Dangerous Doctors Still Allowed to Practice

Dr. Greggory Philllips, a family practitioner, appeared before the Texas Medical Board in 2011 on charges that he had killed Jennifer Chaney due to painkillers that he had mistakenly prescribed.

Prior to the incident, Phillips had already faced various sanctions for his mismanagement of medications, as well as for his own cases of drug abuse. In the past decade, board members had restricted his prescription powers, placed his medical license on probation, and fined him thousands of dollars. The board members, however, allowed him to keep practicing medicine.

A woman in the practitioner’s care had died in 2008 due to a fatal mix of psychiatric and pain medications he had prescribed. Just eleven months later, Chaney had died.

It apparently took four years of investigations and negotiations before the board barred Phillips from seeing his patients.

According to Mari Robinson, Texas medical board executive director, the Phillips case took longer than usual, although they followed the laws they needed to abide by.

An investigation conducted by USA Today shows that even after years of facing criticism, the country’s state medical boards still continue to allow thousands of medical professionals to keep practicing medicine, despite numerous records on serious misconduct, which put the patient at risk. While these medical professionals have had their clinical privileges taken away or restricted by health care institutions such as hospitals and HMOs, state medical boards have made no move to revoke their licenses to practice.

The problem, thankfully, isn’t a universal one. Some state boards respond to such complaints and have become more aggressive and transparent in terms of policing these dangerous doctors.

USA Today scrutinized records from various serious, including the public file of the National Practitioner Data Bank, which is a federal repository primarily set up to help medical boards track malpractice payments, license records, and disciplinary actions imposed by all the institutions that manage doctors. The law states that all reports must be filed with the Data Bank when any of the country’s licensed doctors face adverse actions. Medical boards must closely monitor the reports.

According to research, doctors who are banned or disciplined by hospitals often keep clean licenses. Roughly 6,000 doctors had their clinical privileges taken away or restricted for misconduct involving patient care from 2001 to 2011. More than 3,000 of these doctors, however, were never penalized with a fine, or license restriction, revocation or suspension by a state medical board.

Studies also showed that even the most severe cases of misconduct go unpunished. Almost 250 doctors sanctioned by health care institutions were cited to be an immediate threat to safety and health, yet none of their licenses were taken away or restricted. Similarly, approximately 900 doctors were cited for negligence, substandard care, malpractice or negligence, yet they continued to practice without licensure action.

Of the estimated 100,000 doctors who made payments to resolve malpractice claims between 2001 and 2011, nearly 800 were responsible for 10% of all the claims paid, with their total payouts averaging $5.2 million per doctor. However, fewer than one in five doctors faced any form of licensure action by state medical boards.

These numbers raised red flags for numerous experts in physician oversight, particularly David Swankin, head of the Citizen Advocacy Center, which works to make state medical boards operate more effectively. Medical boards rely on mandatory reports, Swankin states, and are then supposed to act on them.

Not all doctors who pay multiple malpractice claims or who lose clinical privileges necessarily have to lose their licenses. In some cases, insurers or doctors may settle among themselves without admitting fault in order to avoid a costly litigation.

Concerns on the accountability of medical boards date back to 1986, the year that the U.S. Department of Health and Human Services Inspector General reported that the boards imposed very few disciplinary actions for physician misconduct. Many follow-up studies suggested improvements to be made, but these reviews ended in the early 1990s after the Justice Department declared that the Inspector General no longer had jurisdiction over state boards not regulated or funded by the federal government.

These concerns on the state medical boards resurfaced once more in 2011, when the Public Citizen, a consumer watchdog group, viewed the same National Practitioner Data Bank records investigated by the USA Today. The group reached the same conclusion: That medical boards were not properly acting on reports after being made aware of them. Unfortunately, little has changed since this study was published.

Jennifer Chaney’s Death

The Texas Medical Board had already lifted Greggory Phillips’ license restrictions from his previous mismanagement of prescription drugs by the time that he was treating Jennifer Chaney in 2008.

Unfortunately, trouble was still brewing. Board records show that Phillips was caught signing prescription pads ahead of time, therefore allowing a nurse to give patients dangerous drugs without proper examination when Phillips was off. A mother of two died after taking an overdose of drugs prescribed by Phillips.

None of these incidents were public when Chaney’s family began to see Phillips. Records show that the physician treated Chaney for poor thyroid function, as well as for residual pain stemming from neck surgeries sustained in a car accident. He prescribed her a mix of muscle relaxants, painkillers, anti-anxiety drugs, and thyroid medicine.

