Medical World News
March 15, 1974
Peer Review in 1974
Page: 62-72

HOW WELL DOES MEDICINE POLICE ITSELF?

Not well enough, as shown by the case of California's Dr. John Nork
and a MWN survey of disciplinary actions taken by state boards since 1969

When cases of alleged unethical conduct are not handled within the profession and are "exposed" to the public as not handled, the ends of justice are overshadowed by the dictates of expediency and pragmatism. . . .Reactions, overreaction, backlash--bad law is inevitable.

The ink had hardly dried on AMA Chief Counsel Edwin J. Holman's highly publicized editorial in the October 29 issue of JAMA when a Sacramento, Calif., superior court judge handed the public a case that could make the attorney's words prophetic. In a landmark decision the next month, Judge B. Abbott Goldberg found former Sacramento orthopedic surgeon John G. Nork and the city's Mercy Hospitals responsible for negligent surgery on a 32-year-old grocery clerk. He ordered them to pay Albert Gonzales $1.7 million in compensatory damages and Dr. Nork to pay an additional $2 million in punitive damages.

If the size of the award was overwhelming, so was the judge's 196-page memorandum of decision. In it, Judge Goldberg told of at least 50 additional surgical procedures that may have been "unecessary, or bungled, or both." He charged the physician with coercing patients to undergo surgery with threats, intimidation, and false-positive myelograms; of producing fraudulent progress notes and even altering the recommendation of consultants. He also hinted that the medical community had attempted a cover-up of the case, and took both the Sacramento County Medical Society and the California Board of Medical Examiners to task for failing to discipline the surgeon--all in language that netted front-page coverage.

Nor did the headlines miss Dr. Nork's admission that at least some of the operations were unnecessary or negligent, and his claim that he was dependent on "uppers" and "downers" during the years in question.(It was a defense that was to be rejected by both the judge and those who knew the surgeon in Sacramento. Said one physician: "I don't believe the judge's conclusion that he did it out of greed, and I know damn well he wasn't on drugs. I suspect he was just really sick, and none of us saw it.")

In the 15 weeks since Judge Goldberg issued his memorandum, shock waves from Gonzales vs Nork have spread far beyond the city limits of California's capital. For one thing, the judge broke new legal ground when he held the hospital corporately responsible for the conduct of its attending staff (MWN, Feb.15, p. 47), and hospitals across the country are wondering if the appeals that will follow the decision might lead to judicial imposition of a new hospital-staff relationship.

For another, physicians in and out of Sacramento are now questioning whether the legal maneuvers that have followed the Nork decision might seriously impede future peer review efforts and whether they should increase their malpractice coverage to even higher levels.

There is no question that the entire Nork affair is becoming a gold mine for his former patients and their lawyers. Before Gonzales, Dr. Nork had already lost two malpractice suits totaling 41 million, and at the end of January, no fewer than 27 additional suits were pending against Dr. Nork and Mercy Hospitals, along with six or seven more against Dr. Nork alone or with other Sacramento hospitals. Total damages asked in these suits amount to more than $40 million.

For their part, Dr. Nork and Mercy Hospitals are appealing the Gonzales decision; Dr. Nork has filed two separate suits against his former insurance carrier, American Mutual Liability Co., and its lawyers; and Mercy Hospitals are also suing the insurance company for $5 million in punitive damages and an unspecified amount in general damages for taking the cases to trial even though they had been reviewed and found indefensible. And attorneys for all parties hint that more litigation is coming.

Still, the major fallout from Dr. Nork's malpractice troubles may not come from the courts but from public reaction. Dr. Nork's alleged misdeeds exploded in the media at a time when the profession was publicly resisting PSRO and other outside controls and claiming loudly that it had both the machinery and desire to police itself. Only weeks before judge Goldberg's decision, Dr. Paul J. Dugan, president of the California Board of Medical Examiners, was bragging that the board was "cracking down" on negligent and incompetent doctors. And, commenting on the JAMA editorial, a former California Medical Association president, Dr. Samuel R. Sherman, blithely told Californians, "That problem exists almost everywhere in America, true, but no longer in California." (For MWN's survey of actual disciplinary actions taken by the various states in the past five years, see chart on page 68.)

Then came Dr. Nork, and already skeptical consumer groups and legislators began to clamor for even greater regulation of medicine. California Assemblyman Henry A. Waxman, chairman of the Assembly Select Committee on Medical Malpractice, summed up the mood at a December hearing: "That the facts about Dr. Nork only came to light after years of costly malpractice litigation demonstrates that our methods for detecting and correcting medical malpractice leave much to be desired."

