A Free Ride for Bad Doctors (HRG Publication #1655)

This Op-Ed by Sidney Wolfe, M.D. appeared in the March
4, 2003 edition of the New York Times

A Free Ride for Bad Doctors

The death of Jésica Santillán, the 17-year-old given a
heart and lung transplant last month from an
incompatible donor, has become the latest argument in
Congress against President Bush's plan to limit
malpractice damage awards. With doctors in several
states staging work stoppages to protest the soaring
costs of premiums, the plan to put caps on
pain-and-suffering payouts had been picking up steam.

Yet in all the discussion of tragic cases and dollar
amounts, a major cause of the malpractice problem is
ignored: the failure of state medical boards to
discipline doctors.

The fact is, only a small percentage of doctors
account for most of the money paid out in malpractice
cases. From 1990 to 2002, just 5 percent of doctors
were involved in 54 percent of the payouts — including
jury awards and out-of-court settlements — according
to the National Practitioner Data Bank of the
Department of Health and Human Services. (The data
bank allows hospitals and medical boards to see the
records of individual doctors but, thanks to pressure
from the American Medical Association, Congress
forbids it to release information to doctors or the
public.)

Of the 35,000 doctors with two or more payouts during
that period, only 8 percent were disciplined by state
medical boards. Among the 2,774 doctors who had made
payments in five or more cases, only 463 — one out of
six — had been disciplined.

Is it any coincidence that the states least likely to
discipline doctors are among those with insurance
crises? Pennsylvania — where the governor had to
intervene to keep doctors from going out on strike
over malpractice insurance costs — has disciplined
only 5 percent of the 512 doctors who had made
payments in malpractice suits five or more times, the
lowest percentage of any state. (Arizona, for example,
has disciplined nearly half of the doctors in this
category.)

And while Pennsylvania has 5.3 percent of the doctors
in the United States, they make up 18.5 percent of
American doctors with five or more malpractice
payments. One doctor there paid 24 claims between 1993
and 2001 totaling more than $8 million (one was for
operating on the wrong part of the body; another was
for leaving a "foreign body" in the patient) yet was
never disciplined by Pennsylvania authorities.

The state with the next highest overrepresentation of
doctors with five or more payouts is West Virginia,
where doctors went on strike last month. It has 0.57
percent of the country's physicians, but they make up
1.69 percent of American doctors who have had made
malpractice payments five or more times. Only
one-quarter of the state's doctors with five or more
payouts has been disciplined by the medical board.

In New York, another state with a pending malpractice
crisis, the number of doctors who have had five or
more malpractice payments is two and one-half times
higher than would be expected from the number of
doctors licensed. Yet only 15 percent of these 698
doctors have been disciplined by the state board.

Amid the uproar about malpractice premium increases,
there is a deadly silence from physicians' groups on
the crisis of inadequate doctor discipline. The
problem is not the compensation paid to injured
patients, but an epidemic of medical errors. If
medical boards, which are state agencies, are
unwilling to seriously discipline doctors who
repeatedly pay for malpractice — including revoking
medical licenses from the worst offenders — then
legislatures must step in and change the way the
boards operate.

Congress should also rethink the secrecy surrounding
the practitioner data bank. While a few states release
some data to the public, most Americans have no way of
finding out their doctors' backgrounds. What patient
would not like to discover the malpractice history of
a potential doctor, especially if he is among the
2,774 in the United States who have had five or more payouts?____________________