State Medical Boards Fail to Discipline Doctors With Hospital Actions Against Them

March 15, 2011

Alan Levine
Robert Oshel, Ph.D.
Sidney Wolfe, M.D.

View entire report (pdf)
View letter to Secretary Sebelius about this report (pdf)
View sample letter to state medical boards which failed to discipline 50 percent or more of the physicians with clinical privilege reports

• Executive Summary
• The Problem
• Understanding the Problem
• Methodology
• Findings
• Conclusion
• Appendix and Exhibits (PDF)

 

Findings

Clinical Privilege Reports Per Physician, Nationally

Table 1 shows the number of physicians with one or more clinical privilege reports but no state board action, stratified by the number of reports per physician. For example, it can be seen that 125 physicians have had four clinical privilege reports without any state licensing action while three physicians have had 12. Of a total of 10,672 physicians in the data bank with one or more clinical privilege actions, 45% had one or more state licensing actions, but 5,887, or 55%, — more than half — had no state licensing actions.

Table 1

Physicians with Adverse Clinical Privilege Reports to the NPDB But No Licensure Board Action
Number of Adverse Clinical Privilege Reports Per Physician	Number of Physicians with Specified number of Adverse Clinical Privilege Reports But No Licensure Action
1	4056
2	1250
3	350
4	125
5	56
6	27
7	12
8	5
9	2
10	1
12	3
Total Physicians With One or More Clinical Privilege Reports But No Licensure Report:	5887

Hospitals, managed care organizations and other health care entities that do peer review have 40 codes available to categorize the nature of the action taken in a clinical privilege report, such as “revocation,” “termination” and “voluntary surrender while under investigation.”[1] They also have 62 codes available to explain the basis for actions that were taken. These bases for action codes — the offenses of the doctors resulting in these credentialing actions — include the following: immediate threat to health or safety, incompetence, substandard or inadequate care, inability to practice safely by reason of alcohol or substance abuse, and sexual misconduct.

Clinical privilege sanctions for very serious reasons, some of which are listed above, should be particularly important triggers for state medical board investigation and probable licensure action. However, our analysis of clinical privilege reports with no licensure board action in this study found 2,401 clinical privilege reports involving 2,071 physicians for performance and conduct reasons that would seem to warrant medical board action. As can be noted in Table 2, there were 243 reports with a “Basis for Action” code indicating that the physician was an “Immediate Threat to Health or Safety.” The 243 reports involve a total of 220 physicians; 197 of these physicians with no licensure report have one such code while 23 of the practitioners had two such codes, i.e. there were two hospital actions taken against these 23 practitioners for being an “Immediate Threat to Health or Safety.”

The seriousness of the hospital action for these physicians is made even more evident by our analysis of NPDB Public Use File data showing that of the 220 physicians who were found to constitute an “Immediate Threat to Health or Safety”:

• For 167 (75%) of these 220 physicians, the hospital took an immediate action, i.e. “Summary/Emergency Suspension of privileges” or “Summary or Emergency Limitation, Restriction, or Reduction of Clinical Privileges.”
• For 42 (21%) of these 220 physicians, the hospital revoked or suspended their privileges.

Thus, for the 209 or 94% of these 220 physicians who constituted an “Immediate Threat to Health or Safety,” the hospital took one of the very serious actions cited above. The remaining reports involved non-summary actions. However, according to the NPDB Public Use file, state boards did not take any action against any of the 209 physicians that were considered such a threat.

As seen in Table 2, there were a total of 2,401 clinical privilege actions against 2,071 physicians based on this most serious group of reasons for the clinical privilege action. This means that 2,401 out of the total number of clinical privilege reports — 8,734 — or 27.5 percent that did not result in any state board actions were in these most serious categories. At the level of physicians, this means that 2,071 of the 5,887 physicians with one or more clinical privilege actions (35%) had one of the most serious group of reasons for these clinical privilege reports.