As shocking as Assemblyman Waxman and others found Judge Goldberg's revelations about Dr. Nork, they claimed to be more disturbed that the surgeon, even after the trial, continued to practice medicine. Shortly after his 1970, Dr. Nork left to work as and orthopedic surgeon at the Martinez Veterans Administration Hospital. He was transferred to the admitting department after hospital officials found out about his earlier malpractice problems and was banished even further from patient care--to the medical records library--following the Gonzales decision. Yet it was not until two months after that decision that Dr. Nork resigned (his lawyer says he was fired). And still another month elapsed before the California Board of Medical Examiners revoked his license on February 22, even though he had been under investigation by the Consumer Affairs Department for nearly two years.

At a time when peer review is being hotly debated both within the profession and outside, the extraordinary case of Dr. Nork raises some hard questions. How was the surgeon able to escape detection for more than a decade? Could this happen under today's more sophisticated hospital review mechanisms? How many Dr. Norks are there? If self-policing failed in a hospital setting, what is happening inside doctors' offices where formal review seldom reaches? Is there, as Judge Goldberg charged, a "conspiracy of silence" among physicians, and if so, why?

Dr. Nork might be able to answer some of those questions. So far, however, he has refused to talk to reporters. At one point, both Dr. Nork and his personal attorney, John F. Harper, had agreed to an interview with MWN, and a data and time were set. But Harper canceled the interview, claiming additional legal problems and the then-pending license action.

Nor have spokesmen for organized medicine shed any light on what happened in Sacramento. Both the Sacramento County Medical Society and the CMA have steadfastly refused to comment on the case while additional litigation is pending, and most of the physicians who knew him have kept silent for the same reason. There are some clues to be found, however, in Judge Goldberg's lengthy memorandum and testimony at the 22-week trial he called "a Grand Guignol of medical horrors."

When John Nork moved to Sacramento in 1961, his credentials were unquestioned. He had had the benefit of a first-rate medical education--Columbia University College of Physicians and Surgeons, an internship at the University of Wisconsin, a residency in general surgery at Milwaukee County Hospital, and a three-year residency in orthopedic surgery at Dukes University while he was in the Air Force. The only flaws in his record were an unspecified difficulty with the chief surgeon at Travis Air Force Base, his subsequent early resignation from the Air Force, and his failure--three times--to pass the examination of the American Board of Orthopedic Surgery.

Apparently, Dr. Nork somehow remained above suspicion throughout his years in Sacramento. Witnesses at the Gonzales trial-some of them former patients who had belatedly initiated their own malpractice suits against him--testified to his charm and reputation. According to Dr. Byron H. Demorest, president of the Sacramento County Medical Society, Dr. Nork's busy practice included more than a few physicians' families. "The Gonzales vs. Nork decision has affected every Sacramento physician in an emotional way," wrote Dr. Demorest in the December Sacramento Medicine. "It has been exceedingly difficult for those who have known John Nork to accept the fact that he committed the acts which he openly admits. Similarly, it is difficult for any good physician to admit that another MD could knowingly and purposely defraud or injure patients. We just don't operate that way."

But Dr. Nork did injure patients and the Goldberg memorandum is studded with what the judge clearly saw as examples of lost opportunities to uncover what he was doing and perhaps prevent more negligence.

Dr. Nork moved to Sacramento at the behest of his friend, neurosurgeon Hal C. Holland, who had also left Travis after difficulties with the chief surgeon. And, according to Judge Goldberg, Dr. Holland could have exposed Dr. Nork on several occasions.

In 1963 and 1964, said the judge, Drs. Holland and Nork performed a number of operations together. While both testified they drifted apart professionally and socially after that time, Judge Goldberg viewed the split as related to the poor results Dr. Nork obtained with one patient, Jo Austin Branson, who underwent two laminectomies and a spinal fusion performed by the pair.

The Goldberg memorandum also links Dr. Holland with another of Dr. Nork's disputed operations. In early August 1962, Dr. Holland treated Dr. Nork after a neighbor reported that the orthopedic surgeon had had a convulsion and was confused and incontinent. A consultant who also examined Dr. Nork and made a diagnosis of ataxia later wrote, "I would be inclined to advise the patient not to undertake any major surgical procedures until we can further define his disorder." Yet on Aug. 21, 1962, Dr. Nork went ahead with a laminectomy on Arthur J. Freer.

