Considering the Source
By Anne Paxton

There are two ways states can try to stop licensees from unethical or incompetent behavior. They can cast a wider net by outlawing more kinds of conduct—as many have done by banning sex with patients or clients in the last few years— or they can cast a finer net by sharpening their scrutiny of licensees. With the growing use of online complaint intake, and recent attention to the failings of reporting requirements, it seems that more states are becoming concerned about the fineness of the net, in effect, the "surveillance" system used to keep professionals in line. But how close and how watchful should that surveillance be?

Lucian Leape, MD, the lead author of the Institute of Medicine report on medical errors issued in November 1999, makes it clear that incompetent or impaired doctors are a major part of the problem. In a March speech, he emphasized that hospitals must do more to identify them. But a study by the National Practitioner Data Bank showed that 60% of hospitals never reported a disciplinary action to the federal data repository even though they were legally required to do so.

The boards receive even fewer reports. The Massachusetts medical board found that hospital disciplinary actions against doctors declined in each of the past five years, falling to only 56 in 1999. In California, actions reported to the board fell from 282 in 1989 to 83 ten years later—while over the same decade complaints filed by consumers rose by 50 percent.

But the licensing boards generally are not models of behavior when it comes to filing their own reports. A U.S. General Accounting Office study published last November showed that 24 of 252 reports the boards submitted to the National Practitioner Data Bank contained coding errors that could confuse or mislead a reader about the severity of sanctions imposed. For example, several reports indicated that practitioners’ licenses had been restored or reinstated when, in fact, they had been placed on probation. Other reports indicated that practitioners had been reprimanded when, actually, restrictions had been placed on their licenses.

Of course, if boards are too credulous about consumer complaints, they have to worry about the value of what they’re getting. A tangle of lawsuits was born out of a series of anonymous complaints filed by telephone with the Minnesota Board of Dentistry. Although the board’s investigation showed the complaints against the dentist were groundless and the case was closed, when the police came into the picture they traced the calls to the dentist’s next-door neighbor, with whom he had long been feuding. They filed criminal charges. In March, a jury convicted the neighbor of criminal defamation, the first such conviction in the state since 1935.

Now, questions are being raised about the confidentiality of complaints filed with Minnesota boards, since few complaints are likely to come in if people are worried about retaliation. Despite the indications that a personal dispute drove this particular complaint, the director of the state Lawyers Professional Responsibility Board maintained that accepting a license means accepting complaints, and that he would look askance at a lawyer who sought civil or criminal action against a complainant.

On the other hand, many consumers feel their complaints don’t get a proper hearing. A patient who testified before one medical board, according to a recent news report, recalled, "After two years of waiting, I was given five minutes to present my case. Then a little red light came on, and I was told, ‘You’re excused.’ As a patient, I felt about this little. As a consumer, I felt even smaller."

Reporting laws appear to be more effective for licensees with less inclination to file lawsuits. California’s mandatory reporting for physicians, two decades old, is barely functional, but a 1999 law ordering hospitals to report suspensions or firings of respiratory therapists, and ordering respiratory therapists to report alleged misconduct of their colleagues, has already brought in 57 complaints. And that’s 57 more than the board had ever received from these sources since its founding in 1985.

Self-reporting laws have also met with some success. Since July 1999, Florida has required licensed nurses and certified nursing assistants to self-report crimes more serious than a traffic offense if they were found guilty or pleaded no contest. In the first 18 months after the self-reporting law took effect, 130 self-reports came in from the nearly 500,000 licensees to which it applied.

A Florida licensed practical nurse who was convicted of second-degree murder was able to practice for four years after completing her sentence—until last December when she received a letter about the state’s new self-reporting requirement. She revealed the conviction to the nursing board and was told she could either accept a two-year license suspension and $500 fine, or file for a hearing and appeal in person.

She chose the latter, pointing out that she had not tried to hide the conviction from her employers. Ironically—not knowing that the boards find out very little unless it appears in the form of a complaint—she had assumed that the licensing authorities already knew about it.

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