A more complete listing of “Basis for Action” codes for the reports in our study is attached as Exhibit A. As stated earlier, all data in our analysis is for physicians who have been disciplined by a hospital or other health care organization but who have not had a single state medical board licensure action. It should be acknowledged that some of the 5,887 physicians in our study may no longer be practicing, but if that is indeed the case, it was their own decision and not the result of a medical licensure board action. Furthermore, if a physician gives up his/her medical license during a medical board investigation, it is still a reportable action to the National Practitioner Data Bank as a “voluntary surrender.” Such medical board actions, if they were properly reported to the NPDB, would have been taken into account in our analysis; i.e., they were counted as a licensure action and excluded from our analysis.

Table 2

Basis for Action and Basis for Action Reporting Code	Number of Reports	Number of Physicians
Immediate Threat to Health or Safety (Code F1)	243	220
Incompetence/Malpractice/Negligence (Code 52: used only until November 12, 1999)*	1072	910
Incompetence (Code 11)	165	152
Malpractice (Code 12)	29	27
Negligence (Code 13)	31	30
Sexual Misconduct (Code D1)	31	30
Criminal Conviction (Code 19)	24	23
Unable to Practice Safely (Codes F3,F4,F5)	74	72
Fraud in Obtaining License/Credentials (Codes E4,09)	24	24
Fraud (unspecified) (Code 05)	28	25
Insurance Fraud (against Federal and Non-Federal Health Care Programs) (Code 06,08)	2	2
Narcotics Violation or Other Violation of Drug Statutes (Code H1)	13	10
Diversion of Controlled Substance (Code H6)	4	4
Practicing without a Valid License (Code A4)	4	4
Substandard Care (Code F6,F7)	657	605
Total actions with most serious basis for action	2401	2071**
*Code 52 was changed in November 1999 and separate codes were established for each category.
** This is an unduplicated count of physicians. A total of 67 physicians have reports in more than one reporting category.

Duration of Clinical Privilege Sanctions
In addition to the number of clinical privilege reports per physician and the nature of the violations leading to these reports, we examined the duration of the penalty imposed in clinical privilege actions for physicians who had not had a state licensure action. When reporting the length of a penalty, reporters can specify that the penalty has an indefinite period, or that the period is a time frame that they state in the report (e.g., nine months or three years), or that the penalty is “permanent.” The length of the penalty is reported independently of the type of penalty (e.g., revocation, suspension, limitation).

We found the following:

• There were 3,679 sanction reports with permanent penalty, which represents 42 percent of all clinical privilege reports in our analysis that did not result in state medical board discipline. These reports involve a total of 3,218 doctors, each of whom has from one to five reports with permanent penalties. Since there were 5,887 physicians in our study, a total of 54.7% of the practitioners with one or more clinical privilege sanction but no medical board action have at least one permanent penalty. Specifically, 300 of these doctors have two permanent penalty reports, 55 have three permanent penalty reports, 13 have four permanent penalty reports and three have five permanent penalty reports.
• There were 1,143 sanction reports involving 986 physicians with specified penalty length, which represents 13.1% of clinical privilege reports in our study.
      We further analyzed these 1,143 reports to determine the length of the penalty. We found:

– 394 reports involved a penalty of from one to four years

– 30 reports involved a penalty from 5 through 11 years

– These 434 reports involved 389 physicians

• There were 3,580 reports with “indefinite” penalty length, which represents 41 percent of all clinical privilege reports and involves 2,775 physicians.

Thus, a total of 3,607 (3,218 plus 389) physicians, representing 61% of those with one or more clinical privilege reports but no state disciplinary action, had either a permanent penalty or a penalty of one year or more.

This is yet another way of demonstrating that very serious actions by hospitals are not followed by any action by many medical boards.

State-by-State Analysis of Clinical Privilege Reporting
Exhibit B lists the number and percent of physicians, by state, with NPDB clinical privilege reports who also have no licensure actions. In 32 states plus the District of Columbia, at least half of the physicians with clinical privilege reports did not have any reported licensure actions.

