When Providers Make Serious Medical Mistakes, Who Should Report Them? To Whom?

In this edition of The Wired Practice video, originally published for MedPage Today, Vanguard CEO Ron Harman King discusses how healthcare systems and practices often promise a great patient experience but often fall short.
Watch the video on MedPage Today

By Ron Harman King, MS, JD, CEO

State medical boards lax in policing doctors’ medical mistakes

Among the recent healthcare news headlines is a startling report by the consumer advocacy group Public Citizen 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 three 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 Ph.D. and M.D. 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.

If not states, who should oversee clinicians for medical mistakes and nonprofessional actions?

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.

The whole idea is to relegate internal discipline by those with the expertise to know incompetence when they see it. Otherwise, politicians of far lesser 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 whistleblowers 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 Mitchell 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 one hour to find her not guilty.

Discouraging outcome for whistleblowing on medical mistakes

The most discouraging outcome of whistleblowing is how few complaints reach those who matter most – patients. My hat goes off to New York Times investigative reporters who uncovered use of a non-approved fluid used in spinal surgeries 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.

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

According to the Times, the complaint alleged that the surgeon 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.

Statute of limitations on medical malpractice

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 of the country has set a statute of limitations for medical malpractice cases at just two 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.

Unreporting decreases confidence in the medical profession

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

An investigative report 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 legislation 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?