Archive for the ‘Maryland Board of Physicians’ Category

Doctors Disciplined by Their Own Hospitals Escape Action by Licensing Boards. Who’s at Fault?

Thursday, March 24th, 2011

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Public Citizen recently posted a report that revealed an extremely disturbing failure by licensing boards and/or hospitals to take appropriate disciplinary action against physicians, who have had their hospital privileges revoked, suspended or restricted.

At the heart of this revelation is the fact that when a physician does have action taken against his/her hospital privileges, the hospital is required to report such negative, adverse action to the jurisdiction’s medical licensing board. Nevertheless, as Public Citizen reports, during the time period being analyzed by Public Citizen (1990 to 2009), almost 6,000 such physicians have escaped any disciplinary action by state medical boards.

Of 10,672 physicians listed in the NPDB (National Practitioner Data Bank) for having clinical privileges revoked or restricted by hospitals, just 45 percent of them also had one or more licensing actions taken against them by state medical boards. That means 55 percent of them – 5,887 doctors – escaped any licensing action by the state. The study examined the NPDB’s Public Use File from its inception in 1990 to 2009.

For anyone familiar with how hospitals operate, it usually takes some egregious conduct for a hospital to take action against one of its privileged physicians. Threats of lawsuits by the physician against the institution are many times the first defense taken by a physician causing many hospitals to back-down from taking any disciplinary action. Often, those called upon to review the conduct of their fellow physicians are hesitant to discipline their peers too harshly for a multitude of reasons – not the least of which is the concept of “there but for the grace of God go I.”

That being said, how is it that when such an extraordinary step such as revocation, suspension or curtailment of hospital privileges does take place, these physicians escape being disciplined by their state medical boards?

Dr. Sidney Wolfe, director of Public Citizen’s Health Research Group and overseer of the study, offers these thoughts:

One of two things is happening, and either is alarming. Either state medical boards are receiving this disturbing information from hospitals but not acting upon it, or much less likely, they are not receiving the information at all. Something is broken and needs to be fixed.

While I personally don’t purport to know the “reporting requirements” for all medical licensing boards throughout the United States, let me share with you the reporting requirements and legislative mandate of two jurisdictions with which I am familiar.

In Maryland, one need only look at the Maryland Board of Physicians (this state’s regulatory body) “responsible for licensing and disciplining physicians, physician assistants, respiratory care practitioners, licensed radiation therapists, radiographers, nuclear medicine technologists, radiologist assistants, and polysomnographic technologists” Hospital Reporting Requirements FAQ to get the answer as to whether or not such hospital actions are a “reportable event.”

By law, hospitals must report to the Board – within 10 days of action – any action taken that immediately affects the privileges of a practitioner or any other health professional regulated by the Board, based on any of the grounds listed in Sections 14-404 (Physicians), 14-5A-17 (Respiratory Care), 14-5B-14 (Radiation Therapists, Radiographers, Nuclear Medicine Technologists, and Radiologist Assistants), 15-314 (Physician Assistants), and 14-5C-17 (Polysomnographic Technologists) of the Medical Practice Act. These matters generally relate to questions of competence, performance, unprofessional practices and unethical practices.

In the District of Columbia, once you work your way through the maze of online links, you eventually find that it is the Board of Medicine, “a division within the DC Department of Health, Health Regulation and Licensing Administration (HRLA), that “has the responsibility to regulate the practice of medicine in the District of Columbia.

What is interesting is that on its website, the D.C. Board of Medicine takes pride in the fact that in 2010, Public Citizen, the very source of criticism of the various licensing agencies in the most recent 2011 report being discussed here, listed D.C. as No. 16 in the nation in “living up to their obligations to protect patients from doctors who are practicing substandard medicine.” A review of the 2010 report by Public Citizen reveals that D.C. had previously been ranked No. 42 in terms of “meeting its obligations” to “protect patients from doctors…practicing substandard medicine.”