• In eight states, 70% to 77% of the physicians with one or more clinical privilege sanction reports had no state licensure action. These states are: Delaware Hawaii, Indiana, New Mexico, Nevada, Pennsylvania, South Dakota and Tennessee.
• In seven states, 60% to 69% of the physicians with clinical privilege sanction reports had no state licensure action. These states are: Florida, Georgia, Illinois, Montana, Nebraska, Texas and Wisconsin.
• In 17 states plus the District of Columbia, 50% to 59% of the physicians with clinical privilege sanction reports had no state licensure action. These states are: Alabama, Alaska, Arkansas, California, Idaho, Kansas, Michigan, Missouri, North Carolina, New Hampshire, New Jersey, New York, Ohio, Oklahoma, South Carolina, Utah and Washington.

Thus, in 32 states plus the District of Columbia, 50 percent or more of the physicians with clinical privilege actions had never had a state licensing action in that state or any other state.

For all states in the U.S., we examined the number of clinical privilege reports per physician with no licensure reports. We found the following:

• Three states (California, Minnesota and Missouri) each had a physician with 12 clinical privilege reports but not even one state licensure report.
• Indiana had a physician with 10 clinical privilege reports but no licensure reports.
• Nebraska and California each had a physician with nine clinical privilege reports but no licensure reports.
• Four states (Maryland, New Jersey, New York, and South Carolina) each had a physician with eight clinical privilege reports but no licensure reports.
• Nine states (Alabama, California, Massachusetts, Nebraska, Ohio, Oklahoma, South Carolina, Texas and Washington) each had a physician with seven clinical privilege reports but no licensure reports.

See Exhibit C for a table showing for each state the number of physicians with specified numbers of clinical privilege reports but no licensure board action.

Clinical Privilege Sanctions and the Likelihood of a Medical Malpractice Payout for Those Physicians without a State Licensing Board Action
According to research done by National Practitioner Data Bank staff, physicians with high numbers of medical malpractice reports in the NPDB tend to have at least some adverse actions reports (e.g. hospital disciplinary report, medical board report) and Medicare/Medicaid exclusion reports and vice versa. For example, the most recent NPDB annual report notes that a third of physicians with 10 or more medical malpractice payouts have one or more adverse action reports, and almost nine percent of physicians with 10 or more medical malpractice payments were excluded by OIG from Medicare and Medicaid.[2] The NPDB report further notes that “Generally the data show that as a physician’s number of malpractice payment reports increases, the likelihood that the physician has adverse action reports also increases.[3] Finally, the NPDB annual report also notes, “Physicians with at least two malpractice payment reports were responsible for the majority of malpractice payment reports for physicians … A few physicians were responsible for a large proportion of malpractice payment dollars paid … Eleven percent of physicians [in the NPDB] with at least one malpractice payment were responsible for half of all malpractice dollars paid from September 1, 1990 through December 31, 2006.”[4]

As can be noted from Table 3 below, our own analysis found an overall trend that as the number of hospital clinical privilege reports for physicians with no licensure action increases (up to five reports), the greater the likelihood that a physician will also have a medical malpractice report. For example, 43 percent of the physicians with one clinical privilege report had a medical malpractice payment, whereas 61 percent of the physicians with four clinical privilege reports had medical malpractice payments. It is noted that 57 percent of all the physicians with six or more clinical privilege reports (up to 12) but no licensure action have a history of medical malpractice payments.

