by Sharon Kime and Robert Sullivan
Physician discipline is a lot like hunting gazelles in Africa. Recall the wildlife movies you’ve watched. A herd of thousands of gazelles graze peacefully across vast African plain. Creeping undetected in the grass to the right are several lionesses studying the herd, waiting for the opportune moment to lunge full speed after their chosen prey. Suddenly, the chase erupts. The drama is riveting. The surprised victim, now at full alert, breaks into a run. With few exceptions, the surrounding gazelles seem undisturbed. Most continue grazing, unconcerned with the intense life-and-death struggle going on about them.
Physician discipline is very similar. The strategy and power of the hunter, the hapless innocence of the hunted, and the apathy of the group all visually represent what occurs in most cases of physician discipline. Unfortunately, the scenario is repeating with increasing frequency in California.
Social pressures for change in health care drive increased regulation. In the past, physicians were revered as a resource and friend of the community . Now, due to the increases in health care costs, they are viewed with suspicion. Current estimates of health care costs are $939.9 billion per year. Although direct physician costs account for only 18.6 percent of this figure, it is estimated that physicians spend 85 percent of the health care dollar with their pens through prescriptions for drugs, devices and hospitalizations. Because health care costs are seen as a threat to the economic health of the nation, physicians have been cast in the role of the enemy rather than cherished professional.
Expect increased regulation by federal and state agencies
These economic pressures and changes in the social status of the physician have resulted in reforms not only to decrease costs in health care but also to increase physician discipline. Responding to public perception consumer protection in medical care is lax, legislation passed in 1991 (SB2375-Presley) revamped the physician disciplinary system. The BMQA, renamed the Medical Board of California, mandated tougher actions on bad doctors, a reduction in case backlogs and slashed investigation time. Prior to this legislation, approximately 175-200 Medical Board accusations were filed per year against California physicians. Following this reform, the number of accusations rose to 1,000 the first year. At first, this was explained as a correction due to the backlog. Now, however, the continued increase has been attributed to an increased number of complaints against physicians (6,000 – 8,000 / year), and to increased force of investigators and prosecuting deputy attorneys general. The 1991 legislation created a new Attorney General Health Quality Enforcement section for the purpose of prosecuting Medical Board cases. Between approximately 50-60 full-time deputy attorneys general are employed to prosecute the approximately 60,000 practicing physicians in the state. This ratio of attorney general prosecutors to physicians exceeds the ratio of district attorneys per county population to prosecute criminals in any county in the state.
Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but no specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.
Competent physicians may become subjects of Medical Board actions
Case in point: Physician A was a model physician. He was competent, compassionate, hard-working and devoted to his patients and family. He had practiced almost 20 years in the same community. No one had ever made a malpractice claim against him. He had never been censored or disciplined. He held a record of unblemished privileges at three local hospitals. He had been Chief of the Family Practice Department at the hospital and served as Utilization Chairman of the county’s IPA. He was well-respected by his colleagues.
When we saw him in our offices, he was facing a Medical Board action to revoke his medical license. He had seen a young mother as a new patient, performed a physical exam and listened to the patient’s litany of problems, which focused on stress and insomnia. He prescribed Xanax and referred her for psychiatric help.
One problem the patient briefly mentioned among the multitude of problems was the 11-year-old neighbor boy: He had damaged her 6-year-old daughter’s bike and, just the night before, the daughter told her he had raped her some time in the past. Dr. A. told the patient that, if she believed a rape has occurred, she could report it to Child Protective Services. Dr. A. did not see the child as a patient, nor did he believe a rape had actually occurred.
The patient not only reported the incident to Child Protective Services, she complained to the Medical Board that Dr. A. failed to report child abuse. Several months later, the Medical Board sent the mother and child with a hidden tape recorder to visit Dr. A. Although Dr. A. reiterated his advice to the mother, he still did not report the rape; he still did not believe a rape had occurred. Nonetheless, the district attorney brought criminal charges against the physician for failing to report child abuse. Dr. A. did not obtain legal representation. He could have easily defended the failure to report based on his reasonable belief that no abuse had occurred. Instead, he took the advice of the district attorney to plead nolo contendere, pay the fine, take probation for a short period, and eventually have the entire incident expunged. Although the DA was aware this plea would be grounds for revocation of his medical license, the DA did not inform Dr. A. of that fact.
Subsequently, the Medical Board brought an action to revoke Dr. A.’s medical license on the basis of a conviction of a crime substantially related to the practice of medicine. The sole issue in such a case is whether or not the conviction occurred and its relation to the practice of medicine. Despite intense negotiations with the attorney general, Dr. A.’s license was revoked, stayed and he was put on probation for one year.
