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Respiratory Care Workers Under Close Scrutiny

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TIMES STAFF WRITER

Hospital-generated complaints about respiratory therapists have soared in the two years since California lawmakers mandated reporting of their on-the-job suspensions and firings, according to state Respiratory Care Board records.

Lawmakers were prompted to act in the wake of murder defendant Efren Saldivar’s 1998 confession to killing dozens of elderly patients at a Glendale hospital. He later recanted his story but has been charged in six deaths.

The mandatory reporting law is one of the nation’s first for respiratory therapists, said Cathleen McCoy, the board’s executive officer, although such reporting has been required for doctors and other health care professionals for decades.

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California has licensed respiratory therapists since 1985, making it one of the first states to regulate the technicians who operate such life-saving equipment as respirators and ventilators and administer aerosol inhalants and spray medications.

Some states still do not license respiratory care practitioners, McCoy said.

Since the reporting law took effect on Jan. 1, 1999, the Respiratory Care Board has received 57 complaints from hospitals and others now required to report the suspensions or terminations of respiratory therapists. Most of them are still under investigation.

In the previous nine years, not a single California hospital filed a complaint with the board about any of the state’s 15,000 practicing respiratory care therapists, McCoy said.

She believes that few, if any, of the new cases would have come to the licensing board’s attention before mandatory reporting was enacted.

Without it, the board’s consumer protection efforts focused on disciplining licensees for criminal activity outside work, McCoy said. The board also receives complaints from individuals. But few, she said, involved work-related negligence and incompetence.

During the last five years, the board received 790 complaints, including law enforcement notification of arrests and criminal convictions. After investigations, the licenses of 196 respiratory therapists were revoked, board records show.

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Out of the 57 complaints from health care facilities and colleagues, four respiratory therapists have lost their licenses, board records show. Five others have been placed on probation, one received a warning and two cases were dismissed. The remaining cases are still under investigation.

The mandatory reporting bill was introduced in Sacramento just four months after Saldivar confessed in March 1998 and then recanted a few days later.

Sponsored by the Respiratory Care Board, it called for employers, including hospitals, nursing homes and clinics, to report suspensions and firings of respiratory therapists to the board. It was signed into law in September 1998.

The law requires employers to report the suspension or termination of respiratory therapists for harming or neglecting patients, falsifying medical records, stealing, being grossly incompetent or using alcohol or drugs in a manner that impairs their work.

Respiratory care practitioners may continue to work while a complaint is pending, McCoy said, although the board may seek an interim suspension order from a judge in an egregious case, like that of Saldivar.

When a complaint is filed, the board investigates and then refers cases to the attorney general’s office for prosecution before an administrative law judge. The licensee is notified and offered the opportunity to put on a defense. After a hearing, the judge makes a recommendation to the board, the final arbiter of discipline.

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Failure to Report Can Lead to Discipline

The law also requires respiratory therapists to report alleged misconduct of colleagues or face discipline themselves.

The board had sought a mandatory reporting law even before Saldivar’s alleged crimes became public, but the effort met with opposition from the state Department of Consumer Affairs, which oversees the board.

Although McCoy had expected to receive more than 57 complaints by now, she said she is nonetheless pleased with the initial response.

“I’m just happy, because we had nothing before,” said McCoy, who will leave the board next month after 11 years.

Consumers knew little about respiratory therapists--and even less about their licensing board--until 1998, when Saldivar confessed to killing 40 to 50 patients at Glendale Adventist Medical Center. That probably explains why the board receives so few complaints from patients.

“Most people still think he’s a nurse,” McCoy said, referring to Saldivar.

Saldivar, 31, was arrested last month and charged with six counts of murder for allegedly injecting elderly patients with the paralyzing drug Pavulon from December 1996 to August 1997.

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Glendale Adventist officials said they received a tip that Saldivar might have assisted in patient deaths and notified Glendale police in March 1998. The hospital fired him days later, and the board, working on a tip from police, quickly suspended Saldivar’s license so he couldn’t work elsewhere.

The board revoked Saldivar’s license at a May hearing, after he failed to show up to defend himself against the accusations.

McCoy said the hospital never notified the board about Saldivar.

