Who Should Report Serious Medical Errors? And to Whom?

— A startling study reports that many state medical boards are doing a "dangerously lax job"

The consumer advocacy group Public Citizen recently published a reportopens in a new tab or window that ranked states by their rate of serious disciplinary actions from 2019 to 2021, as reported by the federal National Practitioner Data Bank.

In this video, healthcare marketing consultant Ron Harman King, JD, MS, discusses the analysis.

Among the recent healthcare news headlines is a startling report by the consumer advocacy group Public Citizenopens in a new tab or window that state medical boards are often more inclined "to protect the livelihood of questionable physicians" than to police the ranks for dangerous misconduct.

Indeed, the organization's study of 3 years of data from the National Practitioner Data Bank (NPDB) found -- and I quote -- that "many if not most state medical boards are doing a dangerously lax job in enforcing their states' medical practice acts."

The analysis by its PhD and MD authors found that barely half of the more than 16,000 physicians reported for allegedly dangerous misdeeds ever had as much as a reprimand reported by a state licensing board. And barely half of the 888 doctors judged by peers to be an immediate threat to health or safety suffered any licensure action taken against them.

Worst of all, of the nearly 10,000 physicians who have had five or more malpractice-payment reports lodged against them – thankfully, a mere 1% of all docs – three-quarters have experienced no licensure action whatsoever.

All this got me to thinking. If state authorities are falling down on the job, who should take up the slack of policing the ranks of clinicians?

It's easy to say that extra oversight should come from inside the profession. This has been the traditional role of medical societies in setting professional standards and rules.

Because the whole idea is to relegate internal discipline by those with the experience and the expertise to know incompetence when they see it. Otherwise, politicians of far less experience and expertise -- and of sometimes dubious motives -- will take over the job. And we all know how that can turn out.

But consider the possible consequences of whistleblowing. Protections for whistleblowersopens in a new tab or window vary widely from state to state, from a lot to not much. Plus, a well-meaning informant risks retaliation, including undergoing a money- and soul-sucking defamation lawsuit.

For instance, in a notorious case years ago, Texas nurse Anne Mitchellopens in a new tab or window faced 10 years in prison after she wrote a confidential letter to the state medical board about her boss, a physician who she believed practiced shoddy medicine. A state prosecutor filed a felony charge of "misuse of official information" against her. For what she believed was morally required action, police searched Mitchell's computer for incriminating information, her boss fired her, and another nurse who helped her write the letter was also charged. Fortunately, a jury took only 1 hour to find her not guilty.

The most discouraging outcome of whistleblowing is how few complaints actually reach those who matter most – patients. My hat goes off to the New York Times investigative reporters who uncovered use of a non-approved fluid used in spinal surgeriesopens in a new tab or window at the esteemed New York-Presbyterian/Weill Cornell Medical Center.

Derived from umbilical cord blood, the fluid was the choice of a senior surgeon in treating about 40 patients as a regenerative-medicine tool, the Times reported. Problem is, the FDA had not properly approved the fluid, a concern also of at least seven employees of the supplier company.

An FDA inspection of the supplier's laboratory found what the Times describes as "numerous problems, including significant breaches in sterile manufacturing and monitoring processes."

In fairness, as one of many credible advocates for regenerative medicine, the surgeon no doubt believed he acted in his patients' best interests. He also stands behind an unpublished study that he believed scientifically substantiates his choice of treatment for his patients.

However, a researcher working under the surgeon filed a complaint months after unsuccessfully warning the surgeon about inadequate approval. A chief motivation of the whistleblower was a concern that no patients had been informed of the fluid's use.

According to the Times, the complaint alleged that the surgeon had requested his subordinate delete the project research file and "never bring up the topic again." Moreover, neither a hospital spokeswoman nor the surgeon answered the question of whether patients got word of the fluid's use.

You might dismiss this as much ado about a few dozen patients with no evidence of harm. If only that were the end of it. There are still at least some 40 patients still apparently unaware of any risks of problems that may require months or years to manifest. They have no reason to be on guard for signs of trouble. Furthermore, more than half the countryopens in a new tab or window has set a statute of limitations for medical malpractice cases at just 2 years.

In addition, the Times reports that dozens of other hospitals listed the same fluid on their hospital pricing records. Lastly, the supplier has since declared bankruptcy, likely insulating it from serious legal peril.

I wish I had confidence that my loved ones and myself are relatively safe from risks of unreported serious mistakes by providers. But there's too much evidence to the contrary.

An investigative reportopens in a new tab or window earlier this year by the Reuters news agency found that healthcare providers paid $26.8 billion over the past decade to settle federal allegations of fraud, bribery, and patient harm. Their victims received no share of the settlements. Neither the government nor the accused wrongdoers were required to notify patients. Luckily some states are passing legislationopens in a new tab or window requiring board investigators to interview patients or their families before closing a complaint.

In many cases, the accused neither admitted to wrongdoing nor went to prison. Approximately one in five kept their licenses to practice medicine. About nine out of ten of the accused businesses and individuals were allowed to continue to bill Medicare.

Evidence abounds that, as the Reuters headline says, too often doctors buy their way out of trouble. Given the woeful lack of adequate oversight and enforcement, who wants to be a whistleblower? What healthcare professional wishes to risk a lawsuit, ostracism by colleagues, irreparable career damage, and crushing disappointment in seeing the guilty skate free or nearly free?

These are troubling questions. Yet in the end, the most troubling question of all is this: If everyone is busy looking out for himself or herself, who's looking out for the patient?

Ron Harman King, JD, MSopens in a new tab or window, is CEO of Vanguard Communications, a healthcare marketing and practice management consulting firm, and the author of The Totally Wired Doctor: Social Media, the Internet & Marketing Technology for Medical Practicesopens in a new tab or window. He blogs for MedPage Today on the topics of technology, the law, and the patient experience.

Gender surgery is malpractice. If medical boards are ok with such an atrocity then there are no standards. Not just that. Why isn’t ECT banned?

I am a pharmacist in Texas now retired. Our State Board of Pharmacy will come down on you hard if you break the law or practice pharmacy in an unethical manner, and this is good. Oddly, if a pharmacist has a drug problem the board will do much to try and rehabilitate the pharmacist as they should. If the pharmacist is distributing and selling controlled drugs in an illegal manner, your license will be taken, probably forever.

The State Board governing physicians is not as hard on doctors, and this is bad.

Why isn’t ECT banned?

Do you think it should be banned? I am no expert, but I've talked to a few people who say ECT is the only thing that helps them. I hope we have new treatments soon, but the reality is we are still in the stone ages when it comes to mental health.

Some pharmacists here have been out of control lately. Screaming at doctors, and carrying on.

I have a friend who is a doctor and the pharmacist screamed at her and said she doesn't have a medical license. (She does.) And was also arguing with her about the studies on this drug.

Another one screamed at the patient that the prescription was a party drug and it's illegal. (There is some use of this as a party drug, but it was being prescribed in a form and for the purpose the FDA had recently approved it for.)

I agree, the FDA is often wrong, but how can we have a system is the pharmacist is making these decisions on their own?

The State Board governing physicians is not as hard on doctors, and this is bad.

You are right about that. I know a doctor who lost privileges at two hospitals - only because he was "too honest" on the malpractice committee. He didn't have a single complaint or malpractice against him.

the pharmacist is practicing medicine without a license.

an age old law honored more in the breach...

Chaos ensues in the world when the government ceases prosecuting the laws on the books

I am sorry you had that experience. Well performed ect on selected populations give people back their lives.

Seen it time and again.

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