The Journal of Bone & Joint Surgery

The Journal of Bone & Joint Surgery, Volume 88, Issue 9

The Orthopaedic Forum | September 01, 2006

Physician Discipline

Howard B. Yeon, MD, JD¹; David A. Lovett, JD¹; David Zurakowski, PhD¹; James H. Herndon, MD, MBA¹

¹ Massachusetts General Hospital, 55 Fruit Street – VBK 210, Boston, MA 02114. E-mail address for J.H. Herndon: jherndon@partners.org

View Disclosures and Other Information

The authors did not receive grants or outside funding in support of their research for or preparation of this manuscript. They did not receive payments or other benefits or a commitment or agreement to provide such benefits from a commercial entity. No commercial entity paid or directed, or agreed to pay or direct, any benefits to any research fund, foundation, educational institution, or other charitable or nonprofit organization with which the authors are affiliated or associated.

Investigation performed at Massachusetts General Hospital, Boston, Massachusetts

The Journal of Bone and Joint Surgery, Incorporated

J Bone Joint Surg Am, 2006 Sep 01;88(9):2091-2096. doi: 10.2106/JBJS.F.00524

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Effective peer regulation among physicians is an important means to maintain professional standards. Physician-led organizations, including hospital review boards, professional societies, and state medical boards, are well situated to evaluate complex medical decisions and distinguish bad medicine from unfortunate clinical outcomes. Physician organizations are also positioned to set standards of professionalism and to enforce them appropriately. Individual physicians are among those most likely to observe errors when they occur1.

Figures in this Article

Despite the inherent advantages of peer review, the record of self-enforcement among physicians has been poor. Failures have been attributed to plausible factors, including protective self-interest, a misdirected sense of professional camaraderie, the paucity of explicit standards, and inadequate resources allocated to professional review boards^1-3. Fear of vindictive litigation and peer pressure against whistle-blowers may also contribute to ineffective peer regulation. An illustrative case recently reported by The New York Times involved an internist who received a letter from the Florida Medical Association regarding a complaint filed by three physicians against whom he had given expert testimony in medical malpractice suits⁴. The association found that the internist had given "erroneous opinions" and sought to sanction him. The internist subsequently sued the medical association and the complaining physicians, claiming that they had libeled him. This scenario, although not typical, reflects the contentious relationship between the medical community and those considered whistle-blowers. Another reason for physician reluctance to participate in peer regulation is that standards of care are difficult to apply ex parte in the context of specific clinical circumstances. Despite their underlying expertise, doctors are reluctant to judge colleagues' actions harshly in retrospect without complete knowledge of the circumstances that contributed to the original physician's decisions⁵.

Ineffective self-monitoring in the medical profession has damaged the public's perception of physicians. Some have commented that criticism is apt and that ineffective self-enforcement among physicians reflects a historical tendency among physicians to value their interests over the interests of patients³. Deficient self-enforcement has led the public to rely on other mechanisms of regulation, including government and lay involvement on medical boards, market forces such as the proposed pay-per-performance system, and, of greatest concern to most physicians, medical malpractice tort litigation⁶. Taken together, the involvement of institutions outside the medical profession in regulating and disciplining doctors draws into question the integrity of the medical profession as an autonomous institution^1,2.

The principal mode of enforcement against inept or negligent physicians currently is medical malpractice tort litigation. This regulatory system is flawed because it is administered by parties who lack medical expertise and therefore cannot reliably distinguish bad outcomes from professional misconduct. Malpractice tort may also overlook professional negligence that does not cause injuries that can be compensated by monetary damages (for example, situations in which negligent conduct leads to increased risk but actual harm does not result). Furthermore, malpractice tort litigation does not distinguish occasional errors made by generally competent practitioners from habitual errors made by inept practitioners⁷. Even when bad physician conduct is appropriately sanctioned with monetary damages, because of the fact that malpractice monetary settlements are usually covered by insurance, a negligent physician's substandard practice may not be effectively deterred.

Lack of Oversight Compromises Patient Safety

Lack of Oversight Compromises Patient Safety | Medical Board Actions and the National Practitioner Data Bank | State Medical Board Variability | Statistical Analysis of the Relationship Between Board Resources and Disciplinary Activity | Reasons for State Medical Board Ineffectiveness | Proposals for Reform of Physician Discipline | Appendix | References

The inability of physicians to identify and censure bad apples in our profession threatens patient safety, and it focuses public attention on physicians as a major source of errors. The patient safety movement has gained momentum with evidence that shows medical errors to be ubiquitous and costly. Starting in 1977, the Medical Insurance Feasibility Study showed that among 21,000 inpatients in California, 4.6% experienced iatrogenic injury⁸. A subsequent Harvard University study of inpatients in New York State showed a similar 3.7% incidence of adverse events⁹. A landmark study, the 1999 Institute of Medicine report, concluded that as many as 98,000 patients in the United States die annually as a result of medical error¹⁰. Iatrogenic injury may result in 2.4 million extra hospital days, $9.3 billion in excess charges, and over 32,000 deaths¹¹.

