On May 22, 2003, The News Journal in Dover, Del., published a short article by Randall Chase of the Associated Press indicating that Delaware ranked 50th among the 50 states in number of doctors disciplined by its medical licensing board. The article quotes Public Citizen, which in turn is passing along information provided by Sidney Wolfe, M.D., well-known leader in the campaign to point out flaws in the medical profession and its governance. The assumption is made that because Delaware draws its doctors from the same pool that other states do, there are probably a lot of Delaware doctors who should be disciplined but are not. I propose to take issue with that assumption, offer some reasons why it may not be valid, try to identify some reasons for the low numbers and offer ideas for correction, if it is deemed advisable.
My own background was in private practice of internal medicine (Pittsburgh) followed by a career in medical education, mostly in Delaware, 1962–1986, and an attempt to improve the Delaware Board of Medical Practice (BMP) as the last physician executive director, from 1992–1995.
Articles such as the Chase/Wolfe piece appear in the press about once a year. They purport to reflect public opinion, although actually they reflect only the opinions of a few people, some of whom may have a hobby horse to ride while others an axe to grind. I am not sure how one judges public opinion. Many think they know it by intuition, but my own intuition is that many of the concepts of how medicine controls itself date to 100 years ago when the medical profession had little to offer but mystery and compassion, and therefore was clannish and protective. Things have come a long way since then, and most doctors today have more patients than they can comfortably deal with. They recognize there may be a fringe 1 percent of doctors who practice marginal medicine. These doctors are an embarrassment to the other 99 percent, who would like to see them dealt with in some humane fashion so they could not hurt the public or damage the reputation of the 99 percent. The 99 percent recognize the importance of public confidence in their work and are willing to make whatever changes are necessary to achieve it. The history of the Delaware board during at least the past 30 years, to my knowledge, shows change after change intended to assure the public that the medical profession is not some “old boys’ club” out to protect their own, but a body of dedicated, hard working professionals striving for the best for their patients (the public). Most of the changes made have been patching up a basically flawed system and have consisted of adding more and more lay people to the board and its governance.
The basic fault with the board is a confusion of goals. It originally was for quality control, but now a new goal is proposed by Chase/Wolfe: the punishment of physicians. A lot of thought went into constructing the Delaware board and it still works — albeit with difficulty — but function follows structure, and an organization designed to ensure a high quality standard of medical care may not work well if we are trying to get minimum response time to complaints or maximum number of doctors disciplined. There must first of all be some agreement on goals, and the yardstick that will be used to measure progress toward these goals.
The following is a description of the organization and operation of the board, intended to illustrate how little control medicine actually has over its own discipline. Those familiar with this may want to skip to “How Delaware is Different.”
DELAWARE BOARD OF MEDICAL PRACTICE: ORGANIZATION AND OPERATION
The present organization of the board may seem a bit unusual to say the least. Every state function must be under some cabinet position, presumably to facilitate communication with the executive branch, and to identify someone to speak for and support that function. The Delaware board falls under the Department of Administrative Services. Some say that each secretary should have at least one function that is self-supporting, not dependent on tax revenue, and the secretary for Administrative Services has the Division of Professional Regulation (DPR), among others. The division director, like the cabinet secretary, is a political appointee, and may change from time to time according to changes in the state government. The DPR issues licenses, and many groups want the prestige that goes with licensure as well as the control of competition. If they all cost the state money, the tax burden might be formidable, so they are all grouped under DPR and licensure income is pooled to cover operating expenses. Some are too small to pay their own way while others generate a surplus, but overall the DPR breaks even. The biggest income producer is nursing; the second biggest is medicine. To change this could impact all the other 30-some licensing boards. For better or worse, the doctors are in there with the boards controlling gaming, massage/body works, adult entertainment and all the rest. The lawyers somehow escaped and report directly to Superior Court, where they answer to other lawyers. The position of executive director of the Delaware board is a career position that requires an advanced degree and rigorous screening. The board consists of 15 persons, 10 of whom are physicians, and the rest are lay people, usually with no prior health care experience. All are appointed by the governor from a short list and serve virtually without pay (10 meetings per year in Dover, can request $50 per meeting attended plus mileage; nothing for other time and expenses). They elect one of their members, physician or layman, as their president.