Table 3

Number of Clinical Privilege Reports	Percent of Physicians with Specified Number of Clinical Privilege Reports and No Licensure Action Who Have at Least One Medical Malpractice Report
1	43.4%
2	47%
3	56.6%
4	60.8%
5	64.3%
6 through 12	57%

Exhibit D shows the number of medical malpractice payment reports for doctors with one, two, three, etc. clinical privilege reports but no licensure actions. For example, for the 4,056 physicians with one clinical privilege report, 13 doctors had from 15 to 25 medical malpractice payments, and one physician had 26 medical malpractice payments. For the 350 physicians with three clinical privilege reports, five physicians had nine or more medical malpractice payments, including one provider with 15 payments. For the 56 physicians with five clinical privilege reports, six physicians had from six to 12 medical malpractice payments. The 50 physicians with six or more clinical privilege reports (up to 12) also have multiple medical practice payments, including one doctor with eight payments and one physician with five payments.

Table 4 below shows the general increase in the percent of medical malpractice payments for physicians with four or more medical malpractice payouts as the number of clinical privilege reports per physician increases. Note that, for the most part, as the number of clinical privilege reports increases, the percentage of those physicians with four or more medical malpractice payouts increases.

Table 4

Number of Clinical Privilege Reports for Physicians with no Licensure Reports	Percent with Four or More Medical Malpractice Reports
1	7.1%
2	9.7%
3	13.8%
4	12%
5	16.2%
6	14.8%
7	0
8	20%
9	100%
10	100%

Exhibit E provides a state-level breakdown of the following:

• Number of physicians with one or more clinical privilege reports but no licensure action
• Mean number of clinical privilege reports per physician with no licensure action
• Maximum number of clinical privilege actions for a physician with no licensure action
• Mean number of malpractice payments per physician with clinical privilege actions but no licensure action
• Maximum number of malpractice payments for a physician with clinical privilege actions but no licensure action

Physicians with clinical privilege reports but no licensure reports in our study not only had on average almost 1.5 clinical privilege actions per physician but also had an average of more than one malpractice payment in their records. Again, this raises the issue of board inaction with respect to physicians with multiple hospital disciplinary reports as well as medical malpractice payment reports.

Table 5 below shows the states that had physicians with 10 or more malpractice payments and at least one clinical privilege report but no licensure action.

Table 5

State	Number of Physicians with at Least 10 Medical Malpractice Payments and at Least One Clinical Privilege Report but No Licensure Action
California	15
Georgia	13
Illinois	10
Indiana	20
Kansas	19
Michigan	14
Missouri	16
New Mexico	26
New York	17
Ohio	13
Pennsylvania	23
South Carolina	15
Texas	22
Washington	12
Total for all of these states	235

See Exhibit E for a state-by-state listing of the maximum number of medical malpractice payments for a physician with clinical privilege actions but no licensure action.

Individual Physicians

To find a sample of individual physicians who had a high total of clinical privilege and medical malpractice reports but no licensure action, we examined the NPDB Public Use File to determine the: (1) the dates of medical malpractice reports to the NPDB and total payout; (2) basis for medical malpractice claims; (3) dates of clinical privilege report(s) to the NPDB; (4) reasons for reports; and (5) length of sanction for physicians with at least one clinical privilege report and multiple malpractice reports (but no licensure reports). We identified a sample of 17 physicians in 10 states. The results of this review are outlined in the Appendix attached to this report. Case summaries for 10 of these physicians (one from each state) are provided below:

• California – Physician # 5039 had a clinical privilege report involving suspension of privileges in 1991 and 15 medical malpractice reports totaling $1.9 million for the period 1993-2009. The reasons for the malpractice claims, as described in the Public Use File, included two cases of retained foreign body (surgery related) and two cases of improper performance; one patient suffered significant permanent injury.

• Florida – Physician # 9469 had a clinical privilege report involving permanent revocation of hospital privileges in 2002 for incompetence and 10 medical malpractice reports totaling $1 million for the period 1992–2009. The reasons for the malpractice claims included two cases of failing to monitor, one case of retained foreign body, one case of misdiagnosis (surgery related), one case of improper management (surgery related), one case of unnecessary procedure, and one case of delay in performance (surgery related); two patients died.