There are things you can do to avoid disciplinary action or minimize its impact:
A. To prevent disciplinary action, take constructive steps:
1. Denude your mind of the concept that it could never happen to you.
It could. At the current rate of enforcement, in 10 years a significant percentage of the physicians in California will have been disciplined. Considering the effort and resources expended to obtain a medical education, a little effort spent to preserve it is only rational.
2. Purchase insurance for administrative actions.
Legal representation for a Medical Board action can easily run $50,000 – $100,000. Administrative Insurance will cover disciplinary proceedings initiated by the Medical Board, a hospital medical staff, HMO, PPO, Medicare Professional Review Organization (PRO), as well as Medicare/Medicaid reimbursement disputes. This form of insurance is not usually covered by your malpractice insurance; however, with the increasing demand, a few malpractice carriers have added Administrative coverage. You should check your policy or call your agent for information. If it is available to you, it is well worth the small additional premium.
3. Maintain constructive relationships with your professional colleagues.
Poor interpersonal skills subject the physician to an increased likelihood of receiving discipline. Abusive behavior to colleagues or nurses creates enemies who will be unforgiving for any infraction in quality of care, however minor. Many disciplinary actions are the result of poor relationships with either coworkers or colleagues, not poor medical care.
4. Don’t isolate yourself from the medical community.
Stay involved in your physician organizations and participate in the hospital committees. Isolation breeds suspicion. Gone are the days of the brilliant loner physician who gains recognition on the sheer strength of his own ideas. Staying in the community with your colleagues reduces the risk of unnecessary criticism, gives evidence that your practice is compatible with others’ and offers an opportunity to exchange information and stay informed.
5. Practice within the community standard.
This may sound obvious, but there are those who think they are above the standard. Unless other physicians are persuaded this practice is superior, physicians who practice differently, no matter how pure their motivation, risk discipline.
6. Keep good medical records.
The burden is on the physician to demonstrate medical indications for treatment and prescriptions. Adequate documentation is essential evidence to demonstrate medical indication. Without it, the physician’s care may be misinterpreted by medical experts who review his records or distorted by poor memories or hostile motives of former patients.
7. Bill carefully and conservatively.
Insurance fraud is the kiss of death. Simple errors in billing by improperly supervised subordinates can balloon into enormous legal battles. Supervise well-trained staff and randomly check billing procedures to make sure they are in compliance with your requirements.
B. To survive discipline, get competent legal representation.
Generally, the sooner a cancer patient obtains competent medical care, the better the outcome. The same can be said, as a general rule, for the physician’s career once disciplinary action has been initiated. Disciplinary actions should be handled by an attorney experienced in Administrative law. The forum and procedures in administrative hearings are different from those in civil court. It is not wise to turn over an administrative case to a business or estate attorney no matter how trusted. An attorney with inadequate experience in administrative matters can ruin a physician’s career.
Obtaining representation early in the investigation may resolve the action and minimize legal costs. There’s a saying in law, “Pay me now or pay me later, and I’d prefer you pay me later.” It costs less for legal representation when the problems are small. Once the problem has grown, so have the legal expenses to resolve it.
The strategy during an investigation is to provide accurate information to the Medical Board so the investigation can be closed. However, the Medical Board should not have free access to all information they request. Only information relevant to the complaint should be provided. A physician should never speak to the Medical Board without counsel. With legal assistance, it’s important to provide an accurate, legally persuasive response to the consumer complaint for the file. This response may assist the attorney general in correctly assessing the weakness of the case before filing an accusation.
Significant consequences follow a Medical Board action.
Discipline has a domino effect on the physician’s career. This is because of the intricate web of federal and state reporting requirements and querying mandates. If the Medical Board investigates or brings an Accusation against a physician, he may have to report this to the HMOs, PPOs, etc. with whom he contracts. Depending on the terms of their contract with him, they may terminate his participation or suspend action until a resolution of the matter. Hospital applications for appointment or reappointment of privileges require disclosure of a Medical Board action. The National Practitioner Data Bank requires a report of any Adverse Licensure Actions. Malpractice carriers must be notified. All these notifications can result in further restrictions on the physician’s practice. If a physician is licensed in another state, disciplinary action will usually be initiated in that state if the Medical Board of California disciplined the physician in California.
In conclusion, physicians need to be alert to the increase in disciplinary actions brought against California physicians. Given the impact on the physician’s career, it is wise to take all means possible to prevent discipline. However, once discipline has been instituted, it is imperative to obtain competent representation as early as possible to minimize its impact.
[Sharon B. Kime practiced government and administrative law at Nossaman, Guthner, Knox and Elliot in Sacramento. Before entering law, she earned a BS in nursing, and an MA in public health.
Robert J. Sullivan, who also practices government and administrative law at Nossaman, Guthner, Knox and Elliot, is a former deputy attorney general.
