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Discipline against bad doctors plummets amid COVID-19 – and more medical errors may slip through cra

Wednesday, September 9, 2020  
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USA Today

by Jayne O'Donnell

Discipline against bad doctors plummets amid COVID-19 – and more medical errors may slip through cracks

As hospitals filled with COVID-19 patients and the coronavirus infected physicians and nurses, state medical boards took a hands-off approach to doctor discipline: Emergency actions against doctors' licenses dropped 59% from April through June of this year compared with the same period last year.

Emergency license suspensions and restrictions dropped 85% in April alone, according to the federal Health Resources and Services Administration, which administers the National Practitioner Data Bank and provided the analysis to USA TODAY. HRSA is an agency of the U.S. Department of Health and Human Services intended to improve health care for the vulnerable and support training of medical professionals.

Such state medical board slowdowns might be expected if the pandemic prompted overwhelmed health care facilities to take fewer of their own emergency actions against doctors. But a separate analysis of data from January through June showed only a 2% drop in emergency restrictions of doctors' clinical privileges.

When a hospital decides a doctor has done something so dangerous it immediately prevents them from practicing medicine there, it's likely to be serious enough the physician shouldn't be practicing anywhere and should at least temporarily lose his or her license, safety experts say.

The drop in emergency license suspensions worries patient safety advocates, because many hospitals still have compromised and vulnerable patients. That makes errors and complications more likely and dangerous.

"It's a perfect storm: A doctor shortage, doctors are strained by the stress of the pandemic, and sicker patients," said Dr. David Sherer, a retired anesthesiologist and author of the book "Hospital Survival Guide."

Public Citizen Health Research Group's Azza AbuDagga said the data is particularly alarming because only 2% of medical board complaints even make it to the formal hearing stage. It already takes a year or more from the time a doctor is accused of harming a patient to when it gets to the data bank, she added.

Declines between 50% and 100% in six states – New York, Indiana, Texas, Maryland, Michigan and Kentucky – drove the overall drop. Kentucky took 10 doctors' licenses away on an emergency basis in the first six months of 2019 and none between January and June this year.

Sandra Radna, a New York City medical malpractice attorney, said her clients often wait three to five years for complaints to be investigated by New York's Office of Professional Responsibility, the disciplinary body for doctors and other health care providers there.

"It’s difficult enough for people when something terrible happens and they are looking for justice," said Radna. "For it to be that slowed down when everybody else is working on all-electronic communications doesn’t make sense. They couldn't pivot like everything else can?"

Patient safety advocates and plaintiff lawyers also blame a combination of state budget pressures and what Dallas medical malpractice lawyer Kay Van Wey calls health care workers' "hero status" amid COVID-19.

She represented about 10 victims of former neurosurgeon Christopher Duntsch, called Dr. Death in the podcast of the same name. Duntsch was sentenced to life in prison in 2017 for one of two deaths he caused. More than 30 patients, including Philip Mayfield, who Van Wey said sustained a "horrific spinal injury," were seriously injured.

"He didn’t create the problems that allowed him to hurt so many people," Van Wey said. Other than Duntsch losing his license and being sentenced to prison, "nothing has changed." The Texas Department of State Health Services fined Baylor Medical Center at Plano $100,000 for failing to report its evidence and investigation to the medical board but later reversed the citation and penalty.

The Federation of State Medical Boards, which represents the boards of all 50 states and Washington, D.C., said its data show medical boards' emergency and non-emergency disciplinary actions against doctors were down 14% from January through June. It attributes all of the decline to COVID-19.

The sharp drop in inpatient visits with or without a decline in complaints to state boards is a likely explanation, said federation president Dr. Humayun Chaudhry. Members told the federation their work was affected early in the pandemic, but they have adapted.

Critics will say, "How come you didn’t do something about someone being a bad doctor?" Chaudhry said. But state medical boards can only "register the complaints that get raised with them."

"They are delighted to get information," he said. "It's part of their mandate."

