State's long disciplinary process doesn't protect patients, critics say By Phil Galewitz Palm Beach Post Staff Writer Sunday, September 03, 2006 Dianne Hedrick of Royal Palm Beach had to have her left leg amputated after a doctor accidentally removed part of her artery during a varicose vein surgery. Chart: Bad doctors Chart: Doctors' disciplinary process • How complaints are investigated • Case studies: Real stories of medical mistakes More business news • Latest news, columnists • Local stocks • Market tools • Mortgage rates • Gas prices Ralph DiGiovanni of Boynton Beach had a fatal heart attack two days after a plastic surgeon performed a neck lift and hernia operation on the man despite his ailing health. Zainab Abughalia of Greenacres was left brain-damaged after a neurosurgeon failed to quickly operate to alleviate pressure inside her brain several hours after he removed a tumor. In the DiGiovanni and Abughalia cases, the Florida Board of Medicine — which oversees the licensing and disciplining of doctors — has taken no action. In the Hedrick case, the board fined her surgeon $8,500 six years after the mistake. The outcomes of the cases have outraged critics and prompted new questions about whether Florida adequately protects its residents from bad doctors. Though the oversight system has jumped between state agencies, the process works much the way it did 30 years ago. And therein lies much of the problem, critics say. Patients, plaintiffs' attorneys and consumer watchdogs argue that the state's medical disciplinary system, still largely shrouded in secrecy, protects doctors' livelihoods over patients' lives. They also argue that the doctor-controlled system takes too long to resolve complaints and that when it does act, it fails to issue harsh enough penalties. The system culminates with the governor-appointed board's 15 members, 12 of whom are doctors. The remaining three are consumers — currently a homemaker, a teacher and an administrative consultant. Two of the doctors on the board are former presidents of the Florida Medical Association, the lobby for the state's roughly 50,000 licensed physicians. State health officials counter that they face a difficult balancing act in protecting patients from bad doctors while making sure any physician accused of wrongdoing gets a fair hearing. They acknowledge that the disciplinary process is long and complex, and say that is often misunderstood. They insist, however, that the system works and is getting better. Health Department officials, who work in conjunction with the medical board to investigate complaints, say they have reduced the average time it takes to close a case from more than two years to about 18 months. At the same time, the average fine against doctors has doubled in the past five years to more than $8,600. "We think we are doing a good job at the ultimate goal of protecting the health and safety of the citizens of Florida," Health Department spokesman Irv "Doc" Kokol said. DiGiovanni's nephew doesn't see it that way. "I am outraged that my uncle died in 2002 and the state hasn't done anything," said George Parente of Philadelphia. The state filed an administrative complaint against Boynton Beach plastic surgeon Mark D. Schreiber, who performed the surgery, in January 2003. No action has been taken. "Medical boards have to obviously strike a balance between the due-process rights of a doctor and protecting patients, but... (doctors') due-process rights are given preference over patient safety issues," said Peter Lurie, deputy director of the Public Citizen Health Research Group, a Washington D.C.-based consumer watchdog agency. Florida is one of 15 states in which the board of medicine has a higher legal standard of proving negligence than is required in civil cases. In civil cases, plaintiffs must prove a doctor is liable by a "preponderance of the evidence," while the Florida medical board requires "clear and convincing evidence." Board members and department prosecutors look at complaints differently from civil juries, said Lucy Gee, director of the Health Department's medical quality assurance division. Although they take a patient's injury or death into account, it is not the overriding factor in whether the doctor is penalized. "A death does not automatically mean the doctor did something wrong," Gee said. Rather, she said, the state looks at whether the doctor deviated from medical standards. "Malpractice does not mean the doctor is a danger to the community," she added. Medical board has final say Regulating the medical profession carries particular challenges because of the emotions involved on all sides. The injured patient or a deceased patient's family wants accountability. But in the disciplinary process, doctors risk losing their license, and thus their livelihood. Moreover, regulators must determine whether a patient's bad outcome was due to a doctor's mistake or simply an unavoidable risk in the procedure or care. When a major medical mistake does occur, some critics ask: Should individuals who can hold the power of life and death in their hands everyday be allowed to keep practicing while the incident is being investigated? In 2004, Florida voters approved a constitutional amendment that would have automatically revoked the license of any doctor who lost three medical malpractice cases. State lawmakers subsequently watered down the law so the medical board still has ultimate discretion on revoking a license. When state officials believe a doctor's action or behavior threatens public health, the department can sidestep most of the lengthy complaint review process and have the state health secretary suspend or restrict the doctor's license. But such cases are rare. In the fiscal year ended in June, the secretary issued emergency orders 43 times, up from 39 the previous year. That's out of 8,073 reports and complaints filed against doctors in fiscal 2006. In a typical year, about two-thirds of reports and complaints are dismissed within 10 days after a cursory review because they do not involve offenses for which the doctor can be penalized, such as being rude or charging too