Although we published this article in Sacramento Medicine in November 1994, the issues are still relevant today.]
Letters to the Editor in response to the above article:
Why do you suppose Attorneys Kime and Sullivan ruined an otherwise informative article by silly dramatization?
Depicting the disciplining of physicians as a “…life and death struggle…” against the “…hapless innocence of the hunted…” is pure theater. The analogy of the disciplinarians (read: the Medical Board) as “lionesses…creeping undetected in the grass…waiting…to lunge full speed after their chosen prey” is bizarre and distorted. In this analogy physicians are “…gazelles…who graze peacefully…” Then, they are wantonly attacked: “Suddenly, the chase erupts. The drama is riveting.” The only descriptive scene we are spared is the bloody carcass of the gazelle being consumed by the lioness, dangling parts of the gazelle’s body between her teeth. The law of survival; not the rule of law!
Then, we presume, come Attorneys Kime and Sullivan – the Stewart Grangers of the African plain – who with calm dispatch will save the innocent gazelle from the fierce, unrelenting lionesses.
Can’t you see the image: Stewart Granger with a T-shirt, complete with logo saying, “Trust in Nossaman, Guthner, Knox and Elliott. Let’s Make A Deal! We’ll scare you; you pay us for the privilege.”
Out of Africa Dixon Arnett Executive Lioness, MBC
As a member of the Medical Board of California, I was forwarded “The Hunted Physician” by Dixon Arnett. I am writing this letter to inform your readers that Mr. Arnett does not necessarily represent the views of the entire Medical Board of California. I believe that the article by Kime and Sullivan is very important and should be distributed to California physicians. In fact, I am going to forward a copy to the CMA for evaluation in regard to distribution.
The opening paragraph is dramatic, but the analogy is useful. My experience on the Medical Board indicates that the physician against whom the complaint is recorded is pursued aggressively by investigators and prosecuting deputy attorneys general. Often we receive stipulated agreements with comments that the stipulation should be accepted because there are witnesses who cannot now be found or would not now testify or that this is a penalty greater than we can expect to receive if there were a hearing before an administrative law judge. In these situations, we do not receive any argument from the defense or statements from the physician. We are to assume that because the physician signed the stipulated agreement this is an admission of guilt (without any evidence). I know that often physicians sign these agreements because of lack of funds for legal defense or because of intimidation and fear of greater penalties even for actions they do not consider to be “criminal.” Physicians commonly make mistakes in treatment of patients. This is because the treatment of patients is difficult and physicians are human beings.
Many of these mistakes could be amplified by an investigator or a prosecuting deputy attorney general to intimidate the physician into a stipulated agreement. I believe that, many times, physicians sign the stipulated agreements in the mistaken belief that this will quiet the issue.
Unfortunately, the issue then becomes public knowledge and the insurance companies often eliminate the doctor from their approved physicians list, which can cause severe economic damage to the physician. The use of the term “for protection of the public” is intimidating both to the accused physician and to the political appointee on the Medical Board who is required to approve these stipulations. Physicians in California are poorly educated on the consequences of the discipline by the Medical Board of California in regard to their public reputation and the economic consequences.
The Medical Board of California has provided means to educate California physicians. Its publication, “The Action Reporter,” is one method. A second is a team of Medical Board members who will speak at medical societies. Furthermore, the MBC has instituted the changes of cite and fine and letter of reprimand regulations to avoid stipulated agreements that require probation of the license for appropriate offenses. This results in a fairer discipline for the physician.
For the Division of Medical Quality for the Medical Board of California to become most effective in participating in the enforcement process for the discipline of physicians, I believe that the evaluation should occur on the front end of the investigation rather than the back end. This would allow evaluation of information that would sometimes prevent the costly long term investigations and hearings. To date, this change has not been seriously considered so that the California physicians continue to be “does” at risk of being “hunted.”
The recommendations by Kime and Sullivan for physicians are excellent and, hopefully, more articles such as these, in combination with MBC educational programs, will sufficiently educate California physicians. With appropriate education, the threat of inappropriate action by some physicians will diminish, as will the necessity of aggressively pursuing physicians to avoid media criticism.
The MBC is a competent group of people who have adequately responded to media criticism for several years. At this time, we must balance the importance of the protection of the public with the appropriate discipline of physicians without intimidating physicians into discipline which may be inappropriate for the complaint. Articles such as this will help to equilibrate the present situation by providing the necessary education for physicians.
Sincerely, Lawrence D. Door, MD
The penetrating article, “The Hunted Physician” by Barclay-Kime and Sullivan, in the November issue of Sacramento Medicine, paints a poignant metaphor of medical peer review, wherein the accused, hunted physician is likened to a targeted gazelle. I would like to address that metaphor describing the depicted surrounding gazelles, mostly grazing contentedly, “…unconcerned with the intense life-and-death struggle going on about them.”