• Illinois – Physician # 12405 had a clinical privilege report in 1999 involving permanent denial of privileges, and 10 medical malpractice reports for the period 1992-2006 totaling $7 million. The reasons for the malpractice claims included four cases of improper management (obstetrics related), one case of improper performance(surgery related), one case of failure to diagnose (obstetrics related), one case of failure to identify fetal distress (obstetrics related), one case of failure to order appropriate test (obstetrics related). One patient suffered a major permanent injury while another became a quadriplegic due to a brain injury.

• Massachusetts – Physician #16849 had seven clinical privilege reports for the period 2001-2004, five of which indicated permanent revocation of clinical privileges. The Public Use File also shows that the provider was cited for incompetence. There were three medical malpractice reports totaling $1.7 million, two for failure to diagnose and one for delay in performance. One of the patients incurred a major permanent injury.

• Michigan – Physician # 18226 had five clinical privilege reports as follows: 1997, 1999, 1999, 2000, and 2000. The Public Use File showed that two of the three adverse actions were taken for unprofessional conduct and one for incompetence. This physician also had 12 medical malpractice reports totaling $1.2 million for the period 1992-2003. The basis for the malpractice claims included10 cases of improper performance (surgery related) and two cases of failure to diagnose.

• New Jersey – Physician # 55701 had two clinical privilege reports, one in 1994, (denial of privileges) and one in 1999 (suspension of privileges); both were for indefinite penalty length. The 1999 action was for incompetence. This practitioner also had seven medical malpractice reports totaling $1.3 million for the period 1996-2007. The reasons for the malpractice payouts included: three cases of improper performance (surgery related), one case of improper technique (surgery related) and a case of wrong diagnosis. Two patients had significant permanent injures.

• New York – Physician #93487 had a clinical privilege report in 2008. The practitioner voluntarily surrendered privileges while under investigation and received an indefinite suspension of privileges. The physician had 15 medical malpractice reports totaling $6.2 million for the period 1996 -2008. The malpractice claims included three cases of improper performance (treatment related) and four cases of improper technique (treatment related); there was one patient death, one case of significant permanent injury and one case of major temporary injury.

• Ohio – Physician # 30548 had five clinical privilege reports for 1992, 1993, 1995, 2006 and 2008 (for substandard care). The practitioner received the following sanctions: restriction of privileges, restriction of privileges, revocation of privileges, denial of clinical privileges and restriction of clinical privileges. Four actions resulted in an indefinite penalty and one resulted in a permanent penalty. There were also six medical malpractice reports totaling $1.4 million for the period 1993-2001. Reasons for the malpractice payments included four cases of improper performance (surgery related) and one case of improper management (treatment related).

• Pennsylvania – Physician # 56598 had a clinical privilege report in 2006 that resulted in suspension of clinical privileges. There were also 25 malpractice reports totaling $9.5 million for the period 1994–2009. The reasons for the malpractice claims included: four cases of retained foreign bodies, five cases involving improper performance (surgery related), two cases of unnecessary surgical procedures, two cases of failure to obtain consent (surgery related), a case of failure to communicate with patient (surgery related), and wrong medication (surgery related). Six patients incurred significant permanent injuries, one patient had a major permanent injury and one patient became a quadriplegic due to brain damage.

• Texas – Physician # 91056 had a clinical privilege report in 2006. In addition, in 2009 the practitioner had his membership suspended by a professional medical association for unprofessional conduct; such a sanction is reportable to the NPDB. The physician had 22 medical malpractice payments totaling $2.6 million for the period 1996 – 2008. The malpractice claims included failure to order appropriate medication, operating on the wrong body part, improper management, delay in diagnosis (two cases), failure to diagnose, two cases improper performance (surgery related), failure to perform procedure, two cases failure to treat (surgery related), failure to recognize a complication, contraindicated procedure (surgery related) and one case of wrong dosage administered. Three patients incurred significant permanent injuries, one patient had a major temporary injury and two patients had minor permanent injuries.

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