Friend of the blog Brad Flansbaum sent me this. I read it twice, because it didn’t seem real. “Anatomy of a Tragedy” appeared in the Observer last week. It’s the story of what appears to have been one of the worst neurosurgeons of all time, who killed and maimed an insanely large number of patients in a rather short period of time. It’s also the story of how a system that doesn’t properly regulate its physicians can have no mechanism to protect them. Saul Elbein lays the blame on malpractice reform:
Up until 2003, medical care in Texas was regulated by a system of checks. Hospital management, the court system and the Texas Medical Board formed a web of regulation that penalized and prevented bad care.
But in the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care. In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left.
The Legislature has also made suing hospitals difficult. Texas law states that hospitals are liable for damages caused by doctors in their facilities only if the plaintiff can prove that the hospital acted with “malice”—that is, the hospital knew of extreme risk and ignored it—in credentialing a doctor. But the Legislature hindered plaintiffs’ cases even more by allowing hospitals to, in most cases, keep credentialing information confidential. In effect, plaintiffs have to prove a very tough case without access to the necessary hospital records. This is an almost impossible standard to meet, and it has left hospitals immune to the actions of whatever doctors they bring on. Hospitals can get all of the benefit of an expensive surgeon practicing in their facility and little of the exposure. This has freed hospitals from the fear of litigation, but it’s also removed the financial motivation for policing their own physicians.
The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.
But the Medical Board wasn’t designed to be an aggressive enforcer. It was mostly designed to monitor doctors’ licenses and make sure the state’s medical practitioners are keeping up with professional standards. The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. The protections make some sense. The Legislature doesn’t want the Medical Board taking a doctor’s license—and livelihood—unnecessarily or based on flimsy or frivolous claims. But the result is that unless a doctor is caught dealing drugs or sexually assaulting patients—or is convicted of a felony—it is difficult to get his or her license revoked.
Go read the whole thing. Prepare yourself, though, cause it’s horrific.
We spend so much time discussing the malpractice system, and how it needs to be reformed to protect physicians and lower costs, that sometimes we forget why it’s there. Some doctors are bad, full stop. We need a mechanism to protect patients, too.