When arachnoiditis with bowel and bladder incontinence developed after the surgery, Freer initiated the first malpractice suit against Dr. Nork in 1965. In a bizarre twist, the patient's attorney engaged Dr. Holland as a consultant in the case. After what he now admits was only a cursory investigation, Dr. Holland told the lawyer there was no case, and the suit was dismissed. Moreover, during the Gonzales trial, Dr. Holland testified that he did not recall having told the lawyer he was a friend of Dr. Nork, and his only reference to the unexplained ataxia was to tell the attorney, upon questioning, that Dr. Nork did not suffer "a nervous breakdown" in 1962.

Dr. Holland figured in yet another of Dr. Nork's malpractice cases, one brought by Vivian De La Torre after she developed continuing bowel and bladder disabilities and a foot drop following a laminectomy in September 1968. In that instance, the judge related, Dr. Holland called the plaintiff's counsel in an unsuccessful attempt to convince him that he had no case against Dr. Nork. Dr. Holland did not recall the conversation at the time of the Gonzales trial.

Dr. Holland is not the only physician cited by Judge Goldberg in what he calls "a conspiracy of silence." In the Freer case, one of the few in which Dr. Nork reported a complication of surgery, the surgeon later admitted that he attempted to put the blame on the anesthesiologist with the notation "hyptonic bladder due to routine anesthetic." Nevertheless, the judge pointed out, the report of a consulting urologist, Dr. Erby J. Satter, was "so ambiguous as to support the inference that the urologist was protecting the surgeon by failing to disclose clearly that the bladder may have been neurologically impaired."

In another instance, which led during the trial to the coining of the "first bite rule," Dr. Nork sent, along with a removed disk, a separate specimen that the pathologist, Dr. Saul Friedlander, identified as "bundles of myelinated nerve fibers." Dr. Friedlander, however, failed to report that finding to Dr. Nork, to chief of surgery, or to the medical audit and tissue committee and did not ever include the finding in his diagnosis report, noted Judge Goldberg. At the Gonzales trial, the pathologist testified that he did not consider finding nerve fibers "remarkable," that he had encountered similar situations involving other surgeons twice before, and that he felt that Dr. Nork had shown integrity by sending the nerve fibers down.

Judge Goldberg gave it the first bite label after Dr. Friedlander testified that, except for the removal of health organs, he had only been instructed to report procedures showing "a pattern of irregularities" and that one case did not show a pattern. Recalling the old proverb. &quotEvery dog is entitle to one bit," Judge Goldberg noted that this "is not and never has been the law for dogs. And if it is not a good rule for dogs, it is not a good rule for doctors."

Another first bite incident occurred when Dr. Nork performed a laminectomy on Roberta Hendrick, which later resulted in a court trial. His assistant was Dr. Roy S. Stanford, who midway in the operation left to repair an anal fistula at another hospital across town-with Dr. Nork's permission. A surgical nurse was then asked to act as assistant surgeon for about an hour and a half. She protested when Dr. Nork asked her to hold the retractor and reported the incident to her supervisor.  At the trial, however, the now retired supervisor said she could not recall the incident nor was there any record of it at the hospital. The omission was explained by a hospital spokesman on the grounds that it probably was not considered "unusual" and was not a "recurring phenomenon."

Commented Judge Goldberg: "It shows how the doctor may have more than one first bite. Dr. Nork had already had a first bite at the pathologist. Then he had a second within the surgical department. Neither was aware of what the other knew, because neither reported to any central point. Even if there may be reasons for not disciplining a doctor for his first misconduct, it is obvious that a record must be made of that misconduct."

In addition to the handful of physicians who had direct knowledge of Dr. Nork's work, there were others, in Judge Goldberg's view, who might have blown the whistle. Throughout the memorandum, he names physicians who saw Dr. Nork's patients for treatment after his operations. In only one instance-when Dr. Ottiwell W. Jones Jr., examined De La Torre and told her to get a lawyer "right away" -did the consulting doctor suggest that the patient's subsequent problems may have been caused by Dr. Nork's surgery. Dr. Jones underscored that fact when he testified as a witness for the plaintiff in the Gonzales trial. A retired neurosurgeon and professor emeritus at the University of California, he told the court that an associate, Dr. Howard A. Brown, had operated on Freer in 1963 and thought then that Dr. Nork had done "a terrible job" on the patient. But Dr. Brown did not tell the patient, said Dr. Jones, because it "would involve us in a malpractice suit which we want to avoid."

Judge Goldberg cited the conspiracy of silence as reason for denying Dr. Nork's contention that the Gonzales action was barred by the one-year statue of limitations. "The medical profession cannot have its cake and eat it," he wrote. "Either it has to disclose the facts to the patients or it has to live with judicial applications to the statute of limitations."