So exactly where is the proverbial ball being dropped? Is it the hospital that is failing to report its adverse action to the medical board? Is it the medical board, having been told of the adverse action, that sweeps the sins of the offending physician under the rug? Whichever it is – and it’s most likely a combination of the two to some extent but more likely the latter – those who suffer in the final analysis are patients, who unknowingly come under the care of these questionable physicians.

We are not talking here about a physician, who is otherwise a competent, skilled practitioner in his or her area of specialty, but who has a “bad day” and renders substandard care to a patient. Unfortunately, that happens with some degree of regularity across the nation every day. For a hospital to go to the point of bringing one of its own up on disciplinary charges and taking adverse action against that physician is a major step – one reflecting by necessity such a level of incompetency, a pattern of unsafe, bad care, outrageous conduct and the like that it must call into question the overall competency, integrity and character of that physician. Then, if that is the case – which it clearly must be – why are such physicians allowed to simply pull-up stakes and move on elsewhere to practice their trade? How is this in the interest of patient safety, which is precisely one of the main reasons for the very existence of medical licensing boards?

Public Citizen didn’t just report the findings of its analysis; it did something about it.

Public Citizen today sent the report to Kathleen Sebelius, Secretary of the Department of Health and Human Services, urging the agency’s Office of Inspector General to reinstitute investigations of state medical boards, something it has not done since 1993. Public Citizen also is notifying the 33 medical boards that have had the worst records in disciplining these doctors.

We commend Public Citizen for its investigation and report. While it is no doubt important that this problem comes to light, it is even more important that it be corrected – and soon. Will Secretary Sebelius take action? Will the licensing boards clean-up their act now that their misdeeds have been brought to the public’s attention? If hospitals are, in fact, not reporting their adverse actions, will there be repercussions for this failure? When will medical boards do what they are constituted to do – protect the safety and well-being of patientsnot when they feel like it, but when they are mandated to do it?

Every bad outcome or injury does NOT a malpractice case make! Some practical advice.

Sunday, December 5th, 2010

I recently came across a posting on the internet, which reminded me of a number of the type of calls we receive from people throughout the year. I thought it might be useful to share this post and some comments for you to consider about “whether you have a lawsuit” worth pursuing.

The post read:

I recently had to undergo epidural injections at a local pain management clinic. I was told the stats about the procedure and what signs to look for regarding problems. I had lower lumber injections, and the doctor that did the procedure told me that he punctured the spinal cord, thus releasing fluid. My problem was that I was sent home, to drive myself, and had made repeated calls to them regarding a monstrous headache that made even getting out of bed difficult. After almost 14 days, I finally called the local ER and was given totally different advice from the on-call doctor. I then finally recieved the blood patch….is there any liability here?

The balance of the post consisted of a lawyer responding to the question and some back and forth between the two, which ended – properly so – with the lawyer learning that the potential client had fully recovered, had gone through two weeks of hell and had incurred medical expenses for follow-up care to the tune of $3,750. The lawyer then told the person –

would that $3750 have to be spent regardless of the delayed treatment?

If so, you really don’t have a claim for much of anything. Even if it wouldn’t, to have a valid claim, you would also have to prove their actions were substandard in regards to the established standards of care. Generally, for little or no damages, you are not going to get an attorney to take on a case that will easily cost 10′s of thousands of dollars.

A Basic Problem – Pure Economics

Putting aside the issues of whether the original care giver violated a standard of reasonable care and whether that care caused injury, the pure economics of this situation does not justify the bringing of a medical malpractice case – “little or no damages…[for] a case that will easily cost 10′s of thousands of dollars.”

This type of injury, while clearly serious to the patient, luckily was not permanent in nature. Ask yourself, if you were on a jury hearing this case (assuming you found in favor of the patient-plaintiff by deciding that the doctor’s care was substandard and caused injury) - what amount would you award someone for two weeks of pain and suffering and no permanent injury?

Next, take your answer and do the following math:

  • The “10′s of thousands of dollars” the lawyer mentioned are real numbers that would be spent in a case like this. Expert witness fees (which can be enormous), deposition costs, costs to obtain the records, filing fees, etc. would easily be in excess of $50,000 by the time this case was concluded. Trust me – this is a conservative figure!
  • Legal fees – as many of you are aware, these cases are often taken on a contingency fee basis. The lawyer will charge a percentage (varying from as low as one-third to perhaps a high of forty percent).

