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This page contains a single entry from the blog posted on November 9, 2005 4:31 PM. The previous post in this blog was Shoddy journalism. The next post in this blog is Matter of opinion. Many more can be found on the main index page or by looking through the archives.

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Wednesday, November 9, 2005

Enabling Dr. Death

The O took the local medical profession out to the woodshed over the weekend. The paper started with a story about the infamous Jayant Patel, a.k.a. Dr. Death (Motto: "At Kaiser Permanente, he thrived"). But this caromed into an expose of how a state law that was supposed to put medical malpractice claims on the public record with the licensing authorities in Salem has been a complete bust. The reason: The boys and girls at Kaiser and Oregon Health and Science University read the law as not applying to them.

It was a pretty extensive pair of articles, hard-hitting and full of important details. Still, not every perspective was considered. Left out, for example, was any reminder of the fact that this is the same esteemed group that tried to sell Oregon voters Ballot Measure 35 a while back. That measure would have limited patients' rights to sue for damages for pain and suffering and other emotional distress when guys like Dr. Death ruin them for life. That sales job actually almost succeeded. You read stories like the recent ones in the O, and you shake your head wondering how that initiative almost passed.

In any event, I'm not going to pile on with criticism of the weaselly moves of the OHSU and Kaiser folks. The O story took a pretty good whack at them, and the reaction elsewhere is along the same lines. What intrigues me as much is the story line being spun out by the folks at the state Board of Medical Examiners. They're denying that they intentionally looked the other way while Kaiser failed to report the malpractice claims against its docs. No, the regulators say, it's just that they never noticed:

But the two state agencies responsible for collecting the reports and enforcing the law paid scant attention to compliance through the 1990s, an investigation by The Oregonian found. And when regulators eventually pushed Kaiser and OHSU to report, the health system and university dragged their heels and argued the laws didn't apply to them.

The Board of Medical Examiners did not learn until 2000 that Kaiser had quit filing reports nine years earlier. Kaiser's explanation for doing so, regulators now assert, was based on an erroneous reading of the law.

Nine years with no malpractice claims reported by Kaiser, and nobody in Salem noticed? Sure.

In any event, it's time for the foolishness to stop. The law should be amended, as early as possible next session, to make sure that all malpractice claims, of any size, filed against anyone practicing medicine in Oregon are reported to the state, and immediately made available to the public on the internet. The accused, of course, should be given an opportunity to respond, as people are now allowed to do on their credit reports. But the information should be there for patients' and prospective patients' review.

The loophole that outfits like Legacy enjoy, and that outfits like OHSU and Kaiser think they enjoy, should be eliminated. If there's a doctor out there who's butchering people, as Dr. Death allegedly did, the fine print on his or her employer's corporation papers should have nothing to do with how much the public learns about it.

And no, I'm not forgetting the lawyers. The same rules should apply to them. As well as to accountants, architects, veterinarians, nurses, and any other member of a profession licensed by the state. Consumers are smarter than professionals and their regulators like to admit. Giving consumers the information will eventually result in smarter choices and better practices.

Comments (5)

Sadly enough neither the Oregonian, nor the State Board of Medical Examiners has paid much attention to this issue, or they have deliberately ignored it. In 1999 the Inst. of Medicine published a report stating the 44,000 to 98,000 patient die each year from medical errors. Assuming that is correct then that means that maybe 500 to 1,000 Oregonians are among that group. How many other problem docs are there out there who are being ignored because the State Board has its eyes closed? How much unneeded surgery s being done? And how often are needed an necessary things not being done?
And how long do these problems have to be in the public arena before the press pays attention?
Smudge King

Devils advocate here.

Suppose the state issues a bunch of 8-digit bonds for the construction of medical facilities. Can the purchaser of those bonds be assured that a jury might not factor in the size of the enterprise in awarding punitive damages? Would a large award bite into a hospital-related-enterprise's ability to repay the debt? The state treasurer has been busy on such bonds of late.

Sovereign immunity is one angle. Liability limitation is another, for all medical stuff. Then, there is the issue of the repeat offenders, which have been empirically shown to be the proximate cause of higher medical liability payoffs.

Match each of the three alternatives above to a political constituency. Bond issuers only; then bond issuers and all hospital-related folks, inclusive of insurers; then last but not least, the public interest, but without sufficient safeguards for the bond buyers.

Which option will appeal to lobbyists?

There's another board in Salem which has a fishy disciplinary action rate: the Board of Psychologist Examiners. During a 5-year period (2000 - 2004 inclusive) the Board of Pharmcy had a 29% rate of disciplinary action; the Board of Nursing had a 30% rate; the Health Licensing Office has a 26% rate for respiratory therapists, 50% rate for midwives. The Board of Psychologist Examiners has a 4.4% rate - and in 2002, a 1.6% rate (yes, one point six). Imagine that! Once you file your complaint, their "investigator" takes it from there. Never mind 19 OAR violations - behind closed doors, complaints are summarily dismissed. Who is overseeing this board? You have a much better chance of a fair "hearing" and subsequent resolution if your carpet is incorrectly installed in Oregon than if your child is abused by a psychologist.

I forgot to add - Of the 293 complaints received by the Oregon Board of Psychologist Examiners between 2000 - 2004 (inclusive), only 13 resulted in any type of discplinary action. What happened to those other 280 complaints?

Regarding the "quasi-public" sovereignty accorded OHSU
While I agree transparency in malpractice claims is important, I think at minimum, more general data regarding claims paid must be disclosed along with malpractice premiums paid per physician. I believe state law requires such disclosure, otherwise OHSU enjoys the benefits of tort immunity and public funding without the accountability which public funding requires.
Once this information is made available, we will all learn the extent to which malpractice insurance is reduced based upon the 200k tort claims cap to liability enjoyed by pill hill physicians.
C'mon tort reform advocates, this is your opportunity to shine! Show us how much cheaper malpractice insurance is for these physicians subject to the 200k limitation!
The truth will set you free!!!!


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