Medical Board Actions and the National Practitioner Data Bank

Data in the United States from the Federation of State Medical Boards and the National Practitioner Data Bank suggest that medical boards have been largely ineffective in identifying and censuring substandard physicians. The National Practitioner Data Bank was intended to encourage peer review by facilitating efforts by licensing boards and other entities to identify and discipline doctors who are repeatedly negligent^11,12. Nationwide records regarding physician censure and medical malpractice were further intended to prevent incompetent physicians from avoiding censure by moving to another state. The National Practitioner Data Bank compiles information relating to five types of adverse actions against physicians: malpractice payments, licensure actions, professional review actions, actions taken by the United States Drug Enforcement Administration, and exclusion reports from Medicare and Medicaid¹³.

Data from the National Practitioner Data Bank show that relatively few physicians are responsible for a disproportionately high fraction of adverse actions. Among physicians with at least one action reported to the data bank, over two-thirds had only one report, 18.6% had two reports, 2.3% had more than five reports, and 0.4% had more than ten reports¹². A small percentage of physicians were responsible for the majority of malpractice payments. Five percent of physicians were responsible for nearly one-third of medical malpractice payments, and 1% of doctors were responsible for 12% of the malpractice payments between September 1, 1990, and December 31, 2004¹².

Despite the relatively few bad apples who account for a large fraction of adverse actions, state medical boards were not effective in identifying or censuring substandard physicians. Eighty-two percent of the physicians with reports in the National Practitioner Data Bank had a malpractice payment report with no corresponding state licensure action report. Conversely, only 6% of physicians had only state licensure action reports with no medical malpractice report. Among physicians with ten or more malpractice payment reports, more than two-thirds had no reported adverse state medical board action¹².

State Medical Board Variability

Substantial differences exist among states with regard to the number of medical board members, the fraction of professional compared with lay members of the medical board, board funding, and the size of the medical board staff that fulfills administrative, clerical, investigative, and legal enforcement duties. Although populous states with a large number of physicians should have proportionately large medical boards, staff, and funding, there are considerable interstate variations after normalizing for the number of physicians (see Appendix). For example, in Indiana, there are over 950 practicing physicians per medical board member or board support staff employee, while in Maryland, a state with a similar number of practicing physicians, there are approximately 200 physicians per board member or staff employee. Medical board funding also varies by state, with the Pennsylvania board having a budget of approximately $4 per doctor while the California board has a budget of over $420 per physician practicing within the state¹⁴.

States also vary in terms of licensing as well as disciplinary and reporting functions assigned to the medical board. In most states, the medical board is the body responsible for verifying physician education, training, and prior professional experience, while, in a minority of states, these functions are shared with other regulatory agencies¹⁴. Differing standards of proof are required by medical boards in disciplinary actions. Most boards require proof of negligence by a "preponderance of the evidence," a standard specifying that, on the basis of all of the evidence taken as a whole, the physician was more likely negligent than not—a "51% standard." Only three states, Mississippi, Ohio, and Vermont, require the most stringent level of proof "beyond a reasonable doubt." Fifteen states require proof of negligence by the standard of "clear and convincing" evidence, which is intermediate¹⁴.

Variability in state medical board size, funding, and function contribute to substantial differences in board activity. According to data from the Federation of State Medical Boards summarizing board disciplinary actions in 2003, the Ohio board imposed nearly ten sanctions per 1000 licensed physicians, while the Pennsylvania board imposed fewer than three. This discrepancy is especially notable in light of the fact that the Ohio board has a budget of greater than $200 per licensed physician, while the Pennsylvania board has a budget of less than $4 per physician. The Ohio board also has more than double the medical board personnel-to-physician ratio compared with Pennsylvania. The Federation of State Medical Boards calculates the "composite action index," a weighted estimate of the per-physician number of board actions for each state per year, but it discourages use of the composite action index to make interstate comparisons¹⁵.