As complaints are received, they are assigned to a physician board member as principal co-investigator. This assignment can vary at the discretion of the executive director. Complaints are also assigned to one investigator from a panel of former police and others skilled in criminal investigation. The length of the investigation depends on the complaint, but can be long and tedious. When all necessary information has been collected, it is given to a designated representative of the attorney general’s office, and it is he or she who sets the agenda from then on. He or she has professional medical opinion from outside the board available on request as to whether the medical care rendered meets community standards or not. It is the attorney general who decides if formal, legal disciplinary action is to be taken, and great care is taken that only the principal investigator knows the identity and the charges against any given doctor. This is to keep the rest of the board untainted so they can vote impartially if there is a formal hearing and action.
The board has essentially two major functions: first, receiving applications for medical licensure, processing them, interviewing the applicants and approving or disapproving them for licensure; and second, receiving, processing and resolving complaints. Actionable complaints can be considered in two major categories: 75–80 percent relating to physician behavior, and about 20–25 percent relating to patient care. A partial list of behavioral items would include such things as unseemly public conduct, substance abuse, molesting patients, failure to organize or supervise office staff, breeches of confidentiality, misrepresentation and failure to keep up with medical education. Patient care would include errors of judgment, faulty diagnosis or treatment and neglect of care of a patient. In general, a doctor is not prosecuted for a single error in care unless it is grossly negligent or outrageous. The error may be called to his attention and corrective action urged. Repeated errors, defiance of suggestions or a pattern of care that could prove hazardous or detrimental to patients or the public, merits disciplinary action. It is in this area, where judgment enters, that state medical boards differ, being harsh or lenient. Some are prone to punish for a single infraction. Others are not. Some states, like Alaska, which needs doctors, may be more lenient than Florida or California, which have plenty. The latter can be very impersonal and mechanical in their processing.
Once formal disciplinary action is taken against a doctor, the action is a matter of public record. It is reported to three data banks: the quickest, the Federation of State Medical Boards; the second, the American Medical Association; and the third, the National Practitioner Data Bank. If a doctor holds a license in more than one state, all are automatically notified of the action of the disciplining state and take similar action against the doctor’s licensure in their own state.
HOW DELAWARE IS DIFFERENT
Each state is in some ways different from other states, and people who have lived in many areas recognize some of the ways Delaware is unique. We do not have the same resources or population as some other areas, so we have had to develop our own methods of coping. Certainly this is true in medicine, and for many years we have tried to make ourselves attractive to good doctors. For example, Christiana Care Health System, which includes more than half the doctors in the state on its staff, was formed out of three average-sized hospitals in 1965, and in 2002 was named by a national agency as 34th in the nation in quality of care and organization. Delaware still interviews every doctor licensed in the state. Most other states do not do this. Our state medical society is the only state society that jointly sponsors with hospitals to provide quality education for physicians. All other states accredit hospitals to conduct their own intra-hospital programming, but Delaware is singularly the only state that chooses to bypass this step to ease the burden on the hospitals. There are more than 1,000 hours of accredited CME per year in New Castle County alone, and Kent and Sussex counties have their own. Most of these are free of charge to encourage physician attendance. It takes 20 hours per year to qualify for license. The Medical Society of Delaware keeps a computer record of conference attendance for all of its members and, as the licensure biennium approaches, sends out to all members a tabulation to remind them of any hours they are short of legal qualifications. All hospitals in the state conduct quality control programs, department by department, with confidential review of patient records by small committees. The confidentiality is important as it encourages doctors to report irregularities. Any careless or marginal doctors are called in for counseling. This can be as specific as a surgeon being advised not to do a particular type of surgery until he has gone for further intensive training. If he fails to comply, he may find that he is simply not scheduled in the operating room. If he is so resistant that action is taken, it is reported to the board as a complaint, and this is the single most productive source of complaints. Other complaints may involve personal antagonisms, misunderstandings or technicalities, but these are really patient care.
All of this is not descriptive of statewide conditions in any other state. They may have this high quality in some areas, but not statewide. Thus, the overall quality is better in Delaware. Good doctors like to practice with good doctors. Each year our residency programs attract new graduates from across the country. When they see the quality of medicine practiced here, many of them stay. I simply do not agree with the premise of the Chase/Wolfe article that we should have the same proportion of miscreant physicians as every other state. Without criticizing other states, it is clear that each state has its own problems, and in some high-density areas the only way they can deal with them is wholesale processing of disciplinary actions.
Having made the point that Delaware is different, the fact remains that we do have a smaller number of actions. The Chase/Wolfe-type article will be back every year, and if we let them stampede us into some hasty action, we could easily wind up worse off. We must decide and agree what our most important goal is and how we (and not Dr. Wolfe) want to measure it. Perhaps incremental change toward a final model would be best. We need open discussion. If we decide to go for the numbers game, that certainly would require an expensive and extensive reorganization.
