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Feb 15, 2004
by Frank X. Mullen Jr., Staff
Special Report - DOCTOR DISCIPLINE - State medical watchdogs keeping public in the dark
6-month probe reveals Nevada among nation's worst in doctor discipline, even when board inflates statistics.Juan Garcia went in for spinal surgery in May 2001, confident in his surgeon's skill.
He had no way of knowing that Dr. Francis Gerald D'Ambrosio had been sued more than 40 times and had paid 22 malpractice settlements totaling $12.5 million - more individual payments than any other Nevada doctor.
Even if Garcia knew his doctor had worked in Nevada and checked his record with the Nevada State Board of Medical Examiners by phone or through its Web site, all he would have learned is that D'Ambrosio failed to renew his Nevada medical license after moving to California.
Garcia, a Los Angeles sheet metal worker, died June 5, 2001, five days after surgery in Los Angeles. His family has filed a malpractice lawsuit. D'Ambrosio, through his attorney, denies any liability. The surgeon has been unfairly targeted by greedy and unscrupulous patients and their lawyers, said Raymond Riley, D'Ambrosio's lawyer.
"They think all they have to do is make claims against Dr. D'Ambrosio and insurance companies will throw money at them," Riley said. He said he has filed a malicious prosecution complaint against the plaintiffs in one of the doctor's recent California malpractice cases and plans to file more counter lawsuits so that "this nonsense will be stopped."
Although the board of medical examiners had been investigating D'Ambrosio since 1999, it didn't make the doctor's malpractice settlements public until three years later, June 25, 2001 - 20 days after Garcia died.
In 2001, the doctor moved to California, where he's had a license since 1992. He turned in his Nevada license in June 2002, avoiding further investigation or discipline in Nevada. The Nevada board said his license surrender was the same as a license revocation - the most severe discipline a doctor can receive from the board - and insisted he'd face serious sanctions in California. But a California administrative judge cited Nevada law when he concluded that the surrender wasn't discipline and gave D'Ambrosio a clean slate in California.
Even today, D'Ambrosio's record on the Nevada board's Web site remains incomplete. It lists amounts for 11 malpractice payments totaling $9.1 million, but he actually has 24 settlements to date - 23 in Nevada - totaling $14.5 million.
And the D'Ambrosio case is not unusual. Public records intended to help patients make informed decisions about Nevada doctors are hard to find, not up to date and sometimes inaccurate. The Nevada medical board's Web site - the public's easiest path to doctors' records - gets passing grades for the amount of information it has but gets an "F" from a public-interest group for ease of use. QuestionableDoctors.com, part of the national consumer watchdog group Public Citizen, said Nevada is among the worst states in the country for allowing public access to doctor information.
"If we knew about his malpractice record, there's no way my dad would have had that operation," said Garcia's daughter, Virginia Gonzalez of Los Angeles.
The Garcia family's lawsuit alleges that Garcia's previous doctors had concluded his liver and blood problems made it likely that he would die from a back operation. The suit alleges D'Ambrosio went ahead with surgery without medical clearance from Garcia's other doctors.
Gonzalez said her father trusted his surgeon. She said he had no idea D'Ambrosio had been sued so many times or paid so many settlements.
"It's scary that a doctor's record is secret," she said. "It's scary that you can't know this stuff until it's too late."
State doctor data inaccurate
The medical board decided in 2002 to include medical malpractice settlements and judgments on its Web site. But the records still have gaps.
For example, the listing for Dr. James Cooper Thomas Jr., D'Ambrosio's former colleague in a Las Vegas orthopedic center, shows two Nevada lawsuit settlements totaling $3.6 million. But the board omits a $97,500 Nevada settlement.
That third settlement is listed on the National Practitioner Data Bank, a comprehensive computer listing of sanctions, lawsuit payments and disciplinary actions against doctors compiled by the federal Department of Health and Human Services. The encrypted list is kept secret from the public but is available to medical boards, hospitals and HMOs. The Reno Gazette-Journal, working with the public-use version of the data, decoded and analyzed it to find Thomas' other lawsuit settlements.