We hypothesized that the level of medical board activity, measured by the number of serious disciplinary actions taken by the board, might correlate significantly with board resources, so we performed a statistical analysis using medical board personnel and medical board budget as independent variables and board actions as the dependent variable. Values for the number of board personnel and for board funding in each state were derived from data compiled by the Federation of State Medical Boards¹⁴. The number of medical board members used in our calculations included physician and nonphysician members; the number of board staff included full-time and part-time staff members, equally weighted. Part-time staff members were included because state medical boards typically convene periodically, and we did not want to downwardly bias the number of board personnel used in our calculations. For boards in which staff members were shared with other governmental entities, as with legal counsel provided by the state attorney general's office, the shared staff members not enumerated by the Federation of State Medical Boards were not included in our analysis (see Appendix).

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Fig. 1-A: Figs. 1-A and 1-B Histograms illustrating the distributions of board personnel (per thousand physicians) and the percentage of physicians disciplined. The heights of the blocks represent the number of states across the range of observed values. Fig. 1-A The median number of physicians among all states was 9076 (interquartile range, 3757 to 16,488; minimum = 934 and maximum = 92,599). The mean number of board personnel per thousand physicians was 5.8 ± 3.9 (range, 1.1 to 18.0).

Statistical Analysis of the Relationship Between Board Resources and Disciplinary Activity

The number of medical board personnel, board budget, and the number of physicians in each state were tested for normality with use of the KolmogorovSmirnov test to determine appropriate summary statistics and methods of analysis¹⁶. The number of physicians in each state and the medical board budgets did not follow a normal bell-shaped distribution and were therefore expressed in terms of the median and interquartile range. The number of board personnel (per thousand physicians) and the percentage of physicians disciplined were normally distributed, are presented with use of the mean and standard deviation, and are correlated by the Pearson product-moment correlation coefficient (r). Multiple linear regression analysis was applied to determine the best-fitting relationship between board personnel (per thousand physicians) and physician discipline controlling for board budget as a covariate. A predictive linear equation of the form y = ax + b was derived to estimate the percentage of physicians disciplined on the basis of board personnel¹⁷. With the average percentage of physicians who are disciplined (7%) used as a cutoff value, logistic regression modeling was used to develop a curve to estimate the probability of disciplining a minimum of 7% of the physicians on the basis of the number of board personnel (per thousand physicians)¹⁸. Two-tailed values of p < 0.05 were considered significant. Analysis of the data was performed with SPSS software (version 14.0; SPSS, Chicago, Illinois).

The results of our analyses, presented in Figures 1-A, 1-B, 2, 3, show a significant association between medical board staffing and the number of medical board actions per practicing physician in each state per year (p < 0.001).

Reasons for State Medical Board Ineffectiveness

A reasonable conclusion from our results is that an important factor determining medical board ineffectiveness is the inadequacy of available resources. In addition to limited personnel, the compensation paid to board members is also clearly deficient in many states. In Massachusetts, physicians serving on the medical board are compensated $35 per day. In Pennsylvania, board members are paid $60 per day and reasonable expenses, and in Florida, board members receive $50 per day and are given a $12 food allowance¹⁴. A physician in Louisiana, estimating that he lost between $20,000 and $25,000 of income as a result of his participation on the medical board, stated: "If income is an issue, you shouldn't sit on the board."¹⁹

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Fig. 1-B: The percentage of physicians disciplined from all forty-three states with available data averaged 7.0% ± 4.1% (range, 2.0% to 23.6%).

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Fig. 2: Scatterplot of the relationship between board personnel (per thousand physicians) and the percentage of physicians disciplined. Each data point represents an individual state (a total of forty-three paired observations obtained from forty-three states with available data). There was a moderate positive correlation between the two variables (Pearson r = 0.584, p < 0.001). Despite a fair amount of variability to the data, the pattern reveals that larger medical boards are generally associated with a significantly higher percentage of physicians disciplined compared with smaller-sized boards. The best-fitting linear model to the data is described by the following equation: y = 0.6x + 4.4, where y is the predicted percentage of enforcement and x represents the size of the medical board (per thousand physicians). This relationship was independent of medical board funding (p = 0.71), which was controlled for as a covariate by multiple linear regression analysis.

Another reason for medical board ineffectiveness may be the lack of consistent professional standards for granting licensure. For example, despite the ubiquity of the United States Medical Licensing Examination (USMLE) Steps 1, 2, and 3, not all states require that applicants to postgraduate training programs pass these examinations. Recent studies have shown that residents who did not pass the USMLE Steps 1 and 2 were twice as likely to be disciplined within the first five years after medical school than were residents who passed²⁰. Even in states that require successful completion of the USMLE examinations, few require board certification in a specialty. A large case-control study of 890 California physicians found that lack of board certification was an important factor elevating the risk for severe disciplinary action^21,22. These findings were consistent with prior studies showing better clinical outcomes among case-matched physicians for board-certified specialists²³.