much. The current Republican-controlled legislature has no plans to make major changes to the current system. "The system is working," said Rep. Gayle Harrell, R-Port St. Lucie, chairwoman of the House Health Care Committee, which oversees the Health Department. She defends the medical board's "clear and convincing" legal standard because the board's authority to take away a doctor's license is harsher than the penalties a civil jury can hand down. Taking away a license prevents the doctor from lawfully earning a living through the practice of medicine, whereas a court can assess only money damages. Unlike civil juries, the medical board can punish doctors for "near misses" when there is no harm to the patient, said Monica Rodrigues, a former board prosecutor who now defends doctors before the board. Harrell, whose husband is a retired obstetrician, said the state system is among the best. "I do believe we have one of the strongest boards in the nation," she said. None of the board members returned calls for this story. Health Department officials say they have the nation's highest rate of taking disciplinary action against doctors. But 80 percent of the actions do not affect the doctor's ability to practice. Nationally, Florida ranks 32nd in terms of taking serious disciplinary actions, such as removing or suspending a doctor's license, according to Public Citizen. "We are not out to get doctors; we are out to see what the real genuine situation is," said Mari "Miki" Presley, deputy general counsel at the Health Department. The medical board believes punishing doctors is not the cure-all to preventing future mistakes, said Larry McPherson, the board's executive director. That's why this summer it lowered the minimum $10,000 fine for doctors who make wrong-site surgery mistakes — operating on the wrong person, or on the right person but the wrong body part — to $1,000. Fines and public awareness of the problem had not reduced the number of incidents, McPherson said. The board is launching an education campaign to have each surgical team take a timeout to make sure it is doing the right operation on the right body part on the right patient. Some cases take years In a typical year, about 2,500 cases are sent to an investigator, who issues a report based on documents and interviews of witnesses. The investigator then sends the case to a prosecuting attorney, who collects more evidence. If the prosecutor determines the case should continue, it goes to a "probable cause panel," which determines whether there is enough evidence to send the case to the full board. Of all complaints, one in five makes it to the board — whether the same year or later — which makes a decision on any disciplinary action. Best-case scenario? Even if the system is working perfectly, it takes at least 18 months for the state to investigate a complaint against a doctor and issue a penalty. As of July, the state was still handling 164 complaints against doctors that were filed in 2002 or earlier. The system can break down at any point, though most delays are at the prosecution stage, state officials say. One difficulty in the process is finding experts willing to review cases against doctors — a process that alone can take several months. The Health Department pays $125 an hour for experts to review medical records — less than half the rate defense attorneys typically pay outside experts. Even when the state gets experts to review cases, their findings may conflict with the assessment of the doctor's experts. "It often becomes a battle of the experts," said Presley, counsel for the Health Department. In the case of Dianne Hedrick, the woman who lost her leg, the department spent two years trying to find a vascular surgeon to evaluate the care by West Palm Beach surgeon Paul Liebman. Part of the problem was that the doctor was well-known across the state. Though the board has fined the doctor, the Hedricks are still awaiting their day in court. Their civil case against Liebman is scheduled to go to trial in 2007, seven years after the botched surgery. More prosecutors hired Efforts to speed up the complaint process have been under way for nearly a decade. The state legislature in 1997 enacted a law that required all cases to get to a probable-cause hearing within six months, but a state audit in 2004 showed the department missed that deadline nearly 30 percent of the time. Last fall, the Health Department reorganized the team of lawyers used to prosecute cases. Instead of having a different lawyer handle a different stage of each case, it now uses the same attorney to follow the case to the end. The number of cases getting to the board for its decision has increased as a result, officials say. No taxpayer money goes into overseeing the medical profession. The doctor oversight system, which the state projects will cost about $15.8 million to run this year, is funded by fees doctors pay to get and stay licensed as well as any money paid in fines. Doctors currently pay about $450 for a license good for two years. The department has not increased its overall prosecution unit staff, but it has added more investigators and prosecuting attorneys in part to address an increase in cases. The department has 47 prosecuting attorneys, up from 43 in 2003. Each prosecutor handles about 120 cases at a time. Low pay is blamed for a 38 percent turnover rate among lawyers, which further slows the handling of cases. "We are committed to dealing with the backlog of cases," said Tim Cerio, the Health Department's general counsel. He said he has no plans to seek more money to add staff until he is sure his prosecuting attorneys are acting as efficiently as they can with existing money. Despite ongoing challenges, state health officials say they are doing better at getting cases to the medical board faster. Further, in the year ended in June, the number of cases the department prosecutors brought to the board rose to 299 from 245 the year before. But the pressure to keep up with the rising number of complaints is ever-present. "Sometimes it's like asking our attorneys to make more bricks without any straw," Cerio said.