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May 4 2009

Protecting patients: We’re all in this together

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Image for Protecting patients: We’re all in this together Some think of the North Carolina Medical Board as an all-knowing organization with superhuman powers. For example, at a recent physician gathering, I was asked why the Board doesn't make health insurance companies pay doctors their full fees. If only the Board had such authority!

The truth is that the Medical Board has virtually no direct influence over the day-to-day workings of medical practice. Nor does the Board have direct influence over hospitals, insurance companies, medical liability insurers or most other health organizations.

The Board has direct authority over its licensees -- no one else. The Board has the power to issue or deny a license and to discipline its licensees. Period.

In discharging these duties, the Board, like any other regulatory agency, must make the best use of finite resources. We maintain a full-time staff of investigators and a complaint department, but we also rely on you, our licensees, as well as the public, pharmacists, nurses and other medical professionals to tell us when something is wrong. We have 10 investigators and four complaint representatives in a state with 100 counties. You do the math.

I want to discuss two cases to illustrate a point. These two examples both involve surgeons, but similar cases are found in all specialties.

Case No. 1: A respected surgeon leaves academia for private practice. A single report of substandard care by this surgeon arrives at the Medical Board. It is one of more than 250 patient complaints received that month. Over the next few months several more cases about the same surgeon come to light. The investigation of the surgeon is fast-tracked. But as complainants are interviewed and cases are sent out by the Board for expert medical review, the story breaks in a local newspaper, and that story is picked up by several media outlets across the region. A dozen malpractice claims are filed against the physician in the space of a few months. Meanwhile the Board's investigation continues, though neither the press nor the public is aware of it as investigations are confidential under North Carolina law. End result: the Board is roundly criticized for failing to protect the public.

Case No. 2: A surgeon develops a niche performing bariatric surgery (surgery for drastic weight reduction). The surgeon has poor outcomes, which eventually lead to the suspension of some of the surgeon's hospital privileges. Lawsuits number in the dozens. A number of patients get one surgery even though they gave informed consent for another. Again, the story is widely covered by regional media. Once again, the Medical Board is castigated for allowing the surgeon's conduct to go on for far too long.

These two cases led to intense self-examination by the Board, which turned a critical eye towards improving its internal practices. Your Board learned from the above experiences, among others. And it made significant changes to its policies that have helped reduce procedural delays that slow down the final resolution of any of the literally hundreds of open disciplinary cases the Board is managing at one time.

However, in the cases cited above and in too many other cases, hospitals, individual medical practitioners or other medical professionals were aware of problems that put the public at risk long before those problems came to the Board's attention.

Sometimes, information fails to get to the Board because of a breakdown in systems intended to report possible misconduct. For example, in both of the examples cited earlier, hospitals failed to report changes in staff privileges (CISP) to the Board as required by North Carolina law. The Board suspects underreporting of these actions by hospitals is a chronic problem, judging by the very small number of reports made each year. Last year, for example, the Board received just 14. Hospital CISP reports are an important source of information to the Board, which reviews each one thoroughly. Often, the Board's review determines there is no cause of action, but sometimes a CISP report identifies poor care or other issues that warrant investigation and, in some cases, discipline.

More often, the Board finds that physicians and other medical professionals know about substandard care or other issues but say nothing until problems snowball and patients are harmed or even killed. Worse, sometimes physicians and others may say nothing even when a situation is out of control. I know this because the Board sometimes hears through the grapevine -- often after the Board has taken public disciplinary action -- that local doctors had been fixing mistakes or steering their patients away from a problem practitioner for years.

Most medical professionals are not comfortable in the role of whistleblower. None of us wants to be the cause of a colleague losing his or her medical license. It may surprise some of you to know that the Board believes its licensees have an obligation to report incompetence or misconduct to the appropriate authority, whether that authority is the Medical Board or not (the full position statement appears at the end of this article). While the Board prefers to receive tips and complaints from sources who reveal their identities, it is also willing to accept written anonymous complaints.

It is important for physicians and other practitioners to understand that just a small fraction of the disciplinary actions taken by the Board in a given year result in the loss of license (see the "Year in Review" feature on pages 10-11). Depending on the circumstances of the case, it's often possible to avoid even a public disciplinary record.

The Board can and frequently does use a range of non-public methods intended to evaluate and, where appropriate, remediate physicians who exhibit troubling behavior. These methods include calling licensees in for a private sit-down with members of the Board (this is known as an informal interview) during which issues of concern are discussed. Frequently, based on information gathered during such interviews, the Board may mandate education or training, refer licensees for physicals or skills assessments, or order a physician to the NC Physicians Health Program or other useful resources.

The earlier the Board becomes involved, the greater the chance is that the matter may be resolved with a relatively minor corrective action. Overlooking a colleague's obvious incompetence or detrimental behavior serves neither the colleague nor our patients.

Two things we must always keep in mind. Physicians serve their patients first. Second, if we are to maintain the privilege of self-regulation in North Carolina, we must regulate effectively, fairly and objectively. The Board needs its licensees to step up to the plate as partners if we are to be successful.
Submitting an anonymous complaint or tip
The NC Medical Board prefers to know the identity of people who submit complaints. Sometimes, however, complainants are more comfortable providing information to the Board anonymously. Here's what you need to know:

Q: Can I be known to the Board but remain anonymous to the licensee I am complaining about?
A: Possibly. Complainants may request that Board investigators not reveal their name to the subject of the investigation and others. However, in certain cases, such as those that result in a hearing, the Board may be required under the law to provide the complainant's name to the subject of the complaint/investigation and his or her attorney.

Q: I can't take the chance that someone will find out I reported a colleague to the Board. How do I submit an anonymous complaint?
A: The Board's investigative department requires that all anonymous complaints be submitted in writing. At minimum, a written complaint should include the full name of the licensee, his/her location (where they practice/live) and the conduct the Board should investigate. It is also helpful to provide the names of people the Board should talk to as part of an investigation, as well as some indication of the type of information these individuals might provide. In quality-of-care cases, it is imperative to have the names of specific patients whose care was poor.

Q: Where do I send an anonymous complaint?
A: You may send a written complaint to the Board's mailing address, which is P.O. Box 20007, Raleigh, NC 27619-0007. Direct your complaint to Curtis L. Ellis or Donald R. Pittman in the Board's Investigations Department.

Q: Will I know the final outcome of my complaint if I submit it anonymously?
A: Not unless the Board takes public disciplinary action, in which case the outcome will be publicly reported. North Carolina law allows only named complainants to be informed of the resolution to their complaint (i.e. what action, if any, the Board took, and the basis for such action).
NCMB Position Statement
Professional obligation to report incompetence, impairment and unethical conduct

It is the position of the North Carolina Medical Board that physicians have a professional obligation to act when confronted with an impaired or incompetent colleague or one who has engaged in unethical conduct.

When appropriate, an offer of personal assistance to the colleague may be the most compassionate and effective intervention. When this would not be appropriate or sufficient to address the problem, physicians have a duty to report the matter to the institution best positioned to deal with the problem. For example, impaired physicians and physician assistants should be reported to the North Carolina Physicians Health Program. Incompetent physicians should be reported to the clinical authority empowered to take appropriate action. Physicians also may report to the North Carolina Medical Board, and when there is no other institution reasonably likely to be able to deal with the problem, this will be the only way of discharging the duty to report.

This duty is subordinate to the duty to maintain patient confidences. In other words, when the colleague is a patient or when matters concerning a colleague are brought to the physician's attention by a patient, the physician must give appropriate consideration to preserving the patient's confidences in deciding whether to report the colleague.

Adopted Nov. 1, 1998
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