The Washington D.C. based consumer advocacy group Public Citizen has published a report documenting that 55% of physicians who had clinical privilege reports made to the National Practitioner Data Bank by the hospital where they practice were never subject to state licensing board action. The report analyzed data from 1990 to 2009. A link to the report and supporting materials including a letter transmitting it to HHS Secretary Kathleen Sebelius can be found here.
Public Citizen acknowledges that “not all clinical privilege reports to the NPDB (from hospitals about doctors) would necessarily result in state board action” but they conclude that the large number of physicians (5,887) determined to have had one or more clinical privilege reports but no state licensure action suggests that state medical boards are not properly acting on such reports or that hospitals may not be reporting them. Public Action asks Secretary Sebelius to re-initiate OIG investigations on the effectiveness of state medical boards that fizzled out in the early 1990s.
As this report gets reviewed by physician groups and others, it is hard to ignore the particularly disturbing statistic that 220 physicians were considered an “Immediate Threat to Health or Safety” of patients but only 176 of them had their admitting privileges suspended and none were subject to state medical board action.
The report certainly supports stories in the Chicago Tribune and Washington Post in recent years that state medical boards are not doing enough to protect patients from bad doctors. Whether the report stands up to closer scrutiny or not, anyone with experience in dealing with these state agencies can tell you that they are often times inadequately staffed to carry out their work. Good doctors who find themselves defending frivolous claims during a protracted process will tell you that their justice delayed feels a lot like justice denied.
That lack of resources and swift action policing bad doctors at the state level stands in sharp contrast to the huge sums spent by the federal government to develop and enforce a maze of dense and overlapping fraud and abuse laws like the Anti-Kickback and Stark Laws designed to curb economic relationships between physicians, hospitals and other providers.
In turn, those federal fraud and abuse laws require hospitals and doctors to keep armies of attorneys, accountants and consultants on retainer to advise them on compliance and enforcement matters. But even with all that brain power brought to bear on these issues, there is way too much gray area and not enough bright lines in the federal fraud and abuse regulatory environment, particularly as the federal government is urging greater cooperation and integration between physicians and hospitals to lower costs and achieve better outcomes for patients.
Should we have a system at the state and federal level that identifies and removes the truly bad doctors? Absolutely. But if the lack of resources is the problem, how about the feds divert some funds recovered from their enforcement actions back to the states to beef up and support the work of licensing boards.
Lets face it, as a general rule, the same kind of doctor that provides bad care is often sloppy or unethical in their business practices. If state medical boards can get better at taking bad doctors out of the system, they will be serving the twin goals of protecting patients while also striking a stance in defense against fraudulent claims for reimbursement and shady payment arrangements.