Shortly before Christmas, Chaney reinjured her neck after a fall in a parking lot. Phillips prescribed her a high dose of oxycodone, which is a narcotic more potent than morphine. He also added another prescription of hydrocodone, a painkiller that was already included in her ongoing drug regimen.

One week later, Chaney complained about feeling loopy from her medications. She stayed to watch TV on the couch while her mother, husband, and three sons went to bed. The next morning, Chaney’s mother still found her on the couch. She couldn’t wake her daughter up.

They immediately tried CPR and called 911. Unfortunately, the paramedics could not find a pulse. Autopsy findings showed that the manner of death was an accident, and that the cause of death was mixed drug intoxication.

Phillips’ problems continued to mount as weeks passed.

The medical board that fined him $1,000 for the case involving the pre-signed prescription pad then sent notice to him that they were preparing to charge him for substandard care and prescription drug violations for the death of Horn one year earlier. Both the Horn and Chaney families filed medical malpractice claims, and the physician’s clinical privileges at North Hills Hospital were terminated.

His license, however, remained unrestricted. He kept seeing patients, and continued to mismanage their medication.

Limited Resources and Difficult Investigations

For state medical boards, nothing is quite as difficult as cases involving malpractice and competency.

According to Jon Thomas, a surgeon and former president of the Minnesota Board of Medical Malpractice, laws, due process and confidentiality make it difficult for state medical boards to do what they need to do.

The cases, however, require extensive investigation and legal preparation, which is a challenge for state boards that deal with tight budgets, as well as limited staff and resources. Due to varying circumstances, boards use dramatically different approaches to keep an eye on their physicians.

While the state of Florida spends over $200,000 annually to have the National Practitioner Data Bank monitor the licenses of their physicians continuously, the state of Texas requires doctors to submit their own Data Bank report upon initial application for a license. They are not required to undergo checks for license renewals.

A Legal Battle

Almost 14 months after the death of Debra Horn, Phillips was invited to a settlement conference by the medical board. Although he accepted the board’s invitation, he did not accept their deal. He was not giving up his medical license without a fight. The board’s only option, therefore, was to take the case to a judge.

Just like many states, medical board complaints in Texas are adjudicated in administrative hearings, with their own judges and all that comes with a full-blown trial. The board had spent five months lining up expert testimonies and gathering evidence before finally filing formal charges for non-therapeutic prescribing, negligence, poor medical decision-making, and failure to meet standards of care.

Right before the hearing, however, Phillips opted for mediation, which stalled the case once more.

At roughly the same time, Bette King, Chaney’s 72-year-old mother, filed a handwritten complaint for the death of her daughter. Practically a year had passed since Chaney’s death by the time King filed her complaint. Another investigation was then launched.

What King wanted was for the board to exercise its power to implement an emergency suspension of Phillips’ license, but the board’s staff decided that his misconduct did not meet the legal test for an emergency order as the burden of proof was just too high.

Phillips’ case dragged on, as another year passed before the mediation occurred. Throughout the entire process, Phillips’ status on the board’s website showed a license in full force, with no signs of malpractice or terminated clinical privileges.

System Flaws

Health care institutions such as hospitals and public health centers must, by law, report to the National Practitioner Data Bank each time doctors lose clinical privileges related to investigations of misconduct or substandard care. Similarly, insurers also must report payments made in a malpractice case, whether or not there was an admission of guilt. State laws in Texas and many other jurisdictions require the doctors themselves to directly report to medical boards.

These reports are extremely important, as health care organizations and hospitals are generally the first to know when a doctor is in danger of putting patients at risk. However, they are notorious for avoiding requirements on reporting after parting ways with a physician.

Data from the U.S. Health Resources and Services Administration showed that at the beginning of 2011, over 20 years after the National Practitioner Data Bank was established, 47% of hospitals had not reported revoking or restricting a doctor’s clinical privileges. Public Citizen reported that in 2009, some hospitals masked cases by giving dangerous doctors the option of resigning before launching an investigation, or by restricting clinical privileges for less than the 30-day limit that requires reporting.

Public Citizen also found that the peer review committees of hospitals, internal panels of staff that review and oversee complaints against their personnel, generally do a poor job. Matters of grave consequence remain blocked or stuck in the peer review process, as the system is full of bias.

