California Giving Problem Doctors a Closer Scrutiny : Medicine: Suit against two O.C. hospitals, tightened review process suggest a new resolve to inform public.

In 1992, secretary Marilyn Andrews tripped and fell at work, requiring surgery on the vertebrae in her neck.

Her employer’s insurance company recommended an orthopedic surgeon at Western Medical Center-Santa Ana, where, according to the $300,000 lawsuit she later filed, he operated on the wrong disk, causing her condition to worsen.

Andrews, 57, then discovered that the same doctor had incurred 14 previous malpractice suits, all of which were settled or arbitrated. Since her injury, plaintiffs have named the same doctor in four new complaints, according to Andrews’ suit.

But even today, wary consumers phoning the Medical Board of California would hear nary a discouraging word about the doctor that Andrews said “took two years out of my life.” His record, according to a spokeswoman for the Medical Board, remains “in good standing” with the state of California.

Andrews believes that her experience is reason enough for dramatic change--”that the Legislature ought to wake up and do something about problem doctors.” As it is, she said, the only people not being protected are consumers like her.

“How was I supposed to protect myself against a doctor like that?” she said tearfully. “Who was looking out for me?”

In a move that may indicate a sea change, of sorts, the Medical Board recently sued two Orange County hospitals, accusing both of failing to report problem doctors. Western Medical Center here happens to be a co-defendant, but not because of the doctor named in Andrews’ suit.

The Medical Board’s latest suit and another one against an Oakland hospital, now pending before the California Supreme Court, have raised large questions affecting Andrews and thousands of other plaintiffs:

How effective are doctors at policing themselves through the process of peer review, and what role do medical malpractice attorneys play in urging hospitals to repress information about problem doctors?

Officials for medical associations say that doctors are entitled to the same degree of privacy as the patients they treat and that there is a limit to how much the state and individual citizens are entitled to know.

But the problem of hospitals and lawyers protecting even bad-apple doctors is growing in scope, critics say, endangering consumers and undermining the quality of medicine itself.

As a recent federal study indicated, 75% of U.S. hospitals over a two-year period “never reported an adverse action to the data bank” maintained jointly by state medical boards to keep track of problem doctors. Thus, the appropriate state medical licensing agency was never notified even after a hospital denied or suspended a doctor’s right to practice.

The ultimate victim in such a scenario, said Ron Joseph, executive director of the California Medical Board, is the patient--the man, woman or child seeking care in a hospital and having no idea whether the person treating them is qualified or not.

“Our objective here is to ensure that the truly egregious [problem doctors] are taken completely out of the picture,” Joseph said.

“Needless to say, this indicates that not only in California but throughout the country the filing of peer-review reports [with state licensing boards] just isn’t what it used to be,” he added. “And that needs to change. It must change for the welfare of consumers.”

The California Medical Board’s litigation in Orange County follows closely on the heels of a suit brought against Alameda County Hospital of Oakland, which the state’s highest court will decide at an undetermined time in the future.

In the suit filed Nov. 22, the board accused Mission Hospital Regional Medical Center in Mission Viejo and Western Medical Center-Santa Ana of separate violations of state reporting statutes.

The suit accuses the Mission Viejo hospital of failing to provide to the state more detailed information about a suspended doctor whose behavior was “so erratic that the physician was considered to be a danger to both employees and patients.”

The suit accuses Western Medical Center-Santa Ana of failing to provide supporting documentation about a doctor whose staff privileges were denied for having made “misrepresentations and omissions” in his application. Hospital officials say the doctor was hired, then let go after they detected “inconsistencies” in his application.

Nevertheless, officials for both hospitals deny any wrongdoing and say they intend to vigorously protest the suit, now on file in Orange County Superior Court.

In addition to going on the offensive against erring hospitals with litigation, the board recently committed itself to reforming so-called 805--or peer review--complaint procedures and suggested other suits may follow.

Indeed, the litigation against the Orange County hospitals--and efforts to improve complaint procedures against physicians--show that state regulators are taking a harder stand against hospitals that refuse to report medical misconduct.

“Over the past year, we have noted a deterioration in the cooperation required between hospitals and the [state medical] board in protecting consumer/patient safety,” read a report coauthored by John Lancara, the board’s chief enforcement officer. “We have experienced incomplete reports, lack of access to records and, on some occasions, excuses for not reporting at all. . . .

“Nothing would satisfy the Enforcement Program more than to know that hospital peer review is conducted in a manner that ensures patient safety,” the report said. “But 805 reporting records cast a shadow of doubt over the peer review process.”

While conceding that doctors are often wary of policing each other, many believe that the Medical Board may be going too far, and that overzealousness would do as much harm to consumers as it would to doctors.