Why were Dr. Nork's actions not detected by Mercy Hospitals' medical audits, which even Judge Goldberg agreed were above the then-prevailing standards of the Joint Commission of Accreditation of Hospitals? One of the reasons, suggested JCAH Deputy Director Reed M. Nesbit in his testimony, was that the peer review system assumed an honest doctor. "It was not designed to detect fraud," he said, adding that the assumption of accurate records was only one of many loopholes. "Your case in litigation is a classic example of how things can fall down between the cracks and not be picked up."

Some cracks were cited in the Gonzales case: The reviews tended to be random, casual, infrequent, and uncritical. They involved the reviewer's subjective judgment. And review committees were constantly hampered by the pressures of time. Dr. Lyman Maass, a Sacramento neurosurgeon, described one audit done at Mercy during a lunch hour in 1968. Some 40 or 50 laminectomy cases were pulled for review, he said, but the committee had time to review only 18 (including several of Dr. Nork's). Moreover, in the hour and a half available, they could not compare doctors' records with nursing notes, which would have uncovered discrepancies in more than one of the orthopedic surgeon's cases.

If the hospital was unaware of Dr. Nork's actions, that leaves three other avenues of detection: the Sacramento County Medical Society, the California Board of Medical Examiners, and the insurance carrier, American Mutual. Yet all three, according to the memorandum, were involved in incidents that seemed to delay detection.

Part of the problem, as related by Judge Goldberg, was that the law firm of Joe Gray wore three hats: counsel for the Sacramento society, counsel for American Mutual, and counsel for Dr Nork. One incident he cites involved Mrs. Branson, the Mercy Hospitals medical secretary who underwent surgery performed by Drs. Nork and Holland.

Before the Hendrick trial (one of the first two lost by Dr. Nork), Mrs. Branson was contacted by Gray, who told her there was nothing wrong with her records. Believing that Dr. Nork had "saved her life," she was skeptical when asked to testify for the plaintiff in that suit and reported the matter to her employer who suggested she report the contact to William Dochterman, executive secretary for the county society. He in turn referred her to Gray. Gray and his associates, who were representing Dr. Nork in the Hendrick trial, then decided to hide a tape recorder behind Mrs. Branson's couch, with her knowledge, so that the conversation she was to have with an investigator for the plaintiff's lawyer could be recorded. The recording may have been criminal," wrote Judge Goldberg, "but Mrs. Branson was not told that she might be made party to a crime."

Gray was involved in another incident that followed cancellation of Dr. Nork's malpractice insurance and Mercy Hospitals' withdrawal of his surgical privileges. According to the memorandum, Dr. Nork, in an attempt to have his privileges restored, &quotapproached his friend, Dr. Robert H. Quillinan, then a member of the state board of medical examiners, who spoke to Gray on Nork's behalf. . . .American Mutual knew that the society had reviewed the Nork cases and found them indefensible. So Mr. Gray doffed his society hat, donned his other two hats, and approached John Diepenbrock, Mercy's corporate counsel, to have the restrictions removed. He was unsuccessful."

Finally, Dr. Nork testified that he lied in the Hendrick trial because he was "threatened, forced, and coerced" to do so by Gray and another lawyer retained by American Mutual, Robert Huber. That charge--denied by both lawyers--is now a subject of additional litigation.

Judge Goldberg conceded that Gray's triple representation does not violate the Rules of Professional Conduct of the State Bar but added: "It is most difficult to see how the county medical society can retain a lawyer to represent it and simultaneously encourage that lawyer to actively defend the doctor the society had found indefensible, unless the society's predominant interest is to defend the indefensible doctor rather that to elevate the standards of the medical profession or to protect patients

For its part, the Sacramento society has refused to comment on the "bugging" of Mrs. Branson's home and has repeatedly stated that it had no reason to suspect Dr. Nork until he left Sacramento in 1971.

Dochterman told MWN that in the nine years he spent in Sacramento, Dr. Nork was the subject of only six complaints. All but one were routine misunderstandings about fees or disputes with health insurance companies and were settled between the parties through the society's grievance committee. Ironically, said Dochterman, the remaining complaint came from a patient who was disturbed because Dr. Nork would not perform surgery.

ACTIONS BY  
STATE  
DISCIPLINARY  
BODIES:  
1969-1973
   
Louisiana,  
Missouri,  
Pennsylvania,  
and South  
Carolina all  
refused to  
provide any  
figures. But  
a source  
close to the  
Pennsylvania  
board said  
it issued  
only six  
reprimands in  
the period.  





