In the nation’s first consumer’s directory of local physicians, which we published in 1974 for Prince Georges County, Maryland, we wrote, "Most people can find out more about a car they plan to buy than they can about a doctor who may hold their life in his or her hands."¹ Unfortunately, that statement is still largely true today. In the process of collecting information from doctors for that directory, the Maryland State Medical Association threatened doctors who cooperated with loss of their license, arguing that "information that would point out differences between doctors" is illegal.

Another example of the barriers to public access to information on specific doctors: the federal government began collecting information on state disciplinary actions, malpractice payments, and revocations and restrictions of hospital privileges for its National Practitioner Data Bank (NPDB) in September 1990. The problem is that consumers (and even doctors--except for information on themselves) are forbidden by law to have access to the data. This information is available only to hospitals, Health Maintenance Organizations, and state and federal government agencies that regulate the quality of medical care^."2,3,4

In the wake of efforts to pass legislation to open up the NPDB, the American Medical Association, whose earlier efforts had succeeded in a prohibition against public disclosure when the law creating the NPDB was passed in 1986, passed a resolution at its 1993 annual convention stating: "Resolved, that the American Medical Association...call for the dissolution of the National Practitioner Data Bank." Now, as then, the AMA seems to want to protect the minority of American physicians about whom there is data in the NPDB from the scrutiny of their own patients and other physicians.

There has been some progress in the area of informing the public about poorly practicing physicians. Much information on state and federal government discipline of physicians is now public, although often difficult to obtain, and we have used that data to compile this report. State medical boards, licensing bureaus, and medical societies have increased public access to physician sanctions and license status via toll-free numbers and Internet postings (See our Report on State Medical Board Web Sites); New York and California have made concerted efforts to enhance the exchange of information with other medical boards.

The United States has approximately 770,320 licensed medical doctors, most of them competent and dedicated. 20,125 Questionable Doctors includes only that 2.6% of physicians whose care or conduct was substandard enough to be cited by a state medical disciplinary board, Medicare, or the federal Drug Enforcement Administration, or whose eligibility to participate in Food and Drug Administration (FDA) experiments was rescinded.

In a 1988 study on medical care quality assessment, the Congressional Office of Technology Assessment concluded that "a sanction imposed on a physician by a state or a Medicare Peer Review Organization is good reason to question the quality of his or her care.⁵ The rigorous due process followed by state medical boards lends credibility to the validity of their formal disciplinary actions against physicians," stated the report. "State boards are reluctant to censure physicians and accord accused physicians extensive opportunities for appeal."

But until the day that consumers can have access to as much information about their health care providers as they can about buying a car Public Citizen will continue to battle the shroud of secrecy in which the medical community envelops itself.

The United States has a patchwork system for protecting the public from poor quality health care that is still largely uncoordinated and ineffective.

The first lines of defense are the state medical boards, the state government agencies charged with licensing physicians who meet certain standards. These boards are also responsible for catching already-licensed doctors who fall below standards of conduct or competence in any of a number of areas. They are legally empowered to discipline these doctors: to reprimand them, require them to take course work, impose fines, place them on probation, and, in the worst cases, to suspend them from practice or revoke their licenses altogether.

In all states, the licensing boards are required to provide consumers with some disciplinary information about a specific doctor. The state agencies’ addresses, including their website address if applicable, and phone numbers are listed in the "Addresses" section of each state’s listing in this report.

The U.S. Department of Health and Human Services, through its Medicare and Medicaid programs, also disciplines health practitioners. It excludes doctors from participation in Medicare or Medicaid for specified periods of time, and may fine them for violations as well.

The Department’s Inspector General must exclude a doctor for at least five years for a criminal conviction related to the Medicare or Medicaid programs and for patient abuse or neglect.⁷ It may also impose sanctions based on other types of convictions, on license revocation or suspension by a state agency, or on a sanction by any state Medicaid program. The Inspector General may also sanction a doctor for fraud, for accepting kickbacks, for failing to cooperate with investigators, for failing to pay loans, and, based on a recommendation by the Medicare Peer Review Organizations for each state, for providing substandard or unnecessary care. The Inspector General’s office accepts consumer complaints at the phone numbers and addresses listed in Addresses.

The Drug Enforcement Administration (DEA), which is part of the U.S. Department of Justice, tracks down doctors who overprescribe or abuse the so-called "scheduled drugs"--drugs such as narcotics, tranquilizers, and amphetamines that may be addictive or otherwise abused. The DEA issues licenses to doctors and dentists that allow them to prescribe these "controlled dangerous substances." No doctor may legally prescribe drugs listed as controlled substances without a valid DEA license. Some states require a separate state controlled substance license as well.

The DEA may deny a license to prescribe these drugs, restrict a doctor’s prescription privileges, or revoke his or her privileges to prescribe controlled substances. It publishes notices of such disciplinary actions in the Federal Register when the actions have been contested. The address to direct complaints to the DEA is listed in Addresses.