“Our concern is that, in some cases, they’ll use a bazooka when a butter knife might do,” said Scott Syphax, a spokesman for the California Medical Assn., which represents 30,000 of the state’s doctors.

Nevertheless, the doctors’ association “supports vigorous protection, and,” Syphax said, “we believe the 805 process is the consumer’s first line of defense in making sure that quality-of-care standards are upheld.”

What doctors fret about collectively, he said, is the danger of the Medical Board devoting too much energy and attention to punishing a large number of doctors for small mistakes at the expense of “getting the really bad actors off the street.”

Refusing to file an 805 report, the board noted, violates state law and is punishable by a fine of up to $10,000. Failure to report properly, whether intentional or not, is punishable by a civil penalty of $5,000 per violation.

Section 805 reporting--the section is part of the state’s Business and Professions Code--is an issue of increasing importance, the board said, because of the “direct relationship between timely [and] accurate reporting and public safety.”

In medicine, the process works this way: If a physician’s conduct is called into question by hospital administrators, a committee of the doctor’s peers conducts an inquiry and takes what it believes is the appropriate action. Harsher punishments often include denying or restricting the doctor’s right to practice at the hospital in question.

An 805 report is then filed with the Medical Board--specifically with its enforcement division--which appoints an investigator. Depending on what the investigator finds, the case can be forwarded to the state attorney general, who acts as counsel for the Medical Board when suspension or revocation of a physician’s license is sought.

The matter then proceeds like any other trial, albeit in the presence of a state administrative law judge. At the end of the trial, the judge may revoke or suspend the physician’s license, or, of course, do neither. The matter is then referred to the Medical Board’s Division of Medical Quality, which determines the ultimate sanction.

But if the Medical Board never gets a report in the first place, or the hospital’s report is inadequate or incomplete, a doctor’s suspected transgressions can easily remain an in-house secret.

Medical Board officials say that doctors are often reluctant to police their own, and that malpractice attorneys play an increasingly prominent role in shaping the content of 805 reports--the state’s primary source of hard information.

“I don’t want to paint the entire [medical] profession with a broad brush,” said Lancara, the chief of enforcement, “but it’s hard for me to understand--when the vast majority of physicians are competent and honest--why they should be victimized with higher malpractice insurance premiums because a small portion of their profession is putting them at risk. It’s just hard for me to understand their reluctance.”

Those in the doctors’ corner say the Medical Board--once widely criticized for being largely unresponsive to the needs of consumers--is far more vigilant in the 1990s than it was in previous decades. But some worry that it may be going too far.

But even while defending the process of peer review, the CMA’s Syphax agreed with Lancara in saying that doctors are at times reluctant to police themselves.

“We don’t want the Medical Board going after good doctors. And if a physician has erred and needs correction, let the punishment fit the crime,” Syphax said. “What we don’t want is excessive piling on. What makes me nervous is them charging off in a certain direction without doing the due diligence of gathering the data. In other words, I worry about too much action being based on anecdotes, innuendo and gut feelings . . . and not enough on hard, clear-cut evidence.”

In a letter to The Times, Reynold R. Welch, the chief executive officer of Mission Hospital in Mission Viejo, raised concerns about the Medical Board’s most recent suit.

Welch noted that the hospital’s internal peer-review records--statements of other medical personnel, affidavits, patient charts and the like--are protected by the California evidence code, adding, “The Medical Board is attempting to accomplish in the courts what, to date, it has been unable to do in the state Legislature--that is, to gain access to peer review records.”

Welch argued that Mission Hospital Regional Medical Center actually exceeded the board’s own reporting requirements by “immediately faxing notification of the incident in question . . . rather than sending it within the usual 14-day reporting period.”

Beyond that, Welch declined additional comment.

Lexie Schuster, corporate vice president of United Western Medical Centers--which operates Western Medical Center-Santa Ana--said that her facility took “timely and appropriate action” with regard to the Medical Board and “complied with all the necessary laws.”

The board’s Orange County suit differs fundamentally from the one against Alameda County Hospital of Oakland.

In that case, the board ordered the hospital to provide detailed information about a doctor whose alleged improprieties it had learned about confidentially, whereas the Orange County case involves what state officials perceive as inadequate or incomplete follow-up information after the filing of an 805 report.

In the Oakland case, an appellate court ruled that Alameda County Hospital must comply with the dictates of the Medical Board, which the hospital resisted. The California Supreme Court later agreed to hear the matter; a date has not been set.

Joseph, the board’s executive director, said its primary motive is “making sure that shoddy 805 reporting isn’t a widespread problem that ends up victimizing consumers, who are, after all, our greatest concern.”