Unfortunately, the economics of the case are a practical reality that must be and are addressed with these type of potential case inquiries. That doesn’t mean is easy to explain this to someone who is very upset (many times rightfully so) with the care they received or the attitude of the care giver.

The Client’s Perspective

Clearly no one wants to hear that the injury, inconvenience, medical expenses or pain they endured simply isn’t worth the lawyer taking. Some will read this and no doubt scream out – “You see, it is all about the money after all!” Well, I guess in a way it is – in part. Put yourself back in the shoes of the patient-caller. Let’s say their case is similar to the example (above) case: bills of $3,750, pain for two weeks, no permanency, no future care costs. Whatever number you came up with as our “juror in the box” for a verdict, now go ahead and subtract one-third to forty percent for the fee and – let’s say – $30,000 of costs. Why do I know that the resulting number is a negative one?

Hate to say it – but that’s the cold, hard reality of these situations. Imagine the lawyer trying to explain how the lawyer made some money but the client netted absolutely nothing! Not a place I’ve been or ever want to be.

So What Can This Person Do?

Well there are choices.

  • Try the old-fashioned method – try to work it out with the doctor or health care provider
  • If that doesn’t work, in most jurisdictions, you can always file a small claims action by yourself. The rules of evidence are relaxed in most jurisdictions and the judges tend to be quite liberal in their interpretation of the applicable laws – letting you have your day in court.
  • File a grievance with the local licensing board – they really do care and will take virtually all complaints seriously – at least that has been my experience in Maryland and the District of Columbia.

I strongly urge that you try option #1 – just see if you can sit down and discuss it with the doctor. If you are asked to sign some waiver form or agreement, before you sign it, see if you can have a lawyer take a look at what you’re signing first. You don’t want to waive any rights you might otherwise have. All that being said – try to work it out. It sure is a lot less stress and way less time-consuming. It also may go a long way in making the system work. Many doctors and health care providers are willing to at least listen. Watch your tone; don’t accuse them of being incompetent, uncaring or the like – just have a meaningful discussion and see if you can’t just work it out. If it doesn’t work, and you still believe you have been wronged, there are always options #2 and #3.

The “Suggestion Box”

I’m sure our readers would appreciate any useful suggestions by those who have found themselves in this situation. What approach(es) did YOU take? Did they work? I for one am always interested in hearing our reader’s suggestions – especially in for a topic like this. If they make sense, I assure you we’ll share them in a another post on a related topic. Take a moment and give us your thoughts.

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St. Joseph/Midei Stent Fiasco gets predictably worse. Chief of division faces licensing charges.

Friday, June 11th, 2010

Early this afternoon, the Baltimore Sun reported that the Maryland Board of Physicians, the state’s regulatory agency for licensing doctors, filed charges against the cardiologist, Dr Mark Midei, who was the head of the cardiac catheterization lab at St. Joseph Medical Center. Essentially the 19 page charging document alleges that Midei was guilty of “gross overutilization of health care services” and “willfully making a false report on record in the practice of medicine.” (emphasis added) Efforts are underway by our firm to obtain a copy of this complaint filed against Midei by the Board. We contacted the Board of Medicine and were told that the person who handles these requests was ‘not in today.’ Since the Sun was able to obtain a copy of the charging document – notwithstanding the alleged absence of the Board’s employee – we contacted the Sun. They declined to provide it with the understandable position that they “don’t share our material beyond what we publish for everybody.” At least they were kind enough to reply to our inquiry in very timely fashion. Hey, it was worth a shot.

The Sun reports:

Midei, who ran the cardiac catheterization lab at St. Joseph Medical Center until last year, is alleged to have put stents in the arteries of patients who did not need them. He’s also accused of falsifying medical records to make it appear that the patients were candidates for the expensive — and sometimes dangerous — procedures.

