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A USA Today investigative report has shown that thousands of doctors who have been banned by hospitals or other medical facilities are not punished by state medical boards and continue to treat unsuspecting patients.  While it is good USA Today is publicizing this problem, it is unfortunately years behind in its coverage.  (See earlier reporting at The Legal Examiner here and here.)

The USA Today report looked at the case of Dr. Greggory Phillips, a physician in Texas.  By the time he came before the Texas Medical Board in 2011 for wrongly prescribing painkillers that killed Jennifer Chaney, Dr. Phillips had already faced an array of sanctions for mismanaging medications – and for abusing drugs himself.

Over a decade, board members had fined him thousands of dollars, restricted his prescription powers, and placed his medical license on probation with special monitoring of his practice.

They also let him keep practicing medicine.

– USA Today

In 2008, a patient died from a toxic mix of pain and psychiatric medicine prescribed by Dr. Phillips.  Eleven months later, Jennifer Chaney died under Dr. Phillips’ care.  Still, it took four more years of investigation and negotiations before the Texas Medical Board finally barred Phillips from treating patients.

USA Today found:

  • Doctors disciplined or banned by hospitals often keep clean licenses:  From 2001 to 2011, nearly 6,000 doctors had their clinical privileges restricted or taken away by hospitals and other medical institutions for misconduct involving patient care.  But 52% – more than 3,000 doctors – never were fined or hit with a license restriction, suspension or revocation by a state medical board.
  • Even the most severe misconduct goes unpunished: Nearly 250 of the doctors sanctioned by health care institutions were cited as an “immediate threat to health and safety,” yet their licenses still were not restricted or taken away.  About 900 were cited for substandard care, negligence, incompetence or malpractice – and kept practicing with no licensure action.
  • Doctors with the worst malpractice records keep treating patients: Among the nearly 100,000 doctors who made payments to resolve malpractice claims from 2001 to 2011, roughly 800 were responsible for 10% of all the dollars paid and their total payouts averaged about $5.2 million per doctor.  Yet fewer than one-in-five faced any sort of licensure action by their state medical boards.

As you’ve seen here before, there is no medical malpractice insurance crisis, but there is a crisis of medical malpractice.  Yet more and more states – particularly Texas – are enacting “tort reform” measures designed to make it difficult (and in many instances, impossible) to hold a negligent doctor accountable.  Texas has famously (though wrongly) claimed its “tort reform” laws making it nearly impossible to recover from a doctor for malpractice has swelled the numbers of physicians in Texas.

Let’s pretend for a moment that’s true.  As Mark Bello asked here at the Legal Examiner asked: What kind of doctors would that policy attract?  The answer is bad ones.

Bello looked at the case of Dr. Stefan Konasiewicz – a neurosurgeon who moved from Minnesota to Texas.  It turns out Dr. Konasiewicz had left a trail of nine medical malpractice suits in Minnesota before moving to Texas “where lax oversight and an unjustly reformed legal system allowed him to practice medicine.”

How does this happen? The Texas Medical Board (TMB) is not required to disclose cases of medical malpractice when a doctor moves from another state. In fact, they are not required to look into cases. You read that correctly, the Texas Medical Board does not check to see if a doctor moving from another state has a track record of seriously injuring or killing patients. The responsibility to disclose malpractice cases rests solely on the doctor. If the doctor does not report his/her own medical negligence, patients are left in the dark. And, it gets better. Thanks to Governor Perry, if you are injured, or worse, it is nearly impossible to seek justice because the state tort reform severely reduces a doctor’s accountability for negligence. Feel safe now?

– Mark Bello, Exposing the Perils of Texas Tort Reform

Instead of punishing victims, states should be more concerned with punishing bad doctors.  Tort “reforms” like caps on damages and other limitations on the right to trial effectively underwrite negligent conduct.  Call it a government bail-out for bad doctors.

When bad doctors aren’t held accountable and responsible for their negligence, the taxpayers end up with the bill.  Tort “reforms” like damage caps have the perverse effect of bloating government and penalizing tax payers through government funded bailouts of negligent actors. If the negligent person or company is not responsible for the damages, then the burdens must be borne by tax payers through Medicare, Medicaid, and assistance programs. Or it must be borne by the public through charitable institutions. Or it goes uncompensated and must be borne by the victim and their families.

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© Copyright 2013 Brett A. Emison

Follow @BrettEmison on Twitter.

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