I have been there, and, although ultimately totally vindicated by the peer review process, I can assure you that uncomfortable position is made indefinitely worse when one sees previously close and collegial friendships and referral patterns rapidly disintegrate into nothingness, and virtually nobody speaking up, other than in ineffective whispers.
Consider the now famous case of Patrick vs. Burget wherein the appellate court in Oregon found against Dr. Patrick on an antitrust legal technicality, and, at the same time, declared the peer review process to be “…shabby, unprincipled and unprofessional conduct,” a view that was echoed by the US Supreme Court in unanimously reversing in favor of Dr. Patrick.
It is a matter of public record that the CMA and the BMQA filed a joint amicus curiae brief against Dr. Patrick and on behalf of the subsequently discredited doctors and the involved hospital before the Supreme Court. The legal organization of medicine and the disciplinary process are well documented to be substantially identical in both California and Oregon. Was that a wise decision for the ultimate benefit of our profession? I submit it was not.
Laments from organized medicine as to the Supreme Court reversal in the Patrick decision are sufficiently innumerable to be unworthy of citation. Of interest is the front page article in the AMA News (February 26, 1988) describing in considerable detail the professional and financial ruination of the doctors involved in the Dr. Patrick peer review, the destruction of the Astoria Clinic, and disruption of patient services. One must presume by the prominence and flavor of this article the implied sympathy for the peer reviewers.
Is this sympathy deserved? Yes, for the families of the punished physicians, the unemployed staff of the defunct Astoria Clinic, and, in particular, for the many innocent patients whose medical services were disrupted. As for the physicians involved, a resounding NO vote of sympathy. They gave their names and reputations to a process that was “…shabby, unprincipled and unprofessional conduct.” Those physicians, however passive and/or innocent in the abusive peer review process that found against Dr. Patrick have disgraced the notion of nobility of peer review in our profession, and they have earned the harsh punishment that has been given them. After all is said and done, all they had to do was say NO to the abuses of that discredited peer review process.
Has organized medicine subjected the Dr. Patrick peer reviewers to medical discipline for their part in this despicable process? To the best of my knowledge, the answer to that question is NO. Should organized medicine discipline these physicians? I submit that a logical analysis requires organized medicine to take an appropriate stand, and impose discipline on these disgraced and clearly deficient physicians.
I would like to suggest that all physicians, including the silent members of organized medicine, owe a great debt of thanks to Dr. Timothy Patrick. His persistence and ultimate court decision have certainly done more to cleanse the peer review process than anything else I can think of. If one considers that peer review is the most sacred function of the medical profession, then, indeed, that debt of thanks must be great.
Returning to the hunting metaphor, it is well known that lionesses also hunt zebras. It is also known that, on occasion, a well-placed zebra kick will cripple the attacking hunter. A lioness with a broken jaw is a dead lioness.
One might presume, from a teleological point of view, that lionesses hunting zebras are rather more circumspect. Thank you, Dr. Patrick.
Deane Hillsman, MD
Mr. Arnett would prefer a dry, factual discussion of the Medical Board, sanitized of anything that might depict tragedy. However, drama and tragedy are not lacking in the real lives of physicians subject to Medical Board discipline. In fact, the analogy in our article does not adequately capture the reality. The lioness is too intelligent and hunts only for a genuine need. The gazelle is too ignorant. He has not spent years in education and service to his kind. Nor has he struggled under an increasing burden of regulations and economic pressures to practice his profession. The kindness of a quick kill does not capture the anguish of those who observe, fully conscious, the slow destruction of their careers, families, and finances and who then contemplate suicide.
The only hope is for physicians to educate themselves and become politically active. The Medical Board should be more intelligent and selective in decisions on whom to discipline. De minimus infractions or a single act of negligence should not subject a physician to license revocation. A pattern of negligent practice should exist before disciplinary proceedings are instituted. Medical controversies should not be resolved by Medical Board discipline. Until standards are clearly established in the medical community, it is impertinent for a state agency to dictate a standard. Retaliatory discipline of whistle blowers or the politically unpopular is an improper use of the powers of the state.
The Medical Board should be qualified under the same requirements of a medical laboratory test. To be effective, a medical test should be both sensitive and specific. Sensitive, in that it picks up all the potential positives. Specific, in that it picks up only the positives. It does not pick up negatives as false positives. With the new legislative impetus to discipline physicians, the Medical Board has increased its sensitivity but lost its specificity. Now some very good physicians are being subjected unjustly to disciplinary proceedings – with tragic consequences.
Mr. Arnett’s letter attacks our metaphor but ignores our message. Perhaps he cannot respond!
Sharon Barclay-Kime Robert J. Sullivan