Until reporting was mandated, “there was little opportunity for the board to do its job” because it never learned of a licensee’s practice-related violations, said Julie D’Angelo Fellmeth, a University of San Diego law professor who monitors the Respiratory Care Board and other health-care regulatory agencies.

“All we know is what we see,” said the board’s counsel, Supervising Deputy Atty. Gen. Nancy Stoner. “It is not in the hospital’s best interest to let people know what went wrong inside their facility.”

Underreporting of professional misconduct by hospitals is a broader problem, consumer advocates say.

Although mandatory reporting is new for respiratory therapists, hospitals have been required for more than two decades to report to the Medical Board of California doctors whose staff privileges have been revoked or altered for disciplinary reasons.

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Decline in Doctor Complaints

But that law increasingly is being ignored by hospitals, some say, for fear of legal retribution from doctors they report.

“There is a huge decline in reporting for medical professionals,” said state Sen. Liz Figueroa (D-Fremont), who heads the committee that regulates state consumer protection boards. “We would anticipate the same situation for the Respiratory Care Board.”

According to Figueroa’s estimates, only 45% of the hospitals in California have reported a doctor to the state board in the last 10 years, a figure she considers unrealistically low.

To remedy the situation, Figueroa has introduced a bill that would increase the penalty for hospitals that do not report doctors to the Medical Board tenfold, to as much as $100,000 per incident.

As part of the 1999 reform, the Respiratory Care Board was empowered to fine hospitals and other employers as much as $10,000 per incident for failure to report discipline.

So far, the board has not taken action against any hospital or licensee for a failure to report, McCoy said, because it has only recently begun to receive evidence of non-reporting.

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In 1999, the board reprimanded Robert Baker, another respiratory therapist at the Glendale hospital, because he failed to report finding drugs in Saldivar’s locker. Baker, however, has been allowed to keep his license.

Four other respiratory therapists were fired in connection with the Saldivar case, Glendale Adventist officials said. They have not been disciplined by the licensing board.

Off-Duty Behavior Also at Issue

In the past, most fired respiratory therapists simply found new jobs, board officials concede. They had little reason to fear losing their licenses because the regulatory board rarely learned of their employment troubles. That is less likely today.

Yet at this point, a respiratory therapist still is more likely to be disciplined for criminal activity, such as driving under the influence or drug possession, than for professional incompetence or negligence, McCoy said.

Some practitioners say that the board is overzealous in punishing licensees for conduct unrelated to their job performance.

“Respiratory care practitioners should not be penalized for infractions not committed going to the job, on the job or leaving the job,” said Michael Gibbons, president of the California Society for Respiratory Care. “They have been dealt with in the courts, and they have nothing to do with coming to work.”

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He said his association plans to ask state lawmakers to reevaluate the use of criminal records as grounds for professional discipline.

McCoy defended the board’s action. She noted that 25% of last year’s applicants had criminal records--a possible reflection of the profession’s low entry requirements.

In an effort to upgrade the applicant pool, the Respiratory Care Board increased educational requirements last July from a one-year program to a two-year degree.

Of the 57 new cases, eight were reported by respiratory therapists and four by co-workers in other professions, board records show.

The new law gives practitioners “a compelling reason to pick up the phone” and report another respiratory therapist, said Randal Clark, a former board member and past president of the California Society for Respiratory Care.

Such reporting, Clark said, might have stopped Saldivar’s alleged misdeeds earlier.

“If someone had said, ‘Efren, I saw what you did and you are in big trouble,’ the respiratory care profession would not have gotten the black eye and bloody nose it did.”

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(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

(San Fernando Valley Edition, B2) Respiratory Therapists Under Review

Since 1999, 57 respiratory therapists have been reported to the Respiratory Care Board for discipline or termination by their employers. A look at the source and makeup of the reported complaints:

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The sources of complaints

Mandatory reporting complaints are received by various sources who may be aware that the subject was suspended or terminated from their job.

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How complaints were handled

When a complaint is filed, the board investigates and then refers cases to the attorney general’s office for prosecution before an administrative law judge. The licensee is notified of the allegations and offered the opportunity to put on a defense. After a hearing, the judge makes a recommendation to the board, the final arbiter of discipline.

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Source: Respiratory Care Board

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