The Legacy of Public Outrage

by ANNE PAXTON

Editor, Professional Licensing Report

In looking over events of the last year, it is interesting to see how a high-profile tragedy can mould public policy for decades. Especially in the area of professional regulation, death can leave a powerful and enduring legacy.

A striking example is the drug-related death of Elvis Presley so many years ago, which continues to reverberate at the Tennessee Board of Medical Examiners. In January, former Presley doctor George Nichopoulos lost another bid to reclaim his medical license, which was revoked two years ago after the board ruled he had over-prescribed potentially addictive drugs to 13 patients, including entertainer Jerry Lee Lewis, from 1987 to 1990.

Nichopoulos' license was suspended for three months in 1980 after the board determined he over-prescribed drugs to Presley and other patients in the late 1970s. A jury later acquitted Nichopoulos on related criminal charges. But the drug scandal evidently continued to make the board cautious. It was the only state medical board that refused to permit physicians to prescribe the wildly popular diet drugs Redux and Fenfluramine/Phentermine, and it had to resist enormous pressure to maintain that stand. Last year, the state legislature finally overruled the board-- but only until September, when serious side effects led the drugs' manufacturers to withdraw them from the market nationwide.

Another event from the 1970s still permeates the debate over regulation of architects. Reviewers in a recent sunset report on the Colorado architect board invoked the 1979 Kansas City Hyatt balcony collapse, which killed 100 people, in discussing renewal of the board¹s charter for another ten years.

Although nothing as serious has happened in Colorado, the report noted that Denver architects have misjudged the ice-melting capacities of systems on some downtown buildings. In one case, streets had to be closed because of large sheets of ice falling from the United Bank Building, as it was formerly called.

More than sixty years ago, an explosion in Texas led the state legislature to require licensing of engineers, according to the Texas engineering board's public information coordinator, Hali Ummel. In the 1937 tragedy, almost 300 children and adults were killed when the New London Consolidated School blew up, due to an improperly designed heating system with inadequate piping. Ummel recently produced a video entitled The Origin of the Texas Engineering License, which includes interviews with some of the survivors of the explosion and former students at the school. (For further information about the video, contact Ummel at (512) 708-1383 or timpani@prodigy.net.)

Only last year, a tragedy in the California school system led to a crackdown on licensing of any personnel associated with the schools--one that put the system on overload for awhile. Eighteen-year-old Michelle Montoya was raped and killed at a

Sacramento high school on May 1997, allegedly by a Folsom Prison parolee convicted of voluntary manslaughter and armed robbery. By October, the legislature passed a law requiring that school districts conduct criminal checks on anyone they hire, including substitute and temporary workers, who were formerly exempt from a fingerprinting requirement.

The law quickly hiked requests for background checks to the state Department of Justice, with requests by the Teacher Credentialing Commission jumping from 2,775 in October to 7,725 in December--creating an instant backlog. But the department already does 750,000 background checks a year for state agencies, including many licensing boards, and a spokesman for the Justice Department said in April that it has now caught up.

Other California tragedies are influencing licensing as well. Judy Fernandez's death in March 1997 is one of several that led the California medical board to form a special committee to study cosmetic surgery. Fernandez bled to death after Irvine plastic surgeon W. Earle Matory Jr. removed 8.7 liters of fat during liposuction and performed a mini-face lift, a brow lift, and a laser resurfacing of her face. After a 26-day trial, an administrative law judge criticized Matory for ignoring signs that the patient was deteriorating midway through the 10 1/2 hour surgery. The medical board revoked Matory's license in December, along with anesthesiologist Robert Hoo's.

The California board is concerned about the number of nonspecialist doctors entering the field of plastic surgery, but it says deaths have resulted from a staggering range of situations, including an unlicensed physician attempting body sculpting in a patient's home, to a doctor with virtually no specialized training performing liposuction in his office, to a highly qualified surgeon performing multiple procedures in an accredited surgical center.

Fernandez's husband was apparently not confident that mandatory reports to the National Practitioner Data Bank would be enough to keep Matory from practicing elsewhere; the Los Angeles Times reported that he sent copies of the judge's 63-page report to all other state medical boards.

Evidently he did not put much faith in the federal data bank--another regulatory solution to tragedies caused by bad doctors who hopped state lines--since licensing boards are free to ignore the data bank reports if they wish. The data bank has made some difference, but laws that are swiftly enacted because of public outrage don't necessarily remain effective, and sometimes they do only part of what they are supposed to. The aftermath of Libby Zion's death is a good illustration.

Zion's 1984 death in a New York City hospital was blamed on overworked interns and residents, and led to a 1989 law limiting residents on-duty hours to 80 per week. But surprise visits to 12 hospitals this year by the State Department of Health showed that the limit is widely flouted. At all 12 hospitals, many residents work longer than 24 hours straight, and more than half of surgical residents work more than 95 hours a week. The chairman of a state committee that helped develop the residency laws says there is no real deterrent because hospitals are fined nothing, and doctors licenses are not threatened even when they put patients in jeopardy because of a lack of sleep.

Despite the law's shortcomings, it's another case where a tragedy led to a needed regulatory fix, and an unnecessary death is still influencing efforts to make the fix work 14 years later.

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