State


No. of physicians in patient care




Licenses revoked




Licenses suspended





Probation
Censure, reprimands, misc. penalties, or practice restrictions


Voluntary surrender of license

Alabama 2,841       0         24         0         0         0        

Alaska 224       2         0         0         0         0        

Arizona 2,466       7         34         116         62         31        

Arkansas 1,620       0         9         0         0         0        

California 33,606       245*        33*        --         109         9        

Colorado 3,343       0         1         24         1         1        

Connecticut 5,087       1         1         0         3         1        

Delaware 694       0         0         1         0         0        

D.C. 2,508       3         1         0         0         0        

Florida 9,181       8         14         36         44         0        

Georgia 4,633       3         7         0         0         20        

Hawaii 1,079       0         0         1         0         0        

Idaho 0       0         0         0         0         0        

Illinois 13,539       3         0         0         1         0        

Indiana 4,921       12         0         0         54         0        

Iowa 2,609       4         0         6         0         0        

Kansas 2,259       8         2         2         0         4        

Kentucky 3,078       0         0         0         0         1        

Maine 999       2         1         1         0         2        

Maryland 6,224       2         1         6         11         0        

Massachusetts 10,252       5         4         1         6         0        

Michigan 10,163       11         8         0         0         0        

Minnesota 5,000       0         6         0         26         12        

Mississippi 1,685       1         2         10         1         0        

Montana 694       0         1         1         0         0        

Nebraska 1,532       0         4         0         6         0        

Nevada 537       0         0         0         0         1        

New Hampshire 920       0         1         0         0         1        

New Jersey 9,389       10         0         0         0         13        

New Mexico 1,036       8         1         8         3         2        

New York 36,161       14         6         22         14         0        

North Carolina 5,000       3         0         0         0         0        

North Dakota 524       0         0         0         0         0        

Ohio 12,682       1         11         2         0         4        

Oklahoma 2,339       2         0         0         0         1        

Oregon 2,800       2         6         25         27         0        

Rhode Island 1,380       3         1         0         0         0        

South Dakota 482       0         0         3         0         2        

Tennessee 4,193       4         4         0         2         1        

Texas 12,258       17         0         29         3         0        

Utah 1,429       4         0         7         0         0        

Vermont 694       1         0         0         0         0        

Virginia 5,217       15         0         25         35         0        

Washington 4,446       2         2         7         0         0        

West Virginia 1,692       0         0         1         5         0        

Wisconsin 4,984       0         1         0         0         4        

Wyoming 311       1         0         0         0         0        

*Some with probationary terms

Although it knew nothing of Dr. Nork's activities, the Sacramento society is concerned with protecting the public and maintaining discipline, say its officers. As proof, they point to its highly praised and emulated Medical Care Foundation and its Certified Hospital Admissions Program (CHAP) that monitors Medi-Cal care, and to two moves more directly related to the Nork scandal.

Acting upon the recommendation of Dochterman, the society's Professional Conduct and Ethics Committee on December 3 began an investigation into charges of medical-practice-act and canon-of-ethics violations by at least three members cited in the Goldberg decision.

The other society action suggests how deeply the Nork affair has sensitized this quiet medical community. A December 16 Sacramento Union story told how Albert Gonzales' attorney, Edward Freidberg, with the help of a physician-friend, prepared for the case by attempting to perform a laminectomy on a cadaver at night in the morgue of a local hospital. The very next day, the society asked the California Board of Medical Examiners to determine if the actions of the physician and hospital in "co-operating in the bizarre 'cadaver mayhem'" were proscribed by any of the licensing boards. (They were not.)

Dr. Quillinan--who was not, as Judge Goldberg stated in his memorandum, a member of the state board but a member of one of its five district review committees-has denied that he attempted to intercede with Mercy Hospitals on Dr. Nork's behalf. He does admit discussing the problem with Dr. Nork, but not as an agent for the board. "My interest was simply to see that Dr. Nork had proper legal representation," he says.

Why did the California licensure board take so long to act? Under a state law that took effect Jan. 1, 1971, the board should have been informed of all malpractice judgments or settlements in excess of $3,000. According to Dr. Dugan, California board president, it had initiated the investigation of Dr. Nork nearly two years before the Gonzales trial. The reason for the delay, he explains, is one that plagues most professional licensure and disciplinary boards: the difficulty in getting enough information to put together an air-tight case.

"Local district attorneys won't provide information until civil cases are completed," he says, and physicians and hospitals fear legal retaliation if they talk. "Once an accusation has been made, even if it takes a year and a half to bring the physician to trial, there is no legal method to prevent him from practicing."