The Food and Drug Administration (FDA) sanctions physicians who violated FDA laws, regulations, or policies regarding clinical research on patients. In addition, the FDA permanently debars from ever working for an FDA-regulated company any one--including physicians--who was convicted of a felony related to FDA regulation of drugs.

State medical societies and specialty societies, both of which are unofficial trade associations for doctors, not government agencies, have peer review committees and have a role to play in medical discipline. However, they cannot prevent a doctor from continuing to practice, and their vested interest, in most cases, is in protecting their members, not the public.

Hospitals are required to have peer review committees to review the quality of medical care in their institutions. Consumers who have complaints about the quality of care in a hospital should file them with these committees. The committees may throw doctors off their staffs or restrict doctors’ privileges to practice there. Unfortunately, most hospitals regard their peer review activities and disciplinary actions as confidential and will not inform patients about them. The National Practitioner Data Bank (NPDB), as of December 31, 1997, contained information on 6,793 clinical privilege actions against doctors ⁸ but, as mentioned above, these data are kept secret. There is also serious concern that hospitals are not reporting all of the hospital disciplinary actions against doctors as required by law. During the first three years and four months of operation of the NPDB, 75 percent of U.S. hospitals had not reported even one physician to the NPDB.⁹   By 1996, according to NPDB staff, the situation had improved and "only" two-thirds of hospitals had not reported a single physician to the NPDB.By early 2000, almost 10 years after the NPDB had started its operations, 59% of U.S. hospitals, over 4000 hospitals, had still never reported any physicians to the data bank. One of the ways hospitals are said to be gaming the system and avoiding reporting doctors is related to the requirement that only those hospital disciplinary actions against doctors which are more than 30 days in duration need to be reported. Many hospitals are apparently taking a plethora of 27, 28 or 29-day actions so they will not have to report doctors whose cash flow of patient referrals they do not want to jeopardize.

Malpractice insurers can also play a role in quality control: they can cancel the policy of a physician who presents a bad risk, raise his or her rates, or offer coverage only if his or her practice is restricted.¹⁰ Unfortunately, many states guarantee every doctor access to malpractice insurance, no matter how poor his or her record. Without an insurance policy, few doctors could afford to continue practicing and, in many states, would not be legally allowed to. Some state medical boards are informed when a doctor has had malpractice insurance canceled and will tell consumers.

Though it has improved during the past 15 years, the nation’s system for protecting the public from medical incompetence and malfeasance is still far from adequate.

Gaps and breakdowns in communication still exist, although the National Practitioner Data Bank is helping to prevent doctors from being able to indiscriminately cross state lines to evade disciplinary boards. Those dangerous doctors who do fall through the cracks continue to kill, maim, defraud, and otherwise injure their unknowing patients.

Too many state medical boards, despite a clear duty to protect the public,¹¹ still believe their first responsibility is to rehabilitate "impaired physicians" and to protect them from the public’s prying eyes. And the definition of "impaired" has expanded: it now covers doctors who may be drunk on the job, strung out on drugs, mentally ill, or habitual sex offenders.

Arizona, unlike any of the other state medical boards, states in its orders about doctors that it interprets the Americans with Disabilities Act as a reason for not "disciplining" physicians for substance abuse simply because they are already in or will be required to be in a rehabilitation program. Therefore, these actions are viewed as a "voluntary agreement" between the Board and the doctors, not as a disciplinary action.

While it is important for doctors who suffer from emotional problems or drug or alcohol addiction to receive appropriate treatment, this must be balanced with the state’s responsibility to protect the public from doctors who are not able to deliver good medical care. Some states show a dangerous pattern of letting chemically dependent doctors return to practice after numerous failed attempts at rehabilitation. And while behavior that is sexually abusive may result from a mental illness, it is also a crime and is never acceptable in the context of patient care.

Although medical boards are now able to communicate with each other, at least indirectly, about doctors they have disciplined, the boards are often far too slow to act on what they have learned. And many state medical boards seldom communicate with the other agencies that guard against medical incompetence, fraud, and abuse--the federal Department of Health and Human Services, the Medicare Peer Review Organizations, the federal Drug Enforcement Administration, and the agencies that run state Medicaid programs.¹²  Many of our recommendations to the states and federal government call for improved and regular communication between these groups.

Only a few of the country’s medical boards, for example those in Utah, West Virginia, Georgia, Oregon, and a few others attempt to proactively sleuth out highly questionable physicians before receiving complaints, in order to prevent misconduct and poor care.

The College of Physicians and Surgeons in the Canadian province of Ontario, by contrast, visits physicians’ offices and performs random audits of their care in order to "be assured that licensed physicians meet minimal requirements for safe practice."^13,14 Physicians who fail to meet those standards, as many as 12% of family doctors and 2% of specialists, must undergo intensive educational retraining and in rare cases face disciplinary action. To our knowledge, no American state has yet attempted such a far-reaching quality control program.

