Red Tape Hampered Probe of Doctor

Between the time the first patient complained about Dr. Jules Mark Lusman’s penchant for prescribing addictive narcotics and when the cosmetic surgeon was forced to give up his California medical license, five years came and went.

With a star-studded cast including Winona Ryder, a singular lack of cooperative witnesses and a dramatic finale, the case took longer than most and has drawn far more public attention. For all of its distinctiveness, however, the case illustrates some commonplace delays that hamper the Medical Board of California as it polices the state’s nearly 90,000 doctors.

For example: The board, overwhelmed by complaints that seemed to pose greater danger to patients, at first didn’t assign the case the highest priority. Medical records were hard to obtain, requiring drawn-out court battles. What ended as a barrage of evidence initially arrived in trickles.

Two of Lusman’s lawyers quit; his legal defense dragged on for months. Expert testimony was difficult to coordinate, and the burden of proof -- “clear and convincing” under California law -- was high and hard to meet.

Delays like these have gummed up the works of the medical board for more than a decade, some board critics say. And far too often, they say, the discipline ultimately delivered is too light, falling well short of the revocation that ended the Lusman case. Just 38 of the state’s doctors had their licenses revoked last year, although the board opened 2,608 investigations and referred 589 cases to the attorney general.

“It takes too long, there are too many steps, and very few complaints end up with any discipline,” said Julianne D’Angelo Fellmeth, administrative director of the University of San Diego’s Center for Public Interest Law, which has monitored the board and pressed for reforms.

In the Lusman case, state regulators had the advantage of a warning. The doctor was disciplined in South Africa in 1986 for overprescribing addictive medications, and for that reason, regulators here placed him on probation for his first two years of practice. Yet, after his probation expired, it took multiple allegations of wrongdoing before the same behavior derailed him in California.

Wrongdoing Denied

Lusman, whose license was revoked Dec. 6 after an administrative hearing, has denied wrongdoing and is appealing the board’s decision in California Superior Court.

Ron Joseph, the medical board’s executive director, said the case was not at all typical. “We worked as well as we could under the circumstances, but it was a complicated case,” he said.

Yet the Lusman case in many ways is emblematic of inappropriate-prescription complaints, which are hard to prove and a growing concern in California, other state regulators say.

“I think it’s the tip of a major iceberg facing California: the whole area of pain management and the number of patients who are addicted,” said Dr. Ronald H. Wender, president of the board’s Division of Medical Quality.

A recent board report noted that the agency has too few experts in pain management to review those cases.

As it happens, the Lusman case comes as the medical board is under intense political scrutiny, and as it is launching some significant reforms. Partly because of the spotlight on the board itself, and partly because of the Lusman case’s high profile -- it involved patients including Ryder and musician-actress Courtney Love -- reformers are raising questions about why it took so long to adjudicate.

“Why five years? That’s what everybody’s going to be asking,” said state Sen. Liz Figueroa (D-Fremont), who sponsored a bill to reform the system that becomes law next month. “It’s alarming.”

Figueroa headed a routine legislative review last spring that led to a critical report on the board’s enforcement record. Board officials and critics alike label her reform law -- which calls for an independent enforcement monitor to evaluate the disciplinary system and increases public disclosure about problem physicians -- a victory for consumer protection.

Independently, the board created “strike teams” to expedite the most severe cases, and reorganized the complaint unit so that cases involving the quality of patient care are fast-tracked. The board also is changing the way it collects data in hopes of pinpointing clogs in the system.

Many delays are outside the board’s direct control -- as when doctors themselves drag out legal proceedings, or when the board’s prosecutors from the state attorney general’s office run into problems obtaining records. (Doctors are entitled to challenge accusations in proceedings before administrative law judges, who then make disciplinary recommendations to the medical board.)

Mixture of Delays

If a case takes a year to investigate “because it took 10 months and a lot of court maneuvering to get the records, then there’s a problem with the legal aspect of the system,” said Wender, who heads the board’s enforcement committee.

“On the other hand, we’ll have to take responsibility for those things under our purview. If it took four months for the expert to review the case, then that’s not an expert we’re going to be able to use.”

As with many cases, Lusman’s included a mixture of delays, many outside the medical board’s control.

The first patient complaint arrived in 1997, from a woman who claimed that she became addicted to Demerol under Lusman’s care. The case was handed to the attorney general’s office for prosecution after a year, but by then the patient was no longer talking.

The court battle for access to her medical records dragged on for nearly three years. Meanwhile, another patient who complained -- in February 1999 -- cooperated only partially, again forcing investigators into court for a subpoena.

“It wasn’t one tip that took five years to complete,” said Joseph. “There were a series of patients who went through the ‘I’m mad at my doctor’ phase, and when we were ready to go to hearing they weren’t mad at their doctor anymore.”

After records were in hand, a medical expert’s review took still more time. It wasn’t until the summer of 2001, when another doctor came forward to complain, that the case broke open, said Dave Thornton, the board’s chief of enforcement.

Suspecting risk to a greater number of patients, investigators worked with the California Board of Pharmacy, which conducted an audit and found that Lusman was writing multiple prescriptions for a number of patients in the same week or even day, state records show.

Investigators then got a search warrant for Lusman’s office and home, taking patient files. Lusman’s case moved relatively fast after that and, by last March, investigators won an interim order suspending his right to prescribe.

Meanwhile, the hearing to determine whether his license would be pulled was plagued by 10 months of delays. Expert witnesses had scheduling conflicts, Lusman’s first lawyer bowed out, and Lusman injured himself in Mexico, said Deputy Atty. Gen. E. A. Jones.

Then Lusman, whose second lawyer had quit, got a four-month reprieve to assemble his defense.

In this case and others, legal delays outside the medical board’s control were compounded by the board’s essentially reactive role. It generally waits for complaints to arrive, for witnesses to come forward and for patterns to emerge before it seeks subpoenas or takes other aggressive action.

Other regulators are less hampered. The Board of Pharmacy has the authority to inspect pharmaceutical records with no subpoena, and can therefore more easily uncover the types of abuses that led to Lusman’s undoing.

Lack of Cooperation

In a report to the board in October, Wender, the enforcement committee chairman, cited other common hindrances. He found that investigators and prosecutors don’t cooperate closely enough.

And expert review -- generally the keystone of patient care investigations -- has suffered due to a dearth of some specialists, a lack of imposed time limits to complete reviews, and -- in some cases -- the poor quality of reviewers themselves.

In general, watchdog groups say, California’s enforcement record against doctors is mediocre compared to other states.

“California has just never broken into the [ranks of] better states,” said Dr. Sidney M. Wolfe, director of Public Citizen’s Health Research Group in Washington, D.C. The agency ranks states according to the prevalence of serious disciplinary actions -- from probation to revocation of licensure.

California was 25th last year, up from 42nd place a decade ago but down from its peak at 18th in 1997.

Still, even the harshest critics say that the California board has made progress. It is a far cry from the panel of a dozen years ago, when top officials ordered hundreds of unattended complaints dismissed or destroyed to conceal a backlog. Though disciplinary actions have dropped since 1997, the overall trend over the decade has been upward.

One setback is a hiring freeze that has limited the investigative staff to about 70, down from a peak of 95 last year.

But investigators and prosecutors have managed to speed up their work, state records show. In 1995, it took an average of nearly four years from the time a complaint was received to the time action was taken. That’s down to a little over two years.

Though no organization tracks the time it takes to complete cases, Dale L. Austin, chief operating officer of the Federation of State Medical Boards, said most states average between nine and 18 months.