Although it has access to them, the Nevada board - contrary to the practices of some other state boards - doesn't list a doctor's disciplinary record or malpractice payments from other states. Consequently, it makes no mention of Thomas' eight settlements in California listed on the data bank and totaling an additional $1.5 million. Thomas' lawyer said one settlement on the federal list isn't accurate, but didn't provide details.
Thomas said he has done more than 15,000 procedures and major surgeries and has settled 11 cases on advice from his attorneys. He said more than three-quarters of those cases were nuisance and 90 percent involve other defendants, including hospitals, medical products companies, nurses and other health professionals.
The national databank should be public record, Thomas said, but to have the whole picture the other defendants in lawsuits should be listed along with the doctors. Without complete data, he said, the public is getting only half the story.
In Nevada, the medical board is providing only a part of the information available on malpractice settlements and doctor discipline actions, the newspaper's probe showed.
Even the board's general information to the public on doctor discipline is unreliable. The number and types of disciplinary actions, the dates of those actions, even the spellings of some doctors' names and dates of the panel's actions vary from one board report or document to another.
Since 1996, the state medical board has been overstating its number of annual license revocations - when a doctor is stripped of his or her license - by counting lesser disciplinary actions such as suspensions and license denials as revocations. And the board reports only the totals of its various disciplinary actions, including fines, letters of reprimand, probations and revocations. If consumers want to know the names of the doctors who were fined or otherwise disciplined, they have to search through the board's biannual newsletters.
"The public needs to have confidence in the numbers of disciplinary actions that the board reports and those numbers aren't being reported accurately," said Assemblywoman Barbara Buckley, D-Las Vegas. "When I brought (the inaccuracies) up to the board I was told that expecting those numbers to make sense was being picky. It's not. I don't understand why it's so hard to report its actions correctly."
When a reporter pointed out the discrepancies in the panel's public reports to top board officials, they said they couldn't explain the errors. Richard Legarza, the board's chief lawyer, said his staff had no time to reconcile reported numbers with the names of disciplined doctors, saying such information is "easily available to the public."
Problems with the Web site
Although the Nevada board's Web site, http://medboard. nv.gov, allows consumers to search for doctors by name and lists disciplinary actions against individual doctors, it does not provide an overall list and only accommodates name searches. To compile an overall list, you'd have to examine the board's newsletters, and any newsletter prior to 1997 is not on the Web site and would have to be ordered for 60 cents a page.
The Gazette-Journal has compiled a list of every doctor who has been reported disciplined since 1992. The list will be printed in a special report, "How well do you know your doctor?" to be published in Monday's newspaper. It will be available on Monday with links to each doctor's disciplinary record at the state Web site.
Other states provide many search options for consumers. Maine, Kansas, South Carolina, Rhode Island, Florida and other states provide alphabetical lists of disciplined doctors. Consumers in Idaho, Oregon, New Hampshire, Montana and Arizona, among others, can search for doctors by specialty, city, county or, in some states, by zip codes.
Arizona, Maryland, New Mexico, Idaho, California, Texas, Ohio and other states also provide in-depth information about doctors on their Web sites and in response to requests from consumers. Information about a doctor's education, employment history, hospital sanctions, data from other states where the doctor is licensed to practice and other information are easily available in those states.
Some provide direct links to electronic copies of legal documents related to any disciplinary actions. Some of those records are available in Nevada, but you have to request them, you have to pay 60 cents a page for them and you have to wait a month or longer to receive them, board employees said. You can't get them instantly on the Internet the way you can in other some other states.
The board also repeatedly refused to allow a reporter to inspect doctor's public records at its offices, a violation of the Nevada open-records law, which says such records must be made available to the public during business hours.
