Discipline by the State Boards of Health of their licensees varies
from state to state. Some are better than others.
There are various statutes in each state that cover how this process
is to be done and what constitutes an act that is subject to
disciplinary action.
And while it is understandable that budget issues may require some
issues be enforced more than others, those acts were created to be
enforced.
The Process at a Glance (page 13) provides a good guide how the
process works in many states.
The process begins when a complaint is filed against a provider
usually found in the statutes under "Unprofessional Conduct."
Example of a typical statute can be found
here.
Notice number (1) on the list is "moral turpitude, dishonesty, or
corruption.
Another favorite is number (16): Promotion for personal gain of
any unnecessary or inefficacious drug, device, treatment, procedure,
or service.
But the most likely investigations will be these (I have seen only
one case involving dishonesty and the provider was fined. He
was not, however, as provided for in the statutes, forced to
reimburse those fees to which he was not entitled):
(4) Incompetence, negligence, or malpractice which results in injury
to a patient or which creates an unreasonable risk that a patient
may be harmed. The use of a nontraditional treatment by itself shall
not constitute unprofessional conduct, provided that it does not
result in injury to a patient or create an unreasonable risk that a
patient may be harmed;
(24) Abuse of a client or patient or sexual contact with a client or
patient;
Back to the process. The complainant files the complaint.
The Board then notifies the provider a complaint has been filed.
The Board does a cursory investigation to determine whether or not
this is a complaint they want to pursue. The Board, made up of
like licensed professionals and one or two lay persons,
votes on whether or not to pursue. There is no recorded vote,
so it can never be determined who voted or what the count of the
vote was.
If the Board determines it would like to purse the investigation,
the provider has the following options:
a. defend the complaint
b. plead guilty to the complaint
c. take an "Alfred Plea"
(meaning he/she's not pleading guilty, but will accept whatever
punish-
ment the
board determines.
Of course, the most common options are (a) and (c), but option (c)
is the way to go.
The punishment meted out under option (c) is typically a $1500 fine
to cover investigative costs and the provider is instructed to take
a class, or pay someone to review his/her records, or make sure a
nurse is in the room at the time of a female exam.
No further investigation is done, case closed. Since there is
no additional investigation, the Board will never discover whether
or not the complaint was proper and worthy of harsher punishment.
But the real beauty of the Alfred Plea is there will NEVER, EVER be
an investigation by the State Attorney General. The case is
closed, there is no thorough investigation and, there is a "no
contest" plea and no referral is ever made to the A.G. (although
there may DOH attorneys or Board attorneys represented in the
process).
If the case was closed after summary investigation by the Board,
there is no record available for the public to review. Only a
call to the Board will confirm a complaint had been filed and no
action was taken. The information, is not available on-line
when the provider's name is queried.
These are the laws and the Boards are acting within the boundaries
of these laws (at least we hope they are).
But there are problems in the system. An excellent book on
this topic is "
Medical
Self-Regulation by Mark Davies. Of particular interest is
the following paragraph in his book:
"There was also concern that notwithstanding changes to the
complaints system, it remained complainant-driven. The onus
remained on the complainants to pursue their concerns beyond the
first stage if they remained dissatisfied, yet evidence to the
Shipman Inquiry suggested that many did not do this, even when their
allegations raised serious concerns about the doctor. The
events leading to complaints tend to be viewed as discrete
occurrences. The opportunity to spot early problem doctors or
systems failures was therefore lost. Another case which
illustrated the failings was that of GP, Dr. F. In July 2000,
Dr. F. was convicted of sexual assaults against patients. In
August 2001 the Commission for Health Improvement reported the
results of its investigation. The CHI found the NHS complaints
system operated in a culture which was insufficiently inquisitive,
did not listen to complainants and as a result did not detect
misconduct or criminal activity. Concerns about Dr. F. had
been raised 23 times over a 12 year period (1985-1997), both within
the NHS and externally to the police and GMC. No effective
action had been taken and no cross referencing undertaken or
patterns noticed."
From a patient perspective...FRIGHTENING!