Whatever the reason, the peer review system of the 1960s clearly failed to uncover Dr. Nork. That it took expensive litigation to protect the public has legislators like Assemblyman Waxman questioning whether the profession should be allowed to police its own ranks. "The review to which doctors submit in 1974 has become progressively more critical and intense than it was eight years ago when Dr. Nork was first accused of malpractice," contends Dr. Demorest. Still, even Dr. Demorest admits to the fear that litigation will destroy present-day peer review efforts. "Those who attempt to objectively judge the abilities of their medical colleagues have been threatened and intimidated by attorneys hired by certain physicians who have been denied privileges or who have restrictions recommended on their practices," he wrote in Sacramento Medicine.

How real is the threat? Dr. Robert C. Derbyshire, a Santa Fe general surgeon and secretary-treasurer of the New Mexico Board of Medical Examiners, whose years of work on licensure led him to become a leading critic of the profession's self-policing record, thinks it's a myth. The fear is there, he concedes, and sometimes even borders on paranoia. "But if hospitals or societies follow the rules, regulations, and bylaws to the letter, there is no danger of losing a lawsuit. Sure, anyone with $10 can sue, but he won't win."

To Dr. Derbyshire, a former president of the Federation of State Medical Boards and now a member of the National Medical Board, it's no surprise that Dr. Nork fell between the cracks. As he sees it, there are three bodies that can weed out the bad apples in medicine-hospitals, the medical societies, and the state licensure boards. And, in his view, all three have done a less than perfect job.

Hospitals can usually detect the Dr. Norks, he admits, but their response varies. "What often happens," says Dr. Derbyshire, "is that the hospital will make a deal with the doctor. 'If you resign from the staff,' they say, 'we'll take no action.' So the doctor moves, a letter comes from his new hospital, and the one that got rid of him responds by saying that he left voluntarily, there's nothing in his record to indicate trouble."

Sometimes, adds Dr. Derbyshire, the procedure even includes letters of recommendation from the hospital staff to help get the errant doctor out of their hair. Indeed, the Martinez VA Hospital received glowing letters of recommendation for Dr. Nork from many of his Sacramento colleagues, including an official of the county society, after his first malpractice problems had been made public.

The medical societies, charges Dr. Derbyshire, have done next to nothing to police their ranks. He admits that they have no legal power other than to deny membership but insists they have an obligation to investigate complaints and turn violations over to the state boards. That many do not, he adds is yet another measure of the old lawsuit paranoia.

Dr. Derbyshire points to the case of Dr. Max Jacobson, a 73-year-old New York general practitioner accused in a 1972 New York Times expose of injecting amphetamines into the veins of dozens of famous patients, possibly including John F. Kennedy. Although his unorthodox treatments were known to the New York County Medical Society, says Dr. Derbyshire, the society neither took action against the physician nor informed the state department of education, which licenses doctors in New York. The society contends it never received a patient complaint about Dr. Jacobson, although there remains some dispute about that claim. Members who knew, charged the Times, did not inform the state because "unorthodox" medical practice is not cause to lodge a formal complaint against a colleague.

There is some potential, Dr. Derbyshire believes, for local and state societies' medical care foundations and peer review systems to police the incompetent or negligent physician. But they are now more concerned with cost and utilization control than quality control, he notes.

In the final analysis, it is the licensing bodies that have the ultimate power to control problem doctors and protect the public. How they stack up in terms of numbers of disciplinary actions taken was the subject of a still partly confidential study completed last year by Dr. Derbyshire ("they range from very good to abysmal") and the state-by-state survey conducted by MWN last month. It is impossible, of course, to rate the performance of state boards without knowing the true incidence of problem doctors. Nearly one out of 20 doctors in California is the subject of a complaint to the state board, although only a few of the 1,500 to 2,000 physicians who come under investigation each year are actually disciplined by the board of medical examiners.

The numbers game is complicated even further by the absence of a uniform definition of what constitutes a bad apple, even in the states' medical practice acts. Some states routinely discipline physicians for advertising violations but cannot touch the incompetent physicians. Violations in a few states call for automatic license revocation, while in others, disciplinary action remains at the discretion of the board. Furthermore most states cannot deal at all with the borderline doctor who has not actually violated the law.

The gross offenders, of course, are usually covered by even the most inadequate state statues. Narcotics lawbreakers are unlikely to escape discipline forever, since federal and state dangerous drug regulations provide nearly foolproof mechanisms for obtaining evidence for conviction. A check of all 50 states and the District of Columbia, in fact, reveals that drug-related offenses--either violations in prescribing or the physician's own drug dependence--account for 48% of all disciplinary actions.

