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Opinion Editorial in the New York Times: A Free Ride for Bad Doctors

This Op-Ed by Sidney Wolfe, M.D. appeared in the March 4, 2003 edition of The New York Times.

The death of Jésica Santillán, the 17-year-old given a heart and lung transplant last month from an incompatible donor, has become the latest argument in Congress against President Bush's plan to limit malpractice damage awards. With doctors in several states staging work stoppages to protest the soaring costs of premiums, the plan to put caps on pain-and-suffering payouts had been picking up steam.

Yet in all the discussion of tragic cases and dollar amounts, a major cause of the malpractice problem is ignored: the failure of state medical boards to discipline doctors.

The fact is, only a small percentage of doctors account for most of the money paid out in malpractice cases. From 1990 to 2002, just 5 percent of doctors were involved in 54 percent of the payouts — including jury awards and out-of-court settlements — according to the National Practitioner Data Bank of the Department of Health and Human Services. (The data bank allows hospitals and medical boards to see the records of individual doctors but, thanks to pressure from the American Medical Association, Congress forbids it to release information to doctors or the public.)

Of the 35,000 doctors with two or more payouts during that period, only 8 percent were disciplined by state medical boards. Among the 2,774 doctors who had made payments in five or more cases, only 463 — one out of six — had been disciplined.

Is it any coincidence that the states least likely to discipline doctors are among those with insurance crises? Pennsylvania — where the governor had to intervene to keep doctors from going out on strike over malpractice insurance costs — has disciplined only 5 percent of the 512 doctors who had made payments in malpractice suits five or more times, the lowest percentage of any state. (Arizona, for example, has disciplined nearly half of the doctors in this category.)

And while Pennsylvania has 5.3 percent of the doctors in the United States, they make up 18.5 percent of American doctors with five or more malpractice payments. One doctor there paid 24 claims between 1993 and 2001 totaling more than $8 million (one was for operating on the wrong part of the body; another was for leaving a "foreign body" in the patient) yet was never disciplined by Pennsylvania authorities.

The state with the next highest overrepresentation of doctors with five or more payouts is West Virginia, where doctors went on strike last month. It has 0.57 percent of the country's physicians, but they make up 1.69 percent of American doctors who have had made malpractice payments five or more times. Only one-quarter of the state's doctors with five or more payouts has been disciplined by the medical board.

In New York, another state with a pending malpractice crisis, the number of doctors who have had five or more malpractice payments is two and one-half times higher than would be expected from the number of doctors licensed. Yet only 15 percent of these 698 doctors have been disciplined by the state board.

Amid the uproar about malpractice premium increases, there is a deadly silence from physicians' groups on the crisis of inadequate doctor discipline. The problem is not the compensation paid to injured patients, but an epidemic of medical errors. If medical boards, which are state agencies, are unwilling to seriously discipline doctors who repeatedly pay for malpractice — including revoking medical licenses from the worst offenders — then legislatures must step in and change the way the boards operate.

Congress should also rethink the secrecy surrounding the practitioner data bank. While a few states release some data to the public, most Americans have no way of finding out their doctors' backgrounds. What patient would not like to discover the malpractice history of a potential doctor, especially if he is among the 2,774 in the United States who have had five or more payouts?

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