I should like to try to give a feel for day-to-day operations of the board and summarize 30 consecutive cases disciplined in another state and how they might have been handled here. Like every job, the executive director of the board has good and bad features. Dealing every day with people who feel they have been wronged, and their contentious relationship with those accused of the wrongdoing, is hardly pleasant work. Add to that the bureaucratic constraints of government service and the legalistic restrictions of the attorney general and you can get a frustrating environment. However, all this goes with the territory and has to be accepted.
In sharp contrast to all this unpleasantness is the irrepressible good nature of the people of central and southern Delaware who work at the DPR and make it a fun place to work. They work hard, but they are not uptight about it. After all, this is part of what makes our beach communities and our racing and gambling activities so inviting and pleasurable to vacationers. The very fact that we lump our gaming, massage and adult entertainment boards in with medicine, real estate, nursing, riverboat piloting and all the others, says something about the attitudes that prevail.
I recently had the opportunity to review 30 consecutive disciplinary actions by the medical board of a bigger state. It would take 10 to 15 years for Delaware to accumulate that many “bad doctors.” Of the 30 actions, only six were for defects in medical care, and five of those were for single errors. Delaware does not usually punish single errors unless the doctor is grossly negligent or outrageous. The harm done to thousands of patients by suspending the doctor’s license outweighs the benefit from appeasing one who feels wronged, unless the doctor’s actions are clearly dangerous. Depending on the specific circumstances, some of those six would have been warned or advised, but not disciplined. Another six were out-of-state doctors who happened to have licenses in the disciplining state. They would be disciplined in Delaware or anywhere else. Of the remaining 18 that were not for patient care at all, about half would have been punished in Delaware, but the other half would have simply been corrected or would not have come up in the first place (errors by office staff, insufficient CME hours, application errors, etc.).
Thus, of the 30 doctors disciplined in another state, about half would have been dealt with in a different way in Delaware. We need to think seriously of whether or not we want to play the numbers game. Incremental changes might well enable us to gradually achieve the changes we want without compromising what is an above average medical care system. For example, adding physician members to the board would relieve some of the pressure to leave enough members uncontaminated for decision-making. On the other hand, although the board would clearly benefit from more autonomy (vigorously denied by Administration) and the ability to determine its own fees and budget independent of the DPR, such a change would inevitably affect other boards and should be approached with caution.
SUGGESTIONS FOR CHANGE
Since about 1994 there has been a panel of 30 to 40 volunteer physicians who make themselves available to review cases in an advisory capacity at the request of the attorney general or the executive director of the board. The purpose is so that board members who may later have to vote on a disciplinary action should not have to bias themselves by becoming familiar with a case early. The panel is too large to have regular meetings, yet never large enough to have representatives of every specialty and subspecialty. Another weakness is that it has no official status, so some members feel exposed to nuisance reprisal suits by disciplined doctors. I propose that this large panel be supplemented by a five- to six-person committee representative of the broad fields of medicine and surgery. They should meet every six to eight weeks to review all patient care complaints received since the previous meeting, with privacy and anonymity preserved. They should render an opinion whether or not each doctor’s care meets the community standard. If not, was it grossly negligent or egregious? If the committee feels that a specialist or subspecialist will be needed eventually to testify, it would undertake to identify one, perhaps from the current panel. They should meet at a convenient location with the executive director of the board, a deputy attorney general and the designated investigator, who would be included for his or her education as to what sort of information is needed and how to obtain it. I propose they serve for one year at a time, renewable at their own pleasure. This could be tried first in New Castle County and, if successful, expanded to Southern Delaware.
In order to make it feasible to recruit the best people for this committee, it should have status and prestige, and I would suggest a name such as Preliminary Review and Advisory Committee to the Board of Medical Practice, and require it to submit a quarterly progress report of its opinions. This could be implemented by the existing board under its current operating regulations as a subcommittee of the board. This would expedite the entire process, make it more open and broaden the public’s understanding as to the number and nature of complaints, and some of the reasoning behind resolving them. This would introduce an incremental change in the operation of the board that could be followed up in any of various directions in future years. It should become clear that they are interested primarily in good quality, safe health care throughout the state, and not in playing some numbers or quota game. Changes could be made from time to time that are responsive to the true informed wishes of the public.
Originally printed in the Volume 75, Number 9, September 2003 issue of the Delaware Medical Journal. Reprinted with permission.
