The new push for tough medical boards
The pressure is growing to do a better job disciplining doctors. But are they up to the task?
Aug 5, 2005
By: Wayne J. Guglielmo
Amid the growing public clamor over patient safety, quality of care, and malpractice, state medical boards find themselves on the hot seat. The pressure is especially intense when the evidence suggests they haven't done their disciplinary jobs.
Last year, for example, critics slammed the South Carolina Board of Medical Examiners for botching its attempt to suspend the license of FP James M. Shortt—a self-described "longevity physician" who's under investigation by state authorities for giving intravenous hydrogen peroxide to two patients who subsequently died. (In April, the board temporarily suspended Shortt's license after he was accused of inappropriately prescribing steroid testosterone to four unidentified male patients.)
This year, a series on medical boards in The Washington Post singled out the District of Columbia Board of Medicine for a variety of lapses, including its alleged foot-dragging in the case of Jewel A. Quinn, an orthopedic surgeon who reportedly practiced under appallingly filthy conditions and couldn't produce patient records upon request.
Cases like these tell only part of the story, of course. Collectively, board actions in 2004 were up by nearly 20 percent over 2003, according to statistics released in April by the Federation of State Medical Boards (FSMB). And individual boards that have proven effective in the past continue to do a good job—while a number of others who've historically lagged behind have shown steady improvement.
Still, people on all sides of the issue want medical boards to do a better job of disciplining unprofessional or incompetent doctors, and to play fair with the vast majority who practice as they should. "Whatever state you're in, no one benefits from having a weak medical board," says Rolf P. Sletten, head of the North Dakota Board of Medical Examiners, one of the most active in the country. "Not the profession, not the public."
The issue of better doctor policing has also entered the malpractice debate. Last year, as part of its strategy to cut claims, the Bush administration commissioned the Urban Institute and the University of Iowa to study how medical boards can operate more effectively, weeding out bad apples before they put patients at risk. The report is scheduled to come out this summer.
How will boards respond to this new push to get them to intervene more aggressively in the area of quality? Which boards are doing the best disciplinary job—and why? What standards should boards be aiming at? We took a look at these important issues.
Best practices every board should adopt
What are the ingredients of a successful medical board? The FSMB provides the answer in a document called A Guide to the Essentials of a Modern Medical Practice Act. First published in 1956 and now revised every three years, the guide serves as a template for state statutes governing medical boards. The document also serves as a kind of marketing tool, selling state lawmakers and boards on what the FSMB sees as the best way to do things.
On the all-important issue of structure, the guide recommends "a separate state medical board," with the broad autonomy to generate sufficient revenues through licensing fees and other physician charges; to adopt and manage its own budget; to "hire, discipline, and terminate staff"; and to "institute actions in its own name," drawing upon "adequate" legal and investigative staff.
Boards should also have broad subpoena power, be capable of sharing data with a variety of entities that also monitor information pertinent to physician performance (Medicare, Medicaid, hospitals, health plans, malpractice insurers, and so forth), and be capable of taking disciplinary action based on "a preponderance of the evidence" rather than the stricter "clear and convincing evidence."
How do boards stack up to these benchmarks?
"I'm encouraged, but I see a lot of room for improvement," says FSMB President and CEO James N. Thompson, an otolaryngologist and former medical school dean. For example, 17 boards still operate under a stricter-than-recommended standard of proof, "making it difficult to take action because of the high evidentiary hurdle." More troubling, says Thompson, some boards "still lack independence," so that they're unable "to manage their own investigative staff" or to generate and manage the resources necessary to do their jobs.
The result, consumer groups like Public Citizen would argue, is that some boards simply don't discharge the disciplinary part of their mandate as well as they should. And that, in turn, leads to the kind of media horror stories that ratchet up the pressure on all medical boards.
Quality intervention: the new frontier
The time's coming, say experts, when even the most effective boards will need to do more than react to problems, especially in the area of substandard care. "Given the appropriate resources, the good medical board of the future will actually have fewer disciplinary actions and more early identification and remediation," says the FSMB's Thompson.
The state furthest along this new road is Massachusetts, which couples a mandatory malpractice reporting requirement (on the books since 1986) with a groundbreaking monitoring and remediation program. Former state senator Nancy Achin Audesse didn't start the innovative program, but she made it a "priority" after she took over as executive director of the Board of Registration in Medicine in October 1999.
Under Audesse's leadership, officials examined paid claims between 1990 and 1999 to see whether any quality of care trends emerged. What they discovered was that doctors with more than two claims do warrant scrutiny because they tend to have a higher incidence of other problems. "Three paid claims seems to be the magic number for us right now, regardless of specialty," says Audesse.
Attorney James T. Hilliard, an assistant professor of legal medicine at Harvard Medical School, agrees. "Over time, there are people who slip. If they slip once, it may be a mistake. Twice, and that may be an indication of something. Three times, and you likely have a problem."
These findings, first published by the board in 2000 and updated in 2004, served as the statistical rationale for its monitoring program.
For doctors whose records raise a cautionary flag, reviewers look a little deeper. Are there deficiencies in the way they practice, and, if so, how glaring are they?
The cases to date, Audesse says, have tended to fall along a continuum. Those at the extremes—in which the issue of standard or substandard care is fairly clear-cut—are, in many ways, the easiest to handle. "It's in the middle where the most work gets done," says Audesse. "There may be nothing on a doctor's record that quite warrants disciplinary action, but something is not where it should be. Cases that fall in this gray area force us to think what we can do to help."
The board is likely to call in such doctors for a remedial conference, which Audesse describes as "a tough, very intense process," but one that works. "I can only think of one doctor who's been through the process and come back with a substantial problem," she says. "That person did end up facing discipline."
Ultimately, Audesse would like to find the resources to develop a clinical skills center—a place where doctors who need help could go for evaluation and retraining. However it's done, Audesse, like Thompson, believes that ratcheting up clinical competency is the new frontier for medical boards.
As she says: "We're public protection agencies and how do you protect people if you don't catch and address the risk to them beforehand?"
Rating the boards
Currently, people who want to gauge board performance turn to two organizations—the Federation of State Medical Boards and Public Citizen, founded by Ralph Nader. Although both base their assessments on the number of board disciplinary actions, Public Citizen believes you should use the numbers to compare states, while FSMB does not.
The FSMB's key indicator is something called the "Composite Action Index"—a weighted average of the disciplinary action taken against doctors who practice in the state, as well as against those who are licensed in the state but may practice elsewhere.
Big swings in a state board's CAI may indicate a significant change of some sort, says the FSMB—perhaps a loss of funding if the CAI dips dramatically, or additional funding if the opposite happens. For this reason, say officials, the index is a good tool for measuring a board against itself over time. But it's a far less useful one, they caution, for making comparisons between boards, since the circumstances under which each operates are unique.
Public Citizen takes a different tack. It believes that it's not only fair to make comparisons between boards but absolutely necessary, since all boards should be operating under conditions that enhance their effectiveness, and that those that do should be distinguished from those that don't.
But for years, critics have faulted the consumer group for pitting large states with lots of doctors against smaller ones with comparatively few. The problem is that, in the smaller states, an increase or decrease of a few serious actions per 1,000 doctors—Public Citizen's basis of comparison—can have a major impact.
To address this charge, the group, in 2004, began to base its annual ranking on an "average rate of discipline" over the most recent three years—2002 to 2004, for this year's report. (It's gone back and calculated averages for previous years, as well.) Despite this, smaller states still dominate the top 10, and to a lesser extent the bottom 10 also.