Action on other offenses depends largely on state law and the zeal of the licensing board. In 1973, these included gross malpractice, moral turpitude, unprofessional conduct, fraud, income tax evasion, and--in a few states--fee splitting and overcharging.

In addition, numbers of actions taken in each state can't be compared, even allowing for physician-population ratios, without considering regional differences. Drug violations may be rarely seen in Montana but occur frequently in New York, Arizona, California, and Florida may have more than their share of retired doctors from other states who do a little surgery or general practice on the side--never mind that their specialty back home was ophthalmology.

There are, however, some glaring facts and figures that seem to separate the aggressive states form the weak:

  • In 1972, California revoked the licenses of 33 doctors, suspended 12, and placed 58 on probation-more than all other states combined.
  • In Dr. Derbyshire's study, California, with 33,000 practicing physicians, reported 195 actions for one year. The next seven states in physician population (New York, Pennsylvania, Illinois, Ohio, Texas, Massachusetts, and Michigan), with a combined total of more that 100,000 practicing doctors, reported only 140 disciplinary actions.
  • One state, Hawaii, hasn't revoked a license in 12 years.
  • Only 15 state statues include professional incompetence as grounds for disciplinary action, and even those states report difficulties in making the charge stick.
  • In the year 1970, 31 states reported no disciplinary actions whatever. Included were New York, Pennsylvania, Illinois, Massachusetts, Michigan, and New Jersey.
  • Even the often-criticized American Bar Association appears to be slightly ahead of medicine. Between 1968 and 1972, the ABA reported a total of 1,504 disciplinary actions (443 disbarments) among 358,500 lawyers. For that same period, figures from the Federation of State Medical Boards show a total of 1,033 disciplinary actions (382 licenses revoked) among 356,534 physicians.

Some of the obstacles to good performance have already been mentioned, but there are other handicaps as well. One that is frequently cited is the boards' political nature. In most states, board members are political appointees of the governor, and several confided that they had been asked to "go easy" on offenders with high political backers. Some states have avoided that pitfall by separating disciplinary boards from the licensure boards.

Since 1885, Delaware has assigned the disciplinary function to a unique medical council consisting of the president judge of the state superior court, the president of the medical examining board, and one physician selected by the two. In 1995, Washington established a separate medical disciplinary board whose members are elected by physicians in the state's congressional districts. Tennessee and Maryland also have adopted separate licensure and disciplinary boards. Yet a check of the record reveals that these states appear no more aggressive in professional discipline than other states.

A related factor is the make-up of disciplinary bodies. Some states restrict membership to MDs, or MDs and DOs, while others count chiropractors and podiatrists among their members. The composition of the boards may or may not be related to their responsibilities: The California board, for example, is composed on ten physicians and one lay member, yet it is responsible for regulating everyone from doctors to hearing aid dispensers.

There are money problems, too. The activities of most boards are financed by license fees, but state budget controllers sometimes limit spending the available funds. Almost every state responding to MWN's survey cited budgetary and staffing problems, but probably nowhere is the situation as bad as in New York, where disciplinary problems for all professions are handled by the Department of Education's Office of Professional Conduct. "Four years ago," says acting director Tom Milana, "we had 23 investigators for the New York City area alone. Now we're down to four, and I don't know who to assign what." The hiring freeze may account, in part, for the long delay in acting on Dr. Jacobson's license. The board began its investigation of Dr. Jacobson in 1972, but after 15 hearings in the past six months, the case is still not settled.

Finally, the courts remain major stumbling blocks. The majority of board actions are upheld on appeal, but a few are overturned. One recent Wisconsin decision may, in fact, have far-reaching effects on many other states. On November 19, a federal court panel overturned the Wisconsin board's suspension of a physician's license on the grounds that the board could not act as prosecutor, judge, and jury. The decision has effectively frozen all disciplinary actions in that state pending emergency legislation to place the investigative responsibilities with some other body, but meanwhile other states with similar board responsibilities are keeping a watchful eye for the outcome of an appeal to the U.S. Supreme Court.

A more common court-imposed problem, says Dr. Derbyshire, is the ex parte order. "The board will revoke a license, the physician will appeal to a district court, and a stay order against the board will be issued pending a final decision," he explains. "Meanwhile, the physician is free to go on doing harm. I know of one man who managed to maim two patients, kill two more, and generate three more malpractice suits after a stay order allowed him to continue practicing another 16 months."

Nevertheless, lines of medical discipline have been toughening in Arizona, California, Florida, Oregon, and Dr. Derbyshire's own New Mexico, and there are indications that other states may follow their lead.