The medical board federation doesn't have data, but also believes some of the boards were affected by staff reductions. Illinois patient safety advocate Richard Pallardy said furloughs further slowed consideration of the complaint his family filed in 2018 about his 63-year-old mother's death after a misdiagnosis at a Chicago hospital. His father hasn't heard from the Illinois state agency that disciplines doctors since April to discuss his complaints against six doctors.

"He thinks they're stretching it out, but they have been stretching it out anyway," Pallardy said.

Spokesman Joe Knickrehm said the federation has "always strongly advocated for states to adequately fund their state medical boards."

Some states, led by Florida, actually took more emergency actions during the pandemic. The Sunshine State more than doubled the number of doctors it stopped from practicing, from four in the first six months of 2019 to 10 in the first half of 2020.

HHS extended free searches of the National Practitioner Data Bank because of COVID-19 through September. There was far less to see, but when HRSA, which is administered by HHS, dropped fees in March, searches rose 32% through June.

It typically costs $2 a search to find a doctor's disciplinary record or $2 a year for a continuous query of one doctor. Hospitals are required by law to query the data bank once every two years for anyone on staff with clinical privileges, and at least once when doctors get privileges.

The public can search the data bank for state or national numbers, but not the names of doctors disciplined. Consumers can verify doctors' licenses and disciplinary records, however, in the medical board federation's public database.

Docs with bad records can often still practice:Here’s what needs to happen to fix this.

Hospitals are required to report any actions that limit or revoke a doctor's clinical privileges for more than 30 days. But often, said Public Citizen Health Research Group's AbuDagga, hospitals will take actions that aren't reportable or allow problem doctors to resign.

"Hospitals are reluctant to take actions against physicians, especially the ones who fill a lot of beds," said Robert Oshel, a former associate director of research and disputes for the National Practitioner Data Bank.

Some charged with regulating doctors don't even avail themselves to the information that is out there.After analyzing 15 years of data involving doctors accused of sex abuse, for example, Public Citizen sent letters to every state medical board in late August to encourage them to regularly consult the data bank. Only 30% of the very few doctors disciplined by hospitals for sex abuse faced medical board action, AbuDagga said.

"Some states have never even queried the data bank," AbuDagga said.

What's really showing things down?
Medical boards get complaints from individuals, hospitals and medical malpractice settlements.

Most courts were shut down for months because of the pandemic, and plaintiff attorneys say hospitals were slower than usual to produce documents while battling the virus in the Northeast. Complicating matters for patients and their lawyers: New York Gov. Andrew Cuomo gave hospitals and doctors immunity from civil lawsuits for anything stemming from COVID-19 treatment.

The pandemic also may have slowed complaints, as errors would be harder to detect in hectic hospital environment where only the sickest COVID-19 patients were admitted and many were already near death.

The pandemic-timed drop in medical board action, though, was still far higher than the decrease in hospital-levied actions to restrict or terminate doctors’ clinical privileges on a non-emergency basis. Those reports were down 18% between Jan. 1 and June 30, according to an analysis for USA TODAY by Oshel.

Licensing boards would be expected to take about the same number of emergency actions during the pandemic, seeing hospitals are still doing emergency revocations of clinical privileges, Oshel said.

"Maybe the boards and their staff are overwhelmed with COVID-19 issues or don't work remotely very well," Oshel said.

Author and anesthesiologist Sherer blames the physician shortage that worsened as the pandemic sidelined more doctors for what he sees as the increasing reluctance of medical boards to restrict or suspend licenses. He said he gets job offers every week, often dangling salaries of $600,000 or more.

"Ten years ago, in my wildest dreams I wouldn't have expected such lucrative and plentiful offers," Sherer said.

Chaudhry of the Federation of State Medical Boards denies any such link.

"The guiding light, our North Star, is to protect the public," he said. "It's the facts of the complaint and the case. The workforce issue does not factor into individual cases."

Even if they don't have as many new cases because doctors' offices were closed, Van Wey has suggestions for Texas' medical board.

"Get cracking on your backlog," she said. "There's plenty of work for them to do and no shortage of doctors whose practices need to be removed. If they run out of things, they can give me a call."


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