"Consumers have a right to know about a doctor's full record, including malpractice claims and settlements," said Carmen Balber, director of the California-based Foundation for Taxpayer and Consumer Rights.
"Medical boards often help perpetuate the code of silence of the medical profession. The boards should list everything and make sure their listings are accurate. They are there to protect the public, not the doctors."
National data kept secret
There are few other sources for consumers who want to know about doctors' records.
The national database of doctors' disciplinary records and lawsuits is encrypted so consumers can't use it. And the American Medical Association is pressuring federal lawmakers to keep it that way.
The AMA says state boards are the best place for consumers to check out physicians and in some states that's true. But the problems with Nevada's site noted by QuestionableDoctors.com remain despite $3 million in surplus funds. No other state regulatory board has such a large surplus, according to legislative audits of other Nevada panels.
"They had the money to spend to improve the Web site and they didn't do it," said Assemblyman R. Garn Mabey, R-Las Vegas, who is also a physician. "My problem with the site is all the information is negative, and there are inaccuracies on there, such has lawsuits that have been dropped showing up.
"It should be more of a consumer site, with the negative information balanced by medical school attended, awards, residency training and the consumer-oriented things other states have."
Legarza said state consumers should be happy because most Nevada regulatory boards don't even have interactive Web sites. In an August interview, he insisted the Web site didn't need improvements and a list of doctors who have been disciplined wasn't necessary. But at press time, new sections of the Web site were "under construction," and it appeared that new and additional information was going to be posted. Board officials did not return phone calls asking for details.
Board needs to talk to consumers
The Web site is just one of many complaints against the Nevada medical board.
Lawmakers last year said they want the board to obtain more citizen involvement, but board members said they aren't sure how to do that.
Other states could provide some examples. California, for instance, has an enforcement monitor to critique and review the board's response to public complaints and inquiries. In Idaho, lawmakers passed a patient bill of rights making available most information about doctors' public record - including hospital disciplinary actions, discipline in other states, awards, certifications and their financial interests in medical businesses.
In Arizona, board members held "stakeholders" meetings to determine what the public wanted from the board. Board representatives also attended public meetings, and the panel published its e-mail address and asked consumers for suggestions.
"We found out that the public wants quick access to accurate information about doctors," said Barry A. Cassidy, executive director of the Arizona Medical Board. "The public wants and needs the information and we, in turn, want the public to know what we are doing."
Auditors from a national medical board trade group suggested the Nevada board send a public information officer to town meetings and other functions. That officer would also deal with inquiries from the media and the public.
The medical board hasn't publicly discussed the auditors' suggestions. But Nevada lawmakers, who ordered the audit last year, are scheduled to consider the audit report Wednesday.
Board lacks accountability
Nevada citizens make about 1,000 complaints about doctors to the medical board each year, and about 450 result in investigations, board members said. The only details ever released concern the 10-20 cases that result in disciplinary action. The board's staff keeps no statistics on what the other 980 cases were about or how they were handled.
Doctors complain the board does not communicate well with them, and lawmakers said they've had continual problems in getting information from the panel's staff.
"It is time we lifted the veil of secrecy surrounding doctors and allowed the people who have the most to lose from questionable doctors to get the information they need to protect themselves and their families," said Dr. Sidney Wolfe, director of Public Citizen's Health Research Group, which runs QuestionableDoctors.com.
"All too often, state medical boards are more concerned about protecting the reputations of doctors than doing their job, which is to protect unsuspecting patients from doctors who may be incompetent or negligent."
AMA president Dr. Donald Palmisano said the group favors more patient access to doctor information, but the national doctor data bank compiled by Health and Human Services is riddled with errors.
"You've got one incident and three insurance carriers who each report the same thing, and it gets on the doctor's record as three settlements when it was one," Palmisano said.
An HHS spokeswoman said the department has been double-checking entries and catching mistakes.