Medical boards also may not consistently evaluate character-related factors when assessing candidates for licensure. A growing body of literature suggests that signs of future malpractice are evident early in medical education, even in medical school. A recent study by Papadakis et al., published in the New England Journal of Medicine, showed a strong association between reported unprofessional behavior in medical school and subsequent serious disciplinary action by a medical board²⁴. Low grades during the first two years of medical school and low scores on the Medical College Admission Test also signaled a higher risk of future disciplinary action. Medical boards have not responded to these findings by implementing consistent mechanisms for reviewing applicants' prior records or by establishing criteria for acceptance or rejection based on subjective evaluations during medical school.

Medical board effectiveness is also undermined by widespread underreporting of errors. Reporting requirements differ among states in terms of the substance of the information reported and the organizations to which the state board releases information. Serious board actions, license application denials, and allegations of fraud or cheating are usually made public and shared with other state medical boards, but information regarding complaints, accusations, the results of board investigations, and informal board actions are usually not made public. Despite recommendations for a nationwide mandatory reporting system, a minority of states mandate the reporting of medical errors²⁵.

Doctors are reluctant to highlight individual errors, preferring to rely on systems-based solutions to individual mistakes²⁶. A systems-based approach attributes medical errors to a shared failure of multiple interacting persons—the physician, nurse, pharmacist, and patient—and it diffuses blame on any individual. Evidence of widespread support for the systems-based view is found in a 2002 survey of 831 practicing physicians¹. In this group, a majority thought that "requiring hospitals to develop systems for preventing medical errors" would be very effective in reducing errors, while only 3% thought that "suspending the licenses of health professionals who make medical errors" would be effective¹. Endorsement of the systems approach to the exclusion of other theories of medical error, however, underestimates the role of the individual physician, and it may contribute to the widespread underreporting of medical errors.

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Fig. 3: A significant positive relationship was derived with use of logistic regression to construct a probability curve for a minimum of 7% of physicians disciplined (the mean of the study population) according to the size of the medical board (per thousand physicians) (likelihood ratio test = 5.32, p = 0.02). For example, medical boards with five staff members per thousand physicians are estimated to have a 40% probability of disciplining at least 7% of the physicians, whereas boards with twelve members have an estimated 75% probability.

Given difficulties in defining and distinguishing medical errors, medical boards have focused disproportionately on explicitly criminal physician activities—convictions, fraud, substance abuse, patient abuse, and prescribing violations. According to data from the Federation of State Medical Boards, actions for these reasons consistently outnumber actions for unsafe practices or substandard care¹⁴. Although disciplining doctors who are drug addicts or sexual predators or who are selling prescriptions is certainly important, these actions clearly only indirectly address the duty of medical boards to identify and censure inept or negligent physicians and to maintain professional standards.

Proposals for Reform of Physician Discipline

State medical board operation has been hindered by inadequate funding and staffing. The data we present show a significant relationship between board resources and the disciplinary activity of each medical board. That such a relationship exists despite confounders, including variations in board responsibilities, differing levels of proof, and variable reporting among states, suggests that medical boards would be more effective if levels of staffing were increased.

Differences in medical board structure and function undermine the goal of uniform interstate regulation and create regulatory loopholes whereby inept physicians can escape detection. This variability also hinders attempts to gauge the relative effectiveness of medical boards and thereby to identify states in which reform of the medical board would be beneficial. In the present study, we used the total number of board actions as reported by the Federation of State Medical Boards as a proxy for board effectiveness, but this is not an ideal measure because of considerable and presumably variable underreporting and because the ideal number of board actions per physician is difficult to estimate. Once a more uniform system of medical boards is established, specific criteria by which to judge board effectiveness may be identified.

Inconsistent and ineffective physician regulation compromises patient safety by enabling substandard physicians to maintain their professional credentials and license. Although it is comforting and expedient to blame most medical errors on system failures, data from the National Practitioner Data Bank suggest that a small number of incompetent physicians are responsible for a disproportionate number of mistakes. A well-funded, consistent network of state medical boards is the best option for identifying and censuring these bad apples and for establishing effective physician discipline.

Appendix

A table showing state-by-state medical board data is available with the electronic versions of this article, on our web site at (go to the article citation and click on "Supplementary Material") and on our quarterly CD-ROM (call our subscription department, at 781-449-9780, to order the CD-ROM).

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Topics

medical errors ; budgets ; florida ; licensure ; malpractice ; national practitioner data bank ; ohio ; schools, medical ; medical malpractice ; patient safety

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Howard B. Yeon, David A. Lovett, David Zurakowski, James H. Herndon; Physician Discipline. The Journal of Bone & Joint Surgery. 2006 Sep;88(9):2091-2096.

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