These charges are referred to as the “first independent verification of complaints made more than a year ago to board members and to the staff at St. Joseph.” The first public awareness of ‘complaints against Midei’ did not occur until St. Joseph Medical Center sent letters to patients around mid-December, 2009. As you will learn later in this blog, the first complaint to the Board of Medicine was made ostensibly by a whistle-blower employee of the hospital in November 2008. What in the world took the hospital thirteen months to investigate? The agreement reached with the federal government on the Medicare fraud investigation is reported to have happened in July 2009 5 months before the letters were sent. Midei is reported to have been terminated by St. Joseph Medical Center in the summer of 2009. How long does it take to write a letter to patients and their doctors?! I guess they had to meet with their lawyers for 5 t0 13 months to ‘get it right.’

The ‘typical’ letter, written by the Head of the Department of Medicine, Daniel Hardesty, M.D.,  reads in pertinent part:

I am writing to let you know that a subsequent review [i.e. after the sent had been placed months before] of your cardiac catheterization report was different than the original reports and may be relevant to your ongoing care and treatment.

What is perhaps even more telling is the letter written by Dr. Hardesty to the treating physician for the patients who received unnecessary stents. In relevant part, they read:

You are identified as the referring cardiologist. A subsequent clinical review of this patient’s catheterization report and images were at variance with the previously reported findings. In the opinion of the reviewer, the amount of stenosis in the [coronary artery stented] was insignificant. (emphasis added). Please refer to the Clinical Guidelines attached.

Somewhat fascinating is the fact that from all currently available information it is believed that the determinations made of these 585 patients who received the letters were made by a panel of reviewers, not one reviewer, and that the panel had to agree unanimously that the stents placed by Midei were “unnecessary.” Discovery in the class action lawsuit we are involved in against St. Joseph Medical Center will let us all know just how many were involved in this process of ‘review.’

In a follow-up blog a few hours ago by the Sun’s financial columnist, Jay Hancock, we get the following information from the charging document:

– The board received its initial complaint about Midei in November 2008. An anonymous person describing him/herself as a St. Joseph employee detailed 36 cases in which stents had supposedly been improperly placed. The board received another, similar complaint in April 2009. But it didn’t launch the investigation until it was notified on July 19, 2009, that St. Joseph had revoked Midei’s privileges.

– The board charging document includes the first bits of explanation from Midei to be made public. To wit:

Midei explained the discrepancy by saying he routinely used certain percentages — 70, 80, 90 — as shorthand to signify mild, moderate or significant blockage, the document claims. But he conceded, after reviewing his cases, that there was “significantly lower percentages of stenosis than he had initially dictated at the time of the procedure.”Midei also told hospital staff that he considered other clinical symptoms aside from test results when determining whether to place a stent, according to the charging document. (emphasis added)

Wonder which defense lawyer dreamed-up the ‘shorthand’ defense? Why did I know we were also going to hear about how he used his clinical judgment to justify his conduct of putting in totally unnecessary stents. I suspect many of you don’t do medical malpractice litigation, but the legal equivalent to “the dog did it” is “I used my clinical judgment” to justify what I did.

To bring today’s news full circle, be aware that apparently the Maryland Board of Physicians was notified thirteen (13) months before the letters went to patients. Jay Hancock’s blog posting tell us the following:

– The board received its initial complaint about Midei in November 2008. An anonymous person describing him/herself as a St. Joseph employee detailed 36 cases in which stents had supposedly been improperly placed. The board received another, similar complaint in April 2009. But it didn’t launch the investigation until it was notified on July 19, 2009, that St. Joseph had revoked Midei’s privileges.

I ask again – what took so long?! How many patients were subjected to unnecessary stents by Midei while the Board was “investigating.”  How long does it take to look at a medical record that says the heart’s blood vessel was stenosed (narrowed) 90% and look at a film study and see that it’s not even 20%? Did you know that the Board of Medicine can take emergency action against a physician who poses a risk of harm to the public?

As we continue to say – if you have any questions or need additional information, please contact: The Murphy Firm’s Lisa Bennett, 410-951-8811 or 410-940-8590 Lisa.Bennett@murphypa.com