But a Reno Gazette-Journal analysis of the Nevada part of the database revealed some settlements are listed twice and other errors, such as a doctor's medical school graduation listed in different decades. Doctors who move from one state to another often find lawsuit settlements from their previous home attributed to the state they've moved to.
Those who want the data made public said the errors would be corrected when more people are allowed to see it.
"The reason the mistakes are perpetuated is that so few people have access to the information," Wolfe said.
But Palmisano warned that even accurate information can be misinterpreted.
"I know of cases where large malpractice payments were made and the doctor did not breach the standard of care," he said. "Publishing the settlements is not a good indication of competency."
He said it's up to each state's board of medical examiners to review malpractice data and weed out bad doctors.
"State boards have to carry out their responsibilities," Palmisano said. "The AMA is not in favor of protecting bad doctors. ...We need reliable, consistent, fair medical boards to do the work and respond to complaints. If you've got a bad doctor, then remove that practitioner."
Panel operates in secret
Most of the Nevada board's work is done behind closed doors, and lawmakers,doctors and members of the public say that prevents an open discussion or review of the board's actions.
The board also collects malpractice payment data from insurance companies, the Nevada Division of Insurance, the national data bank and doctors themselves. But when the data the board receives is compared to the data it reports, the two frequently don't match up. Also, the board rarely acts against a doctor based on a record of multiple malpractice payments. The public isn't informed of anything but final judgments against doctors, and the complaining parties aren't contacted to testify.
In November 2000, for example, Dr. Myron and Brenda Caplan of Las Vegas complained to the board about a surgeon they said ignored a serious infection that set in after the doctor nicked Brenda Caplan's bowel during an operation. She went into a coma and nearly died, she said.
A state malpractice screening panel said there was "a reasonable probability of malpractice" in the case and a lawsuit is pending. The board of examiners sent the Caplans a letter acknowledging their complaint, but for two years afterward, the board released no information, Myron Caplan said.
"I called the board, and they told us nothing, they did nothing," said Caplan, a pediatric dentist. "They never called me, I had to call them and I kept pushing them."
A year and 10 months after the Caplans filed the complaint - without interviewing the Caplans or updating them on the progress of the case - the board ruled the doctor hadn't committed malpractice.
The board brought in a specialist to conduct a peer review of the case in November 2001 and January 2002, according to a recent audit of the board. The panel held a hearing on the case in July 2002 without notifying the Caplans or taking testimony from three of the four witnesses, including other doctors, who were scheduled to appear.
"Nobody ever talked to my wife and I, never asked us what we saw, what happened, nothing," Caplan said. "I never got an explanation of anything the board did or didn't do. I have zero respect for the board, but great respect for the good doctors who pulled Brenda through.
"As far as I can tell, the board is a farce."
The Nevada board routinely leaves alleged victims out of its malpractice investigations, according to a September 2002 board meeting transcript.
"It's a little one-sided, whereas we frequently interview the (accused) doctors, we never interview the complainant," said Donald Baepler, a "public" board member who isn't a medical doctor. "So we're always getting the one side. I don't know if (we've) ever brought a complainant in to have them fully explain the case. We kind of neglect these people."
The auditors wrote that the Caplan case "demonstrates the need for more written communications with the source" of complaints.
Other states 'user-friendly'
Other states allow complainants to participate in investigations.
Arizona investigators interview the complaining parties at the outset of a probe, said Lisa McGrane, public information specialist for the Arizona Medical Board.
"Complainants are involved throughout the process," she said. "(Investigators) gather more information and ask questions about the specific incidents alluded to in the complaint.
Then, after completing the investigation, the investigator again contacts the complainant and asks if there is any additional information not provided when the complaint was initially filed or if there is new information that developed since filing the complaint."
McGrane said the board notifies complainants of hearings and provides them an opportunity to speak. Later, complainants are notified of the panel's decision.
As of December, Arizona complainants can file a complaint online and electronically track an investigation's progress.
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