North Hospital claims that Phillips’ doctor’s clinical privileges ended in May of 2009, shortly after the physician was fined for pre-signing his prescription pad. The hospital gave no comments on why they parted ways, or whether the matter had anything to do with misconduct that require reporting to the state medical board. According to the board, there was no public information available to imply that a report was even made.

At present, the board’s website shows Phillips’ official profile with clinical privileges to North Hills. All his malpractice cases remain to be unmentioned.

Final Outcomes

The Texas Medical Board ordered sanctions in the Chaney and Horn cases in April 2011 after a negotiated agreement with Phillips. These sanctions were ordered two years after Chaney’s death, and three years after Horn’s.

Phillips settled to pay for a two-year independent monitoring of his practice, inclusive of reviews of at least 30 patient records every quarter. He also agreed to a penalty of $3,000, and to take classes that would correct deficient practices. He was, however, still allowed to take patients and write them prescriptions.

In 2012, the board discovered that Phillips had continued to mishandle prescriptions as the Chaney and Horn investigations unfolded. He lacked documentation to justify drugs he was prescribing for one patient, and in another cases, provided early refills with no justifiable explanation.

The board decided to strike a tougher deal this time, and ordered Phillips to give up his certification to prescribe controlled substances.

Board records show that he had stopped practicing within a year’s time. Last February, the board issued a final order that bars Phillips from treating patients forever.

The sanctions were once more negotiated, stopping short of revoking the physician’s license. It allowed him to work in the field of administrative medicine, which has no patient contact.

DOT Sued Over Rear Visibility Rule Delay of Over Two Years

Even when using all three mirrors, drivers are unable to see a blind spot directly behind their vehicles. These blind areas immediately behind vehicles possibly hide the presence of pedestrians, particularly young children and the elderly.

More than 200 people across the United States are killed in backover crashes each year, with approximately 18,000 more sustaining injuries. Unfortunately, 44 percent of the fatal victims in these backover incidents are children. On average, 50 children sustain injuries in backover crashes every single week, two of them suffering fatal injuries.

Safety advocates, along with two parents who unintentionally hit their children when backing up their vehicles, are suing the U.S. Department of Transportation (DOT), asking the court to order the agency to immediately issue a safety rule that sets federal standards on the rear visibility of vehicles.

In 2008, Congress directed DOT to issue a rule known as the Cameron Gulbransen Kids Transportation Safety Act, which requires greater improved rear visibility in all new consumer vehicles, whether through back cameras or other tools.

Passing the House via a voice vote, unanimously passing through the Senate, and being signed into law by President George W. Bush, the bill required that DOT enable the rule within a period of three years, but allowed them to extend this deadline if it cannot be met.

The agency initially made progress, and issued a proposed rule in December 2010. It then sent a final draft of the ruling for review to the White House’s Office of Management and Budget (OMB) a year later, and remained there for the next 19 months. In June 2013, after three extensions of the statutory deadline, DOT withdrew the rule from OMB and pushed the deadline to January 2015. The agency stated that it needed more time for study, even if they had already conducted extensive research in the past.

In 2010, the National Highway Traffic Safety Administration (NHTSA) proposed mandating rearview cameras for all vehicles starting 2014. While automakers have generally supported this requirement, others brought up concerns on technical aspects of the proposition, as well as the additional costs. Several automakers have begun to design models with camera systems in anticipation of the 2014 mandate, offering a standard or stand-alone option for several hundred dollars instead of including a camera in a navigation package.

Parties who filed the suit against DOT were Advocates for Highway and Auto Safety, Kids and Cars, Inc., Consumers Union of the United States, Dr. Greg Gulbransen, and Susan Auriemma. Auriemma, from Manhasset, New York, injured her 3-year-old-daughter in 2005 after backing over her in their own driveway. Gulbransen, from Syosset, New York, backed over his 2-year-old son in their driveway in 2002, killing him. The 2008 law is named after Gulbransen’s boy, Cameron.

The legal action asks the court to declare that the Department of Transportation has delayed the rule unreasonably, and to direct the agency to issue the rule within a 90-day period.

Estimates by the DOT show that their own delay past the deadline has allowed between 237 to 280 avoidable deaths, as well as thousands of injuries that could have been prevented. The same estimates show that another 118 to 140 individuals will die in preventable backover incidents before DOT regulates its rule, assuming that they do not extend the 2015 date once more.