improperly.

The board admittedly has been inconsistent in its handling of malpractice judgments which are under appeal.

“Our (data) entry, or lack thereof, is spotty in these cases,” Arnett said. “In some cases, we make cases public when there are appeals and in some cases we don’t. I wish we could say we were consistent.”

Arnett said he will seek legislation this year to clarify the law. The board also is setting up a reporting system for county court clerks.

Prompted by newspaper inquiries, Arnett recently mailed letters to the clerks, reminding them of their obligations. “We are not (their) first priority of things to do, the law notwithstanding,” Arnett said.

John Alexander, president of the California County Clerks Assn., said a definitive reporting requirements policy was long overdue. “Frankly, I wasn’t aware of (the requirement),” said Alexander, a court clerk in Del Norte County, where malpractice judgments are rare.

Contributing to this article were Richard O’Reilly, Times director of computer analysis, data analyst Sandra Poindexter and staff writer Constance Sommer in Ventura County.