Most importantly, most state medical boards have not refined the art of speaking to their primary constituency: the public.

Because of a commendable increase in requirements to report malpractice information to them, states are now repositories of masses of information on the quality of individual doctors, but most states have not begun effective ways of disseminating all of it.

Many consumers when selecting a doctor still feel that they are floundering in the dark. They are unfamiliar with the role or the existence of medical boards. They are unaware that they can request disciplinary information, or that they can file complaints. Unwarned, too many of these people are treated by doctors guilty of previous acts of malpractice. And unwarned, too many of them are harmed.

Too little discipline is still being done. Fewer than one-half of 1% of the nation’s doctors face any serious state sanctions each year. 2,696 total serious disciplinary actions a year, the number state medical boards took in 1999,¹⁵ (see Table A) is a pittance compared to the volume of injury and death of patients caused by negligence of doctors. A recent study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients may be killed each year in hospitals alone as a result of medical errors.¹⁶ Earlier studies also found that this was a serious national problem.

Expanding these estimates to include general medical practice outside of a hospital, the potential abuse by physicians is even greater. An in-depth interview with 53 family physicians revealed that 47% of the doctors recalled a case in which the patient died due to physician error. Only four of the total reported errors led to malpractice suits, and none of these errors resulted in an action by a peer review organization.²⁰

Medical students at SUNY-Buffalo were asked to recall incidents during their clinical training that raised ethical concerns. More than 200 students responded (40% of total sample); the majority of instances they reported (60%) did not in the researchers’ opinions threaten the patient’s life, health or welfare. This, however, implies that potentially 40% did.²¹

Systemic changes over time may also suggest a rise in physician malpractice. In a journal commentary, Dr. Alvan R. Feinstein reflects that in his 40 years of experience the manner in which medicine is now conducted may be sufficiently more complex as to contribute to an "epidemic of negligent medical errors."²² A review of 43 malpractice insurance claims also indicates that systemic causes significantly contribute to pediatrician error; 91% of these claims, however, were also attributed to alleged errors of physician judgment involving diagnosis and treatment.²³ Even medical students and residents are now being held legally accountable for their mistakes,²⁴thus broadening the pool of recognized physician error.

Given that many state medical boards now have the same information on claims and payments, they should be able to discipline at least as many doctors as malpractice carriers do. A 1989 Tufts University study found that physician-owned malpractice insurers sanctioned 13.6 of every 1,000 doctors they covered. The insurers terminated policies of 6.6 of every 1,000 policyholders in 1985 because of negligence-prone behavior, and they restricted the practice or imposed other sanctions on another 7 of every 1,000 doctors whose care was found to be substandard.²⁵ In an estimated population of 770,320 nonfederal doctors, this would translate to 10,476 doctors being disciplined a year.

Specific physician attributes also contribute to this rate. Two studies surveyed residents to determine the incidence of substance use. Recent alcohol use was extremely high in both groups (87% within the last year for emergency medicine residents; 74% within the past 30 days for surgery residents).^26,27 Additional findings proved extremely disturbing; although the emergency medicine program directors accurately determined the incidence of alcohol use amongst residents, they dramatically underestimated the percent who were actually impaired by the substance as indicated by diagnostic tests (1% estimate impaired vs. 13% diagnosed.)²⁸

This does not bode well for creating a medical system that prevents mishaps before they occur. And although the surgery residents reported negligible recent cocaine use, when employed, the drug was typically obtained from the hospital supply,²⁹ indicating a greater ease of access than for the general population.

Hughes reported that approximately 1-3% of physicians are disciplined or treated for substance abuse with an AMA estimated lifetime prevalence of 6-8% for alcoholism and 1-2% for drug dependency.³⁰ In 1985, Smith proposed that 17,000 doctors suffered from substance abuse.³¹ Six percent of physicians indicated lifetime alcohol abuse and 1.6% reported either alcohol dependency or abuse within the last year alone.³² If only 1% of physicians needed disciplining for chemical dependency, that alone would translate to 6,891 doctors.

Sexual abuse of or sexual misconduct with a patient is also a serious issue. Six to ten percent of psychiatrists surveyed confessed to having engaged in sexual contact with a patient^33,34 and in a longitudinal study, Garfinkel at al. noted that of the original 70 psychiatrists they tracked, 2 (2.9%) had lost their medical licenses due to repeated violations of sexual boundaries with patients.³⁵ In reviewing their own rate of disciplinary actions for the years 1991-1995, the Oregon Board of Medical Examiners determined that of 100 open complaints investigated against 80 doctors during this time period, 5.9% were alleged to be sexual misconduct. More than one-third (39%) of these were classified as sexual impropriety, 31% were categorized as sexual transgression and 30% sexual violation. Disciplinary action was reported in 5%, 27%, and 54% of the instances, respectively. Twenty-five percent of the closed complaints also resulted in reportable disciplinary action.³⁶