Most of the current attention focuses on attempts to deal with the problem doctor before he harms his patients-or himself. Florida, in 1969, became the first state to pass so-called sick doctor legislation. It authorizes the board to deny, suspend, or revoke a license, or take other disciplinary action, when a doctor is " unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical condition." The law also allows the board to compel physical or mental examination and to require care, counseling, or treatment by physicians designated by the board.

"Since the sick doctor amendment became law," relates Florida Board of Medical Examiners Executive Director George S. Palmer, "we have used it on 25 MDs, and in no case has the decision of the board been appealed or reversed by a court of competent jurisdiction. Of these 25 physicians, five are back in full practice, nine in restricted practice, and the rest are removed from practice."

Florida law also permits emergency suspension of a license pending a hearing, and the state is attempting to improve reporting through a unique cooperative program with the Florida Medical Association's Committee on the committee's 60 members (four from each congressional district) to act officially when called upon and make investigations.

Says Dr. Palmer: "We are attempting to make the members of our profession and especially of this committee realize the importance of recognizing a fellow physician who is getting into difficulty. By putting the finger on these physicians early, we can increase our likelihood of rehabilitating them and returning them to practice. Otherwise, one waits until a tragedy occurs."

Although he lauds the goals of sick doctor legislation, Dr. Derbyshire fears that it may lead to witch hunts and prefers Arizona's approach to reporting difficulties. Unlike most states responding to MWN's survey. Arizona reports that at least half of the complaints about doctors in that state come from the medical fraternity. The reason: Arizona law requires a physician or medical society to report possible violations to the board and gives the reporting party immunity from legal retaliation.

The other major move in prevention is still largely in the trial balloon stage, but a number of state legislatures have conducted hearings into the possibility of relicensure based on some kind of proof of continuing competency. New Mexico and Maryland are now requiring proof of continuing education for relicensure, and other states have followed Oregon's lead in demanding evidence of continuing education for membership in their state medical associations.

Three additional trends deserve mention: inclusion of lay members on state boards, the push in some states for voluntary surrender of licenses, and the influence of consumer activists.

The first began in California and has since spread to at least half a dozen states. Dr. Paul F. O'Rourke, the California state senate's health care services specialist, warns that if peer review at any level remains a closed community of doctors, it is bound to be corruptible: "These guys play golf together and refer patients to one another."

Although voluntary license surrender has been on the books for many years, it is only in recent years that states have begun to use it to maximum advantage. Says one state board executive: "We usually try it with doctors who are getting senile. We call them in and present the evidence, and rather than go out with all the bad publicity of a hearing, they almost always opt to retire quietly by giving up their licenses."

The consumer trend, in Dr. Dugan's view, is directly responsible for California's comparatively good showing in medical discipline--leaving aside the Nork case. "The consumer movement is perhaps stronger here than anywhere else," he says. "Our own board operates under the Department of Consumer Affairs--in fact, we're the department's biggest user."

Consumer demands have led some states to go so far as to issue press releases naming the offender and spelling out his violations. While publishing the names of physicians subject to disciplinary action may be old hat in England (where the British Medical Journal has been doing it for years), it was only last year that the American College of Surgeons, in a display of public responsibility, summarized disciplinary action taken against ACS members but without divulging the names of those involved. States that do publish names generally believe that the publicity has some deterrent effect.

Consumerism may also be responsible for the major changes seen in a few states in recent years. New Jersey, for example, reported no disciplinary actions against physicians between 1965 and 1971. Then, in 1972, the state hired a full-time executive, expanded its budget, and in the past two years has revoked ten licenses and convinced three other physicians to surrender theirs.

In spite of the flurry of activity, some major flaws in the system remain untouched. If state boards have trouble getting doctors and medical societies to report to them, it is no more a problem than the Federation of State Boards of Medical Examiners claims to have in getting state boards to report their actions. Only about two thirds report regularly to either the federation or the AMA. In contrast, the American Bar Association has required state bar licensing boards to exchange disciplinary information through the National Conference for many years.

Under the present system in medicine, however, it would be possible for a Dr. Nork, upon losing his license in one state to simply set up shop in another. (There generally are safeguards in the case of a physician applying for licensure in another state, but it's the doctor who's already licensed in many states who can slip through the net.)

Sums up Dr. Derbyshire:"There are many improvements already in effect. But there's room for lots more."

One of the recent lows in medicine's record of policing itself comes from the District of Columbia. There, two of the three revocations in the past five years involved medical imposters who had managed to practice for three years on the basis of phony Mexican documents. "You should see our files on these two," says David Krause of the D.C. Commission on Licensure. "It may be hard to believe, but they contain numerous letters of recommendation from respected members of the medical community here."




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